Justice must also be seen to be done

By Chrishmal Warnasuriya

The way it used to be: It was ‘All Souls Day’ last week, a poignant time to reflect on the past and the present, what used to be as opposed to now; rather than from a strictly “professional sense,” more from the perspective of the common litigant, the “reasonable bystander”!

As always these words may be misconstrued or even purposely misquoted, indeed a close “learned friend” with whom I shared a draft inquired whether this was not “professional suicide”!

However, when one is driven by conscience, there is need to comment on things as you see it. If unfortunately it cannot be seen from that objective sense, then such is the price that must be paid; as old “Blue Eyes” sings: “What is a man, what has he got… to say the things he truly feels, and not the words of one who kneels…”

In this mood of reflection, come January we will remember the (untimely) passing away of a truly great Judge that Hulftsdorp had ever seen, certainly in our times; His Lordship Mark D. H. Fernando, J.

Upon returning home from his funeral that evening itself, I was moved to put pen-to-paper and what I did manage to write (published later by some, including ‘The LST Review’) contained the following:

“…Much will be said of him in the coming days, many a verse written, many an ode recited and eulogy sung; all of it undoubtedly deserved. We can only speak from experiences as juniors regularly appearing before him. There was never a counsel, junior or senior, who went away not having been heard in full; before him all were equal… he heard what had to be heard and uttered only what had to be uttered; that too, impersonally, with no implied or express emotion, matter of fact and to the point…

“To Mark Fernando J the concept of ‘Sovereignty of the People’ meant that all governmental power emanated from the people, and therefore government, whether legislative, executive or judicial were answerable to the people and exercised their power for the people… If ever there is a judge whose demeanour on the bench, razor sharp intellect, judicial temperament and speed of comprehension that I should like to emulate… that would be His Lordship, Mark D.H. Fernando, J – a truly one of a kind Judge that Sri Lanka was fortunate to have!”



A judge – also a lawyer:

In one of the first addresses to the Bar following ascension to office, His Lordship the incumbent Chief Justice, Asoka De Silva, CJ stressed on the importance of both sides maintaining court room discipline; the judge to hold judicial temperament and grant a patient hearing and the equal obligation of counsel to be thoroughly prepared with the brief they carry.

These same sentiments were repeated at a recent ceremony by His Lordship Saleem Marsoof (PC), J who commented that it was important to remember that both judges and lawyers belonged to the same fraternity, and though conducting different roles were integral parts of the same system. This is very important; after all both sides are trained at the same law schools and are officers of court meant to be pursuing the same objective; the attainment of justice for and on behalf of the citizens of this republic who have vested their sovereign power on the judicial system.

I’ve heard it commented that some practitioners are “too scared” to highlight this factor; I find this a bit harsh and feel that “fear” is not the correct explanation of this phenomenon. It is more “respect” that especially the younger practitioners hold for the seniority of the lawyer in that judge’s robes, which is no different to that they will offer another senior at the bar.

This respect should not be misinterpreted for fear, by either a client or indeed a judge; lawyers are not meant to run scared in a courtroom for that is their forum in as much as it is the judges; to ensure that justice prevails for the ultimate benefit of the citizen who has vested that judicial power in the system.

Of course since courtroom interactions transpire in the public eye one cannot be totally oblivious to the possibility of “human egoistic variables” playing its part in this equation; this has always been and so it shall be; the reality that things may be taken “a bit personally” by either side on a rare occasion.

However this must be the exception rather than the norm, whilst an outburst (more a gentle reminder) may be occasionally tolerated, it must never be customary for a particular judge to be seen to be averse to every case of a particular nature or each time a particular counsel appears in that court.

Equally counsel must ensure that professional integrity is foremost, not to discriminate amongst “sides” but be ready to accept any brief and argue that to its full merit and not try to “pick a favourite judge”; be prepared to argue the brief before any judge. A transgression of these norms is simply not acceptable from either side; judge or lawyer and would certainly not be the “justice” expected by the citizen!



Who “judges” the judge – quis custodiet ipsos custodes?

One of the most senior and respected counsel we have, Deshamanya R.K.W. Goonesekere completed his delivery with this question, when he addressed the 60th Anniversary Celebrations of the Faculty of Law of the University of Colombo; of which he was one of the first students. He poses this very pertinent question as follows (quoting excerpts only):

“…I wish to address in the last section the reference made …to the widely accepted principles that no one is above the law. That being the case can judges be above the law. Actions by judges may not be the subject of complaints of infringement of fundamental rights… but the judiciary as an organ of government is bound by Article 4 to respect and secure fundamental rights…”

I believe that the “ordinary citizen” who sits in that courtroom is far more perceptive than we give them credit for, they are very quick to spot the extraordinary; they draw fairly accurate and speedy criticisms of both a judge who talks more than listening as equally as they are disappointed with a lawyer who cannot utter justice to the brief in hand; and they go forth and talk! This is an important factor for consideration.

Beyond our earshot (and quickly changing the subject when we join conversation) these “reasonable bystanders” in a court room or a case are very quick to draw their conclusions and even more quicker in disseminating them; at times rather unfortunately even wrongfully. Is this not a reason why we should be overly careful about our demeanour in our various roles?

Even if the end result was in strict accordance with the law (as known to us), when such a person goes home with a doubt in mind – has justice been “seen to be done”? If he/she were to return with that question, then what does that do the general perception of the citizen towards the law, the judiciary, lawyers and the whole process?



A clerk to the judges and an alleged dictator

Lest the subheading disturbs you, let me hasten to add that these refer to two distinct cases and both decided in lands far-far away!

In a fairly old (and perhaps insignificant) case in the 1920s where a motor cyclist named “McCarthy” was being prosecuted, unknown to McCarthy and his lawyers the clerk to the justices had a further interest in the matter; he was a member of another firm of solicitors who were suing McCarthy in a civil claim in respect of the same accident.

This clerk retired with the justices who returned to convict McCarthy guilty as charged. Upon learning of this clerk’s connection McCarthy appealed to have the conviction overturned; the justices swore affidavits stating that their conviction had no influence of that clerk. However in delivering judgment Lord Chief Justice Hewart had this to say:

“…a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether …the clerk made any observation or offered any criticism …the answer to that question depends not upon what actually was done but upon what might appear to be done… nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice…”

Undoubtedly one of the greatest judges of the 20th Century, Lord Alfred Thompson Denning (darling to the “common litigant” and occasionally controversial perhaps for those very reasons) further propounded this exposition in several cases, in one of which His Lordship said “…reason is plain enough. Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking ‘the Judge was biased…’”

Years later in that same jurisdiction, in a trial involving a former military leader, one time General who subsequently became head of state of Chile, Augusto José Ramón Pinochet Ugarte, its apex body of review, the House of Lords acted swiftly to protect the sanctity of this same principle when they noted a possibility of breach.

This case involved the highest international attention, was under the constant spotlight of the media and was judicially groundbreaking since it was reportedly the first time where a former government head (visiting the UK at the time) was arrested under the principle of “Universal Jurisdiction”.

The facts of what transpired were (briefly) that the House of Lords’ first decided that Pinochet was not entitled to immunity from arrest and extradition, but Pinochet discovered that one of the judges, Lord Hoffman J (who had cast the deciding vote) had been an unpaid director and chairman of Amnesty International Charity Ltd (AIC); which was wholly controlled by Amnesty International (AI), a party that had been allowed to intervene in his appeal.

Pinochet sought to have his appeal decision set aside on the ground that Lord Hoffman’s connection with AI was such as to give the appearance that he might have been biased. His argument was upheld by the House of Lords, and directing that the Divisional Court’s decision be reheard by a differently constituted committee, their Lordships held that:

“…the fundamental principle was that a person could not be a judge in his own cause…Hoffman LJ was automatically disqualified…the question was whether a non pecuniary interest in non financial litigation was sufficient automatically to disqualify a person from sitting as a judge…one of AIC’s objects was “to procure the abolition of torture…and it was clear that AIC had an interest in the proceedings…the fact that Hoffman LJ was not a member of AI …was irrelevant if the absolute impartiality of the judiciary was to be maintained. The fundamental principle that justice should not only be done but be seen to be done had to be applied to a judge involved, either personally or as a company director…”

Such is the importance attributed to this very vital factor; that justice must be seen to be done in courts!



The need “to decide” – stare decisis:

Perhaps a fleeting reference, if I may, to point a finger of criticism at ourselves in this whole equation. Being guided by a system that we must “stick to what has been decided” it is important to give sufficient prominence to judicial argument, written judgments that articulate in logical and reasoned fashion as to why a particular case has been decided in that fashion.

This will reduce ambiguities and encourage everyone concerned to divert their attention to what is recorded, published and available. Therefore it is of paramount importance to ensure that proper documentation of judicial precedent is carried out promptly and effectively.

The last time I checked it was only the second volume of the law reports for the year 2005 that was available for binding; we’re now in 2010 and almost looking at the dawn of 2011! I doubt whether any more needs to be said!

I believe that “charity must begin at home”. If even five years after a judgment is delivered we are still waiting for it to be published in the annual law reports, then there is something wrong somewhere!

If those of us who are responsible are finding this a difficult job, then perhaps the answer is a private publisher like in certain other jurisdictions, who will ensure that the job is done on time; perhaps at a slightly higher premium, since obviously that entity will not be conducting a charity but trying to make a profit as well; but at least, we will have the publications out on time.

To end where I began, in January 2004 a few of us decided to present (the late) Mark Fernando J with a compilation of his judgments, and writing a “forward” to that volume I penned down the following words (excerpts only):

“ …As the following pages of judgments unfold, the reader would undoubtedly discover what made Your Lordship so different…it would be seen how intricately Your Lordship’s mind had traversed through the submissions placed, sifting laboriously through volumes of material…to extract what is relevant to the issue, temper it subtly with judicial argument and practical intellect, to finally create unparalleled precedent of sound authority that are often cited in our courtrooms and even elsewhere in the world…Your Lordship’s premature retirement may spell many things to many; most importantly perhaps, a ‘sudden death’ to the judicial dynamism that has been synonymous with this courtroom. ‘What time will bring, only time will tell’. One thing that it is certain of not being experienced there anymore, at least to the same magnitude; would be the contentment that both lawyers and litigants alike have experienced upon leaving your courtroom; that justice had been done there, that day, irrespective of whether they had won or lost their claim…”

If we all do not lift our eyes and take a good, self critical and deeply pervasive look at ourselves in our respective roles in this profession, the day may not be that far that the “reasonable bystander” in that court room would not even bother to look our way at all!