Attacks on Judiciary in Recent Times

• Politicos have a responsibility to preserve the dignity and integrity of judiciary 

• President Gotabaya desisted from unwarranted criticism of the judiciary before the truth of the matter is established

• Measures of restraint should be imposed on mass media so that judiciary will not be tarnished or its integrity  undermined

• Presumption of innocence described as a golden thread running through criminal law

 

The time has arrived for us to think of potential negative consequences of unbridled and unrestrained attacks made on the judiciary consequent to the release of many audio clips to the mass media. Many of these attacks have been made by politicians whose primary objective is to gain political mileage at the expense of fundamental values that underlie the judicial system. The distinctive feature of these attacks have been its intensely-political character and personal targeting of identified judges. Besides the politician, attacks have been launched by the media, both electronic and print, television commentators and some members of the legal profession. 

31 January 2020

The display of such antagonism towards the judiciary by politicians is bound to eventuate the total collapse of law and order in the country. It is important to remember that politicians too are bound by law and that they have a responsibility to preserve the dignity and integrity of the judiciary.

It is also their responsibility to maintain a healthy legal culture in the country so that the people will value the whole judicial process. They must know the difference between disapproving the conduct of a few judges and defending the judicial system as a whole. But in fairness to incumbent President Gotabaya Rajapaksa, it must be stated that he has desisted from unwarranted criticism of the judiciary before the truth of the matter is really established. It should be remembered that these attacks have been made before any form of action is instituted or contemplated by the authorities against those who are involved in the audio clip drama.

Independence of the judiciary is comprised of two basic postulates, namely the independence of the judiciary as an institutionalised organ and the independence of individual judges. It is an accepted fact that if effective justice is to be achieved, nothing should be done to diminish or undermine the prestige of the judiciary in any manner. Independence of the judiciary has always been considered as one of the cardinal features of the judicial system in a democratic State. Independence of judges requires that decisions are reached without fear or favour.

It is a fundamental requirement to the maintenance of trust and confidence of the judiciary and acceptance of their decisions. Every fundamental rights instrument defends the right of every person in a cause affecting them to be heard by an independent, neutral and unbiased judiciary. However, it should be stated that the current level of attacks on the judiciary is unacceptable as it has gone too far. Therefore, some measure of restraint should be imposed on mass media so that the judiciary as an institution will not be tarnished or its integrity undermined.   

The presumption of innocence has been described as a golden thread running through criminal law. It is this cardinal principle in criminal law, which is in jeopardy, if any proceeding is instituted against those who are involved in the whole drama in the end. It is a fundamental human right protected by numerous international and national instruments. The presumption of innocence is crucial and vital to ensuring a fair trial in individual cases.

It is a clear violation of the presumption of innocence for a politician or any member of the public to make statements implying guilt of a suspect before he is prosecuted in a court of law or any other competent tribunal. This problem becomes graver when there is a considerable public interest due to the nature of the offence and identity of the suspect.

The pretrial media reporting or commenting on the conduct of a suspect before he or she is charged in a court of law is bound to violate the cardinal principle of presumption of innocence. Furthermore, the content and tone of some verbal attacks presented a picture as if all those who are involved in the recent events are guilty before they are found guilty by a competent court or by an impartial tribunal. Criminal justice is based on the fundamental value that it is far worse to convict an innocent person than to let a guilty man go free. Our law is founded on the concept that an accused is innocent until proven guilty.   

There is another aspect to be considered in this connection. Today, politics has crept into practically every sphere of activity in Sri Lanka. In such a political environment and culture, people may be forced to support the dominant or whatever governing party in power for getting their basic amenities and opportunities attended. The society is so politicised that supporting the particular party in power becomes a necessity if a person wishes to climb the hierarchical ladder.

For instance, if you are a government servant, you need to express your party support and political affiliation either explicitly or implicitly or indicate your party loyalty in any other manner for appointments and promotions. It is a fact that in a competitive society such as ours, if you are to go ahead, we need the support of the political party in power and if you oppose the government in any manner, you may be deprived of many deserving opportunities. Every person in society, regardless of their political affiliations and loyalty, is entitled to equal opportunities.

Society too suffers because persons are placed in influential positions not because they are qualified or deserving. This practice will eventually lead to the decline of the quality of service. It is important that a person’s promotional prospects are evaluated on the basis of merit and not by their political affiliations. In such a politicised atmosphere, insidious infiltration of politics into the judicial sphere is inevitable. What can we expect from judges who live in such a political culture and atmosphere?

Judges are also humans who have their own weaknesses and frailties. No person will resist human impulses for opportunities and sacrifice personal ambitions. Politicisation has led to the gradual erosion of hitherto considered free institutions and this process is manifested in politicisation of previously non-political spheres such as the judiciary. Judges going after politicians for their personal advancement like appointments and promotions are inevitable. That is the reality existing in the society at present. Political consideration in such an atmosphere can also play even a minimal role in the matter of appointment and promotion of a judicial officer.   

Despite the recent attacks on the judiciary and on some of its members consequent to the revelations made in the audio clips, the prestige of the judiciary by and large remains as high as it ever was. And the independence of the judiciary is still the pride and boast of our country. And it is one of the best and least corrupt and least venal compared to other branches of government.   

In this context, it is pertinent to remember the following matters. Judicial power has a fiduciary component and judges acting in trust are to account for their conduct to the people in the country. In a country governed by the rule of law, judges are the guardians of justice. Judges have a burdensome responsibility to discharge in the performance of their duty. He or she has the power over the lives and livelihoods of all those who come before court for the resolution of their disputes. Their decisions are bound to affect the interest of individuals or groups present or represented in court.

Today, judges face many trials and tribulations not contemplated by their predecessors. They are required to conform to standards of life and conduct far more rigorous and restricted than those of ordinary people. Judges are mere mortals but they have been entrusted with a task that is supposed to be sacred and divine. It should be noted that they are subjected to the same ambitions, passions, prejudices and fears as other people.

However high the general standard and compliance expected of a judge, there can always be human weaknesses and frailties which can affect and have a bearing on their conduct. They cannot avoid being shaped by their backgrounds and life experiences. Taking on the role and taking oath of office as a judge does not strip himself of prejudices and predilections. Nevertheless, in the performance of their official duties, they’re obliged to observe a very high standard of conduct, objectivity and impartiality.   

The importance of safeguarding an independent judiciary has been recognised by numerous international and regional instruments, as playing a vital role in protecting human rights and other fundamental liberties of people. Thus, Article 10 of the Universal Declaration on Human Rights recognises judicial independence in following terms: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his or her rights and obligations and of any criminal charge against him or her. Similarly, Article 14b of the International Covenant on Civil and Political Rights provides for the right to a fair and public hearing by an independent and impartial tribunal.  

In 1985, the United Nations adopted the basic principles of judicial independence which declares that the judiciary shall decide matters before it impartially and without any restriction, improper influence, inducement, pressure, threat or interference, direct or indirect from any person or entity for any reason.   

Sri Lanka also guarantees the independence of the judiciary constitutionally by such measures as security of tenure, non-removability except for proved misbehaviour or incapacity and non-reduction of salaries and immunity from being sued.   

No one will deny that any deviance or misconduct or abuse of authority on the part of judges should be thoroughly monitored and appropriate disciplinary measures should be taken promptly without eroding the independence of the judiciary. The task of investigating any misdeed or misconduct should not be left to the executive and legislative branches as there is always the possibility of using investigation as a retaliatory measure for unpopular decisions and exert subtle pressure on judges.

Various investigatory mechanisms are possible to assess any act of misconduct or misdeed. In order to preserve the independence and credibility of the judiciary, it would be appropriate if these investigations are left primarily to the judicial branch of the government. If judges are found guilty of any judicial misconduct, it stands to reason that they should be dealt with appropriate sanctions. The judiciary must be carefully structured to ensure fair play and justice. If an inquiry is held on the conduct of the judges concerned, at such an inquiry, what should be proved affirmatively is whether the judges were influenced in any manner in their decision-making process by their alleged conversations conducted with the politician and former minister Ranjan Ramanayake.

A judge having a conversation or any interaction with a politician itself cannot be considered a misdeed or deviance from the path of rectitude if such conversations have not had any prejudicial impact on their decision-making. Judicial work invariably brings into contact with heads of other agencies to discuss mutual problems they face in their dealings with court, but that kind of integration and coordination should not compromise his or her position as a judge. A judge should have the strength of character to withstand pressure exerted on them by politicians.   

In an age when our traditional institutions are under close surveillance by the media and members of the public, only a rational and dispassionate appreciation of how our judiciary works can protect its integrity and survival of the system which we have nurtured and developed over several centuries.