An

excellent piece from today’s (24 July) Sunday Island.

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=30811

KD

A Breach of Faith

July 23, 2011, 5:08 pm

Nihal Jayawickrama

Since I was admitted to the Bar, nearly 49 years ago, I have witnessed the judiciary and the legal profession experience many changes. This is to be expected since reform should keep pace with the evolution of society. I was responsible for some reform measures, and at least one of them, the fusion of the legal profession, may perhaps have been ill-advised. An unintended consequence of this measure appears to have been an explosion in numbers of those entering the unified profession. This, in turn, appears to have led to a significant deterioration in the quality and ethical standards of the Bench and the Bar. This manifested in the decision of the Chief Justice, barely weeks after his retirement from office, to accept employment as an Adviser to the President, who is both head of government and chairman of the cabinet. It gives rise to serious questions not only in regard to his own judgment, but also to the probity of his judicial decisions in several politically sensitive cases. It also raises the spectre of judicial corruption.

Judicial Corruption

The contemporary definition of judicial corruption extends beyond conventional bribery. It is not limited to seeking or accepting money or gifts. An insidious and equally damaging form of corruption arises from the interaction between the judiciary and the executive. For example, the political patronage through which a judge acquires his office, a promotion, an extension of service, preferential treatment, or promise of employment after retirement, gives rise to corruption if and when the executive makes demands on such judge. A high rate of decisions in favour of the executive is almost certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his or her duties. So, too, if the executive were to provide lucrative employment, or extend other preferential treatment, to immediate members of a judge’s family. In the last decade, the international community has been engaged in responding to this phenomenon that debilitates not only the judiciary, but also society as a whole.

Independence and Accountability

Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. It refers to both the individual and the institutional independence necessary for decision-making. Judicial independence is, therefore, a state of mind and a status or relationship to others, particularly to the executive branch of government. It is not the privilege of a judge, but the right enjoyed by people when they invoke the jurisdiction of the courts seeking and expecting justice. Therefore, conventional wisdom required that judicial independence be constitutionally secured. It was once so provided in Sri Lanka, but not now. Moreover, credible evidence has surfaced in many jurisdictions, including Sri Lanka, that judicial independence was being traded for personal gratification or benefit.

It was in that context that, some ten years ago, the United Nations invited a representative group of chief justices and senior justices – the Judicial Integrity Group – to develop a concept of judicial accountability to complement the principle of judicial independence. It was a response to the question why, in a society based on the rule of law and democratic principles of governance, in which every power holder is accountable to the people, the judges alone should remain unaccountable for the due performance of the judicial power vested in them? Power is given on trust, and judicial power, it was argued, is no exception.

The principle of judicial accountability is now embodied in the Bangalore Principles of Judicial Conduct. This statement of judicial ethics to which all judges are required to conform was prepared by the Judicial Integrity Group in consultation with the judiciaries of over 75 countries of both common law and civil law systems. It is now the global standard. The Bangalore Principles are based on six core judicial values: Independence, Impartiality, Integrity, Propriety, Equality, and Competence and Diligence. In 2006, the United Nations requested member states to encourage their judiciaries to take into consideration the Bangalore Principles when developing rules with respect to the professional and ethical conduct of judges. Judiciaries in nearly all the countries, on all the continents, have either done so, or are engaged in doing so. As far as I am aware, the Sri Lankan judiciary has not.

Post-retirement employment

A Commentary on the Bangalore Principles, also prepared by the Judicial Integrity Group at the request of the United Nations, refers to offers of post-judicial employment from law firms, the private sector or the government. It underscores the risk that, in such situations, the judge’s self-interest and his duty may appear to conflict in the eyes of a reasonable, fair-minded and informed person. It advises the judge to bear in mind that the conduct of a former judge often affects the public’s perception of the judiciary and of other judges who continue to serve after that judge has left. It is not known, and the country has not been informed, whether the Chief Justice sought this post-retirement employment, or whether the Head of the Government offered it to him, and why. Nor is it known whether discussions in regard to this post-retirement employment took place while the Chief Justice was still in office presiding over politically sensitive cases.

A sense of futility

The president of the bar association, when asked his reaction to the Chief Justice’s move from the judiciary to the executive is reported to have said that "he had not heard both sides". Another senior lawyer was reported to have said, perhaps cynically, that the Chief Justice might have wanted to "augment his pension". These reactions appear to be typical of the feeling of futility or karmic inevitability that is pervasive all around us today. We accept falling standards, or no standards at all, as if that were our fate. It contrasts so strikingly with our vibrant pre-presidential past when any perceived intrusion into judicial independence evoked an immediate spirited response from opposition politicians, civil society, and indeed from judges themselves. It was also a time when, unlike now, those who exercised political power at the highest level recognized, and respected the fact, that a clear distinction existed between the legislature, the executive and the judiciary.

Judge may serve the community

I am not suggesting that a chief justice or other judge of any of the superior courts should not serve the community, after retirement from judicial office, by sharing the legal knowledge or experience or any other interests or competencies he or she may possess. But if and when a judge decides to serve the executive branch of government at its core, so soon after leaving the court, the alarm bells will surely begin to ring. The country is entitled to know the compelling reasons that led to such an unprecedented step being taken so that it may determine whether or not they are valid and legitimate.

The appointment three years ago of another judge to head an important diplomatic mission abroad immediately after his retirement was inexplicable, since he did not appear to possess any special diplomatic skills, knowledge or experience for the task. Moreover, the insistence of that judge/diplomat that he be addressed by the prefix "Justice", and his decision to describe himself as such, is believed to have bewildered the establishment in a country in which a clear distinction exists, and is observed, between the executive and the judiciary. It is also unfortunate that several statutes require the appointment of retired judges as members of boards and commissions. This will almost certainly create an illegitimate expectation in the minds of judges approaching retirement age, and may even be perceived by others as influencing their judgment.

Should the judge serve the executive?

Confidence in the judiciary is founded not only on the competence and diligence of its members, but also on their integrity and moral uprightness. From the public’s perspective, a judge has not only pledged to serve the ideals of justice and truth on which the rule of law and the foundations of democracy are built, but also to embody them. The public demands from the judge conduct that is far above that which is demanded of fellow citizens; standards of conduct that are much higher than those demanded of society as a whole. It fact, the public expects virtually irreproachable conduct from a judge.

Whether he measures up to that standard will be determined not only by his actual conduct, but also by what is perceived to be his conduct. In this regard, his relationship with the executive branch of government is often the litmus test. Did the recently retired Chief Justice give any thought to public perception before he decided to make the great leap from the Supreme Court to the Presidential Secretariat? Did it not occur to him that his action might seriously compromise the independence, integrity and credibility of the Court of which he was until so recently the head? Was it not a breach of faith?

–

We search for the key all our lives

But the door has always been open

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