“A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis… In a country like ours no public institution or the people who operate it can be above public debate” –Warren Burger (Chief Justice of the United States, 1969-1986)
There are many who have now come to think that the Western style judicial system has failed in Sri Lanka or rather that we have failed the system. At a higher level politicised, the lower courts overwhelmed with unwieldy trial rolls; it is a scheme of things from which neither the litigant nor the practitioner can derive any joy. In the public perception, a system operating mindlessly, out of touch and out of date, while the powerful offend with impunity and all doors open for the corrupt.
Like the idea of a parliament, our judicial system too was an imposition of the colonial experience. They, right down to the pomp and pageantry, the gowns and the wigs, are essentially foreign ideas and habits, developed and nurtured in climes and cultures very different.
In the long history of this island, we observe no discernible clamour for a representative form of government or an evolution towards an independent judiciary as a separate arm thereof. The feudal order existing prior to the colonial era seems to have remained more or less unchanged, from the first king to the last.
It was colonialism that brought the ideas and institutions of the conquering civilisations to the conquered. Although adopting them would have seemed inevitable, if not the proper thing to do in the context of the post-colonial realities, we were jumping into the unknown. One may “learn” the ideas of another civilisation without grasping its essence or mimic their institutions without really “knowing” their meaning.
Having no shared history in the evolution of the various concepts solidified into the judicial system, gaining authenticity is proving to be increasingly elusive. That imperfection in the understanding could lead to the concept of judicial independence becoming a mere pose, liberty just another word and the pomp overriding the substance.
The judicial role
Going by the recent happenings in the highest echelons of our judicial pyramid, a person can be forgiven for thinking that the cultural unfamiliarity with the essence of the concept has proved to be a fatal flaw in the functioning of the judicial role.
Judges who see their appointment as mere career advancement, “the main chance”, will soon perceive the benefits of an appropriate arrangement with the powers that be. In our social values, being ‘there’ is a lot more rewarding than being fair. Independence of thought and character are not the currency of cultures given to group or the herd mentality. Judging in the true sense is a lonely role – a personal search, calling for values altogether different from those operating at say a chefs guild or a union of customs officers.
A judge for all seasons
But just when we despair of our inability to produce men with the desired ingredients of character for the judicial role, when all around us are men seemingly inadequate for the calling, when the prevalent culture seems too diminished for independence of spirit, there was Nimal Gamini Amaratunga. Here was a man from a different mould; just and fair-minded, liberal and compassionate, honest and independent (including intellectual honesty, a far more difficult attribute for a person in a high position), able and intelligent, a judge for all seasons.
But was he only an exception that proves the rule? The general attitude is a deep-rooted need to belong, be part of the group, whether it is party, caste, race, old boys – a denial of an autonomous existence; even the courts seem to swing with whoever is in ascendency for the time. Was Justice Amaratunga an exception, or did he personify untapped springs of intellectual vigour and moral strength, deep in the recesses of our culture – awaiting its deliverance?
In a crowd, Gamini Amartunga would hardly be distinguished, but then he never wanted to be. Being a judge did not raise him up from the rest, but only increased his load on their behalf. His worth did not come from family associations with eminent names or large acreages inherited from family folk, but from being a just man to all.
Hailing from the Sinhala heartland of Kurunegala, his was a story of success, for not what he acquired but gave during his lifetime. After graduating from the university I believe Justice Amaratunga had a stint as a teacher. He would have been a good teacher; painstaking, considerate, encouraging his students to explore beyond the confines of the four corners of the text book, characteristics that defined him in later life too.
An exceptionally-able State Counsel
It was later, when he was a State Counsel, that I gradually built up an association with him. Even then, it was commonly acknowledged that Gamini Amaratunga was an exceptionally-able State Counsel. Reading his minutes and reports on various criminal files, objective, precise, was unfailingly beneficial to us the juniors in the Department then.
Although his sure knowledge and obvious abilities in the law made him a star of sorts among his colleagues, Gamini was not a man to propel himself forward. His subsequent judicial career was only a natural progression of a capable man, never canvassed or lobbied for.
Had he so chosen, after an illustrious contribution as a State Counsel, he could have easily built up a lucrative private practice. But Gamini Amaratunga chose to serve the law as a judge; a career from which he gained very little in a monetary sense but gave much to the stakeholders, never a single word of criticism is heard from any quarter of his judicial independence or the justness of his orders.
"Although his sure knowledge and obvious abilities in the law made him a star of sorts among his colleagues, Gamini was not a man to propel himself forward. His subsequent judicial career was only a natural progression of a capable man, never canvassed or lobbied for. Had he so chosen, after an illustrious contribution as a State Counsel, he could have easily built up a lucrative private practice. But Gamini Amaratunga chose to serve the law as a judge; a career from which he gained very little in a monetary sense but gave much to the stakeholders, never a single word of criticism is heard from any quarter of his judicial independence or the justness of his orders"
Accountability and right to debate and criticise
Justice Amaratunga would have had no difficulties in concurring with the above-quoted opinion of Chief Justice Warren Burger (US), but for his own reasons, written and presented as always, objectively and precisely. Warren Burger in this opinion refers to a fundamental condition of a democratic society, the accountability that comes with high office and the right to debate and criticise.
Once elected to office, more often than not, our politicians become intolerant of criticism. Their reactions could range from physical attack, subverting the media institution to ‘disappearing” the journalist or the critic concerned. Mercifully, our courts do not react in such a manner but they do have the power to deal with any ‘contempt’ committed against it.
Balancing the powers and integrity of a court on the one hand with the fundamental freedom of expression on the other, could in certain circumstances be the difference between liberty and oppression.
Nimal Gamini Amaratunga was a judge for our times. The people of this country truly exercised their judicial powers through Justice Amaratunga. We salute his memory.
(The writer is an Attorney-at-Law and a freelance writer.)