JUDICIARY AS GUARANTOR OF THE RULE OF LAW

Synopsis of the keynote address by Justice A. W. A. Salaam at the annual Sri Lanka Judges’ Association Conference on Dec. 14, 2018 at Hotel Hilton, Colombo.

A.W.A. Salaam  Sri Lanka’s Consular General in Jeddah

The judiciary as the guarantor of the rule of law is the theme of the conference this year. I have the greatest satisfaction of having very closely worked with JSA as a member, Secretary to JSC and President, Court of appeal.   
Judicial Service Association has a longstanding reputation for being the bastion of the rule of law and for its struggle to restore judicial independence. The Association has fought hard to preserve the dignity of the Judges in many ways. Your Association for the first time in history in the year 2014 took the drastic measure of keeping away from work as a collective professional body when there was controversy over the procedure adopted to remove the Chief 
Justice at that time.   

You are well aware that the constitution of the Democratic Socialist Republic of Sri Lanka assures to everyone freedom, equality, justice, fundamental human rights and on top of that the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the people of Sri Lanka. According to the constitution, the Sovereignty is in the people and is inalienable. The Sovereignty includes the powers of government, fundamental rights, and the franchise.  

In terms of Article 4, the Legislative power of the people is exercised by Parliament through the elected representatives and the executive power by the President of the Republic. The judicial power quite importantly is exercised by Parliament but only through Courts tribunals and institutions created and established by the Constitution and other laws.   

You will now see therefore the Supreme Court, Court of Appeal and the High Court of Sri Lanka are the creations of the Constitution itself while the Courts of First Instance and Civil Appellate Courts are created by the Judicature Act, in terms of the enabling Provision contained in Article 105. Hence, the judicial power of the people is exercised by these courts. It is a rigid rule that the Parliament is not permitted to exercise the judicial power of the people by itself. The parliament is empowered to exercise judicial power for a very limited purpose. That is to decide matters relating to the breach of Parliamentary Privileges.   
A close Supreme scrutiny of article 4 which sets out the various mechanisms through which sovereignty is exercised shows a clear separation of powers among various institutions. This is quite evident to establish the salutary concept of checks and balances in our system. Besides, the Legislature Executive and Judiciary being the indispensable components of our democratic system enjoy a wide range of powers, wielding enormous influence over one another and constantly are able to prevent any one of the three branches abusing its powers.   

"It is a rigid rule that the Parliament is not permitted to exercise the judicial power of the people by itself. The parliament is empowered to exercise judicial power for a very limited purpose. That is to decide matters relating to the breach of Parliamentary Privileges."

Last Thursday’s (Dec 13) historical judgment of the Supreme Court is a classic example to demonstrate the clear separation of powers. It also speaks for volumes as to the independence of the Judiciary and the non-interfering policy of the three organs with the functions vested in each other. Turning to the theme of the conference, let me remind ourselves at the outset of the endeavours this country has taken forward towards the restoration of the rule of law. These endeavours include the drastic legislative measures initiated to re-establish a more independent judiciary.   

The 19th Amendment to the constitution was one such step taken forward appreciably without any controversy and every member of Parliament voting for it. One of the objectives of the amendment was to regularise the appointment of the President and other Judges of the court of appeal, and the Chief Justice and other Judges of the Supreme Court. An independent judiciary is the cornerstone of a democratic society based on the rule of law. We are proud to be the citizens of a country in which serious endeavours are taken forward to establish the rule of law.  

Establishing or restoring the rule of law in any country would undoubtedly command the public confidence and therefore it is the paramount duty not only of the Judiciary but the Executive and the Legislature as well to promote the rule of law. There is also a corresponding duty cast on every citizen of this country to preserve and protect the independence of the judiciary and its dignity. We live in a society in which the judicial institutions are treated as sacred as our places of worship.   
The people of the country, therefore, are obliged to protect the judicial independence not for the benefit of the judiciary alone but for their own benefit. Judicial independence means and includes that Judges are not subject to pressure and influence and are free to make impartial decisions solely on the fact and law. It is a concept widely spoken but hardly put into effect except in very few countries across the globe. A question worth being raised at this point is whether we have ever enjoyed such independence, commanding the public respect or had there been any serious threat to the independence of the judiciary in the past?   
We have had several threats to that independence during the past 40 years under the 1978 constitution. During the last 40 years, we have faced 3 unsuccessful impeachment motions against the Chief Justices. In addition, there was also a threat to summarily dismiss the Supreme Court Judges and send them home for allegedly not taking the oath in terms of the 6th Amendment in 1983.

In terms of the 6th Amendment, the Supreme Court Judges were under a duty to subscribe to an oath before the President to the effect that they would not support any attempt to establish a separate state. The Supreme Court Judges by an oversight took their oath before each other and not before the President. Upon this default, the Chambers of the Supreme Court Judges were locked up and kept under police guard not allowing them to enter. There was wide speculation that they had vacated their posts. Moves were underway to reappoint Judges leaving out those whom the President did not like.   

In this scenario, the question was raised in the Supreme Court as to whether it was mandatory to take the oath before the President himself or whether it could be considered as sufficient compliance if the oath was taken before someone who is empowered to administer the oath. The Supreme Court being the sole authority to interpret the constitution ultimately, by their bold and fearless interpretation held that it is the fact of taking an oath which is mandatory but not the person before whom it is taken. This was a landmark Judgment of the Supreme Court which asserted the independence of the judiciary in a remarkable manner.   

The next attempt was to impeach the former Chief Justice Neville Samarakoon on the basis that he had criticized the Government on the job bank issue at a prize-giving ceremony held at the Sinnathurai institute, Wellawatte. Serious objection was taken in that case before the Parliamentary Select Committee as to the jurisdiction of the select committee to hear and determine the allegation against the Chief Justice based on the fact that the select committee was going into a question of judicial nature which has to be tried after the procedure for the proof of misbehaviour or incapacity is provided by parliament. The select committee found the objection to be meaningful and substantial in nature but did not find the Chief Justice guilty of having made a statement rendering him totally unbecoming of a Chief Justice.   

"A Judge should not make orders to please the politicians or people holding high office to be in their good books or on the other hand fearing that your promotional prospect would suffer if you hold a matter referred to you for judgment in a particular way be it a conviction, acquittal discharge or even grant or refusal of bail."

After this decision, the Chief Justice was exonerated but later he tendered his resignation so as to avoid a conflict. Hence this impeachment also failed. The next impeachment motion was directed against former Chief Justice Sarath N. Silva. That too was defeated when the President in the exercise of her prerogative powers vested in her under the constitution prorogued the Parliament.   

The next was against Chief Justice Shirani Bandaranaike. Interpreting the provisions of the constitution governing the impeachment of the apex court Judges a bench of three judges led by Late Justice Gamini Amaratunga including former Chief Justice Priyasath Dep held that the inquiry into the allegation cannot be heard by the select committee, unless and until the Parliament provided for the procedure by passing a law as to the mode of proof of the allegations.   
Based on this interpretation the Court of Appeal issued a writ of certiorari quashing the proceedings of the select committee. However, the impeachment motion was passed in Parliament. As no specific follow up action had been taken thereafter to lawfully dismiss the CJ from the post, the impeachment was deemed not to have been passed and the Chief Justice was reinstated.   

Consequently, you will find all three impeachment motions and the attempt to remove all the Supreme Court Judges under the 1978 Constitution have failed. These are clear historic events that demonstrate the independence of the judiciary.   
I need to mention certain other developments of CJ Bandaranayaka’s impeachment motion. In that case after the supreme court interpretation and CA ruling were entered, an appeal was preferred to the supreme court by the Attorney General and another bench of the Supreme Court later held that the writ of certiorari issued on the select committee was bad in law and the interpretation given by the Supreme Court also is erroneous. Therefore the present position remains that a select committee appointed under the standing orders of the Parliament can go into the allegations levelled against a Judge of the Apex court.   

In order to preserve the independence of the Judges, it is hoped by the right thinking members of the legal fraternity that it would be desirable to deviate from the Supreme Court judgment on this interpretation, either by an amendment to the Constitution or by the Supreme Court deciding on the matter on the same issue in a different way with a greater number of Judges subscribing to a different opinion consistent with the principles of justice and fair play.   

The 19A took one step further to re-assure and to re-affirm more effectively the degree of independence of the Judges of the courts of the first instance by making provisions for the appointment of the members to the JSC by the President with the approval of the restructured constitutional council. Quite remarkably, the 19A guarantees the independence in a more effective manner by further introducing a provision under article 111D to appoint at least one member of the JSC with experience as a Judge of a Court of First Instance into the JSC. Never in the history before, was it laid down that a Judge of the supreme court having the exposure as a Judge of the court of first instance should necessarily be a member of the JSC.

Although we were late in introducing such a provision, it gives the satisfaction that at least the Constitution has now recognized that the affairs of the original court Judges should be monitored with the assistance of a Judge who has once adorned the bench in an original Court, presumably due to its peculiar nature of intricacies. This is a very salutary move and it is my humble point of view that at least two career Judges should be on the Judicial Service Commission as the decisions of the commission are taken on the basis of simple majority unless they are unanimous.   

There is no gainsaying that the Judges could contribute in a great way to achieve judicial independence. I am quite confident that if the Judicial independence is fully achieved the establishment of rule of law in an effective manner in this country is going to be effortless. The concept of judicial independence takes us through to the thought that the judiciary should be independent of the other branches of the Government. That is, courts should not be subject to improper influence from the other branches of Government or from private parties. If the judiciary is independent, then it can make fair decisions upholding the rule of law, an essential element of any genuine constitutional democracy. Let us focus on the provisions of the constitution to the type of independence conferred on the original Court Judges.   
We all know that the Judicial Service Commission itself enjoys immense guarantee as to its independence. In terms of article 111 L of the constitution a person who otherwise than in the course of such person’s lawful duty directly or indirectly influences or attempts to influence the decision of the commission shall be guilty of an offence. The framers of the constitution did not stop at that. The Legislature in its own wisdom and enthusiasm has taken many further measures to provide more independence to the Judges of the original court, so as to make them fearlessly independent from being interfered with either by the Government or private individuals.   

One such measure taken forward by the Legislature is to grant absolute freedom to decide cases. The type of independence you enjoy is such; even the JSC adheres to the non-interference principle in your day to day judicial function.   
As matter of fact, the JSC exercises powers only in relation to your appointment, transfers, promotions and more importantly in the area of disciplinary control. This being the degree of respect given to you, it is incumbent on you not to compromise your independence in exchange for any consideration, be it money, gift, kindness, sympathy, hatred, anger, malice, jealousy, religion, race, sex, age or any other consideration. It does not mean that once you convict a person you should not take the mitigatory circumstances into consideration but to find a person’s liability you must not take irrelevant matters into consideration.   

It is said that love is blind. please keep in mind that it is not only love but Justice is also blind. This expression means that justice is impartial and objective. You know there is an allusion to the Greek statue for justice, wearing a blindfold so as not to treat friends differently from strangers, or rich people better than the poor. A Judge should not make orders to please the politicians or people holding high office to be in their good books or on the other hand fearing that your promotional prospect would suffer if you held a matter referred to you for judgment in a particular way be it a conviction, acquittal discharge or even grant or refusal of bail.   
The judicial ethics demand you to be on silent mode unless for a pressing need you want to put it on vibration for a short time certainly not on sound mode. So please remember the Judge on the bench is always on silent mode but the rare exception is to be on vibration. This is because the Judges are paid to listen and the lawyers are to talk.   

It is said that an over-speaking Judge is no well-tuned cymbal. Cymbal you know is a musical instrument. In civil cases, the role of the Judge is said to be that of an umpire. He does not play the game but watches the same and gives rulings. In order to win over the public confidence, a Judge should exceptionally display judicial temperament.   

A Judge who says he loses his temper on the bench is not fit to be a Judge in the strict sense of the discipline and such a Judge is incapable of promoting a sense of judicial independence and the rule of law. Those who cannot demonstrate patience, open-mindedness, courtesy, tact, and courage should not be considered for elevation or extension.   

Promotional prospects of Judges should not only be confined to seniority or the number of judgments an officer writes. If a Judge sleeps on the bench as a matter of practice or is generally rude to the lawyers and the general public on the bench or prevents the lawyers from citing authorities saying that he or she knows the authority or habitually attempts to influence his colleagues in his judicial decisions or tries to throw his weight about or discriminately treats the equals to achieve an ulterior motive, if detected at the beginning, should be effectively prevented from climbing the ladder, be it to the High Court, the Court of Appeal, or the Supreme Court. 

If you keep granting promotions irrespective of these shortcomings then you will have one day a set of Judges in the Apex courts committing the same mistake. What is the guarantee that such a Judge who is used to constantly fall asleep on the bench in the Magistrates’ court, will not fall asleep in a Higher Forum? If promotional prospects are considered inter alia for good conduct, then the Judges will find that they are sufficiently rewarded for the good qualities they develop on the bench.   
Well, these are only a few thoughts I thought I share with you. It is up to the JSA and secretary to JSC to give their valuable thought if they find any merit in the suggestion. Article 116 of the constitution which is renumbered as 111 C deals with the prohibition against the interference with the Judiciary. The offence of interfering with the Judiciary carries a sentence of imprisonment of either description for a term which may extend to a period of one year or with fine or with both and in addition the offender may be disqualified for a period not exceeding seven years from such conviction from exercising certain civic rights including holding a public office. Therefore, any interference with the course of justice should be promptly discouraged by every one of us, irrespective of the quarter from which the interference proceeds.  

I am quite aware of your strict observance of Article 111 C of the Constitution. No Judge in this Country has ever attempted to influence his brother Judge except a negligible number of one or two selfish Judges. However, it is our duty to keep the public informed of this provision so that they will know to what extent we honour independence and shun interference.   

How can we do this? If any member of the public expects you to do this please don’t just refuse, instead show them the constitutional provision and ask him whether he wants to lose his right of franchise for seven years. I strongly feel that the Secretary to the Ministry of Justice or Secretary to the JSC can arrange sufficient number of the reprint of the Article 111 C from the government press and exhibit this on the notice board of every court so that the people would know what a grave offence it is to interfere with the Judge’s decision otherwise than it is permitted in law.  

At this point, I need to emphasize on one other matter of importance. Since the concept relating to the independence of the judiciary has a direct impact on the image of the Judge and the judiciary at large in the minds of the general public we are under a duty to avoid even the appearance of suspicion that the judicial officer has interfered with the performance of the judicial powers. Justice is the unfailing disposition to give everyone his legal due. To do this we have to expound and interpret the law and, it must be so done honestly, fairly, patiently, attentively and impartially without fear or favour.   
These are essential prerequisites for the people to continue to repose their trust and confidence in us when we exercise their sovereign judicial power in terms of Article 4 of the Constitution. When talking about the independence of the judiciary, one should necessarily run through the preamble to our constitution. The preamble amongst other matters reads that the people of Sri Lanka while assuring the Independence of the judiciary has enacted the present constitution as our principal law. As such, to achieve the several objectives and the goals of our constitution, first and foremost, we as the members of the Judiciary are bound to demonstrate our independence in all our matters be it official or unofficial.  

Thereafter, the Legislature and the executive have to follow suit in a concerted effort to establish the true independence of the judiciary. From ancient time, Judges were considered as not being even second to religious dignitaries and the courthouses which they preside as not being inferior to a place of worship. For this very reason, we the Judges should make every possible endeavour to demonstrate the courts are as sacred as our temples.   

To achieve this Judges should work hard with dedication and in a team spirit. The slightest impropriety committed by one single Judge reflects adversely on the entire judiciary. If the most junior Judge commits an act which is unbecoming of the office he holds, the reflection of it would tarnish the good image of the entire judiciary, namely from the Chief Justice downwards and vice versa. The independence of the judiciary, we need to keep in mind, does not mean that we are given the power or license to do whatever we like undermining the law and the widely accepted judicial ethics.   

"Establishing or restoring the rule of law in any country would undoubtedly command the public confidence and therefore it is the paramount duty not only of the Judiciary but the Executive and the Legislature as well to promote the rule of law"

The misuse of the independence and the abuse of the privilege of the office of a Judge would always lead to the erosion of the public confidence. Quite importantly, a fearless and independent judiciary always result in the strict establishment of the rule of law. There can be no controversy over the power of a court or tribunal to maintain its own authority and dignity. Any challenge offered from outside against the dignity of the court is contempt offered to that court.   
It is for the sake of the administration of justice and in order to maintain the authority and decency of judicial proceedings, that this extensive and summary power is conferred on Judges. However, the summary power to deal with the person committing contempt should be used only when the circumstances demand such a draconian step. Therefore, the negligible acts like mobile phones going off or chewing betel etc. should not be looked at as serious incidents of contempt. What is important here is to look at the act complained of being contempt with a touch of sympathy, unless the gravity of the act is such which calls for deterrent punishment. You need to distinguish between an act of contempt which is intentional and accidental. In other words, as was observed by Lord Dennings this power must be sparingly exercised.   

The most heinous crime ever committed on our land challenging the authority of the judiciary is the murder of Sarath Ambepitya, the High Court Judge of Colombo in the year 2004.A straightforward Judge of our time Ambeypitya, who maintained the dignity and decorum of the court to its very letter, was shot dead by assassins hired by an accused who had several murder cases before him.   

The motive behind the shooting was to get rid of him, as he had indicated to the parties in an open court of the nature of an incidental order he was going to make the following day against the accused in a murder case. Our judicial system is founded upon a number of interrelated principles.   
The first of these principles is the rule of law, which is needed in order to restrict arbitrary government power. The rule of law is put into effect through a constitutional system by which power is separated and balanced among three branches of government. Under the separation of powers, the judiciary functions as an independent branch of the government so that it may enforce the rule of law.   

An independent judiciary can properly enforce the rule of law only if it is learned in the law and is characterized by impartiality and integrity. The doctrine of separation of powers identifies the judiciary as a separate branch of government that is coequal to the legislative and executive branches of government. It is the doctrine of separation of powers that underlies the need for an independent judiciary that acts as a counterweight to the Legislature and executive.   
Accordingly, there is a delicate balance between the three branches of government. To maintain this balance, the judiciary has been granted the power of judicial review. This means that the courts have the authority to review the acts of the other branches of government to determine whether they meet the constitutional standards.   

If in the opinion of the courts, an act of the Legislature or executive is contrary to the Constitution, the courts have the authority to nullify that act. Thus, the judiciary stands as the final arbiter of the Constitution and has the responsibility to review legislative and executive action to determine its constitutionality, and hence its validity. Judicial review is the most significant function performed by the judiciary and operates as an integral wheel in the system of checks and balances created by the Constitution.   

It cannot be easily forgotten that the Judges of the original court particularly the Magistrates and the District Judges are the back born of any judiciary. Without exaggeration the Judges of the original court can be identified as “the pillars of our entire system of justice,” and therefore the public has a right to demand virtually irreproachable conduct from anyone performing the judicial function in an original court. In actual truth, the Judges of the original court are more independent than the higher judiciary.   

"The appointment of a carrier Judge as the Chief Justice after a lapse of three decades has brought fame and global recognition to the Sri Lankan Government"

They are equally knowledgeable in the law and willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Judges should be fair and open-minded and should appear to be fair and open-minded. They should be good listeners but should be able, when required, to ask questions that get to the heart of the issue before the court. They should be courteous in the courtroom but firm when it is necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator.   

Judges who have served in a lower court are sometimes promoted to a higher court, such as a High Court, Court of Appeal and Supreme Court. As far as the elevations to the Higher Courts are concerned appointments to those Courts from and among the most senior sitting Judges had never given rise to any controversies.  

In other words, the elevation from and among the sitting Judges had proved to be quite safe. The sitting Judges have proved themselves that they are worthy of being elevated, and both the bar and the public at large had expressed full satisfaction over such appointments. The Judicial independence is now turning to be better than ever before.   

The appointment of a carrier Judge as the Chief Justice after a lapse of three decades has brought fame and global recognition to the Sri Lankan Government. Let me congratulate the JSA for its achievement for being blessed with the fortune to have one of its former members to adorn the Supreme Court as the chief justice. Long live the JSA, long live the Judiciary.