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Independence of the judiciary is one of most fundamental elements of a constitutional democracy. The subject assumed significance over the controversial appointment to the Supreme Court in the not too distant past. The comments which follow seek to highlight the superior court's constitutional role and the need to safeguard the independence of judges. They focus on the higher courts but the independence of judges of lower courts involved in the administration of justice is no less important.
Independence of the judi ciary has to do with the absence of improper external pressures and with the capacity of judges to resist such pressures without fear of penalty. The judiciary shall function without any external pressure either from an individual in a position of power or influence or from the legislative and executive branches of government.
Judicial independence is a pre-condition for the successful functioning of a democracy. The protection of the integrity and the independence of the judges is regarded as essential to safeguard fundamental liberties from encroachment by the executive or even by the legislature. The Report of the International Congress of Jurists in New Delhi, 1959, declared that "an independent Judiciary is an indispensable requisite of a free society under the Rule of Law".
Traditionally, the judiciary has been the branch of government to which individuals have turned for the protection of their freedoms and liberties from encroachment by the more powerful executive and sometimes the legislature. This role has become even more important in view of the growing influence of the executive on the day-to-day lives of ordinary people and judges are constantly called upon to pronounce upon the validity of executive action.
Judicial independence embraces objective and subjective qualities. The general public must feel confident in the ability and capacity of their judges to act honestly and impartially, free from pressures or favours. The public must believe that judges will in fact render honest and impartial verdicts free from institutional and individual pressures. Justice must not only be done but manifestly seen to be done. Otherwise people will lose confidence in the administration of justice.
By the same token, members of the judiciary must believe in their own capacity to exercise an independent mind when discharging their functions and to act without fear or favour, without having to worry about the consequences of their decisions. No amount of constitutional protection would guarantee independence if judges are made to feel that they would invite adverse responses from the government for making decisions unfavourable to it, or that their future prospects would depend on being compliant to its wishes.
Judicial power is an inherent part of the sovereign power of the people. The courts and institutions exercising judicial power are part of the basic structure of the constitution. Article 3 of the constitution defines sovereignty to include powers of government. Article 4 distributes the judicial element of the powers of government in the courts and other institutions responsible for the administration of justice.
A residue of judicial power is given to Parliament to be exercised in respect of its privileges and immunities. Parliament may enjoy a degree of self regulation over matters affecting the conduct of its business and its members. Parliament has standing orders which govern the way it regulates its business. The Speaker will often be called upon to give his rulings on points of order raised by members. The Speaker may exclude members of the public from the Gallery and parliament may even exclude a member from the Chamber for improper behaviour.
The Supreme Court of Sri Lanka occupies a pre-eminent position within this constitutional structure and is vested with many important functions. When exercising the Court's jurisdiction judges will be called upon to determine the actions of other branches of government by reference to the Constitution. The Court has to pronounce upon the constitutional validity of proposed legislation. It has sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution. It may be called upon to consider questions of public importance which may be referred to it by the President. It has power to determine the validity of the election of President and sit on appeal in respect of judgements of the Court of Appeal in respect of the validity of elections of Members of Parliament. It has power to punish a person for breach of Parliament's privileges. It has a central role to play in impeachment proceedings involving the President. It is the appellate court of last resort. Lastly, but not in the least, the Supreme Court has to hear and determine questions relating to infringement of fundamental rights by executive or administrative action.
No qualifications for appointments to the Supreme Court are set out in the Constitution. The relevant article does not even mention a legal qualification as a necessary requirement for appointment, but it cannot be suggested that a person without legal training is a fit and proper person to hold judicial office. Logic and necessity have always dictated the appointment of persons with legal training and no instance has been recorded of any one without such qualifications having been appointed to the Bench.
In Sri Lanka, nominees to the higher courts are required to possess judicial experience and the judiciary has therefore been the principal source for appointments. Sometimes, judges have been appointed from the official and unofficial Bars, but such appointments have been rare. Justice H.N.G. Fernando was a Legal Draftsman before his appointment to the Supreme Court.
Once a judge has been appointed to his position, the President should have no further role to play in matters concerning the manner in which a judge exercises his functions or the day-to-day administration of the Court. For example, if a judge wishes to go on holiday or to attend a conference, he should not be expected to seek permission from the President or any other member of the executive. He may of course be required to obtain clearance from the Chief Justice who is responsible for ensuring that the cases pending before the Court are cleared. The President needs to be informed only for the purpose of enabling her to exercise her power under Article 109 of the Constitution to appoint an acting judge; and it should fall upon the Chief Justice to request the President to make such appointment if he is of the opinion that it is necessary.
Promotion is an aspect of tenure and a judge should have a legitimate expectation that he would be appointed to a vacancy to which he is eligible for appointment. The convention in this country has been to appoint the seniormost puisne judge to the office of Chief Justice whenever a vacancy arose in that office. Unfortunately, on at least two occasions in the past the most senior puisne judge was overlooked for appointments to the office raising misgivings about the motives for the appointments in fact made. Whatever the real reasons for those appointments, the question would persist in the minds of people whether those judges were overlooked because of the distrust which was entertained by the government of the day about their commitment to the philosophy of the government. There is no reason why the seniormost judge on the bench should not be considered for appointment for a vacancy. Likewise, the President of the Court of Appeal must be elevated to a vacancy in the Supreme Court as a matter of natural progression.
The independence of the judges cannot be taken for granted. This was underscored by no less a person than President Jayewardene in a speech he gave to the Judicial Service Association in December 1982, when he recalled the humiliation suffered by the Judiciary during the period the 1972 constitution was in operation. He recalled how Supreme Court Judges were bundled into one car when going to Hulftsdorp and back home. "I have seen their cars sometime stuck on the road and their Lordships not sitting on the Bench but squatting on the pavement. We have done away with that". There were so many other ways in which the Judiciary was humiliated. When they took their oaths before President Gopallawa at President House, they had to walk from there to the Prime Minister's Office to pay obeisance. "If I were a Judge, I would have refused to do so. But no Judge then showed the independence of the Judiciary." (see ISLAND 11 December 1982).
Unfortunately, the judiciary suffered many set-backs during the period when President Jayewardene was in office. It was during his Presidency that a police officer was promoted soon after the latter was found by the Supreme Court to have infringed the fundamental rights of the petitioner in the Pavidi Handa case. Judges were locked out of the Supreme Court for failing to take and subscribe their oaths of office before the President. These and many other incidents serve to illustrate that lip service alone is not enough to safeguard the position of judges.
An independent judiciary is vital for the democratic well being of the country and to safeguard individual liberties. It is one of the underpinnings of the Constitution. Unfortunately, the ability of the judiciary to discharge its constitutional role has been undermined by actions taken by governments in the past.The responsibility for the preservation of their independence must be borne by the judges as well as those in charge of government. The judiciary can achieve this by being alive to its responsibilities and vigorously asserting its role even at the expense of causing displeasure to the executive. The executive must ensure the conditions which would allow judges to function without fear of suffering adversely for judgements that they deliver.
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