H. L. D. Mahindapala

ƒÆ’-¡ƒ”š‚ The following anecdotalƒÆ’-¡ƒ”š‚  evidence is narrated to test the independence of the judiciary that was supposed to exist before the current contest between Parliament and the Judiciary broke out. The ragingƒÆ’-¡ƒ”š‚  controversy is based on the claim that the Judiciary was independent and the appointment of a Parliamentary Select Committee to probe into the conduct of the Chief Justice Dr. Shirani Bandaranayake erodes the independence of the Judiciary. The following anecdotal evidence presents a skeletal profile of the hidden legal systemƒÆ’-¡ƒ”š‚ on which the sovereign people were dependent solely for theƒÆ’-¡ƒ”š‚ rule of law and theirƒÆ’-¡ƒ”š‚ share ofƒÆ’-¡ƒ”š‚ justice:

ƒÆ’-¡ƒ”š‚ First story: Reminiscing about the good old days at Hulftsdorp a lawyer friend onceƒÆ’-¡ƒ”š‚ told me that it was commonƒÆ’-¡ƒ”š‚ in his dayƒÆ’-¡ƒ”š‚ to see bewigged lawyers getting off their cars and walking down the solemnƒÆ’-¡ƒ”š‚ corridors of red- brickƒÆ’-¡ƒ”š‚ Hulftsdorp, followed by peons carrying heavyƒÆ’-¡ƒ”š‚ legal tomes on their stretched scrawny arms.

ƒÆ’-¡ƒ”š‚ “That is all gone now,” he added ruefully. “Learned counsel do not takeƒÆ’-¡ƒ”š‚ volumes to court now. Nowadays they take the short cut, the easy path,ƒÆ’-¡ƒ”š‚ by visiting judges atƒÆ’-¡ƒ”š‚  home with bulging envelopes, offering the kindƒÆ’-¡ƒ”š‚  of irresistible hard evidence that judges cannotƒÆ’-¡ƒ”š‚  refuse.”

ƒÆ’-¡ƒ”š‚ Second story: GoingƒÆ’-¡ƒ”š‚  back to the late sixties I remember meeting a cross-section of professionalsƒÆ’-¡ƒ”š‚ at the AAA — a popularƒÆ’-¡ƒ”š‚ watering hole of journos,ƒÆ’-¡ƒ”š‚ politicos, lawyers,ƒÆ’-¡ƒ”š‚ etc.–ƒÆ’-¡ƒ”š‚ which was located then justƒÆ’-¡ƒ”š‚ behind Gall Face Flats. I also remember havingƒÆ’-¡ƒ”š‚ hot, spicy bites of seer fish or venison, washed down with sipsƒÆ’-¡ƒ”š‚ ofƒÆ’-¡ƒ”š‚ gin, limeƒÆ’-¡ƒ”š‚ andƒÆ’-¡ƒ”š‚ tonic, with a prosperousƒÆ’-¡ƒ”š‚  lawyer-politico who was boastingƒÆ’-¡ƒ”š‚  that he fixes his cases the previous evening before it comes to trial the next morning. I asked him how. “That’s easy,” he said. “I inviteƒÆ’-¡ƒ”š‚ ……(all names withheld for obvious reasons)ƒÆ’-¡ƒ”š‚ for drinks the previous evening and over one-too-manyƒÆ’-¡ƒ”š‚ he hears the evidence andƒÆ’-¡ƒ”š‚ the verdict he would deliver nextƒÆ’-¡ƒ”š‚  morning in courts.”ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Third story: I also knewƒÆ’-¡ƒ”š‚ a Magistrate’s driver with an exceptional knowledge of the inner workings of court, especially in the art of making vital evidence disappear the day before the case is due to be taken up. Once he made a miris gala, a vital bit of evidence,ƒÆ’-¡ƒ”š‚ disappear just like that from the courts store room — a feat thatƒÆ’-¡ƒ”š‚ couldƒÆ’-¡ƒ”š‚  haveƒÆ’-¡ƒ”š‚ been performed only by some one like Houdini. I have, of course, lost count of the number of times I’ve read or heard of the record rooms of courts goingƒÆ’-¡ƒ”š‚  up in flames, particularly ifƒÆ’-¡ƒ”š‚  it contains files of tax cases of rich big wigs.

ƒÆ’-¡ƒ”š‚ Fourth story: Judges, in cahoots with their mates at theƒÆ’-¡ƒ”š‚ bar,ƒÆ’-¡ƒ”š‚ offerƒÆ’-¡ƒ”š‚ liberal extensions to lawyers who postpone their clients cases, over and over again,ƒÆ’-¡ƒ”š‚ which, in effect, means the helpless clients pays outƒÆ’-¡ƒ”š‚  ofƒÆ’-¡ƒ”š‚  theirƒÆ’-¡ƒ”š‚ pockets for the needs of the hiredƒÆ’-¡ƒ”š‚ lawyers and notƒÆ’-¡ƒ”š‚ theirs.

ƒÆ’-¡ƒ”š‚ Fifth Story: The stories aboutƒÆ’-¡ƒ”š‚ the former Chief Justice, Sarath N. Silva are a legion. Every lawyer and judge knows how he tyrannised the judiciary and ran it like his own fiefdom. But one story that sticks out ƒÆ’-¡ƒ”š‚ goes right to the top where he colluded with the former President, Chandrika Kumaranatunga, ƒÆ’-¡ƒ”š‚ to hold a secret swearing in for the second time, after holding a public one earlier, with theƒÆ’-¡ƒ”š‚  sole intent ofƒÆ’-¡ƒ”š‚ extending the President’s term in office.

ƒÆ’-¡ƒ”š‚ Sixth story: Chief Justice Shirani Bandaranayake, who has held her sister’s power of attorney for 22 years to manage her investments in Sri Lanka, uses theƒÆ’-¡ƒ”š‚  power embedded in the officeƒÆ’-¡ƒ”š‚ of the Chief JusticeƒÆ’-¡ƒ”š‚ to sit in judgementƒÆ’-¡ƒ”š‚ over her sister’sƒÆ’-¡ƒ”š‚ case concerningƒÆ’-¡ƒ”š‚ a property deal, knowing thatƒÆ’-¡ƒ”š‚  she shouldƒÆ’-¡ƒ”š‚ notƒÆ’-¡ƒ”š‚  touch it even with a barge pole miles long.ƒÆ’-¡ƒ”š‚ Since she, in her defence, claimsƒÆ’-¡ƒ”š‚ that the principle of “justiceƒÆ’-¡ƒ”š‚ seen to be done” should apply to her, how will the public see thisƒÆ’-¡ƒ”š‚ sacred principleƒÆ’-¡ƒ”š‚ in operation when she comes to court grabbingƒÆ’-¡ƒ”š‚ her sister’s case in oneƒÆ’-¡ƒ”š‚  hand and the sister’sƒÆ’-¡ƒ”š‚ powerƒÆ’-¡ƒ”š‚ of attorney in the other? Even illiterate Punchi Banda, who lives in remote Yakdessagala and never heard of the existence of Standing Orders or the Constitution of 1978, won’t take two seconds toƒÆ’-¡ƒ”š‚ see through it.

ƒÆ’-¡ƒ”š‚ The anecdotal evidence cited above covers a wide range, from top to bottom. This, ofƒÆ’-¡ƒ”š‚ course, is not even the tip of the iceberg. It is only the last tiny flake sitting on the tip of the iceberg. Every practitioner in the legal systemƒÆ’-¡ƒ”š‚ knows more than one story which they will not talk about in public because it reflects badly on the integrity and the professional standards. The tragedy — or rather the hypocrisyƒÆ’-¡ƒ”š‚  (Jesus had aƒÆ’-¡ƒ”š‚  lot to say about this) — is that these black-coated professionals are the first to pontificate on the unimpeachableƒÆ’-¡ƒ”š‚ standards that must be preserved at all levelsƒÆ’-¡ƒ”š‚ toƒÆ’-¡ƒ”š‚ (1)ƒÆ’-¡ƒ”š‚ protect the independence of the judiciary (2) rule of law and (3) delivery of justice to the sovereign people.

ƒÆ’-¡ƒ”š‚ With the damning inside knowledge of the goings-on in courts the legal fraternity, which is tearing its hair now aboutƒÆ’-¡ƒ”š‚  the “ruleƒÆ’-¡ƒ”š‚  of law”ƒÆ’-¡ƒ”š‚ should seriously ask: is Hulftsdorp governed by rule of law or by corrupt, underhand, illegal, immoral practices?ƒÆ’-¡ƒ”š‚ Can the judiciary be independentƒÆ’-¡ƒ”š‚ when those in the profession are the first to undermineƒÆ’-¡ƒ”š‚ theƒÆ’-¡ƒ”š‚ independence of the judiciaryƒÆ’-¡ƒ”š‚ by selling justice to the highest bidder?ƒÆ’-¡ƒ”š‚ The vocal lawyers and moralists areƒÆ’-¡ƒ”š‚ babbling and demonstrating about political threats to the judiciary as if the law-makers are about toƒÆ’-¡ƒ”š‚ pluckƒÆ’-¡ƒ”š‚ judges from their benches and hurl them into the nearest dustbin. ButƒÆ’-¡ƒ”š‚ how many ofƒÆ’-¡ƒ”š‚  these lawyers have shownƒÆ’-¡ƒ”š‚  the same concern to the sovereign people in villages and cities, whoƒÆ’-¡ƒ”š‚ have been fleeced by unscrupulous lawyersƒÆ’-¡ƒ”š‚ because of their incompetence, postponements of cases to suit their personal agendas, corrupt practices or by greasing the palm of judges?ƒÆ’-¡ƒ”š‚ When have the lawyers fought as passionately as they do now to protect the independence ofƒÆ’-¡ƒ”š‚  the judiciary from the black-coated enemy within?

ƒÆ’-¡ƒ”š‚ When have they ever demonstratedƒÆ’-¡ƒ”š‚ publicly protestingƒÆ’-¡ƒ”š‚ that justice cannot be delivered at the exorbitant fees they extract fromƒÆ’-¡ƒ”š‚ the sovereign poor?ƒÆ’-¡ƒ”š‚ Which lawyer ever broke a coconut in defence of a penurious villager who had been wronged by malpractices ofƒÆ’-¡ƒ”š‚  lawyers and judges in courts? The Kalu Koat Karayas have invariably been on the side ofƒÆ’-¡ƒ”š‚ the rich and the powerful.ƒÆ’-¡ƒ”š‚ Justice was constantly bought and sold over the counter at Hulftsdorp. When did the poor ever have the rule of law on theirƒÆ’-¡ƒ”š‚ side? On whose side was the independent judiciary? There were intrepid judgesƒÆ’-¡ƒ”š‚ (example: T. S. Fernando) ƒÆ’-¡ƒ”š‚ who stood theirƒÆ’-¡ƒ”š‚  ground resisting all pressures but they were few and far between. By and large the judiciary would go with the flow. So will the President of Bar Council, theƒÆ’-¡ƒ”š‚  ever-so- righteous Wijedasa Rajapakse, PC, initiate action amongƒÆ’-¡ƒ”š‚  fellow black coats to clean up the Augean stables at Hulftsdorp to reform the legal system which he, like his fellow-lawyers, knows is corrupt to the core? Can a corrupt legal system deliver justice to the sovereign people? How can the superficial separation powers atƒÆ’-¡ƒ”š‚  theƒÆ’-¡ƒ”š‚ top deliver justice to the sovereign people if the process at the bottomƒÆ’-¡ƒ”š‚ on which justice depends is rotten to the core?

ƒÆ’-¡ƒ”š‚ Standing up for the independence of the judiciary doesƒÆ’-¡ƒ”š‚ not begin and end withƒÆ’-¡ƒ”š‚ combatingƒÆ’-¡ƒ”š‚  external forces — political, underworld, money bags, reforming outdated and bad laws,ƒÆ’-¡ƒ”š‚ etc. These, of course, constituteƒÆ’-¡ƒ”š‚ a part of defending the independence of the judiciary. The struggle to defend the judiciary goes beyond theseƒÆ’-¡ƒ”š‚ to the internal factors that corrode the integrity of the judiciary, starting from crooked lawyers and going up toƒÆ’-¡ƒ”š‚ some of theƒÆ’-¡ƒ”š‚  untrained, lazy,ƒÆ’-¡ƒ”š‚ judges who sit on the bench with befuddled heads in the morning after the night before.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ IndependenceƒÆ’-¡ƒ”š‚  of the judiciary also does not mean fighting for the privileges of those in upperƒÆ’-¡ƒ”š‚  bracket in the officialƒÆ’-¡ƒ”š‚  andƒÆ’-¡ƒ”š‚  unofficialƒÆ’-¡ƒ”š‚  bar. If independence of the bar means delivering justice to the sovereign people, without tilting itƒÆ’-¡ƒ”š‚  in favour of one sideƒÆ’-¡ƒ”š‚ or the other, then there areƒÆ’-¡ƒ”š‚ greater issues at stake like protecting the citizens victimized by the tyranny of courts, malpractices of black-coated hypocrites, costs involved in getting justice, impartialityƒÆ’-¡ƒ”š‚ of the judges, incompetence ofƒÆ’-¡ƒ”š‚  lawyers, and generally lifting the standards of the legal profession toƒÆ’-¡ƒ”š‚  make it user-friendly for the public who have to wait for donkeys yearsƒÆ’-¡ƒ”š‚ just to get their cases heard, let alone justice. It is the Bar Association that must be in theƒÆ’-¡ƒ”š‚  forefront of this battle to reform the judiciary to make it independent in a meaningful way to serve the sovereign people.ƒÆ’-¡ƒ”š‚ But so far no one has seen lawyers dashing coconuts on behalf of the poor people who had beenƒÆ’-¡ƒ”š‚  denied justice from the exploitative legal system.

ƒÆ’-¡ƒ”š‚ Independence ofƒÆ’-¡ƒ”š‚  the judiciary has had no meaning to the average citizen who had suffered throughout their lives oppressed by the lawyers, judges, and those connected to the legal system.ƒÆ’-¡ƒ”š‚ Ask anyone who has come out of the nightmarish legal process and he/she would come outƒÆ’-¡ƒ”š‚  breathing a sigh of relief never wanting to go back to gruelling process ever again. So farƒÆ’-¡ƒ”š‚ the vociferousƒÆ’-¡ƒ”š‚ cry of “independence of the judiciary”ƒÆ’-¡ƒ”š‚ boils down toƒÆ’-¡ƒ”š‚ ensuring the right of those in the legal profession to rake in as much profit as they canƒÆ’-¡ƒ”š‚ with no considerationƒÆ’-¡ƒ”š‚ for the rights of their clients, especially the poor ones, to obtainƒÆ’-¡ƒ”š‚ some measure of justice. If the Bar Association and those black-coated coconut dashers had devotedƒÆ’-¡ƒ”š‚ one fraction of the concernƒÆ’-¡ƒ”š‚ they spend on saving theirƒÆ’-¡ƒ”š‚ privileges in the name ofƒÆ’-¡ƒ”š‚  saving the ƒÆ’-¡ƒ”š‚ independence of the judiciaryƒÆ’-¡ƒ”š‚ to bring some justice and relief toƒÆ’-¡ƒ”š‚ their poor clients by reforming the legal system, the sovereignƒÆ’-¡ƒ”š‚ people could look up to thoseƒÆ’-¡ƒ”š‚ on Hulftsdorp hill as valuable and sincereƒÆ’-¡ƒ”š‚ contributors to life, liberty and happiness.ƒÆ’-¡ƒ”š‚ But one has to wait and see when — if the day ever comes –Wijedasa Rajapakse, who wants to reform everything aroundƒÆ’-¡ƒ”š‚  him, will ever dare to clean upƒÆ’-¡ƒ”š‚ the rot in his professional backyard and restore an independentƒÆ’-¡ƒ”š‚ judiciary free from legal tyranny and corruption.

ƒÆ’-¡ƒ”š‚ It is in this background that respected Justice C. G. Weeramantry’s judiciously couched phraseology directs it censorious forceƒÆ’-¡ƒ”š‚ to question the ethics of legal practitioners. In his writing he has been very critical of the legal profession. His latest statement on this aspect goes to the heart of the crisis within the profession. He said: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-If a judge fails in his duty of judicial integrity, that entire nation is lost. It is only when the community has confidence in the integrity and the capacity of the judiciary that that community is governed by the rule of law. In other words, you donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have the rule of law, you donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have democracy in any community where the judge is lacking in integrity.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Before I place thisƒÆ’-¡ƒ”š‚ statement in its local context I must digressƒÆ’-¡ƒ”š‚ to sketchƒÆ’-¡ƒ”š‚ briefly Justice Weeramantry’sƒÆ’-¡ƒ”š‚ role in the Sri Lankan judiciary. Earlier I mentioned that there are two models established at Hulftsdorp: 1) the model of T. S and Mark Fernandos, both of whom adhered to theƒÆ’-¡ƒ”š‚ law and its spirit withƒÆ’-¡ƒ”š‚ redoubtable tenacityƒÆ’-¡ƒ”š‚ to preserve the purity and the integrity of the judiciary; (2) the model at the other extremeƒÆ’-¡ƒ”š‚  of ChiefƒÆ’-¡ƒ”š‚  Justice Sarath N. Silva which doesn’t need any more elaboration.

ƒÆ’-¡ƒ”š‚ The third model was established by Justice Weeramantry who reached the pinnacle not only inƒÆ’-¡ƒ”š‚  theƒÆ’-¡ƒ”š‚ legal professionƒÆ’-¡ƒ”š‚ when he was appointed to the highest courtƒÆ’-¡ƒ”š‚  in the world, the International Court of Justice, but also in his scholarly approach to the law, bringing in inter-disciplinary perspectives to enrich the law and serve the sovereign peopleƒÆ’-¡ƒ”š‚ through the use of the mostƒÆ’-¡ƒ”š‚ civilizedƒÆ’-¡ƒ”š‚ and humane forceƒÆ’-¡ƒ”š‚ available to humanity: the righteous principlesƒÆ’-¡ƒ”š‚ ofƒÆ’-¡ƒ”š‚  law. Those whoƒÆ’-¡ƒ”š‚ had read his numerous volumes, including the published two volumes of hisƒÆ’-¡ƒ”š‚ biography (the third is on the way), will agree thatƒÆ’-¡ƒ”š‚  his legalƒÆ’-¡ƒ”š‚  philosophy is influenced deeply by religion. Just not hisƒÆ’-¡ƒ”š‚ Christian faithƒÆ’-¡ƒ”š‚ but all mainstream religions.ƒÆ’-¡ƒ”š‚ He sees religious leaders as the primary law-givers forƒÆ’-¡ƒ”š‚  mankind and he draws deeply from religious sources to give depth and meaning to the laws of day. One outstanding contribution in this veinƒÆ’-¡ƒ”š‚ is his book titled The Lord’s Prayer ƒÆ’-¡ƒ”š‚ — a path-breaking approach to Christianity from a legal perspective. He delineates the oppressive socio-economic conditions that prevailed in the time of Jesus in Jerusalem and teases out the profoundƒÆ’-¡ƒ”š‚  legal principles enshrined in the Lord’s Prayer.

ƒÆ’-¡ƒ”š‚ He relatesƒÆ’-¡ƒ”š‚  the crisesƒÆ’-¡ƒ”š‚  of modernity to either the neglect orƒÆ’-¡ƒ”š‚ abandonment of the fundamentals contained in the highest principlesƒÆ’-¡ƒ”š‚  ofƒÆ’-¡ƒ”š‚  religions. His criticisms ofƒÆ’-¡ƒ”š‚ theƒÆ’-¡ƒ”š‚ crises in environment, politics, science and technology, law etc., are based onƒÆ’-¡ƒ”š‚ religious values and, in his main thesis, he concludes thatƒÆ’-¡ƒ”š‚ the security. stability and the future of the good earth — theƒÆ’-¡ƒ”š‚ exclusive homeƒÆ’-¡ƒ”š‚ of mankindƒÆ’-¡ƒ”š‚ — can be assured only by returningƒÆ’-¡ƒ”š‚ toƒÆ’-¡ƒ”š‚ the religious values and the life-style prescribed in the sacredƒÆ’-¡ƒ”š‚ texts. By this he does not mean a return to institutionalised religions. He refers essentially to the life-enriching values that can take the individuals lost in crass materialismƒÆ’-¡ƒ”š‚  into theƒÆ’-¡ƒ”š‚ next level of a moralƒÆ’-¡ƒ”š‚ andƒÆ’-¡ƒ”š‚ meaningful life.ƒÆ’-¡ƒ”š‚ ItƒÆ’-¡ƒ”š‚ is in this spirit of his concern for humanity and their future that he delivered the landmark judgment which declared allƒÆ’-¡ƒ”š‚ weapons of mass destruction illegal at the International Court of Justice. It was a dissenting judgement noƒÆ’-¡ƒ”š‚  doubt.ƒÆ’-¡ƒ”š‚ Nevertheless, itƒÆ’-¡ƒ”š‚ resonated globally with a lasting moral impactƒÆ’-¡ƒ”š‚ thatƒÆ’-¡ƒ”š‚  is slowly but surely gathering a momentum of its own.

ƒÆ’-¡ƒ”š‚ His attitude towards his own legal professionƒÆ’-¡ƒ”š‚  too is drawn from religion. Talking about lawyers at a recent dinner in Melbourne I heard him telling another lawyer that he mustƒÆ’-¡ƒ”š‚  read Jesus on lawyers. “You must read MathewƒÆ’-¡ƒ”š‚ from 23: 22. Jesus wasƒÆ’-¡ƒ”š‚ very severe on lawyers.” ƒÆ’-¡ƒ”š‚ True. Jesus had never excoriated any other professionƒÆ’-¡ƒ”š‚ as that of the lawyers. His angry verbal explosion is devastating. He calls them “hypocrites”, “blind fools”, “blind guides”. He tears into them saying: “You snakes, you vipers’ brood, how can you escape beingƒÆ’-¡ƒ”š‚  condemned toƒÆ’-¡ƒ”š‚  hell?” (23:33).ƒÆ’-¡ƒ”š‚ He begins his tirade against lawyers on a quieter tone.ƒÆ’-¡ƒ”š‚ This isƒÆ’-¡ƒ”š‚ how the long text begins:ƒÆ’-¡ƒ”š‚ “The doctors ofƒÆ’-¡ƒ”š‚  the law and the Pharisees sit in the chair of Moses; therefore do what they tell you; pay attention to theirƒÆ’-¡ƒ”š‚  words. But do not follow their practice; for they say one thing and do another. They make up heavy packs andƒÆ’-¡ƒ”š‚  pile them on men’s shoulders, but will notƒÆ’-¡ƒ”š‚  raise a finger to life the load themselves. Whatever they do is done for show….” (p.51 — The New English Bible, TheƒÆ’-¡ƒ”š‚  British and Foreign Bible Society in association with Oxford University Press and Cambridge University Press, 1962)

ƒÆ’-¡ƒ”š‚ The source of Judge Weeramantry’s statement referring to “the dutyƒÆ’-¡ƒ”š‚ of judicial integrity” can be traced toƒÆ’-¡ƒ”š‚ the Bible. He is quite emphatic when he says: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-If a judge fails in his duty of judicial integrity, that entire nation is lost.” He, ofƒÆ’-¡ƒ”š‚  course, is not referring to the current crisis. He is focused in general on the principle of a judge’s duty to uphold judicial integrity. But there is no doubt that it is a principle that applies directly to the Sri Lankan judiciary. He leaves no doubt that judicial integrity must of the highest unimpeachable standards. The last word on lawyers is with Jesus who said: “Alas, for you, lawyers and Pharisees, hypocrites! You travel over sea and land to win one convert; and whenƒÆ’-¡ƒ”š‚  you have won him you make him twice as fit for hell as you are yourselves” (Mathew, 23: 15). The lawyers at the bar indeed have doneƒÆ’-¡ƒ”š‚  just that — dragged Sri Lanka intoƒÆ’-¡ƒ”š‚  another hell!

ƒÆ’-¡ƒ”š‚ TheƒÆ’-¡ƒ”š‚ current contest betweenƒÆ’-¡ƒ”š‚  the legislature and the judiciary revolves mainly round the issues of “judicial integrity”, “independence ofƒÆ’-¡ƒ”š‚  the judiciary:, “rule ofƒÆ’-¡ƒ”š‚  law”, separation of powers”, leading finally to who has the final legal authority to lay down the law to whom — is it the judiciary toƒÆ’-¡ƒ”š‚ parliament or vice versa? CJ’s team of lawyers is appealing to the courts urging that in the contest between the courts and the Parliamentary Select Committee the Courts mustƒÆ’-¡ƒ”š‚  take away the option available to Parliament to hear the case of the CJ and hand it over to court. “On that selection it is respectfully submitted hangs the future of the independence of the judiciary,” says K. Kanag-Iswaran the counselƒÆ’-¡ƒ”š‚ for CJ.

ƒÆ’-¡ƒ”š‚ The issue before the Appellate Court is not that of the “independence of theƒÆ’-¡ƒ”š‚ judiciary”. The issue is whether courts can impose a new and arbitrary interpretations of the law and take away the powersƒÆ’-¡ƒ”š‚ vested by the Constitution in Parliament to appoint a select committee and hear the cases of misconductƒÆ’-¡ƒ”š‚  of the judges in superior courts, including CJ. In his submission Kanag-Iswaran is openly and unequivocally appealing to the Courts to interpret the law in favour of the Courts. He would not ask the courts to interpret it in favour of the courts if the law had notƒÆ’-¡ƒ”š‚  given Parliament theƒÆ’-¡ƒ”š‚ right to hear theƒÆ’-¡ƒ”š‚ case. It isƒÆ’-¡ƒ”š‚  because Parliament isƒÆ’-¡ƒ”š‚ vested with the power of hearing the case of a superior courts judgeƒÆ’-¡ƒ”š‚  that Kanag-Iswarn is asking the courtsƒÆ’-¡ƒ”š‚  to deny that right to Parliament and hand it over to the courts. If the courts had that exclusive right in lawƒÆ’-¡ƒ”š‚ he shouldƒÆ’-¡ƒ”š‚ ask the Appellate CourtƒÆ’-¡ƒ”š‚  to uphold the law — notƒÆ’-¡ƒ”š‚ to interpret it in favour of the courts.

ƒÆ’-¡ƒ”š‚ So if the Courts go out of its way to take away the power ofƒÆ’-¡ƒ”š‚  Parliament to hearƒÆ’-¡ƒ”š‚ cases against judges in superior courtsƒÆ’-¡ƒ”š‚ and hand it over to the courts then it wouldƒÆ’-¡ƒ”š‚  amount to a dictatorial grab of powerƒÆ’-¡ƒ”š‚ to strengthen the hands of judges who can pervert the law with no oneƒÆ’-¡ƒ”š‚  toƒÆ’-¡ƒ”š‚  check them.ƒÆ’-¡ƒ”š‚ It would also questionƒÆ’-¡ƒ”š‚ “the independence of the judiciary”. Can a court be trusted toƒÆ’-¡ƒ”š‚  judge independently, without bias, a case in whichƒÆ’-¡ƒ”š‚ theƒÆ’-¡ƒ”š‚ judicial powers constitutionallyƒÆ’-¡ƒ”š‚ vested in Parliament is contested with a view to grab it from the legislature and hand it over to theƒÆ’-¡ƒ”š‚ judiciary? Yes, if the judge was like T. S. Fernando. So it is the judges who will be on trialƒÆ’-¡ƒ”š‚ with the issue of the “independence of the judiciary”.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Considering that granting judicial powers to an external institution would erode its own powers the natural temptationƒÆ’-¡ƒ”š‚ would be forƒÆ’-¡ƒ”š‚ the courtsƒÆ’-¡ƒ”š‚ to interpret the law in its favour. It wouldƒÆ’-¡ƒ”š‚  beƒÆ’-¡ƒ”š‚ something like the CJ deciding to hear the case of her sister because she has a stake in the investments of her sister by holding in her hands the power of attorney to the family property.

ƒÆ’-¡ƒ”š‚ As stated earlier, this issue tests the integrity of the judiciary. Given the high voltage electrifying the political landscape, canƒÆ’-¡ƒ”š‚  the judiciary uphold the rule of law when their interests are at stake? This case as argued by CJ’s counsel, K. Kanag-Isveran, unequivocally concedes that Parliament has the right to hear the caseƒÆ’-¡ƒ”š‚  of judges in superior courts. But — hold yourƒÆ’-¡ƒ”š‚  breath!ƒÆ’-¡ƒ”š‚ — ƒÆ’-¡ƒ”š‚ he says that this right must be transferred to courts for the courts to maintain its independence, disregardingƒÆ’-¡ƒ”š‚  what the Constitution states in black and white. In 107 (3) of the Constitution the law states that Parliament is as good as a court in tryingƒÆ’-¡ƒ”š‚  judges of superior courts ONLY. After the ConstitutionƒÆ’-¡ƒ”š‚ vested in Parliament the legal powerƒÆ’-¡ƒ”š‚ to try judges of superior court in principle it was left toƒÆ’-¡ƒ”š‚ Parliament to structure the mechanism for trying judges which is laid down in Standing Order 78A.

ƒÆ’-¡ƒ”š‚ The law vesting power to ParliamentƒÆ’-¡ƒ”š‚ is in 107 (3) of the Constitution. What is in 78A is the mechanism toƒÆ’-¡ƒ”š‚  implement that power vested in Parliament and it is the right of Parliament to devise its own instrumentality to implement the powers vested in it. It is similar to the ConstitutionƒÆ’-¡ƒ”š‚ vesting powers in the Judiciary in principle and the judiciary devising its own mechanism to implement those powers.ƒÆ’-¡ƒ”š‚ So it’s not a question of what is right and wrong in law. Or who has the power to try judges or not. It is because the Constitution has vested the power in Parliament that the Judiciary is fighting now to grab that power from Parliament.

ƒÆ’-¡ƒ”š‚ The precedent for Parliament to act as judge has also been established. Harold Peiris, the Editor of the Sunday Observer, was tried before Parliament on an issue of Parliamentary privilege, and fined Rs. 1,000.00. If citizen Harold Peiris can be tried byƒÆ’-¡ƒ”š‚ Parliament why can’t citizen Dr. Shirani Bandaranayake be tried, especially when the law says that judges of the superior courts, including the Chief Justice,ƒÆ’-¡ƒ”š‚ should be tried byƒÆ’-¡ƒ”š‚ the Standing Order ofƒÆ’-¡ƒ”š‚ Parliament.ƒÆ’-¡ƒ”š‚ Neither the Chief Justice nor the Judiciary is above the law. Trying the superior judges by Parliament is another way of maintaining the checks and balances entailed in the principleƒÆ’-¡ƒ”š‚  of separation of powers. Allowing judges to try each other (no pun intended) is not a healthy practice for the preservation of the rule of law or the independence of the judiciary.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ If the courts decide to usurp powers that it doesƒÆ’-¡ƒ”š‚ not have andƒÆ’-¡ƒ”š‚ grab power vested in Parliament to empowerƒÆ’-¡ƒ”š‚ the judiciary, which is somethingƒÆ’-¡ƒ”š‚  like grabbing your neighbour’s property toƒÆ’-¡ƒ”š‚  expand and strengthen the base in your littleƒÆ’-¡ƒ”š‚ acre, then it amounts to the judiciary acting illegally toƒÆ’-¡ƒ”š‚ place the judiciary above the law with no checks and balances. It would lead to reinforce the Actonian principle that wouldƒÆ’-¡ƒ”š‚ tend to establish the untrammelled dictatorship of the judiciary.ƒÆ’-¡ƒ”š‚ Such a scenario can have serious consequences toƒÆ’-¡ƒ”š‚ the nation. Powers that invariably corrupt individuals and institutionsƒÆ’-¡ƒ”š‚ tend to propel both to demand more powers, all in the name of high principles. This leads to theƒÆ’-¡ƒ”š‚ erosion ofƒÆ’-¡ƒ”š‚ the integrity andƒÆ’-¡ƒ”š‚ credibility of institutions and individuals. That is why there are checks and balances in the separation of powers.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ It is in this context thatƒÆ’-¡ƒ”š‚ the warningsƒÆ’-¡ƒ”š‚ of Justice Weeramantry becomes germane. As he stated:ƒÆ’-¡ƒ”š‚  ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-If a judge fails in his duty of judicial integrity, that entire nation is lost. It is only when the community has confidence in the integrity and the capacity of the judiciary that that community is governed by the rule of law. In other words, you donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have the rule of law, you donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t have democracy in any community where the judge is lacking in integrity.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ Next question: So will the judiciary uphold the law or will it bendƒÆ’-¡ƒ”š‚  overƒÆ’-¡ƒ”š‚  backwards to uphold its own interests under the cover of upholding “the independence ofƒÆ’-¡ƒ”š‚  the judiciary” which doesn’t exist as shown in the anecdotal ƒÆ’-¡ƒ”š‚ introduction?