Justice and the B'lore principles

THOUGHTS FROM LONDON BY NEVILLE DE SILVA

If the guards need to be guarded, judges should also be guarded from straying from their oath of office through a system that establishes transparency and integrity as integral pillars of that system

What is most surprising is that Sri Lanka does not have a code of conduct for its judges making it one of the few judiciaries in the world that do not have one. If the judiciary expects the respect of the people, then it must hold itself accountable and transparent -- not remain cloistered at a time when justice systems in other parts of the world are changing and becoming more open.

Just the other day Justice Minister Ali Sabry told parliament that there would be a major overhaul of the country’s justice system. Not capable or willing to undertake that Herculean task alone, the minister has gathered 200 experts and true to help him modernise the system that has been creaking for years. Some litigants waiting a decade or more for justice have capitulated and passed away hoping they would be better served in the next world than this.

Minister Sabry is planning to introduce technology expecting, one supposes, that pulling wires and installing other technological paraphernalia between and among the scattered courts would hasten justice to the people of the country who are and should be the ultimate beneficiaries of the justice system.

While the minister’s enthusiasm seems to shine like a beacon of hope for those who have suffered from the law’s delays and the lacuna in various laws that permit mistreatment and harassment of persons at the hands of the law, we read of the death of persons in custody. So an increasingly disgruntled public would more than hope that the ministerial dream of clearing the mess would come true.

This is not to say that other countries around the globe are free of such egregious conduct and violation of personal liberties that have led to death at the hands of law enforcers as we know have happened in the Western world that frequently preaches to others about justice.

But there are more things in heaven and earth than are dreamt of in Minister Sabry’s philosophy of modernising the judicial process. But then perhaps the minister cannot be held responsible if there are areas that are beyond his reach.

What had aroused growing interest in the activities of the judiciary was a set of principles called the Bangalore Principles of Judicial Integrity that had emerged after a group of senior judges from around the world had met to discuss the need for judicial integrity in a world where more information of corruption of one sort or another and partiality in the judicial process was coming to light.

Two prominent Sri Lankans played principal roles in what later came to be called the Bangalore Principles -- Judge Christie Weeramantry of the International Court of Justice in The Hague and Dr Nihal Jayawickrama a lawyer and legal academic. The Bangalore Principles (BP) were later accepted and adopted by the UN.

The world body urged member states to adopt those principles and urge the judiciaries of their countries to include them in their codes of conduct. If judiciaries did not have such codes of conduct they were urged to formulate them, built around the Bangalore Principles.

As the importance of these Principles gained international currency there was increasing interest in seeing that judicial integrity becomes an integral element of ethical Judicial conduct.

Many centuries ago, the Roman poet and satirist Juvenal wrote, “Quis Custodiet ipsos

Custodes”. Who would guard the guards, he asked quite relevantly.

If judicial independence and the integrity of those who dispense justice are cornerstones of a democratic society that functions according to the rule of law protecting the rights and freedoms of the people, then a mechanism against which to judge the ethical conduct of judges is vital.

If the guards need to be guarded, judges should also be guarded from straying from their oath of office through a system that establishes transparency and integrity as integral pillars of that system.

In fact, there should be an integrated system that monitors the entire judicial system from top to bottom and horizontally, too.

Some time ago, it was suggested that judges who wished to recuse could inform the Chief Justice and that should suffice.

But is that enough? In a society which the governments are proud to call democratic, the judiciary, like other arms of the State, must be accountable to the people. So any reasons for excusing oneself from hearing a case should be given in open court just as a motion by either party to exclude a judge from the bench is done in open court. Why should it be done in some secrecy if the judiciary is accountable to the people who pay from the public purse for its maintenance at some considerable expense to the public?

I remember some years ago, Justice J.S. Khehar of India was preparing to put in place guidelines for judges who often recuse themselves from hearing cases without mentioning any reasons. Justice Khehar’s guidelines were aimed at making it compulsory for judges who recuse themselves from cases to inform the registry in writing why they wish to withdraw so that the Chief Justice will be informed accordingly.

What is most surprising is that Sri Lanka does not have a code of conduct for its judges making it one of the few judiciaries in the world that do not have one. If the judiciary expects the respect of the people, then it must hold itself accountable and transparent -- not remain cloistered at a time when justice systems in other parts of the world are changing and becoming more open.

In a foreword to the UK Supreme Court’s Guide to Judicial Conduct 2019, Rt. Hon Lady Hale, President of the Court, wrote: “Every Court should have a Code of Judicial Conduct that sets out the standards of ethical conduct to be expected of the Court” and adduced the reasons for it.

(Neville de Silva is a veteran Sri Lankan journalist who was Assistant Editor of the Hong Kong Standard and

worked for Gemini News Service in London. Later he was Deputy Chief-of-Mission in Bangkok and Deputy High

Commissioner in London.)