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Educating judges or influencing the judiciary?

23 Aug 2021

  • The controversy around the Judicial Service Commission’s alleged directive to Magistrates
By Sumudu Chamara “Justice should not only be done, but should also be seen to be done”, is an oft-quoted phrase by Lord Chief Justice (CJ) of England and Wales Gordon Hewart in the case of R vs. Sussex Justices, ex parte McCarthy. The idea it expresses is, in fact, something every citizen expecting justice from law enforcement institutions expects, and the lack of it is likely to result in the loss of faith in the Judiciary, which is a matter currently being discussed in Sri Lanka. The concept of judicial independence, one of the staples of the country’s legal system, came under discussion after media reports alleged that during a seminar – titled “Matters relating to judicial proceedings in the context of the Covid-19 pandemic” held on 13 August for judicial officers including Magistrates – the Judicial Service Commission (JSC) had indirectly instructed judges to control protests and public gatherings, taking into account the prevailing Covid-19 pandemic situation. The media reports alleged that the participants had been instructed, in cases of such nature, to use Sections 98 and 106 of the Code of Criminal Procedure as amended – which deals with a conditional order for the removal or abatement of a public nuisance and the power to issue an immediate and absolute order in urgent cases of nuisance, respectively. The invitation letter sent to the participants of the seminar also caused controversy, as its sentence/paragraph number three read that the JSC Secretary had been directed to inform the invitees that failure to participate in the event will be taken into consideration when “recommendations are made for promotions, annual salary increments, foreign training, and appointment to the High Court”. Opposition against allegations The allegations, which have not been substantiated by any authority at the time of the writing of this article, caused a spate of discussions about the exertion of undue pressure on the Judiciary, and whether it can affect the people’s right to express their opinions through protests. In light of the said allegations, the Bar Association of Sri Lanka (BASL), in a letter addressed to the JSC Chairman and CJ President’s Counsel (PC) Jayantha Jayasuriya, and JSC members Justice Buwaneka Aluwihare PC and Justice L.T.B. Dehideniya, dated 16 August, stated that it was deeply concerned at the contents of the media reports, which impact on the rule of law, the independence of the Judiciary, and on public confidence in the administration of justice. In the letter, the BASL pointed out several claims made by the said media reports; i.e. at the said seminar, the issue of trade union protests and the role of the courts came up for discussion, where judicial officers had been given instructions on the use of certain Sections of the Criminal Procedure Code to control public gatherings on account of the pandemic situation in the country, and there was a perception among judicial officers that there was an effort to impress upon them to give orders in favour of Police requests to curb protests. “The Constitution requires every judicial officer to decide every case based on the facts and circumstances of that particular case and the applicable law. Every party before a court has an expectation that his/her case will be decided on its own merits, upon a fair hearing given to such a party or his/her counsel. Any party including the State, if dissatisfied with such an order, is entitled to canvass the same by way of an appeal or revision application to an appropriate forum. Litigants and their attorneys-at-law (AALs) should have the confidence that judicial officers are free to decide cases on their own merits and not based on any other consideration. These, as you are well aware, are fundamental aspects of judicial independence and the rule of law. The perception that these reports create run contrary to the dictum laid down by Lord Hewart, a principle strongly engrained in our legal system as well,” the BASL pointed out. The BASL also pointed to the Bangalore Principles of Judicial Conduct of 2002, which states under Section 1.1 that: “A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason”. The Bangalore Principles quoted by the BASL is a set of standards for the ethical conduct of judges and the Judiciary and specifies six core values; namely, independence, impartiality, integrity, propriety, equality, and competence and diligence. The Bangalore Principles further specified the principles that come under each core value: independence or judicial independence, is a prerequisite to the rule of law and a fundamental guarantee of a fair trial, and a judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects; impartiality is essential to the proper discharge of the judicial office, and applies not only to the decision itself but also to the process by which the decision is made; integrity is essential to the proper discharge of the judicial office; propriety and the appearance of propriety are essential to the performance of all of the activities of a judge; equality of treatment to all before the courts is essential to the due performance of the judicial office; while competence and diligence are prerequisites to the due performance of judicial office. Also, pointing out the importance of creating awareness among judicial officers of the seriousness of the Covid-19 pandemic, and the need to ensure that the courts are administered in adherence to health guidelines, the BASL further emphasised that the contents of such a seminar should not leave the impression – either in the minds of the participating judges or the public – that it has any bearing on the manner of the discharge of judicial functions, or that it was intended to have the effect of stifling any judicial officer from the independent exercise of their judicial mind, and also discretion in a particular case based on the law and accepted principles of judicial interpretation. It also pointed out the strong possibility of such an impression being created among said parties, and requested the JSC Chairman and its members that such an impression should be immediately addressed, and if necessary, corrected, in the interests of the public and those tasked with the administration of justice. The BASL also requested the JSC to take steps to ensure that these reports “do not in any manner negatively impact the esteem that the Judiciary must unreservedly maintain irrespective of the circumstances, however trying they may be”. Meanwhile, in response to a question raised by the Janatha Vimukthi Peramuna (JVP)-led National People’s Power (NPP) Leader MP Anura Kumara Dissanayake in Parliament on 17 August 2021, Justice Minister M.U.M. Ali Sabry PC said that the Justice Ministry would make an inquiry from the JSC regarding the said allegations within a period of two weeks. The Justice Minister added that the JSC is an independent institution that continues to function independently, and that the Government cannot, and is not planning to, influence it. In response to Dissanayake’s question, yesterday (23), the Ministry had issued a statement based on the JSC’s response in this connection, claiming that the said sentence/paragraph is not inconsistent with the powers vested with the JSC through the Constitution. “The said seminar was not held by the JSC, but by the Sri Lanka Judges’ Institute”, the statement said, adding that according to the JSC’s response, the seminar had focused on discussing the circulars issued by the Health Ministry regarding the pandemic situation, continuing court proceedings amidst the pandemic situation, Quarantine Act, Code of Criminal Procedure, Penal Code, and public nuisance, as per the relevant provisions of the Constitution. In regard to the sentence/paragraph three, the JSC had said that the structure of the invitation letter, used to invite the participants for the seminar, had been used by the JSC for over 10 years. To prove its claim, the JSC had sent to the Ministry invitation letters sent for seminars since 2010 using the same structure. It added that the said structure was used to ensure the participants’ attendance, in order to avoid the wastage of public funds. The statement also said that the Justice Minister would update the Parliament on the JSC’s response. Judicial independence Speaking of the concept of judicial independence, public interest litigation activist and AAL Nagananda Kodituwakku, alleged that there is no judicial independence or democracy in Sri Lanka, and that a lot of public officials and public institutions too have lost their independence to perform their duties properly, as required by the law. He further alleged that the said parties have become subservient. He opined: “In this country, there is no judicial independence whatsoever, and it is the Judiciary itself that is responsible for this situation. We cannot find fault with the Government because it is the Judiciary that has surrendered judicial integrity to the Executive President. Even certain United Nations Human Rights Council (UNHRC) Resolutions also claim that the Government of Sri Lanka and the Judiciary have denied the people’s right to the rule of law. Once the rule of law disappears, anything could happen.” Expressing his opinion about the above mentioned allegations regarding the seminar held for Magistrates, among others, Kodituwakku said that if the allegations are true, what is said to have happened is completely inappropriate, and that the JSC has no authority whatsoever to do so, as it has no business with the performance of duties of Magistrates. He noted that the Magistrates are required to listen to both sides of a matter and decide the case, and that the JSC cannot ask Magistrates to take such decisions in a certain manner. He pointed to Article 4(c) of the Constitution, which describes the people’s judicial power. Said provision reads: “The judicial power of the people shall be exercised by the Parliament through the courts, tribunals, and institutions created and established or recognised by the Constitution, or created and established by the law, except in regard to matters relating to the privileges, immunities, and powers of the Parliament and of its Members, wherein the judicial power of the people may be exercised directly by the Parliament according to the law.” He claimed that the only available solution to ensure judicial independence in the country was to enact a law through a process led by the people, not by MPs. He proposed that the people should demand from Presidential candidates during Presidential elections to establish a new Constitution that ensures the people’s rights, including their judicial power, and that the candidates should give the people that opportunity. In regard to judicial independence, Kodituwakku referred to a document called the “Commonwealth Latimer House Principles”, which is to be followed and adopted by all Commonwealth Member Nations, of which Sri Lanka is among. He added that these principles require all Commonwealth Nations to respect the rule of law, the independence of the Judiciary, and the doctrine of the separation of powers. He further explained: “The separation of power doctrine means that the Executive and the Legislature should not have any control over the Judiciary, but all three organs shall independently perform whatever duties entrusted to them through the Constitution.” The Commonwealth Latimer House Principles specify 10 principles pertaining to the three branches of Government – the Executive, the Parliament, and the Judiciary – as well as the independence of MPs, the independence of the Judiciary and public office holders, ethical governance, accountability mechanisms, the law-making process, the oversight of the Government, and civil society. Right to protest Those who discussed the above mentioned incident following the media reports about the same have stressed the importance of upholding rights and freedoms guaranteed by the Constitution, which include several freedoms pertaining to the people’s right to protest. They also alleged attempts to stifle their right to protest, which they said was essentially a violation of the Constitutionally guaranteed rights. Under the Fundamental Rights chapter of the Constitution, the freedom of speech, assembly, association, occupation, and movement has been guaranteed, and Article 14 which comes under the same chapter states that every citizen is entitled to freedom of speech and expression, freedom of peaceful assembly, freedom of association, and the freedom to form and join a trade union. Speaking to The Morning, several persons who participated in the series of protests during the last few months said that if the above mentioned allegations are true, it could pose a severe threat to Constitutionally guaranteed rights, as well as the upholding of the Constitution as the supreme law of the country. Ceylon Teachers’ Service Union (CTSU) General Secretary Mahinda Jayasinghe, who participated in many of the teacher-principal protests, said that on several occasions in the recent past, there had been attempts by the Police to obtain restraining orders against protests, and that they were unsuccessful, as the courts had turned down those requests. Adding that the people’s freedom to protest should be upheld, he said: “When the protesters were presented in court, on 4 August in Colombo, on 11 August in Kandy, and on 16 August in Matara, the courts clearly stated that the protesters have the right to protest, as guaranteed by the Constitution, and that protests cannot be prohibited on account of the Covid-19 pandemic. Also, the Police attempted to send the protesters to quarantine and direct them to tests in light of the pandemic.” In addition, JVP Politburo Member Dr. Nalinda Jayatissa said that the people’s last hope is the court, and that therefore, the said allegations, if true, are very serious. He described how the court system has supported the protesters rights, saying: “In the recent past, we saw that the Police sought court orders against protests in several areas. The Magistrate’s Courts (from which the Police sought orders) ruled that nothing, even the quarantine laws, can be above the freedom of expression and speech guaranteed by the Constitution. We respect the judges for their decision, and the people expect that the judges would take a stance for the people’s rights. We believe that a majority in the judicial system are of the opinion that the alleged influence on Magistrates; if that is true, is not right”. While the status quo of the pandemic certainly calls for stringent measures to ensure that the Covid-19 safety guidelines are adhered to and that the people act responsibly, the manner in which it should be done has been questioned on many occasions in the recent past. However, after the authorities took measures to control the series of protests held against teacher-principal salary anomalies, education-related matters, and fertiliser and fuel prices-related protests, it has now resulted in a discussion about the protection of the people’s rights guaranteed through the Constitution. The allegations regarding the aforementioned seminar are still being discussed, and the country will be able to know whether they are true. However, the Government’s and authorities’ duty to ensure the people’s freedom of expression and public safety is a matter that needs addressing, regardless of the results of the said discussions.  


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