Rajiva Wijesinha : Reforming the Judiciary in a civilized manner
I am sorry about the current attempt to impeach the Chief Justice, since it seems to me rather like taking a sledgehammer to crack a nut. What makes it worse is that those responsible for the impeachment motion seem to be going after the wrong nut.
Over the last year, in trying to expedite implementation of the National Human Rights Action Plan, I noted many problems arising from the failure of the judiciary to establish norms with regard to the processes entrusted to them.
I sent several letters on this subject, to the Chief Justice as well as the Judicial Services Commission, but initially received only dusty replies, ie claims that the responsibility was not theirs.
Recently though – and this may reflect the fact that the Judiciary realized it could not go on in an ivory tower with no regard for basic human problems – I got more positive answers, and most notably the assertion that advice had been given to the magistracy with regard to rulings. However my subsequent request, that that advice be made public, has been thus far ignored. I am sorry about this, because the public has a right to know the norms under which judgments and sentencing are imposed.
We had also, at meetings of the Task Force on the Plan which I convene, suggested meetings to ensure that magistrates were more careful about fulfilling their responsibilities, not only with regard to sentencing, but also for visiting prisons and remand homes. This happened rarely, though I should also note the commitment of a few members of the judiciary who did take such responsibilities seriously.
The Secretary to the Ministry of Justice then wrote to the Judiciary asking that a meeting be convened, but she did not get a response. I have urged her to take the matter up again, but I can understand diffidence if there seems to be no interest. That is why I brought the matter up with the Presidential Secretariat, which now has responsibility for the Attorney General’s Department and the Legal Draughtsman’s Department. Unfortunately that initiative too did not find a response.
Underlying the problem is a failure I think to understand two cardinal principles, and to maintain a distinction between them. The judiciary must be independent, because their primary responsibility is to the people and often the state is involved in litigation. Whether with regard to criminal matters, or constitutional matters, the judiciary has to decide between the government and the people, and therefore it must remain independent of the government with regard to the decisions it delivers.
However the judiciary has to decide in accordance with the laws, and it is the business of Parliament, not the judiciary, to make law. The judiciary may decide that laws are in conflict with the Constitution but, unless this is the case, the judiciary has no business to go against duly approved legislature, simply on the grounds that it could have been better. And it certainly should not ignore laws when they establish safeguards for the people, such as limitations on the period for which people can be remanded, or provisions for visiting places of detention.
It is possible that the judiciary may realize, after laws have been in operation, that they present problems, as for instance with the law about statutory rape. Applying that in a case of obvious mutual consent, where the couple got married when the age of majority was reached, seems unfair. But, as has been pointed out by wise judges, there are ways to deal with such problems, by introducing a suspended sentence subject to review by Parliament of the legislation it had introduced.
One problem that we face is that there is no proper provision for judicial review of legislation. This also extends to judgments of the Courts that are blatantly absurd, but the conservatism of the judiciary means that these are not changed. Thus we have the anomaly of the former Chief Justice having ruled, wrongly as I have argued, that the former President’s term of office finished in 2005, whereas the present President, rightly, having been elected for a second term in January 2010, only took his oaths ten months later, in terms of the Constitution.
It was of course foolish for the former President to have taken her oaths at the wrong time, and then taken them secretly again later, which led to the ambiguity of which, with his customary brilliance at proving whatever he wanted to prove, the former Chief Justice took advantage. But it is absurd that we have to live with two conflicting versions of what a particular section of the Constitution means.
Given such problems, I believe government should arrange a workshop with representation from the judiciary, to work out how to entrench the independence of the different branches of government whilst also strengthening accountability of all of them, including the Judiciary, to the people. The accountability of the Executive and the Legislature is based on elections, though I believe we should introduce measures such as the Right to Information and publication of the proceedings of parliamentary oversight, to improve the process.
But, with regard to the judiciary, where elections are not possible, there must be much stronger insistence on transparency, along with better mechanisms for ensuring consistency and adherence to established norms. This should also be accompanied by more effective training programmes, with regard not only to decision making but also the writing of judgments. Recently I was deeply saddened to find that the Judiciary had turned down a programme of training prepared by the Colombo University Centre for Human Rights, which the previous Chief Justice had approved.
The present Chief Justice may be diffident about the University, given her own background, but that should not have stood in the way of better training for her peers. Certainly her failure to do better in this and other respects should be overcome; but through discussion, not impeachment
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