JU­DI­CIAL IN­TEGRITY

Ex­cerpts are from Lalith Athu­lath­mu­dali Com­mem­o­ra­tion Free­dom Speech de­liv­ered by Jus­tic Weera­man­thri, former Se­nior Vice Pres­i­dent of the In­ter­na­tional Court of Jus­tice.

Daily Mirror (Sri Lanka) - - NEWS/PROVINCIAL NEWS - Jus­tice C.G.Weera­man­thri

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.

Con­clu­sion

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.

Newspapers in English

Newspapers from Sri Lanka

© PressReader. All rights reserved.