Decline of the Judiciary

Unfortunately for Sri Lanka, it is endowed with a backward Judiciary that corresponds to the level of backwardness of the Legislature and the Executive 

– Pic by Shehan Gunasekara

Despite the Legislature and the Executive of Sri Lanka being backward and corrupt, still the country could have been saved from its present state of wretchedness, provided it had a Judiciary with a proper vision on its social responsibility. Yet, unfortunately for Sri Lanka, it did not inherit a Judiciary of such competence; instead it is endowed with a backward Judiciary that corresponds to the level of backwardness of the Legislature and the Executive.

In this dialogue, we should not forget the fact that Sri Lanka is not a country that had won the independence after a serious struggle, but a country which had received its independence as a gift. Not only the general public, but also the national leaders of the country did not have an advanced consciousness required for good democratic governance.

By that time, in terms of literacy, India stood at a lower level compared to Sri Lanka; yet, as far as social consciousness was concerned, India stood very much ahead and had a highly-developed and enlightened national leadership compared to the backwardness of the national leaders of Sri Lanka. 

Unlike the leaders of our country, the Indian leaders involved Indian society at large actively in the independence struggle. In the process, they were able to transform Indian society into a modern society which was inclined to think in modern terms. Apart from that, they laid a strong foundation to build a modern nation by weakening the recognition accorded to racial, caste and religious differences. All the leaders including Gandhi, who was more religious than others, stood resolutely for maintaining a secular character in politics.

Intellectual poverty of Sri Lanka

The leaders of Sri Lanka who stood for independence did not have a strong vision for building a sound democratic country except for a strong desire to gain power into their hands. Not only were they opposed to actively involve the people in their attempt to gain independence, but also opposed vehemently for granting universal suffrage.However, Sri Lanka was able to gain independence without making a serious social effort. It was a direct outcome of the decision reached by the British to abandon the colonial rule of India. 

India, unlike Sri Lanka, did not continue the institutional system that it inherited from the British as it is.Instead, they re-structured it to suit the needs of the independent India. 

In 1922, Gandhi asserted that the status of Swaraj, the Self Rule that India aspired to achieve must not be a thing that the British Parliament wanted to grant us; rather it should be a system of governance which signifies the aspirations of the people, collectively determined through the consensus of their freely elected representatives. 

In 1933, Britain in its attempt to adopt a constitution for India, presented a White Paper which India refused to accept and insisted emphatically, that it could only accept a constitution which would be made by the representatives of Indian people without any interference from a foreign authority

The richness of India

Professor Granville Austin has written an excellent book titled ‘The Indian Constitution’ on how the Indian Constitution was drafted by a Constitutional Assembly, the members of it had been selected by an election held exclusively for that. A close study of this book with reference to all the constitutions made in Sri Lanka so far will undoubtedly enlighten the reader of the backward stage in which Sri Lanka stands on the subject of constitution making. 

This book also contains information on how the Indian judicial system was founded and the discussions and debates that preceded it.The Indian leaders treated the judiciary as the custodian and the guardian angel of the social revolution that commenced with the independence struggle and the Constitution adopted to further advance the social revolution.

It took nearly three long years for the Indian Constitution to be drafted and enacted. Much of the time spent on making the Constitution had been spent on the debate on the adoption of an appropriate judicial system.

Jawaharlal Nehru, who chaired the relevant committee on the subject of judiciary, commenced the discussion with an analysis of the major issue of how to institute an independent judicial system that will work justly and in conformity with the law, so that the Indian social revolution could be advanced without being hindered by the influence of ruling parties and other external forces. In this exercise, India studied the British, American and Irish judicial systems separately, and was able to create a unique judicial system for India.

The role of the Indian Judiciary

The Supreme Court of India is a judicial body that had been tested for over a long period of nearly seventy years. It can be said that it had played the role of a good guardian angel in protecting the forward march of the Indian social revolution, rights of the people and the Indian Constitution, as its founders expected. Today the Supreme Court of India is considered one of the best Supreme Courts in the world.

The Indian Judiciary made a concerted effort to defend its independence during the rule of Indira Gandhi who with the majority power in the parliament tried to make the judiciary a scapegoat to achieve her aspirations.

 Although Indira Gandhi had a temporary victory of the struggle, the Judiciary however, did not give up its fight to preserve its dignity and independence. 

Upon the defeat of her regime in 1977, not only were the distortions made in the Constitution during her rule were corrected, but also introduced and established a legal principle on the structure of the constitution depriving the ability of the ruling parties in amending the Constitution on their whims and fancies and selfish interests. Consequently, except for the common good, no ruler can amend the Constitution to suit their selfish intentions.

Although India may be regarded as a country which is more religious than Sri Lanka, the Supreme Court of India did not allow religion to be mixed with the affairs of the Judiciary. It was always committed to defend the secular character of the Judiciary. A few years ago, arrangements had been made to perform Hindu religious rituals in a function to be held in the High Court, which someone had complained to the Supreme Court. The Supreme Court not only banned the practice of religious rituals inside the premises but also ordered that religious symbols too, shall not be displayed in Court premises. In a recent judgement, the Supreme Court of India asserted that the public has a right to criticise errors that occur in the Judiciary. 

Chief Justice Bhagwati, during his tenure introduced a system enabling the poor, the destitute and differently-abled persons in India or a group of such persons to make complaints to the Supreme Court in a letter in an event they are subjected to unjust treatment. A system is in operation to inquire into such complaints and mete out justice without any payment being levied. 

Going astray 

The Judiciary of Sri Lanka has a strayed history devoid of a strong vision. It must be having the knowledge of the law; but it has not reflected that it has a proper knowledge of the social role or the responsibility incumbent upon the Judiciary. The Supreme Court of India has earned an enviable recognition and respect among its people as well as internationally; but, the Supreme Court of Sri Lanka lags far behind this queue.

The Supreme Court of India has achieved this recognition not by intimidating the people but by being able to maintain a dignified position that leads to winning the respect of the people. In other words, it has achieved this distinction by pursuing a policy that upholds the Constitution and safeguards the rights of the people. 

The Supreme Court of Sri Lanka has not been able to fulfil its obligation of a good guardian angel in safeguarding the Constitution and the public rights. Apart from allowing the rulers to violate the Constitution, in some instances, the Supreme Court itself has violated the Constitution by partnering with the rulers. Allowing the MPs to change their political party without losing their parliamentary seats is just one example that can be cited in this regard. It completely distorted the Constitution of the country. It is a grave mistake, which can still be corrected by the Supreme Court, if it wants to. Yet, so far nothing has been done to rectify it. So, its impact might continue in the future.

The Judiciary of Sri Lanka is not of secular character; it is more inclined towards religious influences. Some judges do not seem to hesitate in demonstrating their religious biases and inclinations. Obviously, it is a sign of ignorance of the fact that it’s a disqualification for a judge to make public exhibition of religious affiliations.

H.L. de Silva, PC, addressing the audience of the seminar held in September 1999, on Judicial independence and moral integrity , at the Bandaranaike Memorial International Conference Hall -BMICH, which was attended by a former Chief Justice of India, delivered a unique speech on the moral integrity to be upheld by the judges. H.L. De Silva said that, due to certain deficiencies in the independence and the moral integrity, apparently the entire judicial system is precipitating to a level of a frenzied role played by a buffoon in a comical play of no depth or any value. Four years later, proving the prediction of H.L. De Silva, the Chief Justice of Sri Lanka was caught by the police while he was lying half naked in a vehicle near Diyawanna Oya with a female lawyer. 

According to the Constitution, the Fundamental Rights (FR) cases should be heard and concluded within a period of three months. But the reality is that there are some cases that have not been heard even though two to three years had elapsed after they had been filed. Recently, I came to know of a case filed by a Samurdhi Officers’ Association; the case had been heard for more than five years and dismissed without a verdict being given. The amount paid to the lawyer alone for the case had been Rs. 5.6 million.

The role of legal professionals in Sri Lanka also remains in an anarchic situation where there is no proper control on the oppression and exploitation of clients. There is no effective system to probe into complaints of misconduct of the professionals of the legal field and punishing the culprits. 

Despite the presence of some respectable persons in the legal profession, the general level of discipline of the judicial service and the lower Courts appears to be far from being satisfactory; and it remains in a level of maximum decline. It is the responsibility of the judiciary to ensure that the legal profession is maintained at a respectable level. 

Similarly, it is the responsibility of the professionals of the legal field to ensure the dignity of the Judiciary. Apparently, there is no such wholesome tradition and reciprocity developed so far in Sri Lanka between these two parties. 

Disciplinary control

The recruitment of judges to the judicial service, training provided for them and disciplinary controls are not at a satisfactory level. .

Magistrate Lenin Ratnayake and retired Supreme Court Judge Upali Abeyratne are two examples, I can cite in this regard and of which I too, have had great experience.Lenin Ratnayake joined the Judiciary hiding the facts about his previous employment with Insurance Corporation where he had been dismissed from service over a financial fraud. He had been recommended to the Judicial Service by two reputed lawyers in the country. It shows that the judiciary has no formal recruitment system. There is much to talk about Lenin Ratnayake; yet, I do not intend talking about him at this juncture as it is more important to talk about the head of the three-member Presidential Commission of Inquiry, the retired Supreme Court Judge Upali Abeyratne who had been appointed to investigate into incidents of political revenge. 

Upali Abeyratne was the judge who heard the divorce case filed by Jayasekera, a chemical engineer against his wife and Sarath Silva making him a co-respondent of the case. While the case was in progress Jayasekera lodged a complaint against Upali Abeyratne, the Judge who heard the case, before the Judicial Service Commission, which in turn held an inquiry against the latter. The inquiry was conducted by two reputed judges of the Supreme Court, namely Tissa Bandaranayake and Mark Fernando. They questioned the Judge Upali Abeyratne and obtained a statement from him. 

After reading this report, I must say that it evoked an awful feeling of disgust in me about the District Court Judge Upali Abeyratne. He had not only violated the law to the maximum in this case to protect the interests of Sarath Silva, but also had exerted his authority to the maximum to oppress the plaintiff. He can be regarded as a person who should never be allowed to enter the precincts of the judiciary in any capacity, let alone in the capacity of a judge. 

Following the inquiry, the Judicial Service Commission referred the investigation file to the Attorney General to initiate legal action against Upali Abeyratne in respect of the unlawful practices adopted by him in this case. However, Sarath Silva swept the file under the carpet and refrained from taking action to protect Upali Abeyratne, the judge who heard the case, on his directions (Sarath Silva) and for his defence. In this backdrop, I was compelled to raise my voice protesting against the conduct of the Attorney General. 

In consequence to the vehement protest made by me and also in response to a request made by the former Presidents of the Bar Association, the Judicial Service Commission including the Chief Justice, was compelled to appoint a three-member committee comprising Judges of Appeal Court, to inquire into the allegations raised by me against the district Judge Upali Abeyratna. 

The three-member committee comprised Judges Amir Ismail, Hector Yapa and P. Edissuriya. At this point, as Upali Abeyratne accepted the allegations without challenging them, the Committee recommended that he shall be sent on compulsory retirement. Accordingly, the Judicial Service Commission sent him on retirement effective 31.07.1999 on compulsory basis.But the decision was quickly reversed by the Judicial Service Commission.Instead of sending him on compulsory retirement, he was transferred to Monaragala District Court as a punishment transfer with effect from 01.01.2001, with his promotions suspended for two years effective from 19.07.1993.

The irony of this whole issue is that this judge was promoted to the High Court before the end of his sentence. Later, he was appointed to the Supreme Court before Sarath Silva as Chief Justice went on retirement. 

Sarath Silva supported those who helped him generously. It may be considered a good quality, a virtue in him to express his gratitude to those who came to his rescue. But the damage caused to the judiciary by his policy was immense.

This story does not end there. After sometime, this notorious judge was appointed to the Supreme Court, by the President despite objections from a Lady Chief Justice. Accordingly, this judge who was decided not fit to be retained even as a District Judge in a Lower Court, by three judges of the Court of Appeal ultimately ended up in the Supreme Court. 

Upon his retirement from the Supreme Court, President Maithripala Sirisena made him the head of a commission that probed into the incidents of wrongdoing of the Yahapalana Government. Thereafter, the current Government has appointed him the head of a three-member commission to look into incidents of political revenge.

Now, a new crisis has emerged as the Attorney General has refused to comply with an order issued by the commission of inquiry chaired by this retired judge in regard to a case. In this backdrop, the way things happen is by no means normal.