As the senior-most retired Judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a Judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.
The Independence of the Judiciary
An independent Judiciary is vital to democracy, for without it citizens lack the basic protections, without which a democracy cannot exist.
The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the State to respect and protect the independence and security of tenure of judges.
The independence of the Judiciary and their security of tenure are hard-won rights secured after centuries of struggle against authoritarian regimes. Such hard-won rights need considered attention and protection by citizens and governments alike. An independent Judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.
The Rule of Law
The following propositions, which are associated with the independence of the Judiciary, are unassailable and require observance and protection in any democratic state.
In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
In the second place the rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
In the third place there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.
In the fifth place the rule of law demands that every person investigated by a tribunal has a right;
a. to be informed of the charges
b. to know the evidence against him or her
c. to have a full and fair opportunity to scrutinize that evidence and to respond to it
A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.
So fundamental and universal are these principles that even the Universal Declaration of Human Rights spells out in Article 10, that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations…” Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.
Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.
The Separation of Powers
Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.
It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.
As I have said in many of my writings and lectures, all three branches of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the Rule of Law. If the Rule of Law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinising and refuting it.
In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the Judiciary with a resulting undermining of the rule of law and of democracy itself.
This should be a cause of concern to every citizen and every institution in the country.