Disciplining the judiciary

In recent weeks there has been a debate in the public domain on the alleged intention of the Government to extend the constitutionally guaranteed tenure of the Chief Justice and the other Judges of the Supreme Court, as well as on the failure of the President to nominate persons to fill eight vacancies on the Supreme Court and the Court of Appeal.  

In the weeks preceding that debate, the Speaker rejected a motion submitted by 31 members of Parliament requesting the appointment of a Select Committee of Parliament to examine the exercise by the Judicial Service Commission of its powers relating to the dismissal and disciplinary control of judicial officers. It was alleged on the floor of the House that the JSC had acted arbitrarily in terminating the services of several judicial officers. The Speaker rejected that motion on spurious grounds that the JSC was “exercising the judicial power of the People”. The Supreme Court had already held, as far back as 1962, in The Queen v. Liyanage, that the JSC was “a body performing executive functions”, and that judicial power is vested in “the established courts of this country”.

The Sri Lankan Judiciary is one of the few in the world that has failed to adopt the Bangalore Principles of Judicial Conduct which was adopted by the United Nations General Assembly in 2006. The United Nations “invited Member States to encourage their judiciaries to take into consideration the Bangalore Principles when reviewing or developing rules on the professional and ethical conduct of members of the judiciary”. As far as I am aware, the 175-page Commentary on the Bangalore Principles, which was published in 2007 in the official UN languages, and has since been re-published by several national judiciaries in their own languages, has not been made available to the members of the Sri Lankan Judiciary.  Nor has the 2019 Istanbul Declaration on Transparency in the Judicial Process, which the United Nations General Assembly invited Member States to take into consideration “when formulating their programmes and legislative reforms in the administration of justice”.

These two standard-setting global instruments of the 21st Century, which successive Sri Lankan Governments and Judiciaries have chosen to ignore, prescribe procedures for the disciplining of judges.

Measures for the effective implementation of the Bangalore Principles

This instrument requires that:

n Conduct that may give rise to disciplinary sanctions to be defined by law;

n Disciplinary proceedings against a Judge may be commenced only for serious misconduct;

n A specific body or person should be established by law with responsibility for receiving complaints, for obtaining the response of the Judge, and for considering in the light of such response whether or not there is a sufficient case against the Judge to call for the initiation of disciplinary action, and in the event of such a conclusion, to refer the matter to the disciplinary authority;

n The power to discipline a Judge should be vested in an authority or tribunal which is independent of the legislature and executive, and which is composed of retired or serving Judges, but which may include in its membership persons other than Judges, provided that such persons are not members of the legislature or the executive;

n All disciplinary proceedings should be determined by reference to established standards of justice, and in accordance with a procedure guaranteeing full rights of defence;

n There should be an appeal from the disciplinary authority to a court;

n The final decision in any proceedings instituted against a Judge involving a sanction against the Judge, whether held in camera or in public, should be published;

n Each jurisdiction should identify the sanctions permissible under its own disciplinary system, and ensure that such sanctions are, both in accordance with principle and in application, proportionate;

A Judge may be removed from office only for proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.

The Istanbul Declaration on Transparency in the Judicial Process

This instrument reaffirms the provisions in the Bangalore Principles, and requires the judiciary:

n To develop and promulgate rules or standards of professional and ethical conduct for members of the judiciary, taking into consideration the Bangalore Principles of Judicial Conduct;

n To ensure that each Judge is provided with a written copy of such code and any related material, such as a commentary;

n To disseminate the code of judicial conduct in the community, through written publication or on the internet;

n To establish a mechanism or procedure by which individual Judges may obtain advice on the propriety of proposed conduct;

n To develop courses or modules on judicial ethics and as a mandatory requirement in the initial training of Judges.

The Judicial Service Commission

A Judicial Service Commission consisting of the Chief Justice and the next two senior Judges of the Supreme Court was initially introduced in the 1946 Constitution of the Dominion of Ceylon. It was a constitution which was drafted on the basis of a report of a Royal Commission, and which was issued in the form of an Order-in-Council from Buckingham Palace. The Chief Justice at the time was an officer in the Colonial Legal Service. The JSC was excluded in the 1972 Constitution of the Republic of Sri Lanka but was restored in the 1978 Constitution.  Today, it appears to be a constitutional anachronism. If the allegations made on the floor of Parliament in regard to the summary termination of the services of several judicial officers are true, the Judicial Service Commission has failed to take note of, and give effect to, the very significant international developments relating to the judiciary that have occurred in this century.

(The author is the Rapporteur of the UN-sponsored Judicial Integrity Group of Chief Justices, and was actively involved in the drafting, and thereafter in the processes that led to the adoption by the UN General Assembly, of the Bangalore Principles of Judicial Conduct and the Istanbul Declaration on Transparency in the Judicial Process)