Excerpts are from Lalith Athulathmudali Commemoration Freedom Speech delivered by Justic Weeramanthri, former Senior Vice President of the International Court of Justice.
Another aspect of this is that judges should not be offered, nor should judges accept, upon retirement, inducements and rewards as, for example, high office either in government or the private sector. If such a possibility does exist it can have an influence on decisions of the judge whilst still in office If judges live under the slightest necessity to please the executive in order to advance in judicial office, their independence is totally lost. Especially where there is a powerful executive we need to be specially vigilant to assure the judiciary that fear or favour of the political authority is a totally irrelevant consideration when it comes to the administration of justice. It is also my view that at the level of the supreme court promotions need to be based on seniority and it is incorrect for judges to be promoted some places in advance of their seniority
My topic is judicial integrity, a subject of seminal importance to any democratic society.
I shall also take this opportunity to deal with some associated questions, such as judicial ethics, continuing judicial education and the judge's obligation to be in full control of the court and all activities and personnel associated with it. Unfortunately, judicial ethics is a much neglected topic and international work on this subject has not been sufficiently disseminated among the Sri Lankan judiciary.
Among other matters requiring attention in this context are the associated duties of the state, for the state also has an important role to play in protecting and promoting judicial integrity. Just as it is the obligation of every judge to do all within the ambit of judicial power to ensure judicial integrity, so also is it the obligation of the State to protect and promote the conditions in which judicial integrity can flourish. This is because judicial integrity is not possible without judicial independence and judicial independence is not possible if the state, in one way or another, uses its vast executive powers to influence or control the judiciary. This takes us also into the realm of constitutional law and the separation of powers.
Judicial Integrity is a concept reaching back to the very beginnings of civilisation
Separation of powers is a concept developed in the past few centuries, but judicial independence and judicial integrity go right back to the very origins of civilization. These concepts were known and recognised for thousands of years by all civilizations, and, indeed, by all religions.
As early as 1,500 BC, King Thutmose III of Egypt issued instructions to his Chief Justice, Rekhmire, in the following terms: "Take heed to thyself for the hall of the Chief Judge, be watchful of what is done therein. Behold it is the support of the whole land." This document goes on to indicate to the Chief Judge that he should not lean towards officials and councillors nor towards the people, as "It is an abomination of the Gods to show partiality."
It is interesting to note the king's description of judicial integrity as the support of the whole land, for this makes it central to the entire administration and without it the whole structure of government crumbles.
The duties of the state
Judicial integrity, though largely the responsibility of the judge, requires also a situation of total independence and this cannot be achieved without a contribution from the political authority.
It is the obligation of the state to do all within its power to ensure judicial independence. This cannot be achieved by the judge alone. Every state committed to democracy needs to do all in its power to ensure that the conditions of service of its judiciary and the climate in which they function, respect and preserve the concept of judicial independence. It is possible for a government to disturb the climate of judicial independence without encountering direct constitutional obstacles, but governments really committed to democracy will avoid treading this path.
It is for this reason that every democratic constitution spells out in categorical terms the necessity for judicial independence. If judges live under the slightest necessity to please the executive in order to advance in judicial office, their independence is totally lost. Especially where there is a powerful executive we need to be specially vigilant to assure the judiciary that fear or favour of the political authority is a totally irrelevant consideration when it comes to the administration of justice. The power to transfer judges, delay promotion and provide or withhold amenities should ordinarily be entirely with the judiciary and not with the political authority or the executive. That would take away from the ability of the judiciary to hold the balance firmly and evenly, especially in a dispute concerning the rights of the citizen or the propriety of official conduct.
Judicial integrity is thus closely associated with judicial independence, for without judicial independence, judicial integrity cannot exist. The two are inter-linked. If judicial duties are to be discharged with integrity the judge must be free of external influences of all sorts. If the judge's independence is compromised, the principle of judicial integrity is eroded at its very foundations. There is an important responsibility here of the State and just as we need a total commitment to judicial integrity by the judge we need a total commitment to judicial independence by the state.
The importance of judicial ethics
I have long felt that principles of judicial ethics need to be evolved in very specific form to remind all judges of various aspects of their ethical obligations which might otherwise be ignored or lost sight of. Questions of family investments, friendships with people close to the parties, indirect connection with the matter in issue - all these need to be the subject of ethical guidelines.
The Safety of the Judge
I now move to the position of the judge outside the court and its precincts. I am sorry to see that judges need escorts and police pro- tection when they move around. In my time we, as judges, could move around quite freely without any need for extra protection.
Judicial integrity and judicial independence carry with them the need for an atmosphere of complete safety for the judges.
Sadly, there has been a departure from this principle to the extent that the houses of supreme court judges have been stoned some years ago, and more recently the Secretary of the Judicial Services Commission has been severely assaulted and a High Court Judge has been murdered at his doorstep. More physical security will not stop these but what we need is a climate of opinion of respect for the judiciary which will render such events unthinkable.
I remember my experience as a judge, whether in Colombo or Jaffna, Batticaloa or Galle, where we presided over the Assizes. After a full day's work in the court, hearing even cases involving the utmost violence, we could take an evening walk whether, on the ramparts or in public places, all by ourselves, without even the slightest fear that we would be accosted or approached by anyone. A few people might have recognized us as judges, but that only induced attitudes of respect. We could even walk unescorted on Galle Face green. I wish that situation could be recreated in Sri Lanka.
Appointments, Promotions, Inducements, Rewards and Removals
Judicial promotions are a matter that becomes relevant in this context. Promotions at the level of the minor judiciary are entirely a matter for the judges through appropriate instrumentalities such as judicial services commissions and should not be an area where political power has any influence. It is also my view that at the level of the supreme court promotions need to be based on seniority and it is incorrect for judges to be promoted some places in advance of their seniority.
Unfortunately there has been in our constitutional history an extreme example of violation of the principle of judicial independence. I refer to the manner in which when the new presidential constitution was introduced in 1978, all the sitting judges lost their position and could only regain by reappointment by the President. Some judges who had every right to continue in office were thereby deprived of their judicial position in total disregard of the constitutional guarantee that judges should enjoy security of tenure. The judicial records of the time will indicate that the judges so removed included some judges of very high repute.
Tenure of office of the higher judges is protected by the constitution and is subject only to removal for misbehavior or incapacity. Removal likewise needs to be surrounded by the requisite safeguards under the rule of law.
Judges of great eminence have sometimes been overlooked for higher appointments and it is the duty of both the judiciary and the executive to avoid such injustices.
Such actions need to be put com- pletely behind us. It is a negation of judicial independence if the judge has to avoid displeasing the authorities in rendering his or her judgment.
Another aspect of this is that judges should not be offered, nor should judges accept, upon retirement, inducements and rewards as, for example, high office either in government or the private sector. If such a possibility does exist it can have an influence on decisions of the judge whilst still in office.
The acceptance of such an office upon retirement could affect the impartiality of the judge before retirement. Judges should be aware of their duties to resist being attracted by such offers.
In short, the principle of judicial integrity requires the judge to rise to the highest levels of rectitude necessary to discharge the hallowed duty that rests on them of delivering justice, pure and unadulterated, to those who come before them. The court is the last resort of the oppressed and of those who are unfairly treated. Such a place needs to be a model of integrity and a repository of the highest values that re enshrined in the concept of justice.
Viewed in this light, judicial integrity is the very foundation of democracy. Any factor that disturbs this, however slightly, thus undermines democracy. Political influence either by way of rewards for judges who deliver opinions acceptable to those in power or by way of manifestations of disapproval such as transfers undermine democracy even further. Judicial integrity requires a climate of judicial independence. It is the bulwark of democracy. In its absence democracy does not exist, whatever constitutions may proclaim. It is timely to bring the importance of these principles to the notice of the public.
All of this is a very great challenge to any society and I make these observations as one who has been in the law for nearly 65 years, and has observed the law in operation in many countries and at many levels. Judges are the ultimate custodians of freedom. Such an awesome responsibility makes imperative the highest level of integrity.
I am sure that, provided the right climate surrounding judicial office can be generated, the judges of this country can rise to the highest levels of judicial integrity and build for our people a model judiciary. They could shine the light of justice throughout our beautiful land and radiate it outwards towards the region.