By Somapala Gunadheera –

Somapala Gunadheera

I read with deep concern and dismay, the news item appearing in the Island of the 27th instant, titled “CID accused of tapping senior judge’s phones”. It dealt with a complaint made by a senior President’s Counsel to the BASL that some members of the Judiciary are being defamed by some sections of the media. Worse still, in one such incident, the Judge’s telephones including his official telephone and his registrar’s telephone in the office, had been tapped. The bugging was attributed to the Criminal Investigation Department, the purpose being to obtain information about an ongoing case before the Judge concerned. Although the news item identified the incident as the “worst kind of judicial interference”, what appeared to be implied was the reverse process.

I have myself come across several such reports in the unconventional media and regretted the remarks personally, as at times they pertained to my contemporaries in the Law College, when I attended it as an aged refugee from the administrative service. In fact the remarks would naturally disturb any member of the legal profession as his dignity depended on the inviolability and the prestige of the Judicial Service. The day the Judiciary comes into public ridicule, will signal the end of organized society, placing dispute resolution within the ambit of undue force and tyranny. That would be a sad day not only for Judges and lawyers but also for every law-abiding citizen. Hence it behoves the threatened to leave no stone unturned to safeguard the sanctity of the Judiciary.

But can that target be achieved by banning telephone tapping and suppressing the whistleblowers forcibly? Incidentally, we were safely under the impression that telephone tapping was a thing of the past, with the chivalrous and pious declaration of ‘Yahapalanaya” that they had abolished the practice and got rid of the unholy machinery used by their predecessors. Be that as it may, it is well for civil society to realize that no amount of compulsion or repression of the methods of an activist can put an end to his initiative short of rectifying his grievance, if it is found to be true and justified. It is the duty of the leadership to ascertain why these allegations are made. The old saying goes, “there is no smoke without fire’. If there is fire, the sooner it is discovered and extinguished, the better it is for the society at large.

The problem boils down to devising a way to safeguard the dignity of the judiciary without impairing the right of the public to complain when its right to justice is compromised by the errant conduct of a judicial officer, however rare that situation may be. Short of setting up such a devise, it will not be possible to contain the unconventional vilification of the Judiciary. As at present, there does not appear to be a safe and effective mechanism that could be confidently resorted to by a genuinely aggrieved person. Of course he can submit a petition about his grievance but in the absence of a systematized channel of relief, he is bound to get lost in the undefined wilderness of petitions.

I believe such a scheme should begin with the Judicial Service Commission appointing an Ombudsman to whom the aggrieved could go in and with confidence. But in view of the prime need to preserve the dignity and the confidentiality of the judicial system, that officer cannot function as a normal Ombudsman whose administration is open to the public. His work has to be extremely confidential as public inquiry by him into a petition against an individual judicial officer by him can unnecessarily undermine the dignity of the Judiciary by implication. The damage that such exposure could do to Justice is far more serious than the vindication of the grievance of the individual involved. The Judicial Ombudsman does not have to tap telephones as he can always use the judicial power to obtain the necessary information from the provider concerned.

There should be excess to the Ombudsman without let or hindrance. Those who appeal to him should be entitled to immunity except where the complaint is blatantly malicious or frivolous. Whenever the Ombudsman holds against an officer, he is reported to the JSC for action that may lead to his removal from the bench. Once such a system is established, there will be no real need for protesters to bring judicial officers to public ridicule through the media. If any pervert rubble-rouser attempts to rock the boat under such a dispensation, Government will be morally justified in silencing him effectively.