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Living in the 'shadow of the total lie'

" Where judicial misconduct is concerned, it is a first principle that the law and proper investigations ought to be allowed to take its course. No one can be above the law, whether it be the President, the Chief Justice or a judge."

by Kishali Pinto Jayawardene

(July 25, Colombo, Sri Lanka Guardian) When Otto Rene Castillo (1934-1967), the Guatemalan poet and revolutionary reflected on the ultimate interrogation of the apolitical intellectuals by the 'simplest of our people' as to what they did 'when the poor suffered, when tenderness and life burned out of them' he was stating a powerful truth relevant not only to his country and in that period but across space and across borders.

Castillo's ruthless denunciation of those preoccupied with abstract intellectual theory but who were silent either through lack of courage or self interest when their 'nation died out slowly like a sweet fire, small and alone', is a classic statement of our times. Their preoccupations are termed harshly but most aptly as justification of the unjustifiable, 'born in the shadow of the total lie.'

Contradiction between abstract principles and concrete reality

These reflections are directly applicable to Sri Lanka, most particularly within the past decade when this country's institutions, including the judiciary, were systematically undermined externally (by the executive) and internally (by the unwavering hubris and political ambitions of former Chief Justice Sarath N. Silva which were revealed best after his retirement). During this period of tremendous stress and strain, there were many intellectuals, distinguished both nationally and internationally, who should have spoken out but who did not.

What we saw therefore was a contradiction of the most basic if not obscene kind. On the one hand, we saw learned discussion of profound legal principles, for example, on the independence of the judiciary, hosted in luxurious settings while on the other, we saw the law being twisted to suit a political purpose, benches being fixed to obtain particular verdicts and lower court judges being threatened to rule in favour of government politicians. We saw the functioning of the Judicial Service Commission deteriorating to the extent that lower court judges were abused, demoted or fired without adherence to the rules of natural justice with two members, both Supreme Court judges resigning following differences with the Chairman, the former Chief Justice. Let us also not forget the weapon of contempt of court wielded against critic and litigant alike with one notable example of a teacher of English being sentenced to one year rigorous imprisonment for talking loudly in court.

Relevance of the past to the future

This visiting of the past is not without reason at this time. Once the precedent has been set, it is indeed insuperably difficult to reverse this trend. To a large part, the furore that Sri Lanka is currently facing in terms of the lack of confidence in the domestic systems of justice is a direct result of these recent travails.

At another level, this past has its distinct irony. For instance, when we hear that former judge of the High Court of Australia and former President, International Commission of Jurists (ICJ), Michael Kirby AC CMG had spoken this week in Colombo on 'Universal Principles of Judicial Integrity' co-hosted by the Weeramantry International Centre for Peace Education and Research and the Australian High Commission, much of Otto Rene Castillo's ruthlessly unsparing denunciations come to mind.

This is, not to reflect in any way, on the key note speaker, whose impressive judicial and academic credentials are without doubt but rather on the audience. Particularly so when, (as has been reported), the invitees also included former President Chandrika Kumaratunga and former Chief Justice Sarath Silva, best of friends in the early days and worst of enemies in the final days. Justice Kirby's expositions on judicial integrity would, no doubt, have been received quite stirringly by them. It would also have been delightful to have heard some whispered 'mea culpas' but this was obviously not to be.

The misconduct of judges

But to veer away from this irresistible tendency towards sarcasm that visits one in these contexts and to focus on the real issue that is before us, are our safeguards and systems in place in regard to the judiciary all that they should be? So, for example what about a judge who continually disregards that most fundamental of the Bangalore Principles on Judicial Independence (2001 as revised in 2002), namely Principle 1.6, that a judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence?

To take one possible situation, what are the remedies in place when a judicial officer engages in bribery or corruption or when that officer engages in violent sexual abuse of another? Where the alleged offender is a lower court judge, then the remedy is in the hands of the Judicial Service Commission (JSC). Even at this stage, this is far from satisfactory as we witnessed in ample measure in past years when the JSC became a law onto itself. It is therefore still necessary that the decisions of the JSC in respect of the transfers, disciplinary control and removals of the subordinate judiciary be made transparent and accountable.

However, the problem is even greater when it comes to the appellate judiciary. The remedy here is in the hands of Parliament. Yet as we have seen most recently in 2001 and 2003, this is a fundamentally deficient process governed more by the politics of those who comprise the House rather than on considerations of respect for judicial institutions.

Proper legal and investigative process to be followed

Where judicial misconduct is concerned, it is a first principle that the law and proper investigations ought to be allowed to take its course. No one can be above the law, whether it be the President, the Chief Justice or a judge.

That said, our systems of final disciplinary control and dismissal of judges should be reviewed far more thoroughly and subjected to systematic reform that does not posit Parliament or the Executive Presidency as the ultimate forum for redressal.

It must not be forgotten that though contempt of court may be used to deter criticism, (following in the trend that was evident post 1999), decrease in public confidence in the judiciary cannot be stopped merely by suppressing dissent. That decrease will be evidenced anyway and will have tremendous repercussions on the integrity of the institution as we already saw in the decade behind us. These lessons from the past must surely be learned at least now?

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