Published in The Colombo Telegraph on Dec. 14 by Nihal Jayawickrama:
In this session on “The Battle for Judiciary Integrity: Lessons from the Asian Experience”, I have chosen to focus on a country with which I am familiar. What is interesting about Sri Lanka, as a case study, is that since it became independent of British colonial rule in 1948, it has experimented with two radically different forms of government. In the first thirty years, executive power was exercised by a cabinet of ministers responsible to an elected parliament, headed by a Prime Minister who held that office only for as long as he or she enjoyed the confidence of Parliament. The Prime Minister was subject to the law and the jurisdiction of the courts. Judges of superior courts were appointed by the constitutional head of state on the advice of the Prime Minister, who invariably consulted the relevant stakeholders before tendering such advice. During this period, a strong tradition of integrity underpinned the judiciary at every level. Despite immense political and social change, a competent, impartial and fiercely independent judiciary remained constant in its commitment to equal justice under the law.
In the next thirty-six years, executive power has been exercised by a President elected by the people. The President is Head of State, Head of the Executive and of the Government, Head of the Cabinet of Ministers, and Commander-in-Chief of the Armed Forces. The President is elected for a fixed term of six years, and may seek re-election as many times as he chooses to. He is virtually irremovable. He does not sit in Parliament. No proceedings may be instituted against him in any court in respect of anything done or omitted to be done by him either in his official or private capacity. He appoints, on his own initiative, the Judges of the Supreme Court and the Court of Appeal, the Attorney General, and the Judicial Service Commission. If the political party of which he is the leader commands a majority in Parliament, he has control of the legislative process as well. In essence, the President enjoys virtually unlimited power, more extensive than that possessed by a Head of State in any other democratic country. He or she is also the supreme source of patronage in the Republic. After three decades of presidential rule, judicial integrity, particularly at the highest levels of the judicial hierarchy, is all but non-existent.
Let me illustrate the impact of these two radically different forms of government on the judiciary. Some fifty years ago, in the year that I was admitted to the Bar, senior officers of the Armed Forces and the Police allegedly conspired to overthrow the lawfully elected Government. That attempt was aborted and the alleged conspirators were arrested. A traumatized Government secured the enactment of a retroactive law that introduced special provisions for the trial of the accused persons. Among these was one which conferred on the Minister of Justice the power to nominate three Judges of the Supreme Court to try the accused persons without a jury. When the Trial-at-Bar commenced before the three Judges handpicked by the Minister of Justice, the defendants refused to plead, arguing that the power of nomination of Judges conferred on the Minister was ultra vires the Constitution.
The Constitution did not contain a chapter on fundamental rights; nor did it specifically provide for the separation of powers. However, after several days of argument, the Court unanimously held that the power to nominate judges, although it might have had the appearance of an administrative power, was so inextricably bound up with the exercise of strictly judicial power or the essence of judicial power that it was itself part of the judicial power. Accordingly, the three Judges nominated by the Minister held that they had no jurisdiction to proceed with the trial for the very reason that they had been so nominated. They further held that even if the view were taken that the power of nomination was intra vires the Constitution, the nomination would have offended against the cardinal principle that justice must not only be done but must appear to have been done, and they would have been compelled to give way to that principle which had become ingrained in the administration of common justice in the country.
The Government did not appeal the judgment. Instead, it restored the power of the Chief Justice to nominate the Court. All three Judges continued to serve until they reached the age of retirement. Nine years later, one of them was recalled from retirement, on the recommendation of the same Prime Minister, to be appointed to the office of President of the Court of Final Appeal which replaced the Judicial Committee of the Privy Council.
Fast forward fifty years to 2012. A controversial Bill was presented in Parliament by the President’s younger brother, the Minister of Economic Development. Its constitutionality was challenged in the Supreme Court before a three-judge Bench chaired by the Chief Justice. The Court determined that the Bill could not be passed by Parliament until it had been approved by the nine Provincial Councils. When one Provincial Council failed to approve it since it had not yet been constituted by election, the same Bench determined that the Bill required not only a two-third majority in Parliament, but also approval at a referendum. On the same day, the government parliamentary group submitted a resolution to the Speaker for the removal from office of the Chief Justice. The Speaker, the elder brother of the President, appointed a select committee of seven cabinet ministers and four opposition members to investigate and report to Parliament on the allegations set out in the resolution.
When the Chief Justice appeared before the select committee, she was denied time to respond to the charges, denied further information on the charges, and denied a list of witnesses or of documents. Two members hurled abuse and obscene remarks at the Chief Justice and her lawyers. The Chief Justice thereupon withdrew from the proceedings. The four opposition members also withdrew, citing callous disregard for the rules of natural justice. On the next day, the seven government members summoned witnesses, recorded their evidence, and, twelve hours later, adopted a 25-page report in which they found the Chief Justice guilty of misbehaviour. The resolution for her removal was passed by Parliament; the order for her removal was made by the President; and the legal adviser to the Cabinet was appointed Chief Justice – despite a determination of the Supreme Court that the proceedings held before the select committee were voidab initio, and a writ of certiorari issued by the Court of Appeal quashing the decision of the select committee.
In my view, the events that I have just described marked the lowest depth in the downward spiral of the Sri Lankan judiciary. The process began on the day on which the presidential executive was established, and it gathered momentum as successive Presidents made their own contribution towards creating a docile, deferential and subservient judiciary. I will refer briefly to the areas in which the most critical and debilitating impact of presidential power was experienced.
Abuse of the appointment process
In the parliamentary system of government, the Prime Minister invariably looked to the traditional sources when recommending persons for appointment to the Supreme Court. These were the judicial service, and the official and unofficial bar. The twin principles of seniority and merit were the determining factors in their selection. A Judge of the Supreme Court usually brought to the Bench at least 25 years experience of judicial work in the original courts of the country, or of intimate involvement as a lawyer in the Attorney-General’s Department. It was not a tradition of the Bar for its leaders to make themselves available for permanent judicial office, but there were, as always, notable exceptions. The appointment process was open, transparent, and perceived to be fair.
The process changed dramatically in the presidential system. The first blow was struck by the first President who reconstituted the Supreme Court by excluding eight Judges, and relegating four others to a lower court, without regard to seniority, experience or age. The ambiguous criterion of “political acceptability” became the determining factor. Another President struck the next blow by appointing a relatively young academic who had never practised law or held judicial or legal office and who, at the age of 37, was younger than all the judges of the superior courts, and perhaps also of the courts below. The current President, who had gained entrance to law school under a facility that enabled Members of Parliament to be admitted without the minimum qualification required of others, often appointed those who had been his contemporaries there, apparently influenced by personal loyalty and friendship.
The criterion of “political acceptability” was also applied in the appointment of the Chief Justice. The first President appointed his own personal legal adviser, an original court lawyer who had never previously held judicial office. Later, he again bypassed the most senior judge who had delivered a dissenting judgment in a politically sensitive case. He was clearly not willing to promote a judge who was perceived to have fallen out of line with his government’s political interests. Yet another President chose to appoint the most junior Judge of the Supreme Court who was serving as her Attorney General. The present President has indulged in a game of snakes and ladders. He bypassed the most senior Judge, and then compensated her by appointing her husband as head of a major government institution, the Sri Lanka Insurance Corporation. Never before had the spouse of a Supreme Court Judge been the recipient of political largesse. Two years later, he appointed the previously superseded Judge as Chief Justice, having again appointed her husband to head another state institution, the National Savings Bank. Both these institutions functioned directly under the President in his capacity as Minister of Finance.
Interference with judicial tenure
No attempt was ever made during thirty years of parliamentary government to initiate proceedings for the removal of a Judge from office. The advent of presidential government saw Judges being summoned before select committees ofParliament to show cause why they should not be removed. The first such instance occurred when the Supreme Court held that an appeal court Judge serving on a presidential commission of inquiry was, by reason of misconduct, disqualified from continuing to act as a commissioner; the misconduct being that he had engaged in financial transactions with a person whose conduct was the subject of inquiry by the commission. The disqualified commissioner wrote to the President alleging that the judgment had been influenced by improper considerations. Two Supreme Court Judges were summoned and questioned by a select committee chaired by the Minister of Justice. One of them felt it necessary to impress upon the government-dominated committee, in a most abject and humiliating manner, where his political loyalties lay. The other, whose record of independence and integrity was impeccable, also found it necessary to dispel any suspicion that he was anti-government by citing a number of judgments in which he had held for the State. The select committee concluded that the allegation had not been substantiated.
Another instance was when the President’s former legal adviser – now Chief Justice – made an ill-advised speech in which he referred to matters of political controversy, and made some critical comments about the President. The Government’s response was immediate. A resolution requesting his removal from office was presented to the Speaker who appointed a select committee chaired by a cabinet minister. After fourteen meetings it concluded its sittings when the Chief Justice reached the mandatory retirement age. The select committee reported that the speech “does not necessarily amount to proved misbehaviour”. The object of that exercise appeared to have been to humiliate a lawyer with no previous judicial experience who had been elevated to the highest judicial office, and had then become critical of his benefactor.
The third had all the features of a black comedy. A constitutional amendment required every person holding public office to take within one month a new oath undertaking not to advocate the establishment of a separate state within the territory of Sri Lanka, failing which such officer would cease to hold office. The amendment came into force on 8 August of that year. All the Judges took the new oath before each other, since they were competent to administer oaths. On 9 September, while sitting in court, the Chief Justice discovered that the oath to be taken by the Judges had to be administered by the President. The Court immediately adjourned, and the Judges wrote to the President that in their opinion the period of one month would expire at midnight on that day, and that they wished to take their oaths before him that afternoon. The President refused, having been advised that the period of one month had already expired. The Judges were informed that they had ceased to hold office. Their chambers were locked and barred and armed police guards placed on the premises to prevent access. It was widely speculated in government-controlled newspapers that the Court might be “reconstituted”, with some Judges being replaced. Finally, a traumatic week came to an end when all the Judges were issued with fresh letters of appointment and duly sworn in by the President.
Contempt of judicial authority
Presidents who enjoyed immunity under the Constitution also began to demonstrate contempt for inconvenient judicial decisions. Some were ignored with impunity. The first President set the tone for this when he developed the practice of rewarding police officers found guilty of violating the fundamental rights of political opponents. For example, a team of police officers stormed a meeting of the clergy who were campaigning against a Bill that sought to extend the life of Parliament. They assaulted the participants, seized their pamphlets and dispersed the crowd. The Supreme Court found a violation of the right to freedom of expression, and awarded damages and costs to the organizer of the meeting. The assistant superintendent of police who led the team was immediately promoted and the damages and costs were paid out of state funds. This was not an isolated case, but one of several.
When a representative of the International Commission of Jurists on a mission to Sri Lanka interviewed the President, he freely conceded that the promotion of police officers, and the payment of the damages and costs out of public funds, were his personal decisions. These, he said, were necessary to maintain police morale. He also said that he found the Supreme Court a hindrance to some of his policies, and could present real difficulties if it was outside anyone’s control.
Relations with the Executive
Lord Hailsham, a former Lord Chancellor of England, described the vocation of a judge as being “something like a priesthood”. Having lived in the home of a judge for several years in the mid-twentieth century, I observed that the view of a judge’s life in Ceylon at the time, though more liberal in nature, was still quite monastic in many of its qualities. While judges did not isolate themselves from the rest of society, or from school friends and former colleagues in the legal profession, they rarely, if ever, socialized with politicians in each other’s homes. It is now a common practice for Judges to invite the President, the Prime Minister and other Ministers to their homes to celebrate their appointment to the Court, or to play prominent roles at family events such as the marriage of a son or daughter. Photographs of such events are published in newspapers and on the internet. When the President’s son took his oaths as an attorney-at-law before the Chief Justice and two other Judges, the three Judges stepped down from the Bench and posed in their judicial attire for several photographs with the new attorney and his parents and with Ministers who were also present. That privilege was not accorded to the hundreds of others who also took their oaths on that day in the same ceremony.
More recently, the present Chief Justice travelled from the capital city to the deep south to join the President and his immediate family in celebrating the Sinhala New Year rituals at the President’s private home. Several pictures that were published showed the participants, including the Chief Justice, “attired in white and facing south” feeding milk rice to each other and engaging in other traditional transactions in what was essentially a family occasion. Two months ago, the Chief Justice was a member of the President’s entourage (which included several Ministers, Members of Parliament and officials) on an official visit to Italy. It was the first occasion when a Chief Justice accompanied a political leader on a visit abroad.
Patronage and Reciprocity
Presidential patronage also extends to material benefits. One President provided Judges with state land at a nominal price for them to construct their own homes in an otherwise expensive suburb of the capital city. Another President granted massive backdated salary increases to Judges of superior courts. The current President granted permits to judges to import vehicles free of duty, and allowed them to sell the permits if they so wished. He then devised a mechanism to enable them to earn foreign exchange. By arrangement with the military dictatorship of the Fiji Islands, Judges of the Supreme Court and the Court of Appeal were granted leave to serve as judges in Fiji from time to time. This arrangement commenced at a time when Fiji was suspended from the Commonwealth owing to a military coup in that country, and judges from other Commonwealth countries serving in the Fijian judiciary had resigned. Notwithstanding the enormous backlogs in both superior courts, several Judges availed themselves of this presidential concession.
The post-retirement employment of Judges is disapproved of in many jurisdictions, if not altogether prohibited. The provision of an attractive pension for life is regarded as adequate compensation. 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. The political bias displayed by the Bribery Commission and the Human Rights Commission, both headed by retired Judges, has been such that they have now become objects of public ridicule. It was, however, an unprecedented appointment made by the current President that seriously compromised the integrity and credibility of the Supreme Court. Barely weeks after his retirement, the Chief Justice was appointed as an Adviser to the President. It was not known whether the Chief Justice sought this post-retirement employment, or whether the President offered it to him, and why. Nor was it known whether discussions in regard to his re-employment took place while the Chief Justice was still in office presiding over politically sensitive cases. It gave rise to serious questions not only in regard to his judgment, but also to the probity of his recent judicial decisions. It also raised the spectre of judicial corruption. When a Judge, and a Chief Justice at that, decides to take a great leap from the Supreme Court to the Presidential Secretariat to serve the executive branch of government at its core, the alarm bells must surely begin to ring.
Presidential patronage was spectacularly reciprocated by a succession of Chief Justices and Judges who provided their patrons, or potential patrons, with several judgments and advisory opinions they desired. For example, a criminal investigation into an allegation of fraud against a presidential candidate was suspended to enable him to contest and secure election. Another Chief Justice provided an advisory opinion that enabled a re-elected President to defer the commencement of his second term and thereby acquire a “bonus” term of ten additional months. A Judge wrote a determination, within the space of 24 hours, on the constitutional validity of some 93 paragraphs of a Bill which made profound changes in the governance of Sri Lanka, enabling a President to seek re-election to office for as many terms as he wished and abolishing a host of independent commissions.
What lessons would I draw from the Sri Lankan experience? The Sri Lankan judiciary has not adopted a code of judicial conduct based on the Bangalore Principles. Would it have made a difference if it had? Prior to the advent of the Executive President, Sri Lanka possessed a judiciary that was rarely, if ever, inhibited by the pomp and splendour, or the power and authority, of the State or its agents. The UN had not yet formulated the Basic Principles on the Independence of the Judiciary, and an international code of judicial conduct had not yet been conceived. Yet, Judges of that time remained true to their only guide: the judicial oath. The fact that the government of the day, even when backed by a two-third majority, might have had a very strong interest in particular litigation, often left the judiciary unmoved. But in the 37 years of presidential rule that followed, the independence and integrity of the judiciary, and especially of the Supreme Court, reached incredibly low depths. The judicial culture that has grown, and developed during this period, is one of extreme deference to the presidential executive. The judiciary capitulates to practically every executive assertion.
The Bangalore Principles will not, by itself, enable a judiciary accustomed to, and apparently comfortable within, an antithetical political environment to assert its independence and integrity. A few years ago, the then Chief Justice of Kenya introduced himself to a judicial conference as “the head of the court with the finest judges that money can buy”. When a democratic constitution was introduced in that country shortly thereafter, the Chief Justice’s tenure was curtailed, and each judge, from the highest to the lowest court, was subjected to a vetting process by a commission that included distinguished international jurists, before his or her re-appointment to the judiciary was confirmed. Sri Lanka may well need to adopt that process if it is to ensure that its judiciary, especially at its highest levels, is to regain the trust and confidence of the people whom the judiciary is primarily intended to serve.
*The text of a presentation made at a conference on Judicial Integrity and Accountability held in Manila last week