19th November 2000

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Maintaining judicial independence

Judges are responsible to themselves and their own conscience to make their decisions in a Court of Law - without fear or favour to maintain the administration of justice in accordance with the Rule of Law.
By A. C. Alles

Prior to Sri Lanka gain- ing independence, there were occasions during the colonial period when Judges and highly placed legal officers were victimised by the colonial Government for their sturdy independence.

Dr. Ranjith Amerasinghe, in his excellent account of the history of the Supreme Court, has drawn attention to flagrant acts of discrimination by the Executive. The most outstanding case he has reported was of Senior Puisne Judge Ennis's independence during the riots of 1915. Justice Ennis paid dearly for his stand, but as the Law Recorder of 1934 noted, "his fame and reputation went up in bounds as a Judge who administered justice faithfully to his oath, without fear or favour, affection or illwill."

After Ceylon gained independence in Feb-1948, the traditions of the English law were absorbed into our legal system, the most important of which was the strict adherence to the Rule of Law in the administration of justice. The Supreme Court of Sri Lanka at that time was manned by English judges who worked smoothly with the local judges. There was no discrimination in the appointment of judges, and the tradition of the Rule of Law was successfully established. One of our early Chief Justices, Sir Sidney Abrahams, who presided, with two Ceylonese justices, over the notable Bracegirdle trial heard the application of Bracegirdle for a writ of Habeas Corpus against a deputy inspector-general of police of the CID who had arrested him for flouting the law by not leaving the island on the orders of the Executive. In an outstanding judgment, the Court held against the Executive for its purported exercise of arbitrary powers, and Bracegirdle was released from police custody and set free. The forthright judgment of the Chief Justice laid the foundation of the Rule of Law in independent Sri Lanka which has been followed by our Superior Courts since that time.

Let us now examine the steps that some of our Judges have taken to ensure that the administration of justice according to the Rule of Law has been followed.

When I joined the Attor- ney-General's Department in 1944 as a temporary Additional Crown Counsel, the Department was manned by great stalwarts, all of whom in later years graced the Supreme Court Bench. They were Hema Basnayake who later became the Chief Justice, Theodore Gunasekera, Marshall Pulle, T.S. Fernando and Harry Werasuriya. Of these five members, my mentors and tutors were Theodore Gunasekera and T.S. Fernando. Justice E.H.T. Gunasekera was a Judge of the Supreme Court for several years, and the only occasion when he was called upon by the Government to perform duties outside the forum of the law was when he was invited by Prime Minister SWRD Bandaranaike to head a Delimitation Commission - which he politely declined.

I have had very close contact with Justice T.S. Fernando, who was a member of the Department, and later a colleague of mine on the Bench. He was a Judge who was respected, feared, yet loved by the citizens of the country for the manner in which he performed his duties as an independent Judge. To my recollection, the only occasion, when he refused to comply with a directive from the Executive was when he was asked to give his decision on the legality of the controversial Press Bill within three days. According to him, the Press Bill required deep study in view of the complex questions of law which required careful consideration, and hence could not be done within a stipulated period.

Generally speaking, under the Soulbury Constitution and up to the early 1970s, there were no problems between the Executive and the Judiciary, and the Judges were permitted to perform their duties without interference. When Justice M.C. Sansoni was appointed to the Bench in 1954, and thereafter became Chief Justice in 1964, the Judges of the Supreme Court met and decided not to accept any invitation from the Executive to serve on Commissions of Inquiry.

The Sansoni Court (1954-1966) was a strong and independent Bench, among whom was his successor Justice H.N.G. Fernando, and Justice T.S. Fernando, and it was able to perform its judicial functions satisfactorily without interference from the Executive. Conditions continued to be smooth sailing when his successor, Justice H.N.G. Fernando, was appointed as Chief Justice.

Problems between the Executive and the Judiciary commenced after the enactment of the Administration of Justice Law of 1973. This law was the brainchild of the Minister of Justice, Felix Dias Bandaranaike, and was a progressive piece of legislation, which the Minister promoted since he was genuinely interested in the proper and efficient administration of justice. The hierarchy of the Courts was completely transformed, and a new Supreme Court was inaugurated. Rumblings of Executive interference with the Judiciary commenced at the ceremonial sittings of the new Court, and the details of the problems are fully set out in Justice Amerasinghe's book on pages 84-86.

The manner in which, Chief Justice Victor Tennekoon, with tact and firmness, maintained the dignity of the Court on this occasion was very creditable. Soon afterwards, I had the privilege of acting for the Chief Justice when he was out of the island. And during my short period as Acting Chief Justice, attempts were made to interfere with the composition of the bench to hear Land Reform cases, but these attempts failed.

On the retirement of Chief Justice Tennekoon, Mr N.D.M. Samarakoon, a member of the Metropolitan Bar, was appointed by President J.R. Jayewardene to take the middle seat on the Supreme Court Bench. From humble beginnings Chief Justice Samarakoon had built up a lucrative practice in the Civil Courts. He was President Jayewardene's lawyer, and was conferred silk by the President, and President Jayewardene must have secretly hoped for a pliant Chief Justice to do his bidding, but Neville Samarakoon proved otherwise. Chief Justice Samarakoon was a strong and independent Judge who never flinched from his duty of maintaining judicial independence in accordance with the Rule of Law. President Jayewardene, was always a man who never brooked any opposition from any quarter, and was determined to have his own way in every sphere.

Soon after he was elected President, the Special Presidential Commissions of Inquiry Act was passed. This Act gave the President unfettered powers to appoint his nominee on Commissions of Inquiry. There can be no objection to this procedure, provided the Commissioners, if manned by Supreme Court Judges, are appointed to deal with matters of a public nature. When I retired from the Supreme Court, I was appointed under this Act to report whether the Muslims or the Sinhalese were responsible for the riots at Galle, and also to report on another Commission on whether the terrorists or the Army caused the damage to the Jaffna hospital. These are fact-finding Commissions, and the culpability of individuals were not in issue.

But a Commission to probe the misdeeds and abuse of power of stated individuals stands on quite a different footing. If the Commission finds the individual guilty, he has a right to question the validity of the findings in an application for Certiorari before the Court of Appeal, and for the Commissioners to be named as respondents. This is what happened in the ad hominem Commission required to report on the abuse of power of Mrs. Sirimavo Bandaranaike. The Commission comprised two Supreme Court Judges and a District Court Judge, which found her guilty of abuse of power, and recommended the deprivation of her civic rights. She applied by way of Certiorari to the Court of Appeal, which consisted of Judges Wimalaratne and Colin-Thome, who agreed with the petitioner that the Commission acted without jurisdiction, and granted her relief. The members of the Commission were cited as respondents.

The decision of the Court of Appeal not only lowered the dignity of the two Supreme Court Judges, but also affected the dignity of the entire Supreme Court Bench. It is unnecessary to go into the details of this sordid episode, but one must commend the fearless independence of the two Appeal Court Judges in maintaining the Rule of Law.

Sitting Judges of the Supreme Court should never be appointed on Commissions of Inquiry required to probe into the misdeeds of stated individuals. But, even the previous Government appointed sitting Judges on the Kobbekaduwa and Vijaya Kumaratunga Commissions of Inquiry, presided over by Supreme Court Judges, and the findings of the Commissions against certain stated individuals were highly debatable. It would therefore be salutary if sitting Judges of the Supreme Court, and even retired Judges, should not be appointed on Commissions, which require probing the misdeeds of an individual.

On this list of distinguished Judges, who have fearlessly maintained the Rule of Law are, Chief Justices Sansoni, Tennekoon, Samarakoon of the Supreme Court, and Justices Wimalaratne and Colin-Thome of the Court of Appeal, I must add the contributions of one of our most distinguished Judges of international repute, Justice C.G. Weeramantry. He was only a member of the Supreme Court for a period of five years when he accepted the Chair of Professor of Law of Monash University in Australia. When he was Professor, he was invited by the prestigious Stellenbosch University of South Africa to conduct a series of lectures in the country. Before accepting the invitation, he stated that he would not be prepared to accept the status of "honorary white," which is sometimes conferred on non-white visitors invited to South Africa. He also stipulated that he should have complete freedom in the presentation of the subject of human rights. Prof. Weeramantry was assured on both points. During his month's stay in South Africa, Prof. Weeramantry made a deep and intensive study of the conditions under which the black population suffered under the Apartheid regime.

Christie Weeramantry was a member of the International Court of Justice, and made valuable contributions to the work of the Court. Here too he displayed his bold and independent attitude, and wrote several dissenting judgements. His last contribution was his dissenting judgment in the Nuclear Test case where the Court was requested for an opinion on the use of nuclear weapons. Prof. Weeramantry was Vice President of the Court at the time, and wrote a strong dissenting judgment that nuclear weapons should be banned even in times of war; an opinion which did not find favour with the Judges of the Western powers who were in the majority.

Thereafter, Prof. Weeramantry was not elected President of the Court, a position he richly deserved, and ceased to be a member of the International Court of Justice.

I would like to refer here to District Judge John Sirica, the Chief Judge of the District of Columbia in the United States in the Watergate case. It was this son of humble parents who traced his ancestry to his Italian immigrant forefathers, who was the kingpin of the judicial circle, which took a bold stand in maintaining the independence of the judiciary, when he insisted that the Nixon administration should make available to him the tapes which implicated the President in the Watergate scandal. In his Epilogue to his book, To Keep the Record Straight, Judge Sirica stated:

"The basic strength of our system of government is tied to the continuing independence of our judicial system from political and social pressures. As a trial Judge, I found the greatest pleasure I derived from my work was that very independence. And I offer no apologies or regrets to anyone for the action I took in the break-in trial. I owed it to the Court, to our system of justice and to the country. "

These are noble words of a humble District Judge, which are worthy of being enshrined in the hearts and minds of all Judges who aspire to judicial office.

In conclusion, let us look at what President's Counsel and an eminent lawyer of our present times, H.L. De Silva, has to say.

He writes: "The need for independence among judges, who enjoy autonomy in decision-making and immunity, and control from the other two branches of the Government - the Legislature and the Executive, and indeed from any other body or authority, has almost acquired universal recognition. It seems almost platitudinous to state that it is essential for the maintenance of the Rule of Law, and the protection of the rights and freedoms of everyone. In a liberal democracy, it is the cornerstone of the whole system of the administration of justice."

It is therefore essential that Judges, who are only responsible to themselves and their own conscience to make their decisions in a Court of Law, should be able to deliver their judgments without fear or favour to maintain the administration of justice in accordance with the Rule of Law.

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