Justices should be subject to judicial audits

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By 2017-02-17


Excerpts of the interview:

President of Bar Association of Sri Lanka, Geoffrey Alagaratnam in conversation with Ceylon Today says that Judges should be free of political or any other interference and any pressure. "They should be self regulated in every way. They should be men of integrity and of excellent professional calibre. But, they should also be under the control of a supervisory body when it comes to disciplinary controls and impeachments".

?: What are your thoughts on the new Constitution, in the light of changes you wanted in the initial draft on the independence of the Judiciary?

A: Basically, what we wanted was that Judges be free of political or any other interference and any pressure. They should be self regulated in every way. They should be men of integrity and excellent professional calibre. But, they should also be under control of a supervisory body when it comes to discipline and impeachment. The role of Supreme Court Judges is not very clear.

Ultimately removal may be through Parliament or by the President. There should be a mechanism of warning judges and so forth in day to day operations.

As for the lower Court Judges, we have proposed a mechanism where in the instances where there are heavy loads for the Supreme Court, there should be a broader spectrum of people like the President of the Court of Appeal, and the President of the Bar Association of Sri Lanka that will give it a broader spectrum with regard to the Lower Courts. There is also the Pension Rights of Judges which should be sufficient so that they will not offer themselves for employment in the private sector, post retirement.

There should also be a transparent process in promotions to the Superior Courts. There have been carte blanche political appointments to the Judiciary. However, there has been some element of transparency with the advent of the Unity Government.

However, there is no transparent legal mechanism to ensure that there is transparency, in appointing Judges. It is true that the Constitutional Council is there. But, there should also be consultations; the President should consult the Chief Justice and the President of the BASL as well. There should be a similar consultative process to ensure that it is the best person who holds office.

There should be Judicial Audits to monitor their performance. There should be reasonableness and transparency in the appointment of judges. The criterion for promotion should not be only just seniority, but ability and merit, as well.

In the appointment of Judges, it should be that the Supreme Court should have a majority of career Judges, but also Judges from the Attorney General's Department and the Unofficial Bar. Those are the matters that we wanted to press so that the Judiciary would be independent, competent and will also ensure in creating a Judicial Culture.

?: You also wanted certain recommendations and certain amendments to the Draft Constitution. Where are they now?

A: They are at the Steering Committee Stage and some of them have already been implemented. However, the one on the Judicial Audit and the Supervisory Control have not been implemented yet.

On the other hand, there is also the principle of QUIS CUSTODIES CUSTODAT which means who will guard the guards? There would be a case where the Judiciary will also run amok and there will be no controls. That is the other extreme which we should guard against.

?: Now, on the much vexed Bond Scam. It was once an Auditor General's Report which grew into a COPE Report and now a Presidential Commission which Minister of Special Assignments Dr. Sarath Amunugama described as a Presidential Committee. There are scary reports that the perpetrators have investors who have invested Rs 2 billion in NDB Bank, overseas properties and new media houses. How do you think that this issue could and should be handled?

A: I feel that this issue has to be investigated by a thoroughly competent team. What is required is to assess the extent of the scam and punish the wrong doers. This has now become a political issue when it should have been only a legal and economic issue. It is so, as the bond scam and other white collar crimes need a lot of technical expertise that is not available and especially to probe missing assets. The question is capacity. I don't think that the ordinary Police Department and the Judiciary has the capacity to do this. We may have to get specialized expertise to complete this, as we do not have the expertise here. Even the normal Judiciary or the Police have no such expertise to detect these crimes. That is why we talk of specialized tribunals.

?: So, do you believe that foreign consultants have to be brought from overseas?

A: Not necessarily. But, someone has to be trained in this all important field. It is not that we need foreigners to tell us what to do. But some expertise is needed here. Everybody thinks that just because some expert comes here, it means that they are interfering with our sovereignty. That is wrong. Sovereignty belongs to you and me and not to the government. The problem with everybody is that they scream from the rooftops when people take assistance from overseas, despite there being other instances when Sri Lanka gets assistance and no one really cares. That is not the way to go. Getting the expertise does not necessarily mean that we have to do what they say.

?: Or do you think that the process is too late? Presidential Commissions have been appointed which may delay the process. But, what is all this when the entire local market and international financial markets knew what happened within minutes of the transaction?

A: I don't think that it is too late. I don't think it is too late from my perspective. But the allegations have to be probed as far as any wrong doing is concerned. But, by delaying the process, one may lose the evidence and with that, you will be losing the risk matters. There have been corruption scandals in the first two years and before. But, the earlier you investigate them, the better it is.

?: Even MP Bandula Gunawardena said in the previous column last week that the Presidential Commission is trying to buy time when all the evidence is already available. Your comments?

A: I do not want to get involved in what these politicians say. They say various things at various times. But, at the heart of the matter is that a thorough investigation has to be done and the correct culprits have to be nabbed. One can't go on fixing people, for the sake of it, where their fundamental rights are affected. It is up to the government to do it, while we can only advise the government. There is no point in making a political issue out of it. Whoever is responsible has to be held accountable as corruption is a crime and kills democracy while it also eats into the economy.

?: Did the Bar intervene in this?

A: We cannot be intervening in every issue at every stage. We intervened in the case of government appointments and future ones too. We have intervened when it came to the independence of the Judiciary, the profession and undermining of the rule of law. Also in the instances where there were interferences in the Embilipitiya, Mannar and the Homagama cases and threats to Judges.

?: There were allegations of Torture which were brought by the Human Rights Commission. But the numbers of reports handed over to the Attorney General were drastically few. Do you believe that we are lacking in the law?

A: The culture of torture has been there but it has been reducing. We cannot say that the issue is that we have just finished a war. The Police are still in that war mindset. They also must remember that they are a civilian force. These things have to be changed gradually. We have to address the issues relating to torture, but at the same time, we have to address the issues relating to criminal procedures, evidenced, cordoned. That is because obvious criminals get away scot free. This happens because of the lack of capacity of the investigating officers, mechanisms or due to political influence. We have to address this culture of torture because we cannot deny that it is not there.

?: Another subject which has been in vogue is the law's delays. This was in focus when the Minister of Justice was Prof. G. L. Peiris, in the Chandrika Kumaratunga Government, who spoke passionately about removing these delays in the interests of the aggrieved parties. What is the status quo now?

A: The laws delay is an acute problem; I agree. But, this is not something that could be solved overnight; Singapore and Malaysia have taken around 10-14 years to see it through. It is not only the lawyers who are blamed all the time, but Judges, the court staff and sometimes litigants, who are also responsible. There have to be proper mechanisms which have to be in place along with the workforce. Technology alone cannot solve the problem. The systems have to be upgraded. Another matter is that we have to think of alternative ways of dispute resolution. Arbitration is a matter for Court, but one goes to Court for everything!

Mediation is also a solution. We have to think of making the system efficient and speedy. Another matter is attitude, competence and efficiency. The capacities of lawyers have also to be developed and made more efficient with new methods. Having more lawyers and Judges with more computers and office buildings will not stop the problems. There are aspects that the Ministry of Justice has done like and Civil Procedure Codes which shorten time and the Judicial Services Commission has enabled finishing cases faster.

?: Do you think that Labour Tribunals, Commercial and Industrial Arbitrations and Amenities Boards are successful?

A: Labour Tribunals are successful. Commercial and Industrial Arbitrations take time.




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