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Wednesday, May 22, 2024

Judicial Accountability: The first is that the judiciary should be independent, which means that there should be no interference, by individuals or any other branch of government

Rajiva Wijesinha

The last section I had planned to look at in this series is the Judiciary, though that may be the most important in the current context. The basic suggestions I put forward some weeks back, before the crisis had got so grave, basically addressed problems that were developing precisely because we were confused about two principles that all constitutional dispensations should hold sacred.

The first is that the judiciary should be independent, which means that there should be no interference, by individuals or any other branch of government, with regard to the content of the decisions it makes.

The second is that the judiciary, like all other branches of government, should be accountable to the people. Its decisions should be subject to review, and it should follow procedures so that reliance might be placed not only on its judgments but on the processes through which it reaches such judgments. When procedures are established by law, it must itself obey those laws, though it should have leeway to recommend changes to the legislature when laws prove cumbersome or even unjust. When procedures have not been put in place, it must develop procedures through guidelines that are made known to the public.

For these purposes, so as to

    ensure the independence of the judiciary whilst promoting transparency with regard to appointments
    promote professionalism in the judiciary
    institutionalize justiciability by making all decisions subject to review
    introduce alternate mechanisms of seeking justice whilst preserving the ultimate authority of the Courts

I suggest that the Judicial Service Commission must formulate and make public rules with regard to transfers etc and perform its functions in accordance with such rules. Appeals with regard to any actions of the Commission may be made to the Commission and shall be responded to in writing within one month of the date of such appeal.

The Commission shall also each year formulate plans regarding a training programme for Judges of the High Court and Magistrates and prepare reports on the outcomes of such training each year.

The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement by executive or administrative action of any fundamental right or language right declared and recognized by the Constitution. As application in this regard may be proceeded with only after leave to proceed has been obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by no less than two Judges.

The Supreme Court shall, subject to the Constitution, be the final Court of all appellate jurisdiction for the correction of all errors in fact or law which shall be committed by the Court of Appeal or any Court of First Instance. Appeals may be made against findings of the Supreme Court, which shall be heard by a bench of the Supreme Court consisting of no fewer than seven judges. Such appeals shall be disposed of within a month of being made.

The Human Rights Commission of Sri Lanka may take up complaints with regard to Court decisions as well as other administrative or executive action in the public or private sphere. The Commission may request the Supreme Court for assistance in investigating such complaints, and shall seek to provide redress if required through consultation of the Court. The findings of the Commission shall be published in the event of agreement not being reached as to any remedial action recommended by the Commission.


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