SRI LANKA: 'Judgeitis' -- disease of the judges
FOR IMMEDIATE RELEASE
September 12, 2013
A Statement from the Asian Human Rights Commission
SRI LANKA: 'Judgeitis' -- disease of the judges
The Guardian reported on September 11 that Lord Carlisle has argued for an inspectorate of judges which could deal with problems before they lead to complaints. Meanwhile new regulations dealing with complaints against judges come into force at the beginning of next month. The new regulations come on the basis of the Constitutional Reform Act of 2005. The Reform Act gives power to the Lord Chief Justice to make regulations dealing with misconduct by judges. Lord Carlisle's argument, published in a recent magazine article, is that there should be an inspectorate that can deal with problems before they lead to complaints.
These moves indicate that even in a judicial system which has the highest credibility in the world there are new measures and discussions about even further measures to improve the functioning of the system of justice. The Asian Human Rights Commission has for over a long period pointed out the way that the system of justice in Sri Lanka has become dysfunctional. Instead of taking measures to make it better all the moves that are taking place indicate only a design to undermine the judiciary altogether.
In the course of the article that appeared in The Guardian it refers to what has come to be called 'judgeitis'. This has been defined by Lord Hailsham as follows, ".....the symptoms of judgeitis, or "judges disease", include "pomposity, irritability, talkativeness, proneness to obiter dicta (statements not necessary for the decision in the case), a tendency to take short cuts".
In Sri Lanka 'judgeitis', or "judges disease" has been discussed for long periods of time among the lawyers as well as the general public, particularly after the former Chief Justice, Sarath N. Silva took that office. There is also a considerable amount of literature relating to this matter. We are listing here some of the things which may come under judgeitis in Sri Lanka.
• Perhaps the most frequently referred to disease is the linkage that developed between the judiciary and the executive. A former chief justice, Asoka de Silva, even became an advisor to the president after his retirement. He also wrote an introductory chapter for a booklet which was widely distributed by the government in support of the impeachment of the Chief Justice Dr. Shirani Bandaranayke. The origin of this particular aspect of judgeitis can be traced to the appointment of Sarath N. Silva as chief justice by the then president, Chandrika Bandaranaike.
• Trying to impose settlements by way of obstruction to adjudication, particularly in cases where one of the parties may be the government or a government agency. Sarath N. Silva was notorious for doing this and there is a long list of cases where the party's desire for justice was frustrated by compelling of settlements. The present chief justice, Mohan Peiris was also reported to have suggested in open court to lawyers to take cases to the government departments for settlement instead of bringing up cases to courts.
• A senior and well known lawyer, S.L. Gunasekara, in his book The Lore of the Law and Other Memories mentions a series of irregularities which have become quite common in Sri Lanka and which could also easily fall under judgeitis. One such common practice he mentions is the failure of the judges to give a proper hearing to lawyers.
• In a recently published article in the LST Review (Vol. 306 & 307 in May 2013) the statement of a group of lawyers has been reproduced, which gives a long list of things that may come under judgeitis, some of which are allowing the lawyers from the Attorney General's Department to be allowed to make oral submissions in fundamental rights cases on behalf of respondents before the respondent files any answer in court; courts not giving reasons when refusing leave to proceed in fundamental rights applications and when refusing leave to appeal to higher courts; granting suspended sentences even for very serious crimes such as murder and rape, (in this regard women's groups have also held public protests against granting suspended sentences to rapists and those found guilty of sexual harassment); the harassment of lawyers for personal reasons; the absence of adequate knowledge of law on the part of some judges; judges blaming lawyers without any good reason, for example one senior lawyer who has been in practice for a very long time and has a clean record was accused by a Supreme Court judge in open court who said that he was a liar on the basis of a misconception on the part of the judge that one of the documents submitted to the court was not an authentic document when such misconception proved to be completely unfounded.
There is a much longer list of such aspects of judgeitis. The suggestions made in the United Kingdom for an inspectorate and the kind of measures taken under the Constitutional Reform Act of 2005 for establishing new regulations for dealing with complaints against judges remain a dire need in Sri Lanka. However, it is not likely to be realised due to heavy pressure by the executive to bring the judiciary under its control. Recent remarks quoted in the media attributed to Chief Justice, Mohan Peiris suggesting that the three branches of the government should work in collaboration indicate that even the very notion of the separation of powers is being seriously undermined. Remarks by international experts relating to the impeachment of the Chief Justice, Shirani Bandaranayke also points out such undermining.