Culture of fear in the legal fraternity



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The Lalith Athulathmudali memorial oration was delivered by a distinguished Sri Lankan legal luminary C.G.Weeramantry  last Thursday. The event was organised by the Institute for Democracy and Leadership headed by Ravi Karunanayake and sponsored by the Fredreich Naumann Foundation which is affiliated to the German Liberal Party. It was Judge Weeramantry who headed the team that drafted the Bangalore Principles of Judicial Conduct which were extensively quoted in this column a couple of weeks ago.  We thought the entire hall would be packed with lawyers in the present context where the impeachment against the Chief Justice is the main topic of discussion in the country. Ravi Karunanayake in fact introduced Weeramantry with the gleeful comment that we were all waiting to hear what he has to say about the ‘present goings on’ in Sri Lanka.


However, we did not get what we were expecting to hear from Weeramantry. What we got from him was an oration couched in the most general terms. He did make statements like "If a judge fails in his duty of judicial integrity, that entire nation is lost. It is only when the community has confidence in the integrity and the capacity of the judiciary that that community is governed by the rule of law.  In other words, you don’t have the rule of law, you don’t have democracy in any community where the judge is lacking in integrity." The only time he ventured to touch in direct terms on the goings on in Sri Lanka, was the assault on the Secretary of the Judicial Services Commission where he said that in his day, judges were perfectly safe even when trying cases involving the utmost violence.  Weeramantry said not a word about the impeachment.


The fact that he criticised the assault on the JSC secretary but said not a word about the impeachment against the chief justice is perhaps in itself a loud and unmistakable message. There are times when silence is more eloquent than words.  A judge is not a journalist or a politician who would make a career of being swept up in the rush of things but someone who would not be swayed by the sound and fury of public debate and would calmly consider whatever is before him on its merits. So you can’t really expect him to plunge directly into this unholy mess the way a politician or journalist would have. He was probably aware that the mere fact that he, the Chairman of the committee that drafted the Bangalore Principles of Judicial Conduct was present in Sri Lanka at a time like this to deliver a lecture (of all things on) Judicial Integrity would have sent panic bells ringing in certain quarters.


The conspicuous absence of lawyers at the memorial lecture also can be explained by a desire on the part of the legal fraternity not to be present where there was the possibility of hearing any banned words such as ‘judicial integrity’. There is a desire on the part of members of the legal fraternity not to even be seen in a place where there was the slightest possibility of judicial ethics being discussed lest it rubs someone on the wrong side. Sagarika Delgoda, the Resident Representative of the Fredrich Naumann Foundation was however more outspoken than Weeramantry.  She said: "The present crisis occurs however, in a context in which there has been a steady erosion of standards in public life across the board, in politics certainly, but also in the quality of the judiciary. It is undeniable that there was simply no possibility of even some of the allegations that are now commonly argued in the media, being raised against judges in the era when jurists like Judge Weeramantry graced our supreme court. Thus while we must decry without reserve any and every attack upon the independence of the judiciary, the sobering reality is that at least some of the legal fraternity have themselves played a part by omission or commission in the undermining of public confidence and the legitimacy of the judicial institutions in the recent past... Moreover, the current turn of events underscores a matter of even greater significance. The inadequacies and flaws of the present constitutional framework with regard to the independence of the judiciary.  The procedure for impeachment of senior judges fails to meet contemporary international standards in a number of ways.  These weaknesses are compounded by a political culture that is increasingly intolerant of democratic values and constitutional restraint.  There will come a time, hopefully, when we will be able to reform our constitution so as to re-establish political pluralism, democratic governance and constitutionalism in our country."


 The CJ can do no wrong


 Members of the legal fraternity would have been glad that they had kept away so that they did not hear what Sagarika Delgoda said. The second part of what she said was OK, but not the first part. If you ask any lawyer publicly, whether there was anything wrong with the judiciary, what you will get is most certainly a furious denial that there is anything wrong with the judiciary. (Privately, he may express a different opinion.) This brings us to the question of the culture within the Sri Lankan judiciary in particular and the legal fraternity in general. Though many people in Sri Lanka do not realise it, what we have within the legal fraternity is a tyranny more complete than any that a politician can ever conceive of.  For the most part, the mechanics of the tyranny exist but does not intrude into the public domain because the temperament of the chief justice often tempers the oppressive power he wields.  It is only when tempestuous characters who generate public controversy hold that position that the public gets to see the workings of the system.


The mechanics of this tyranny has existed from pre-independence days. Even in the 1947 constitution, the ex-officio head of the Judicial Services Commission was the chief justice a - tradition that has been followed in the 1978 constitution. This gives the chief justice complete and unfettered power over the appointment, transfer and disciplinary control of all judges from the high court downwards. The 1978 constitution gives the power of appointment of Supreme Court and appeal court judges to the president and their removal can be effected only through an impeachment process in parliament. While the appointment and removal of judges of the higher courts have been provided for, the little day to day details of a SC or appeal court judge’s life such as overseas trips, day to day office matters and the cases they hear and other such things are under the control of the chief justice. So in effect, the chief justice has complete control over the day to day lives of judges at all levels.


If you are in the judiciary, you cannot antagonise the chief justice and expect to survive. Even a judge of the SC or the Court of Appeal will find life a living nightmare if they cross the path of the chief justice even though they cannot be removed by the chief justice. Even if they are being harassed by the chief justice, the judges have no one to complain to. Members of the lower judiciary cannot complain even to other judges of the Supreme Court. If a government minister or even the president harasses anybody, there will be loud complaints - opposition politicians and the press will all take it up and the matter may even end up in courts. So harassment from the executive has remedies. Harassment within the judiciary however has to be endured in silence. In reality, a senior judge does not have even the basic rights that the humblest peasant in this country has. They are completely dependent on the temperament of the incumbent CJ. If the CJ is a learned and considerate man, they are OK. If he happens to be a tempestuous and vindictive bounder, they are done for.


What appertains in the legal system is an unbridled tyranny presided over by the chief justice. The judges dare not antagonise the chief justice because their lives would not be worth living after that, and the lawyers practicing in the courts dare not antagonise any judge down to the most junior magistrate for fear that it would affect their prospect of winning cases. A lawyer who has antagonised the judiciary will not be able to make living. A university lecturer who does not see eye to eye with his Vice Chancellor will still be able to survive and even hold his head high, but not a lawyer who has antagonised a judge. Even clients go to lawyers who they think have the ear of the judge. That’s how the system works. So in this very profession where the thrust and parry of debate and contending views is so vital, what we have instead is a culture of fawning, fearful, obsequiousness.


At the top of this pyramid of differential obsequiousness is the chief justice whom nobody in the legal fraternity dares challenge for whatever reason. So long as someone holds the position of chief justice, the legal fraternity deems him incapable of doing any wrong. The loyalty of the legal fraternity is to whoever holds the position of chief justice. The moment a person ceases to hold the position of chief justice, he is dumped in favour of the new CJ. The legal fraternity does not care two hoots for the president of the country. They don’t need the president but they need the chief justice for their survival. In 1997, when Shirani Bandaranayake was first appointed to the Supreme Court, a large section of the legal fraternity rose up against it. One of the main reasons why so many lawyers opposed her appointment was because the incumbent chief justice was unhappy about her appointment.


The incumbent chief justice had recommended two other names but the president had appointed Bandaranayake. Because the chief justice was upset, the legal fraternity was upset. This is of course not to say that the lawyers who spoke against the appointment of Shirani Bandaranayake to the SC in 1997 did not have genuine misgivings about her suitability to hold that post. The arguments presented indicated that they did have genuine misgivings. But those misgivings found free expression only because the incumbent chief justice was in favour of expressing those misgivings.  If for some reason, the then chief justice was in favour of Bandaranayake’s appointment no lawyer would dared have expressed their misgivings.  Lawyers practicing in the courts do not give a damn whether their opposition to Shrani Bandaranayake would upset the president who wanted her appointed – lawyers don’t need the president, they need   the chief justice whoever he or she may be.


Chief Justice Shirani Bandaranayake having been on the bench for long years knows how the system works. The crowds of lawyers shouting "Agavinisuruthumiyata jayawewa!" And "Doshabiyogayata bhangawewa!" is due simply to the fact that she is still the chief justice. She knows that the moment she loses that position there will be no more lawyers to shout "Jayawewa!" to her. If by some chance, her successor is not well disposed towards her, the very lawyers who are now rallying to her support will be snapping at her heels in order to curry favour with the new CJ.  If that happens she will be hard put to find a lawyer even to defend her husband.  The entire legal fraternity, the judges, lawyers and even the peons will forget that she even existed and will be kowtowing to her successor the way they kowtow to her today.  


What someone may ask are the factors that give rise to this dictatorial system within the legal profession? The most important factor is of course the complete and unquestionable authority that the chief justice wields over the entire judiciary as we pointed out earlier. The second is the fact that lawyers are dependent on the judiciary thus controlled by the CJ for their very livelihood.  There are other factors at play here as well. Many senior lawyers make more money in a month than senior judges make in a year. In a private company, the boss always gets more money than his subordinates but in the court room, the presiding judge is the boss, but it is those below him who rake in the cash. The vast disparity in the rewards of being in the legal profession with the lawyers skimming off the money and the judges getting the awe and respect is obviously one reason why lawyers never grudge the obsequiousness they routinely bestow on the judiciary.


Lawyers are by the very nature of their profession, imbued with unquestioning obedience towards the judiciary on which they depend so heavily for a living. Their only head is the chief justice who presides over the judiciary and thus controls the fate of all judges and lawyers. So for a lawyer, the chief justice can do no wrong. Most of the time, this culture exists in the legal profession without outsiders even being aware of it. It becomes apparent only when the chief justice makes smelly stuff hit the fan as happened during the time of Sarath N.Silva and now Shirani Bandaranayake.  It is only then that outsiders realise that the legal profession is a monolithic structure dominated by one individual who gets the unquestioning obedience of everyone else. It is a structure that totalitarian dictators can only dream of. The horror is that this situation appertains in the very institutions where the thrust and parry of debate and the room to dissent is so vital.


 Reforming the legal set up


 Many lawyers have grown so used to this system that they probably do not regard it as any kind of oppression. It is the ‘way’ in the legal profession that many generations of lawyers have got used to. If you ask any lawyer today, "Are you an oppressed wretch who dares not express his opinion freely?" what you will get is a furious denial. It is for us outsiders to judge what the situation is within the legal profession by observing flip flops in the positions taken by the same lawyers depending on who the chief justice is. Watch what happens when the chief justice changes. This concern with fair play for Shirani Bandaranayake will disappear like a puff of smoke. This is not a criticism of the legal profession. If the present writer was a lawyer and dependent on the prevailing system, I too would have followed the same policy because it would have been foolhardy to do otherwise. No individual lawyer can fight the prevailing system, it has to be changed from outside. This culture of fear and of tyrannical rule within the judiciary and the legal fraternity has to end.  In this regard, we recommend the following steps:


1.       The composition of the Judicial Service Commission should change and the decades old practice of making the chief justice the ex-officio chairman of the JSC should end.  The JSC should be chaired only by someone from outside the legal profession (a senior public servant for example) as is the current practice in England. There can be other retired or serving senior judges as well in the JSC, but there should be a number of outsiders who will ensure that the appointment, removal and disciplinary control over the judiciary does not become a secretive and arbitrary exercise indulged in by persons who are not answerable to anyone but themselves.  Intimidation and arbitrary actions by the chief justice against other members of the judiciary figured prominently in the impeachment motion that was drafted against former CJ Sarath N.Silva and similar charges are in the present impeachment motion as well. Looking at it logically, there is no conceivable reason why the CJ has to chair the JSC. The JSC does not fulfil a judicial function. It’s an administrative body.


 


2.       The arbitrary power that the JSC exercises over the lower judiciary should end, with judicial officers who have been wronged by the JSC being able to appeal to parliament. While debarring the chief justice from sitting on the Judicial Services Commission, and making a non-lawyer the head of the JSC, another important reform would be to have Standing Committee on the Judiciary in parliament (like COPE or the Public Accounts Committee) empowered to among other things to inquire into charges of unfairness by the chief justice in relation to members of the higher judiciary or arbitrary actions on the part of the Judicial Services Commission with regard to the lower judiciary. As of now, there is no oversight over the judiciary at all and this branch of the state rather than becoming the guardian of democracy and fair play has become instead the very citadel of tyranny.


3.      Another vital need is to limit the number of years that someone can sit on the Supreme Court. Former Indian Chief Justice Y.K.Sabharwal once said quoting another writer - Most Judges are not sadists, but sooner or later most of them develop a ‘God complex.’ Shabarwal continued quoting the same writer: "When everyone keeps kowtowing to you; when people laugh at your silliest jokes and listen to your most, trivial utterances though they were the Sermons on the Mount; when the outcome of quarrels and arguments, and often the fates of men, and women and their children rest in your hands; when you cannot be sacked from your job, however, incompetent or senile you become ... when, in other words you are treated like God, then it is difficult not to believe in your own divinity. You are addressed as "My Lord", almost like Him, so naturally you are inclined to believe, He is your colleague. " This is why it is so vital to ensure that nobody stays too long in the Supreme Court. This can be done in two ways, administratively by not appointing anybody below sixty years of age to the SC so that they will have to retire within five years. The other is to impose a limit of about five years after which the judge is mandatorily retired even he is still below fifty years of age. With such a limit in place many younger persons will not be interested in joining the SC. Well, so much the better because that will ensure that only mature people with long years of experience and the requisite temperament to hold such an august position are appointed to the SC. The last thing we want on the SC bench are ambitious, youthful bounders!


 


4.      We have to ensure a climate where judges are not afraid to deliver a judgement in accordance with their conscience and to dissent from the views of the chief justice if needs be. The press too should be free to make a fair comment on such judgements without the risk of being jailed for contempt of court. As of now, the press is free to praise any judgement, but criticisms may bring a contempt of court action against you.


 


5.      Another vital need is to abolish the power of the judiciary to deliver binding decisions on the constitutionality of bills. What we have in Sri Lanka is not a fully-fledged power of ‘judicial review’ which gives the SC the power to decide on the constitutionality of Acts of the legislature even after they have been passed as in the USA. In Sri Lanka the SC has the power to decide on the constitutionality of parliamentary bills only before they are passed. Even this power should be abolished. A study of other countries like the USA (Where this very concept of judicial review originated) and other countries like India which borrowed that concept from the American constitution will reveal that this is nothing but an impediment to the governance of the country. This is nonsensical ideological baggage that everybody has been hauling around for decades for no other reason than it looks intellectually appealing to have ‘judges’ judging the constitutionality of legislation. Perhaps the USA and India can afford to have periodic blow ups between the Judiciary and the Executive and legislature in those countries because they are not recovering from a war or under siege internationally. In Sri Lanka, any blow up between the Judiciary and the other branches of government are not considered an internal matter. Every Western country wants to give opinions on how the Sri Lankan parliament should handle the judiciary. This is a curse that this country can hardly afford. The answer to this problem is to do away with the power of the Supreme Court to determine the constitutionality of bills of parliament and to turn this into a non binding consultation on proposed legislation by parliament or the president so that the expertise of the Supreme Court can be availed of in drafting and fine tuning legislation. This will lead to greater cooperation and harmony and mutual respect between the two branches of government.


 


6.      A new provision should be introduced into the constitution whereby the courts will be bound to interpret bills in accordance with the ‘intent’ of parliament. The non-binding consultative process that we suggested above will help in acclimatizing the courts to the ‘intent’ behind a piece of legislation.


 
 
 
 
 
 
 
 
 
 
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