By Damith Wickramanayake –
The review of Colombo Telegraph’s article “Judging the Judges”, dated 15th August 2020 is to spotlight three Maxims oblivious to the public, to illustrate, they too like the Author Anaga are being inveigled by fraternity’s empathy on litigant misery, in reality, a guileful deception ornamenting Judiciary’s ceremonial events, forgotten immediately thereafter. These illustrated by precursors 1a) to 1f) below are further explicated at 2 and 3 subheadings for invoking revelations in columns of the like of “Contempt of Litigant’s”, dated 22nd Jan 2020 by K Balenrda for enlightening the public, including litigants, on the debacle of due Constitutional rights of People’s Judicial Power deprived. It’s to entreat unflinching unequivocal Public support for mobilizing the Three Maxims: M(1) Law is knowledge for all ; M(2) One cannot be his own judge M(3) The profound citation that Judiciary’s supremacy, is not by virtue of its infallibility but in reality by self- empowerment usurping from Jurisprudence that its final. The obliviousness of the Maxims has emboldened stealthy manoeuvring the inconsistency in Constitutions’ Clause 3 empowering clause 4c to “enjoy” the People’s Judicial Power as opposed to diligently serving its interest that too without Constitutional empowerment for scrutiny by the people the “enjoyment” is not abused, the propellant of Judiciary’s, exacerbating decay. The Judiciary’s eroding inefficacy long ignored by the Parliament reveals, imperativeness of engaging Multidisciplinary expertise, a vital requisite for advancement of any discipline is relevant to stall escalating disarray of Sri Lanka’s Judiciary. It’s evinced from practices of Judiciary’s of repute comprising a blend of Professional (PJ) and Lay (LJ) judges of Multidisciplinary expertise. Such mix supported with e-court services, could mould clause 4c to function in conformance with People’s Judicial Power and direct its advancement to an AI (Artificial Intelligence) driven system resilient to rent seeking influences currently eroding the nation’s socioeconomic wellbeing.
A vital few Precursors Breaching Peoples Judicial Power
These precursors breaching People’s Judicial Power manipulating the aforesaid Constitution’s inconsistency and the obliviousness of the Maxims, exacerbating the debacle of litigants’ misery and adversities to the nations’ socioeconomic wellbeing are elucidated below
a) The Maxim M (3) the profound citation of Justice Robert Jackson of the United States, on the heralded Judiciary’s divine Supremacy, says “We are not final because we are infallible, but we are infallible only because we are final” – a rare admission beyond legal fraternity’s hegemonic bounds, usurping People’s Judicial Power, for fraternity’s enrichment – that’s illustriously endorsed by b) to e) to below.
b) The Constitutional Assembly’s Judiciary Subcommittee Report (CAJSR) is a conspicuous instance exposing blatant deceptiveness of fraternity’s’ empathy aforesaid. The eight paged CAJSR report, minuscule in size compared with other subcommittee reports, comprising over 50 pages, nearly all striving to improve deliverables to the public. Whereas the CAJSR devotes nearly 7 of its 8 pages to fortify interests and well-being of judges, ignores the inordinate court delays, let alone the urgency to abolish the 70 day court Holidays, a perk of the colonial Era but done way in UK four decades ago. Such, conduct disregardful of People’s Judicial power affirms stealthy maneuvering legal inconsistency of Constitution’s Article 4 (c), with clause 3 harming nation’s socioeconomic well-being.
c) The National Law conference 2016, screened a poignant true experience of an aging litigant, then published on Facebook, an ironic display of fraternity’s empathy on the unlikelihood of dispensing justice within the litigant’s lifespan, a guileful inveiglements of VIP invitees like the then Minister JW also an attorney and keynote speakers but forgotten immediately thereafter. It’s irony is further endorsed by the publication “Hulftsdorp Shaken” reporting prompt transfer of a New Judge opposing the lawyers moving for dates.
d) An illustrious violation of M(2) is the column by the eminent PC late Hemantha W., on atonement of penance for sins he and the legal fraternity committed in defeating the most progressive legislation: the Administrative Justice Law or better known the Felix Dias’s Law. He avers the fraternity’s seminars symposiums have not allayed delays, except opportunity for sipping cocktails, relishing sumptuous refreshments and dining in five star hotels while thriving on empathy of litigants’ misery, presenting volumes of papers never ever followed up but always forgotten or thrown to dustbin thereafter. To assert the undisclosed stance fraternity’s manipulation of law delays, he poses a question to the reader and litigants “What position should the Bar take when the Government in power takes action in the interest of the public and in the interest of litigants, to lessen their burden but, this action is detrimental to our profession? affirming ,”sadly if the proposed legislation affects the legal profession and helps the litigants, the Bar would vehemently oppose it”
e) An illustrious abuse of M(3) is the court upholding un-heeding expertise warnings, the telecom tariff proposal Ref DG/Misc /07 flawed in rudimentary mathematics prepared by a team of three attorneys one of whom was the then DGT . Enforcement of the flawed tariff resulted a flurry of discontent by grieved subscribers, reporting in newspapers, discontent of bill hikes, as high as 25% contravening the court ordered equitable bill reduction. Far more abusive of M(3) is the jurisdiction dismissing without hearing the appeal on flawed tariff. That too without publicly declaring the jurisdiction’s reason for rejection, aiding the DGT to remain passive to the flurry of subscriber discontent. Nevertheless its adversity essentially from the mathematically flawed asymmetric off net call charge and the floor price strongly opposed by the then CEO Mobitel but overruled by the then Sec Treasury and DGT in collusion with the proponent of anti-competitive tariff the Operator with the Dominant Market share the only recipient of its net gains. Its yet depriving benefits of trend of declining call charges known globally as trend of zero tariff. Thus it’s far more atrocious than Galileo’s inquisition by the Catholic Church for advocating Copernican’s theory
f) The most recent of these precursors violating M(3) is the confession made by a CJ of the recent past, publicly begging pardon for unjustly acquitting a politico of prominence now holding high office. The other is the previous President revealing publicly the then CJ meeting him at 10:00pm the day after induction as President and urging him not to remove him from his post, pledging delivery of judgments to please his wishes. Despite President asking him to leave saying that there was no intention to remove him the CJ has returned next day again to beg the same. The President proclaiming to the Public, realizing how “these CJs” had been giving judgments to please previous regimes, using his executive powers, promptly removed him from his post.
g) A blatant violation of M (2) is the JSC’s inaction to remediate the adversities of the observation at 1a) of the precursors, flouting of Constitution’s aforesaid inconsistency by the Judiciary, courts inclusive It affirms the root undeterred thriving rent seeking hegemonic mono-disciplinary fraternity’s interests. The pragmatic means to surmount it, is to setup a Judiciary including the JSC with muti-disciplinary expertise in science and technology to deter rent seeking influences of the hegemony and also enable swift migration to interference, bias and prejudice resilient AI driven Judiciary
The Law, Judiciary, Constitution’s clause 4c & Anaga’s Target Judging the Judges
The Law a set of rules, Judiciary’s adjudicative system, i.e. the Courts, apply to resolve by jurisdiction disputes to serve the People’s judicial power as prescribed by Constitution’s clause 4c. The Law is a public good hence as important as the “Environment” whereas the Judiciary though expected to be a Public Good, is not. In reality its influenced by rent seeking interests, hence, functions much akin to a club good. Ideally the judiciary should be functioning with commensurable swiftness like a control unit and the Law to the rules, complied by the control unit of any automated system – by the Judiciary at best is like the control unit of a “driver-less hearse” on sustaining a collision free course, in reality unchecked and slower than snail’s speed. Hence the Law and the courts are of paramount importance for sustaining deviations of Nation’s socio-economic well-being trajectory within acceptable limits by scrutiny of Laws’ economic parameters: non-excludability; non-rivalry are not tampered with.
If these requisites are met the adjudication of a dispute of specific type, irrespective of the court and disputing litigants would result verdicts identical much like had it been delivered by a computerized system It’s in this context Anaga’s targeted “Conclusion of Judging-the-Judges is reviewed It shows the conclusion is misguided by the fraternity’s empathy, hence its outcome is imminent to be the reverse of Anaga’s target- resulting further aggravation of the Judiciary’s escalating disarray.
Mitigating Timeliness, Transparency & Reliability of Adjudication
The courts’ adjudication quality unlike that of an umpire is susceptible to wide rent seeking influences hence differs from umpiring contextually. A notable irreverence is the forced loyally of judges to its appointing authority coerced to abuse Maxim M(3) illustrated at 1a) irredeemably harmful to People’s Sovereignty.
It’s in this context Justice Robert, says the Judges and Justices are servants of the law, not the other way around. Judges are like umpires. “Umpires don’t make the rules; they apply them”. They make sure everybody plays by the rules. To clarify controversy it provoked he said what is important is not the features identical or similar to both the analogy and the Judiciary but the dissimilar superior features of the analogy that should be strived to be emulated by the Judiciary – such as timeliness, transparency, reliability of umpire’s ruling availing of IT.
Judiciary Reforms for Easing Litigant Agony & Public Discontent
Anaga’s conclusion, placing trust in the Judiciary and the bar to “think pragmatically” to come up with a solution “within THREE months” affirms the “Public Obliviousness” of the BASL’s deceptive empathy on Litigants, breach of Peoples’ Judicial Power. These endorse the imperativeness for Judiciary Reforms listed below.
Prompt abolishing of the 70 day court Holidays, a perk of the colonial era but done way in UK four decades ago. Its abolition would reduce the current delay from 12.5 years to 10 years of the backlog of cases around 800,000, of whom nearly 75,000 are forced to commute daily to court resulting a national loss to the economy around 50,000 man hours per day mostly to find the next calling date and pay fees for the legal fraternity‘s enrichment.
Surmounting Judiciary’s disdainful management inefficacy by engineering the system to re configure the Judiciary’s functional units appropriately optimizing (i) case filing (ii) Post filing & pre-trial, (iii) trial and, (iv) post trial deliverables, where appropriate execution of these by on line /telecommuting applications engaging para judicial officials for discharge of (i), (ii) and, (iv) in conformity with defined Quality of Service criteria: timeliness; quality; reliability availing of “LJB expertise mentioned below
Consistent with M(1) and M(2) establish lay judge benches (LJB) comprising a blend of professional (PJ) and lay (LJ) Judges of multi-disciplinary expertise imperative to arrest the gap between technology propelled advancing societal needs and exacerbating inadequacy of the fraternity’s intra-disciplinary specialist knowledge. Most pertinent merits of LJ to Sri Lanka are : the resiliency of LJ not being carrier judges to influences by appointing authority; and empowering people centric participation in the administration of justice, at courts, the focal point where all laws enacted for People’ wellbeing are applied, a need consistent with Late CJ Weeramantry’s assertion to layman “to allay the fast diminishing respect and prestige of the law and lawyer, resist confinement to state of passive spectator, engage actively in the legal process without fear of fraternity’s notion its trespassing their territory”. But such endeavors are deterred by threats of contempt of court – its consequence evinced by erupting disruptive protests of public discontent increasing in size.
*Dr. Damith Wickramanayake – Associate Professor, University of Technology Jamaica