It is a measure of no small relief that the new Chief Justice's speech delivered this week at the ceremonial sitting of the Supreme Court did not contain hollow pronouncements on safeguarding the Rule of Law. Neither were there any bombastic indulgences in self glorification that we had been unfortunately compelled to witness in recent years. That being said, the address did contain certain pointed observations impacting on judicial developments of the past decade as well as the critical juncture at which the Supreme Court finds itself today.
The balance of the Court
Interestingly, these observations included a reminder that while cognizant of the need to preserve our sovereignty, Sri Lanka's legal system is not 'an orphan carrying on in isolation to the exclusion of other comparative systems.' Instead, 'we are part of a vast international legal system and as such, it is necessary that we keep abreast of developments of the law in the international forum, critically analyse and apply them if suitable, ignore them if unsuitable or reject them if found wanting."
Then again, the assertion that there must not be any room for any 'doubt or compromise' regarding the conduct of the judiciary has its own importance given what the Bench has undergone throughout the last ten years.
However, (speeches notwithstanding and rhetoric aside), it remains yet to be seen as to what role the Court will carve out for itself in the relatively short term that this Chief Justice will be in office. We cannot hope for miracles. From that perspective, those who may have looked for definitive statements of post-conflict reconciliation from the new head of the judiciary may well be crestfallen.
However, it would be wise instead to focus on a gradual and steady restoration of the integrity of the Bench as a pre-condition to all else. In this, we ask not for spectacularly grandstanding jurisprudence sweeping aside all constitutional restraints in the separation of the judiciary from the legislature. Though the ranks of the great unwashed (and not so unwashed) may cheer at such imprudent judicial forays into the arena of legislative decision making, this is scarcely conducive to the authority of the Bench. Inevitably, such forays are not only brushed aside by politicians who wield both the purse and the sword but also the moral authority of the Court is lost in the process.
Current imperatives from the Bench
What we need to see is rather, the decisive interpretation of the law and the Constitution, carefully reasoned and consistently applied by a Bench that gives both opposing parties, a full, fair and courteous hearing. Indeed, the new Chief Justice himself reminded this Thursday, though the Bar must always be courteous to the Bench, the Bench is called upon to be courteous even when the Bar is discourteous to the Bench. In reflection, it may be observed that this is the hallmark after all, of a stable judicial temperament as opposed to unstable personalities, singularly unsuitable as the latter are for judicial office. It may be added that the courtesy that the Bench is thus called upon to show, in fact, extends to the very public itself, even at times when the temper of the Court is being sorely tested. Correspondingly, the use of contempt of court powers needs to be wielded to protect the administration of justice and not for personal pique.
We need also to see the Court regain its collective character of a collegiate of judges, rather than reflect the overweening hubris of a single judge, be it the Chief Justice himself. Vibrant judicial thought, inclusive of dissenting opinions, if the case so calls for it, (without fear of that particular judge being shut out from benches hearing important questions of law), needs to be witnessed. Importantly, the Judicial Service Commission as the disciplinary body of subordinate judges, must be freed from the decade long prevalent shadow of personal and petty vindictiveness which, in a 2004 press interview, Justice CV Vigneswaran pithily characterized as 'patronage to some and punishment to others.' The JSC's procedures in disciplining judges must be transparent and accountable.
Vital element of fierce independence
This is a historic time of reconciliation among Sri Lankans and the Bench will be called upon to steer the direction that the post war process will take at manifold points of entry. Much of what is wrong with today's systems of justice concerns the law and the legal system. These wrongs must be redressed.
At a time when the writ of the Court runs throughout the whole of the country both de jure and de facto after many long years, we need its authority firmly reasserted against those who would subordinate the Bench to the political or military establishment as well as against those who would attempt to hijack it for their own narrow religious, racial, political or personal agendas.
Undeniably, without this vital element of what must be nothing less than fierce independence being satisfied, no amount of courtesy from the Bench per se will suffice to still the clamour of those who seek justice. |
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