Business Times

Judicial independence and judicial bias

By Nihal Sri Ameresekere, Public Interest Activist and Associate Member, American Bar Association

The High Court Judge T.M.P.B. Warawewa was reported to have, inter-alia, pronounced:
“Judges need to comprehend the moral implications of their verdicts and deliver verdicts that are in accordance with their conscience.

They need not dispense justice in fear; the doors of hell are open to Judges who deliver verdicts based on what they can get out of it; similarly those gates are closed to Judges who sentence justly. ….. Some Judges or politicians make decisions based on what gains it brings them. Judges should not be thinking about what promotions or perks they may lose while dispensing justice ….. Judges must adopt a middle path, things like perks and promotions should not be considerations for Judges when they are delivering verdicts.”

These serious pronouncements necessitate citing the following:
Judicial independence

1. In the Hotel Developers (Lanka) Ltd (HDL) case, the defendants were politically influential parties - some close associates of President J.R. Jayewardene and President R. Premadasa, one of whom was his Senior Counsel defending him in the Supreme Courtin the Presidential Election petition. District Judge, P. Wijeyaratne demonstrating judicial independence, turning a blind eye as to who the defendants were, and issued interim injunctions in October 1991, restraining any payments to the Japanese, inter-alia, observing;

“persons are exercising the influence, that they have gained in society, acting together with the Company, to prevent the raising of the questions concerning the matters of the work in connection with the Contracts, the Prospectus ...”

“they having prevented such correct examination, were attempting to, howsoever, effect the payment of monies.”

“the significance, that is shown herein, is that generally, the Company which has to pay money, would be raising questions, in respect of such situation, and would not allow other parties to act arbitrarily...If the position, that explains this is correct, then this actually, is an instance of acting in fraudulent collusion".

2. The Court of Appeal granted Leave in January 1992 against the above order, permitting the Attorney General, representing HDL, and Counsel representing HDL Directors, to participate, notwithstanding they having not participated in the District Court. Nevertheless the Supreme Court Bench, comprising Justices Tissa Bandaranayake, K.M.M.B. Kulatunga and S.W.R. Wadugodapitiya, refused to permit Attorney General, representing HDL, and Counsel representing HDL Directors, to participate.

3. Consequently the Supreme Court Bench, comprising Chief Justice G.P.S. De Silva and Justices A. R. B. Amerasinghe and K. M. M. B. Kulatunga, delivered Judgment in December 1992, upholding Justice P. Wijeyaratne’s Order and issuance of interim injunctions, inter-alia, observing;
“The Petitioner had a reasonable and real prospect of success, even in the light of the defence raised in the pleadings, objections and submissions of the Defendants”
“Petitioner’s prospect of success was real and not fanciful and that he had more than a merely arguable case”
“Interim Injunctions were granted to prevent the "syphoning out of money" from HDL and the Country”
“it might be pointed out that it could not entirely be a matter of indifference to the Government ..... the Government made itself eventually responsible for the repayment of the monies borrowed by HDL”

4. In the context of certain conduct and actions of Justice Minister & Deputy Minister of Finance, paying no regard that the Defendant was the Justice Minister, District Judge S.J.W. Ambepitiya in July 1998 ordered striking out the Answer of Justice Minister, fixing for ex-parte Trial - viz:
“A fact that is evident thereby is that, whilst the Defendant on the one hand, states that the documents relevant to the case in his capacity as a contesting party in the case, are in his possession, on the other hand states that they are not in his personal possession. It is the conclusion of this Court that the Defendant is not entitled to hold on to both these arguments at one and the same time.”
“According to the facts set out hereinabove, this Court holds that the Defendant has defaulted complying with the order made by this Court under Section 102 for declaration of documents. Accordingly, in terms of my application, acting under Section 109(1), I strike out the Defendant's answer and fix the case for ex-parte trial. Petitioner is entitled to recover costs of this inquiry from the Defendant.”
Inherent Jurisdiction

5. The House of Lords Committee delivered a majority Judgment in November 1998 allowing an Appeal against quashing by the Queen’s Bench of an arrest warrant against former Head of State, Chile, Senator Pinochet, for extradition from UK; against whom on allegations of crimes against humanity, Spanish Supreme Court had issued international warrants for arrest.

Thereafter, upon discovery, that one of the Lords, who allowed such appeal, Lord Hoffmann and his wife, Lady Hoffmann, had connections with Amnesty International, who had intervened for the arrest and extradition of Senator Pinochet, his Lawyers proffered a Petition to the House of Lords to review their own Judgment. It came to light that Lady Hoffmann was working with Amnesty International, UK, in administrative positions and Lord Hoffmann had been Director and Chairman of Amnesty International Charity Ltd., UK, affiliated to Amnesty International Ltd., UK, both functionaries under Amnesty International. Lord Hoffmann had no financial interest and received no remuneration.

Nevertheless, another Committee of House of Lords entertained the Petition of Appeal by Senator Pinochet for review their own Judgment, holding they have jurisdiction to rescind or vary an earlier order to correct an injustice:

“As I have said, the respondents to the petition do not dispute that your Lordships have jurisdiction in appropriate cases to rescind or vary an earlier order of this House. In my judgment that concession was rightly made both in principle and on authority. In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.”

By Judgment of December 1998, with reasons given in January 1999, the new Committee of House of Lords, set aside its own previous Judgment directing a re-hearing.
Judicial Bias

6. Following are some ‘extracts’ from the Judgments of the Lords of Appeal:

“The matter proceeded to your Lordships' House with great speed …... Lord Hoffmann agreed with their speeches but did not give separate reasons”.

“…… there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased ….. it is alleged that there is an appearance of bias not actual bias”.
“The fundamental principle is that a man may not be a judge in his own cause …... or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification”.

“….. may give rise to a suspicion that he is not impartial, for example because of his friendship with a party ….. the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial”.

“…. he is disqualified without any investigation into whether there was a likelihood or suspicion of bias”.

“..… that absolute prohibition was then extended to cases where, although not nominally a party, the judge had an interest in the outcome”.

“….. anything other than a financial or proprietary interest in the outcome is sufficient automatically to disqualify a man from sitting as judge in the cause”.

“….. therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. ….. the rationale disqualifying a judge applies just as much if the judge's decision will lead to the promotion of a cause in which the judge is involved together with one of the parties”

“..… whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the judge was not impartial”.

“Your Lordships are concerned with a case in which a judge is closely connected with a party to the proceedings”.

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