By Lakshman I. Keerthisinghe
“Freedom, peace, order and good governance - the essentials of the society we treasure-depend on the ultimate analysis, on the faithful performance of judicial duty. It is only when the community has confidence in the integrity and capacity of the judiciary that the community is governed by the rule of law…Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgement,”
- Chief Justice Jayantha Jayasuriya PC, at the Welcome Ceremonial Sitting on 16 May 2019.
“I believe that an independent judiciary is the crown jewel of our Constitutional republic”
- Brett Kavanaugh, US Judge
The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders which was held in Milan from 26 August to 6 September 1985 and endorsed by the United Nations General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 (The United Nations-Human Rights, 2015), declared six basic principles on the independence of the judiciary. They are as follows:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the Courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary Courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary Courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
It has also been stated that: “It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.” (UN-HR, 2015) The aforementioned basics advocate that the principle of separation of powers provides the base for the judicial independence which means that the judiciary would ensure that judicial proceedings be kept separate from the influences of the other limbs of the Government i.e. the legislature and the executive.
The Constitution provides that the Judges in Sri Lanka are able to creatively interpret or re-interpret the provisions of the Constitution which leads to judicial activism. This constitutionally granted power is beyond the contemporary role of Judges. Thus, legislative actions and executive actions are subject to the active review by the judiciary which connects judicial activism with judicial review.
There were great fearless judges such as Justice Sarath Ambepitya who was serving as the Judge of the Colombo High Court when he was assassinated. The assassination, orchestrated by a drug lord sentenced by the Judge, gripped the nation and led to concerted action against organised crime.
Sri Lanka’s Judiciary is comprised of civil and criminal courts responsible for the administration of justice in Sri Lanka. Constitution of Sri Lanka defines courts as independent institutions within the traditional framework of checks and balances. They apply Sri Lankan Law which is an amalgam of English common law, Roman-Dutch civil law and Customary Law; and are established under the Judicature Act No 02 of 1978 of the Parliament of Sri Lanka. The judiciary consists of the Supreme Court, the Court of Appeal, the High Courts, District Courts, Magistrates Courts, and Primary Courts.
In conclusion, the people of Sri Lanka have consistently held the judiciary of Sri Lanka in high esteem from ancient times. It is imperative that respect for the judiciary has to be safeguarded at all times in order that the rule of law prevails without hindrance in our motherland. There are established procedures to complain against malpractices, in any country, by any institution prescribed by law without engaging in baseless vociferous defamation. The right to apply to court by any aggrieved person is available to citizens to obtain justice for any grievances. Respect for the judiciary should be preserved.
(The writer is an Attorney-at-Law with LLB, LLM, MPhil.(Colombo) – [email protected])