Freedom to judge – impartially!

The Doctrine of the Separation of Powers

Harvey and Bather in their seminal publication on the British Constitution, begin the Chapter on the Separation of Powers (19) with an extract from a poem by the Nobel Laureate poet, Rudyard Kipling, who lived for decades in India and understood the South Asian temperament intimately. The poem is ‘My Father’s Chair’:

‘When your time comes to sit in my Chair, Remember your Father’s habits and rules. Sit on all four legs, fair and square,  And never be tempted by one legged stools!’

The theory of the separation of powers is closely associated with the French political philosopher Montesquieu who lived from 1689 to 1755. Montesquieu observed that the powers of government were of three kinds – Legislative, Executive and Judicial. He said that tyranny results when all these powers are in the same hands.

Montesquieu wrote that in order to preserve politician liberty, the constitution should ensure that the Legislature, Executive and the Judiciary are independent of each other. Otherwise a despotic government can legislate anything it chooses, administer those laws any whichever it likes, without regard to the rights of the individual, judge corruptly and destroy any opposition to them and those unjust laws.

However Montesquieu did not mean that the three powers of legislation, execution and adjudication should not touch at any point. What Montesquieu meant was that each would impose restraints on each other to prevent the abuse of power.

In the modern context, a free and independent media has a vital role to keep the three powers of government in check. Indeed it could be said that the fourth leg on Kipling’s ‘My Father’s Chair,’ referred to in the poem, is a free and independent media, the other three legs being the Legislature, the Executive and the Judiciary. In today’s world the American Constitution is the best example of the imposition of checks and balances by each organ of government on each other. The media of course has a stellar role in the US on enforcing transparency on politicians, but that is another story!

Judicial function

Let us look at the judicial function. The Judiciary’s most basic function is to settle disputes and administer justice by applying the law to the cases that come before it. In order that the courts can do this and to uphold the rule of law judicial systems must be designed to ensure accessible and impartial justice.

Constitutions charge judiciaries with the duty of enforcing the guarantees of the constitution, relating to human rights and fundamental freedoms. But the judiciary’s power is never unlimited; the other branches of government have a degree of influence over the judiciary by the power of appointment or removal in extreme circumstances.

The Judiciary fundamentally interprets the law. It determines the facts of a dispute and administers the law to those facts. In some cases judges may make law. This may happen by interpreting the language of the law in a way which the legislature did not anticipate. The reliance on precedent, the fact that a later judge will decide a case with similar facts to an earlier one, following the earlier judgement, reinforces this opportunity for judge-made law.

Ensuring Constitutional guarantees is another important function of the Judiciary. For example, the decision of the Supreme Court that the Divi Neguma Bill requires the consent of the Provincial Councils before it can be presented to Parliament protects the rights of the Provinces, guaranteed by the Constitution.

Modern judiciaries may also have the power of oversight over other branches of Government to check the abuse of power. While an independent Judiciary is fundamental, it is vital for the rule of law and the proper functioning and impartiality of the judicial system.

A Constitution at the same time provides for a Judiciary that is accountable and transparent, the promotion of clarity and consistency, in judicial processes and standards, and right to public hearings and access to judicial information, as well as mechanisms that place a check on the exercise of judicial powers, such as an effective and functioning appeals system and oversight by the executive, through appointment procedures, the legislature through removal procedures and budgets, the press by transparent reporting.

In a society such as ours, the space for legal pluralism is vital, several legal systems have to work within a single Constitutional order, with hardly any practical or effective power devolved to the second and third tiers of Government, that is Provincial Councils and Local Governments.

Legal principles derived from customary Kandyan Law, Thesawalamai Law, Muslim Law, Roman Dutch Law, and English Law have to operate in an environment of more recently enacted Statute Law and judge-made law through interpretation of legal principles.

In summary, the core function of the judicial branch of Government, i.e. the courts, is to apply the law impartially to the disputes that are placed before them, or those which the Judiciary may decide to intervene where they have the power to act on their own initiative. This function is closely linked to the stability, legitimacy and the public acceptance of the Judiciary and the Constitutional order.

The space to adjudicate impartially is critical. Impartiality is sacrosanct. Judges should examine the facts before them without prejudice and apply the law ‘fairly and squarely’ (Kipling – ‘My Father’s Chair’), even-handedly, and without regard to political views or personal preferences.

Impartiality provides the best possibility to provide justice ‘fair and square’ to the issues being considered. It also necessary to build credibility and trust in the Judiciary as an institution. Impartiality also sets the standard for judges in their performance of other functions, including the critical one protecting the integrity of the Constitution.

Impartial justice in Sri Lanka

Sri Lanka has a long and honourable tradition of impartial justice. Dr. A.R.B. Amerasinghe in his classic, ‘The Legal Heritage of Sri Lanka,’ gives us an insight to the admirable system, which existed through our history.

He quotes John D’Oyly, resident administrator of the Kandyan Kingdom after it was ceded to the British in 1815, who refers to Rules for Administering Justice, which existed during the last years of the last King of the Kandyan Kingdom. D’Oyly did not mention the source of his information, but as Dr. Amerasinghe says, obviously he was quoting some book or evidence he had recorded during his work in Sri Lanka, in various capacities from 1802 until his death in 1824.

Amerasinghe says that D’Oyly’s account shows that the principles followed in Sri Lanka bore a striking resemblance to those that are followed today in modern jurisdictions. A monarch was expected to discharge his judicial functions in accordance with certain norms, referred to in the vernacular as ‘Sirith Virith,’ roughly translated mean traditional customs ad conventions.

For instance the monarch had to acct impartially, without fear or favour or bias and prejudice, ensuring a fair trial. Judges appointed by the King were expected to observe the standards prescribed for the King, Amerasinghe points out. These Sirith Virith were grounded upon the Buddhist standard for Good Governance – the Dasa Raja Dhamma or 10 principles for good governance – based on the core teaching of the Thathagatha – Gautama the Buddha.

Amerasinghe quotes Sir Alexander Johnston, Colonial Ceylon’s first Attorney General, who wrote ‘the laws and institutions (introduced by the first ruler) had never been altered by any foreign conqueror but had continued to prevail in the original state from the time they were first introduced into the interior of Ceylon till the year 1815’.

Amerasinghe expresses the view that the canons of judicial conduct set out in D’Oyly were part of an ancient system that went into the past, well before the days of the kings of the Kanda Uda Rata – the Kandyan Kingdom, which commenced with Senasammata Vickramabahu (1496-1511). Amerasinghe concludes, as we have seen, according to the evidence in the chronicles, the principles of judicial impartiality and independence go back to the times before Christ.

Impartial justice reinforced

Our great tradition of impartial justice was recently reinforced, by no lesser person than the Head of State and Government of our thrice-blessed isle, talking to the members of the press (the fourth leg of Kipling’s ‘My Father’s Chair’).

The story ran as a lead in a daily newspaper under the headline ‘President denies attempt to interfere in judicial affairs’. The sub head was ‘Confirms there are serious allegations against Judicial Service Commission (JSC) Secretary’.

The President denied to representatives of the fourth leg of Kipling’s ‘My Father’s Chair’ that he had tried to interfere in the affairs of the Judiciary. He reaffirmed that he was an ardent advocate of an independent Judiciary.

A member of the fourth leg of Kipling’s ‘My Father’s Chair’ pointed out to the President that his recent invitation to some judicial officers, including the Chief Justice, to a meeting could be considered an attempt to interfere in the Judiciary. The President responded that his intention had never been to discuss anything to do with the judges’ official work. He wanted to discuss some matters such as training, welfare, allocations from the forthcoming budget, etc. He denied that he wanted to take up the recent interdiction of a judge. He also said that he had met judges earlier and that even the Chief Justice had attended those meetings.

It was disclosed that the Secretary to the President had first given the Chief Justice a telephone call and invited her for a meeting. The Chief Justice, very correctly and upholding the highest traditional standards of judicial impartiality, which have been recited in this Column, requested a letter of invitation, so that the request from the Head of State and then Head of Government to the Judicial Service Commission (JSC) would be a matter of undeniable record.

Representatives of Kipling’s fourth leg of ‘My Father’s Chair’ then went on to question the President on the information that there were serious allegations made against the Secretary to the JSC. The President confirmed that there were serious allegations made against the Secretary JSC by the father of a female judicial officer. The representative of Kipling’s fourth leg of ‘My Father’s Chair’ claimed in a column to have seen the letter. How a privileged document can be bandied about in this manner is beyond belief!

Further, it was reported that it was alleged that the current Secretary of the JSC was ‘way down’ the seniority list, but had been appointed Secretary JSC. Further stories had been related on how judges’ houses were stoned in the past and there were attempts to impeach a Chief Justice, too in the past. Probably this was an attempt to show systemic contempt of the Judiciary by all politicians of all ilk.

Factually, not only judges’ houses were stoned some time ago; just the other day that most sacrosanct Citadel of Justice, the veritable Court House at Mannar, was attacked and gheraoed by a gang allegedly instigated by a Minister of the Government. The Minister is before the Judiciary on this matter. The cases are being closely monitored.

Also, while there was an aborted attempt to impeach a Chief Justice in the past, there was another such move in or around 2002 too, which was also aborted. Impeachment is a legal process provided for by law. Stoning of court houses or residences are not legal due processes! Someone should make this clear to the powers that be. In any event, one illegal act does not justify a repetition of the foolishness!

Whatever said and done, it was a relief to hear the Head of State and Government reiterating his undying love for the impartiality of the Judiciary. Why is this recommitment to non-interference and providing space for the impartiality of the Judiciary so important at this time, one may question. The answer is twofold.

First is that in our long and enduring tradition of good governance, based on the Dasa Raja Dhamma, sustainability of the nation state depends on the fundamental principles of Montesquieu, the Separation of Powers being adhered to. Secondly, no lesser document than our basic law, the Constitution of the Democratic Socialist Republic of Sri Lanka, while providing for the Separation of Powers, also exhorts the Ruler to be just, ‘Raja Bhavatu Dhammiko’.

JSC statement

But this is not all, the timing is critical. Recently the Secretary to the JSC issued a statement on the direction of the Commission. The Asian Human Rights Commission (AHRC) reissued this, under the headline, ‘Who will respond to the distress call of the Judicial Service Commission of Sri Lanka?’

The AHRC refers to a statement issued on 18 September 2012, by the Secretary to the JSC. This is the first time in our long and chequered history that such a cataclysmic event has happened. It is worthwhile to reproduce the English translation, which appeared in the newspapers, of the statement of the JSC:

“The attention of the JSC has been drawn to baseless criticism of the JSC and in general on the Judiciary by the electronic and print media. The main objective of those behind the conspiracy of those trying to undermine the JSC and the Judiciary is to destroy the independence of the Judiciary and the Rule of Law.

“It is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regarding decisions taken by the Commission keeping with service requirements. Recently the JSC was subjected to various influences after the Commission initiated disciplinary action against a judge.

“Moreover an attempt to convince the relevant institutions regarding the protection of the independence of the Judiciary and the JSC over the attempt to call for a meeting with the Chairperson of the JSC, who is the Hon. Chief Justice and two other Supreme Script Judges, was not successful. The JSC has documentary evidence on this matter.

“It is the JSC that is the superior institution, which is empowered with the appointment of Magistrates, District Judges, their transfers, dismissal from service and disciplinary action against them. It is an independent institution established under the Constitution; under the Constitution any direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence which could be tried in a High Court.

“It should be emphasised that the JSC is dedicated and it is its responsibility protect the independence of the Judiciary and discharge its service without being intimidated by influences, threats or criticism. I have been instructed by the Commission to issue this media release to keep the majority of the public who value justice informed about an attempt by conspirators to destroy the credibility of the JSC and the Judiciary. Sgd. Manjula Tilakaratne, Secretary, JSC.”

Unprecedented

Never in the history of Sri Lanka has a public institution issued a statement of this nature. It is unprecedented. At or about the time the statement was issued, the Supreme Court issued a finding that the Divi Neguma Bill, placed before Parliament by the Government, should be withdrawn and the approval of all the Provincial Councils should be obtained before it is to be re-presented to Parliament.

Already the Western and Wayamba Provincial Councils have approved the Divi Neguma Bill. There was also a demonstration by a crowd of people in front of Parliament, against the Supreme Court finding on the Divi Neguma Bill. The crowd was estimated to be around 3,000 people, including three Ministers, including at least two who had been with the opposition party in various capacities in earlier times!

This establishes one thing, that when it comes to certain issues, there is unanimity among the political class, across the political divide! Normally this unanimity is concerning mundane things, like duty free vehicle permits, pensions and allowances, personal staff and other emoluments, and perks. But this is the first time it has manifested itself on fundamental Constitutional issues like the Separation of Powers. The formal Opposition however has condemned the demonstration.

The Sectary of the JSC has issued a statement saying that there is no basis for any complaint to be made against him to anybody by the father of a judge. In any event, if there was such a complaint, due process requires that the complaint should be forwarded to the relevant agency, a preliminary investigation held, if there is a prima facie case, charges framed, and a formal inquiry initiated in terms of the Establishments Code and the Administrative Regulations.

The letter being produced and being bandied about among members of Kipling’s fourth leg of ‘My Father’s Chair’ is beyond belief. These are serious matters which deal with professional careers and reputations! The cavalier attitude taken in this instance should be roundly condemned.

Judiciary under pressure

The Judiciary seems to be coming under pressure; a newspaper story in a Sunday paper said that a Police constable on duty at an Appeal Court Judge’s house had been assaulted and had been hospitalised. The Police constable accuses the Judge of being the assailant. Another Sunday newspaper gives a firsthand account of the discussion with the President at which these matters were raised.

In a strange and inexplicable twist, this newspaper man refers to the former Chairman of the National Savings Bank (NSB) being summoned to the Bribery Commission in the same story. The nexus between the two issues is not clearly stated, unfortunately for the readers.

The President is supposed to have said that he had nothing to do with Bribery Commission probing the NSB share transaction. It is indeed commendable that the Executive does not stick its nose into inquiries being conducted by other independent Government investigative agencies, but that begs the question, how on earth is it relevant to the impartiality of the Judiciary? Will someone please explain?

Sacrosanct, for now

In any event, from what has transpired, it seems that our long and unbroken legacy of good governance in terms of the Dasa Raja Dhamma and the impartiality of the Judiciary seem sacrosanct, for now. Let us await further developments. Surely the members of the fourth leg of Kipling’s ‘My Father’s Chair’ have not reported the last word on the subject.

The fear is that we just may be destined to be that ‘one legged stool,’ which Kipling refers to, of an all-powerful unchecked Executive arm of Government, if the situation is allowed to further deteriorate. Montesquieu must be turning in his grave!



(The writer is a lawyer, who has over 30 years experience as a CEO in both government and private sectors. He retired from the office of Secretary, Ministry of Finance and currently is the Managing Director of the Sri Lanka Business Development Centre.)