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Independence and impartiality of the Judiciary


Comments / {{hitsCtrl.values.hits}} Views / Wednesday, 10 December 2014 00:00


In my last article, ‘Democratic Values vs. Sri Lankan Values,’ I mentioned that justice was a democratic value as indicated in the Declaration of Independence of United States in 1776 and in the preamble of the Constitution of United States. I also said, “Justice is hardly available in Sri Lanka, not even in the Supreme Court.” Former Chief Justice Sarath N. Silva   Justice is not solely a western value or an alien concept in the East. The best example we can give is Elara, who ruled in Anuradhapura from 204 BC to 164 BC. The Mahavamsa was written with Dutugemunu as the hero so that it was very unlikely that the author would have given any undue credit to Elara, a Chola invader. According to the Mahavamsa, after conducting the funeral rites of the fallen King, Dutugemunu issued a decree to respect the cemetery of Elara, which was unparalleled in the history of Sri Lanka and which was maintained until recent times. A statue of Elara rests within the premises of the Madras High Court in Chennai as well. In Wilhelm Geiger’s English translation of the Mahavamsa, Elara is described as follows: “A Damila of noble descent, named Elara, who came hither from the Chola-country to seize on the kingdom, ruled when he had overpowered king Asela, forty-four years, with even justice toward friend and foe, on occasions of disputes at law. “At the head of his bed he had a bell hung up with a long rope so that those who desired a judgment at law might ring it. The king had only one son and one daughter. When once the son of the ruler was going in a car to the Tissa-tank, he killed unintentionally a young calf lying on the road with the mother cow, by driving the wheel over its neck. The cow came and dragged at the bell in bitterness of heart; and the king caused his son’s head to be severed (from his body) with that same wheel. “When the king, who was a protector of tradition, albeit he knew not the peerless virtues of the most precious of the three gems, was going (once) to the Cetiya-mountain to invite the brotherhood of bhikkhus, he caused, as he arrived upon a car, with the point of the yoke on the wagon, an injury to the thüpa of the Conqueror at a (certain) spot. The ministers said to him: `King, the thüpa has been injured by thee.’ Though this had come to pass without his intending it, yet the king leaped from his car and flung himself down upon the road with the words: ‘Sever my head also (from the trunk) with the wheel.’ They answered him: `Injury to another does our Master in no wise allow; make thy peace (with the bhikkhus) by restoring the thupa’; and in order to place (anew) the fifteen stones that had been broken off he spent just fifteen thousand kahapanas.” An old woman laid rice in her backyard to dry them. Unfortunately unseasonal rain destroyed the rice. The old woman complained to King Elara that an out of season rain destroyed her rice. King Elara started a fast stating that gods should provide rain only during the rainy season. Sakka (King of Gods) found out about King Elara’s fast and provided rain only during the rainy season. The Mahavamsa concludes that Elara gained his miraculous powers only because he freed himself from the guilt of walking in the path of evil. The way Elara conducted his judicial affairs was in line with the current principles of justice. We can examine how justice is practiced in warfare where might prevails at the end.   Rules of war In warfare it is considered unethical to attack an unarmed or obviously inferior opponent. Ancient warriors followed this rule. In the Mahabharata in Kaurava vs. Pandava, war rules were imposed in order to ensure equality among warriors such as more than one warrior may not attack a single warrior and no warrior may kill or injure a warrior who has surrendered, an unarmed warrior, an unconscious warrior or a warrior whose back is turned away. Also one who surrenders becomes a prisoner of war and will then be subject to the protections of a prisoner of war. International Humanitarian Law, which is the law that regulates armed conflicts in today’s context, also considers this aspect. It is forbidden to kill or injure an enemy combatant who surrenders, or who is outside of combat and the wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. Also no-one shall be subjected to torture, corporal punishment, or cruel or degrading treatment. In war, authorities tried to create a level playing field so that the stronger party can win. When most criminal acts take place, the victims have some way of defending themselves. A court room is considered the place where one can get ultimate justice. When a judge is not independent or impartial within a court room, the defendant does not have any protection. His situation is similar to being attacked in war when he is unprepared and unarmed. Society should realise the gravity of this situation rather than blaming the courts loosely. Legal abuse however cannot be in existence if the decision is legally correct. Also if the decision is delivered in good faith and if there is no gross negligence there cannot be legal abuse on the part of the judge. To consider the decision as legal abuse the judge should act partially and should be intentionally biased. In any country there is the procedure to appeal against the decisions made by lower courts. Therefore the situation is less serious when it happens in the lower courts. If it happens in the highest court of a country the situation is grave since the defendant is totally helpless and he cannot go anywhere else for justice. Therefore if the judges of the highest court of any country act in a biased manner it can be considered as the highest criminal act of that country. Governments appoint and pay judges, but once appointed, judges should be independent from any improper influence or pressure by the Executive or Legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges or a chief justice. This independence and impartiality are needed since only then will the respect of the public for the Judiciary prevail. When the Judiciary loses that respect it is the beginning of the end for rule of law within that country. Therefore looting in the streets if one wants to support his family is more credible than delivering intentionally-biased judgments in a court of law.   Failed justice There are cases against the authority of the Government and the judges should uphold the fundamental rights of the people. One of the most respected Supreme Court judges of Sri Lanka, the late Mark Fernando, delivered several judgments against the authority of the Government in favour of the fundamental rights of the people, upholding the rights of citizens in respect of the right to vote, the right to freedom of speech and the right to freedom against torture and arbitrary arrest and detention. In the Janagosha case in 1992, where the protest campaign was organised by the incumbent President, Justice Fernando, while delivering the judgment, said: “The right to support or to criticise governments is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.” It is in this light that we have to examine the recent apology to the public by former Chief Justice Sarath N. Silva over his judgment in the infamous ‘Helping Hambantota’ case. By saying he was wrong he indicated that he was biased and partial in delivering the judgment in the capacity of the Chief Justice. These matters cannot be pardoned with mere apologies to the public considering the gravity of the same as discussed. However, the country knew his bias not only in this case but several other cases also which were very important. Considering the various allegations of the biases of the present Supreme Court, especially in the case seeking the opinion of whether the incumbent President can contest another term under the recent 18th Amendment to the Constitution, the Supreme Court could not leave room for future apologies to the public and if so it would be too late and not valid. In recent times, in the minds of the public there is a sense that the Supreme Court of Sri Lanka has degenerated, contrary to the way superior courts operating in other democratic countries such as India or for that matter Pakistan, and Western countries, are perceived. It appears to be that in this country not only the Executive but also the Judiciary are above the law and this is quite in contrast to the way Elara - the so-called enemy of the Sinhala Buddhists, who by and large are grossly ignorant about Kalinga Magha, a non-Tamil who was the real destroyer of our civilization in the 13th century - ruled the country two millenniums back upholding the modern western democratic values with unbelievable height even by today’s standards. (The writer is a Chartered Accountant by profession and holds a Master of Business Administration degree awarded by the Postgraduate Institute of Management of University of Sri Jayewardenepura.)

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