Justice on a razor's edge 31 0ct.2004 Sunday Leader
Now retired Supreme Court Judge, C.V. Wigneswaran created waves in judicial circles on his last day on the bench when he criticised the present judicial system as being fraught with personal prejudice and subjective thinking, warning that the present conditions did not bode well for the future of the judiciary in the country. In an interview with The Sunday Leader, Justice Wigneswaran outlined about instances in his own career when he came face to face with this prejudice and gave his recommendations on how the judicial system could be reformed. Following are excerpts:
By Dharisha Bastians
Q: What was the most memorable or significant experience of your career?
A: I have had several significant incidents, specially when I was up in the north. It related to episodes with the military as well as the militants. But what I would like to share with you as a significant experience relates to a committee meeting we had in Colombo at Shrubbery Gardens in the early 1980s.
I was in the committee of the Judicial Officers Association. There was an emergency meeting convened. I had come all the way from Mallakam to attend the meeting. Several judges had come for the meeting from all over Sri Lanka. The committee was agitated about the stoning of the Supreme Court Judges' residences.
Almost every one of the committee members wanted to stage a strike. They simply wanted to show their protest against the manner in which some of the members of the higher judiciary had been treated. After a lot of heat was generated, a vote was about to be taken. If taken it would necessarily have been carried through with at least 95% of those present voting for the staging of the strike by judges until steps were taken against the perpetrators of the high handed act.
I excused myself for raising a contrary view. However serious the matter at hand was, judges should not under any circumstances strike, I said. We were not a trade union. Even if we were to strike, we should remember that in 1980 a headstrong government that had received a five sixth majority in parliament had sent so many workers home. Their families were still suffering.
The executive could easily dismiss the judges, call upon some senior lawyers to act for some time and meanwhile recruit new judicial officers for the original judiciary, which was in all about 150 in number at that time. I was prepared to go back to Hulftsdorp where I had practised for 15 years.
I asked the judges, how many of them were confident that they could get back to their respective areas and practice our profession. In any case I said, the committee should not decide for the entire membership. This was a serious decision to be made. Not an emotional ad hoc decision at the spur of the moment.
I had spoken for about 10 minutes. I was prepared to join the others in the strike and face the consequences if they too were truthfully prepared to face all eventualities. Someone asked what was the alternative. I said, Superior Court Judges were quite capable of looking after themselves. They did not need our strike.
We could pass an unanimous resolution expressing our shock and utter disappointment at the high handed acts and the seeming executive lethargy that had followed. Slowly the members changed their views. Finally only a strongly worded resolution was passed. A strike was averted.
A senior judge who was wholly supportive of the strike, when he met me in the Court of Appeal many years later (almost a dozen), welcomed me by saying "here comes the man who broke our strike!" In a country where decisions are more often taken on emotional grounds bringing untold misery in their wake, I was able to reason out an alternative.
Q: What are your plans for retirement?
A: Many judges plan out their future while still in service. Even judgements are sometimes tailor-made to attract lucrative after retirement benefits. I am sorry I have no plans. I work in the present. The future is always uncertain and would be looked after by He who created me and who has directed me so far.
Q: What was the toughest problem you encountered during your time as a judge?
A: There are two incidents that come to mind. The army had shot at a disabled driver and killed him at Atchuveli within my jurisdiction at Mallakam. The army pleaded self-defence but later evidence proved the army had concocted the defence.
On examination of the dead body and the adjunct areas, I was satisfied that it was not what the army had made it to be. Since the soldiers who shot had admitted to the firing of ammunition from their respective firearms (in self defence as they said) which killed the deceased, I wanted the police to arrest them and produce them before me the next day in the Mallakam courts.
The next day when I came out of my official residence, which was just behind the courts, I found several armed soldiers all over. They were pointing their guns more or less towards me. Obviously the army was annoyed with me for arresting two of their soldiers.
Fortunately, as a senior cadet at Royal College, Colombo, I had handled guns and I did not feel the slightest perturbance at the sight of guns or at the obvious show of strength and threat. Many a judicial officer in the north had been completely flustered and rattled by the malignant militaristic environment that pervaded the Northern Province at that time.
In any event we in Mallakam had faced unprovoked gunshots from helicopters, which landed right at the entrance to the court house while sittings were on. We had continued sittings thereafter within minutes of adjournment, thanks to the courageous lawyers and litigants.
I went into my chambers and sent word for the officer in charge of the soldiers. At least 25-30 soldiers were to be seen around. If I remember right, one Wijeratne, a short stocky officer, came in. I asked him why such a large contingent of soldiers was present within the court premises. He said they had come to give security to the two soldiers taken into custody. I told him that once the police took control of the soldiers, the security of the soldiers passed onto the police.
There were an ample number of policemen under the command of A.S.P. Navaratnarajah and that the soldiers and their trucks and jeeps were unwanted in the court premises and must immediately leave the court compound. Wijeratne hesitated. I told him that I gave him just two minutes to leave the court premises with all his men and vehicles. That was an order. It was carried out.
An officer called Rajudeen thereafter had come to see me but would not inform my staff what business he had with me. A visitors book that had to be signed by all who wished to see me, handed over to him to fill in his name and state the reason for seeing me, was thrown by him to the ground, allegedly. Hence he was not allowed to see me.
Thereafter the case went on. Bunty Zoysa came over to look after the interests of the soldiers. But on the JMO's evidence, the ballistic expert's evidence and the basis of eyewitnesses evidence, the two soldiers were found to have been involved in cold-blooded murder. But soon the Attorney General entered a nolle prosequi and the soldiers were spared a trial in the High Court. They went scot-free.
The next incident was during the 1983 July riots. The army had just shot down many persons on the road without any provocation whatsoever and their bodies were lying at various places within my jurisdiction.
Inquirers into sudden deaths suddenly disappeared. Relatives of deceased contacted me through lawyers. The police refused to come out of their police stations for fear that there might ensue clashes between the army and police.
I spoke to the OIC, Chunnakam over the telephone and the conversation was as follows:
"Why aren't you coming?"
"We fear the army."
"But who told you that the army is responsible for the shootings?"
"Sir! They are responsible."
"No. I say people dressed in army uniforms had committed these murders. So why don't you come?"
I conducted the inquests personally on all the dead bodies and gave a verdict of homicide in each of them by persons dressed in army uniforms travelling in such and such vehicles, giving the vehicle numbers provided to me at the inquests. I directed the police to investigate as to whom those vehicles belonged to.
Later, human rights activists traced the numbers to genuine army vehicles and what happened in Mallakam was splashed across the globe in human rights journals!
Q: You spoke of prejudice and personal agendas interfering with the judicial process on your last day on the Supreme Court bench. Could you elaborate more on that?
A: It is not my intention to point accusing fingers at any individuals. But if you ask any lawyer in Hulftsdorp who has some understanding of what happens in the Higher Judiciary today, he would tell you looking at the constitution of a bench and the subject matter coming up before that bench, as to what the outcome would be.
More often such evaluation would be correct. How is it possible? It is because the bias, prejudices and may be personal agendas of individual judges are fairly well delineated, that it is possible to safely predict. Some judges would be very hard regarding the same matter when it relates to one set of litigants and very lenient with others.
There was this subsequent case with similar facts to the earlier case. The same judge dealt with the later case differently compared to the earlier case. The judge, when it was pointed out to him, said the facts were different. I was told Faiz Musthapha, who appeared in the later case, in exasperation had said, "Sir, not that the facts are different. But the voices in support are different!"
Whatever our personal views with regard to a counsel may be, we must not forget that counsel appear for and on behalf of litigants and it is the litigants' interests which are at stake. Many of us often forget this and allow our personal animosities and prejudices to take charge of us. Those who have been prosecutors all their life before joining the higher judiciary, often look at counsel with a jaundiced eye.
Q: Have you had personal experience of this prejudice during your tenure at the Supreme Court?
A: Yes. Within few weeks of my coming to the Supreme Court this judge who was the leader of our bench, when a junior lawyer got up to support a Fundamental Rights (Article 11) application based on police brutality, asked the lawyer why he was supporting that application, saying, "After all, you were assaulted by the police for what you had done. If you had acted properly the police would never have assaulted you. Why are you wasting our time?" The junior lawyer was never given a chance to support his application.
If a similar application was supported by a senior counsel, this judge would have been tongue-tied, though his prejudices were perennial. All police acts or administrative acts are fair and reasonable, seemed to be the presumed viewpoint of those who had acted for the executive and its allied institutions throughout their professional life before adorning the higher judiciary benches.
Q: When you refer to personal prejudices, is there in your view a political element that is reflected in these biases?
A: So long as self-interest and self-advancement happen to be the motivating factors, political elements must per- force creep in. Not that judges are divided among themselves on strong politico-philosophic viewpoints. I remember some judges in the District Court used to be classified as pro landlord judges and others pro-tenant judges.
That is not the case in the higher judiciary. All political viewpoints are ultimately geared towards personal self-advancement. If a person could shift his steps at the right moment, like Mohammed Ali in the ring, he would attract political patronage from whichever political quarters he desires. Political slantings are more often for personal advancement.
Q: President Chandrika Kumaratunga has said Sri Lanka's judicial system is the most corrupt in Asia. Do you agree, and if so, what remedial measures do you suggest?
A: I do not know whether Her Excellency made any such statement. If she had said so, she must certainly have done an in-depth comparative study in coming to her conclusions. I have not done such a study. But if that were so the most important remedial measure I would suggest is that political manipulation of the judiciary must stop forthwith. It is only judges who have political and other influential backing who would resort to big time corruption.
The judiciary must be left to be independent, it must become self sufficient with adequate resources to enable it to maintain its independence. The judiciary must not be filled at its higher echelons with executive-pliant officers who have had very close relationship with the executive and the legislature.
Adequate screening of new recruits initially must be undertaken like how it is done when recruiting young state counsel into the Attorney General's Department. Recruitment must be in accordance with strict value based criteria and such recruits must be given adequate training, instilling in them certain basic norms and standards.
This has to be done by judges who have themselves been original court judges, not others who had been bred in hierarchical government departments conditioned by their environmental needs and compulsions whose perception could never be empathic.
Q: There has been a call by the president of the Bar Association to use contempt of court against the media to prevent criticism of the judiciary. Do you think this is a healthy practice, given your own views that there is in fact prejudice prevalent in the judicial process?
A: Generally, the following matters fall under contempt of court; failure to comply with an order of court, an act of resistance or insult to the court or its judges and conduct likely to prejudice the fair trial of an accused person.
The media has for a very long time avoided referring to personal indiscretions on the part of judges out of courtesy. Law has decreed that Superior Court judges shall enjoy security of tenure to ensure independence of the judiciary. But if the very fact that security of tenure has been guaranteed under the constitution motivates judges to resort to indiscretions over and over again the media would not be able to hold its hand indefinitely.
It is like the children who get to know before their mother does, that their father has some other interests. They would keep the fact of their father's indiscretions secret, out of a sense of shame as well as due to their concern for their mother. But if the father persists emboldened by his children's reticence, then the children must inform their mother.
I do not know what the president of the Bar Association had in mind when he said what he said or even whether he said so. Any form of control, unless it is universally acclaimed to be a healthy exercise, must be avoided. Institutions must be allowed to flow smoothly not unduly curbed and controlled.
But the media must also recognise their role in society, its tremendous power to affect the thinking process of its readers and therefore act responsibly. So while voicing my disapproval of undue control of the media, I would urge the media to act responsibly. Self-discipline is the best discipline.
Q: If an ordinary citizen said they would have to consider other ways apart from the judicial process to seek redress, would the Supreme Court have considered that contempt of court?
A: Seeking other ways so long as it does not border on violence and duress need not concern the Supreme Court. But, what I meant by alternative methods was a radical political change in the country, which might bring in its wake overall changes that might submerge existing institutions due to their inadequacies and insufficiencies.
Let us not forget that certain areas where the writ of the government is ineffective today, there are new judicial innovations that have been worked out, divorced from the existing system.
Q: Do you feel that the credibility of the Supreme Court in the country today has diminished in the eyes of the public, in comparison to a few decades ago?
A: All over the world, judicial institutions are receiving the minute scrutiny of the polity at large, and many adverse comments are being made. Ultimately every institution depends on the calibre and integrity of the people who run it. It is not for me to say how the people feel about the Supreme Court of Sri Lanka having been part and parcel of it until now.
But I could say this. If we do not shed our bias and prejudices, cliquism and factionalism, our esteem would most certainly suffer. Let me make a simple observation. In the earlier days, not so long ago, many a Supreme Court judgement would have all three judges stating their views either approving or dissenting from the main author of the judgement. It is very rarely that such an activity takes place today. Lethargy of judges may have long-range consequences.
Q: Do you feel there should be more accommodation of members of the minority community in the judiciary?
A: I am one who thinks there should be more accommodation of good, efficient, mature, adequate and experienced judges in the higher judiciary. I do not like to refer to minority and majority community judges. If there be all minority community judges at one stage in the Supreme Court able to conduct their affairs adequately there should be no complaints from the majority community, so long as the judges are known to have the interests of the community at large at heart.
Nor should there be complaints if there are only majority community judges at a particular point in time. But Northern and Eastern Provinces conduct their cases in Tamil. When their records come to the appellate courts, judges should not depend on translations and interpretations.
Therefore judges who have adequate knowledge of Tamil must also be in the appellate courts. Sometimes old Tamil deeds from Chilaw, Puttalam, Negombo and Upcountry areas also come with the records. These deeds are not translated. Unless judges can make out their contents there could be a serious travesty of justice.
As to the question whether members of the minority community should be accommodated into the original judiciary, I most certainly would advocate recruitment of such persons even on a quota system. At the moment there seems to be preference given to one community even among the minorities.
Recruitment to Northern and Eastern Provinces should be of those competent in the Tamil language with adequate knowledge of English on a quota basis depending on the proportion of Tamils, Muslims and Sinhalese living in those areas. Similarly to the other seven provinces there should be recruitment of those competent in the Sinhalese knowledge with adequate knowledge of English on a quota basis depending on the proportion of Sinhalese, Tamils and Muslims and maybe even Burghers living in those areas.
When they come to the Appellate courts these recruits from all nine provinces should be able to function in English. But I get the feeling that soon even the appellate courts would switch over to Sinhala. But the new set of students passing out of Law College might change that situation sometime later. English must not be jettisoned from the appellate courts under any circumstances. So my answer to your question is, recruit more from minority communities at the initial stages.
Q: Do you feel that the constitution of benches in the Superior Courts is done on a rational basis or to achieve particular objectives in given cases?
A: As I told you earlier, experienced lawyers and even others are today able to look at the constitution of benches and predict the result of a case specially those having a political or societal hue.
How I distributed new cases in the High Court, Colombo, Western Province to the five courts that existed then (now seven) when I was primus inter pares was by not looking into the names of parties but distributing merely on the numbers.
Thus the first five numbers may go to the respective five courts (one to five) and the next five may go to the courts from five to one, or vice versa or I may start from court three and go on to court two through court four, five and one. Even I would not know to which court a particular case would go. None of the members of the staff would be able to decipher a pattern since no particular pattern was adhered to.
But in the Supreme Court, none of us knew how the allocation of cases was done. If the junior most judge was in charge of allocation of cases, I must confess that I never got a chance to be involved in the process, when I entered the Supreme Court in 2001. More often only selected judges were in charge and that too for a long time.
And it was a fact that Justice Mark Fernando was kept out of important cases. Since I was more often accommodated with Justice Mark Fernando I was also spared the distinction of hearing socially or politically sensitive cases. Even if I was accommodated on a bench at the leave stage, once my views were known to be contrary to certain others, I would never be given that case thereafter.
Therefore I am unable to refer to any rational basis except to come to the conclusion that particular objectives were the only rational basis adhered to!
Q: During your experience do you think the powers of the executive presidency have ever interfered with or influenced the higher courts of this country?
A: Only one instance has been publicised. President J.R. Jayewardene had met Chief Justice Samarakoon at a party and mentioned to him that a particular bench should consist of so and so and so and so, since he was interested in the outcome of the case. Chief Justice Samarakoon had puffed at his pipe and said nothing. The next day he had constituted a different bench, which did not grant the relief the executive president expected. Of course that led to the attempted impeachment of Chief Justice Samarakoon for whom I have always had much admiration.
Interferences from the executive presidency do not come from the way you have posed your question. It starts much earlier. When the executive presidency prefers to fill up the higher judiciary with a majority of very young lawyers however capable they may or may not be, who had been pliant in the hands of the executive throughout their professional life hobnobbing with ministers and others until the other day, the interference starts there.
They must look at problems coming before them naturally from a state's perspective and not from a people's perspective. Courts should act as a bulwark of the people not as a proxy for the state. Only a minuscule minority would have the capacity to transcend their conditionings.
If the majority of these comparatively younger persons with absolutely no original court judicial experience nor judicial temperament are brought into the higher judiciary they would be an easy source of assistance to the powers that be. Their allegiance would be to the executive and not to the people at large.
The executive presidency need not directly interfere nor influence. Close relationships that had preceded appointments to the higher judiciary if continued would necessarily assist the executive presidency. If further benefits for the future are looked forward to by these judges the executive presidency need not even move its fingers. Its interests would be adequately looked into!
Q: Do you think the judicial process is becoming redundant because of a lack of independence?
A: The original judiciary cannot be run like a government department with its hierarchical assemblage. Every judge however insignificant his area of jurisdiction might be is a king in his own domain. But a king has his checks and balances. In fact his responsibilities and accountability are far more serious and severe than those who enter the higher judiciary from departments or from the unofficial bar had been used to.
Any attempt to cow down judges to suit the hierarchical perception of some members of the higher judiciary would affect the judicial process. Unless those who understand and empathise with the judges of the original courts run the administration of the original courts the judicial process will suffer tremendously.
We may have to think of a Judicial Services Commission hereafter consisting of retired senior original court judges only with adequate financial resources and self-sufficiency to run the original courts. Unless recruitment of judges and the process of judicial administration undergo radical changes I see the judicial process becoming a question mark.
Q: In your experience, which was the period when the judiciary was truly independent?
A: I can only speak for the period during which I was a judge during the last 25 years. When I went over to Mallakam there were about 6,000 to 7,000 cases pending. About 35 cases were fixed for trial for a day and about 400-500 cases had to be called daily. More often when the calling cases were finished with, it was time to postpone trials.
There was a feeling among judges, since the quarterly reports to the JSC spanned a period of three months, all cases must be fixed for trial within such three months. I found no circular that compelled us to do so. I spaced out the cases for six to eight months so that only 250-300 cases were to be called and not more than six to eight cases were fixed for trial daily.
Somebody must have sent a petition to the JSC. A letter came from JSC asking me as to why trial cases had been postponed for eight months. I explained with statistics that unless this was done cases would continue to be postponed and never concluded.
Promptly Chief Justice Samarakoon caused a circular to be sent to all judges calling upon them to take such steps necessary to conclude cases early and intimating to them that it was not incumbent on them to fix trial dates within three months. Chief Justice Samarakoon was practical, pragmatic and innovative.
During Chief Justice Samarakoon's time to my knowledge there was no interference with judges but he showed tremendous concern for them and at the same time was very strict with us. He had no favourites among judges whose indiscretions he would overlook and others whose slightest lapse he would pounce upon with venom.
He would not listen to backbiters. If he had anything to ask he would directly ask such judge and get his explanation. Though his appointment was politically motivated he stood his ground against the executive president when the latter tried to trifle with the judiciary.
I would say Chief Justice Samarakoon's period of stewardship was comparatively more independent than other periods. Justice Sharvananda being from a minority community had certain intrinsic disadvantages in the field of administration. He had to depend on others for his knowledge of Sinhala.
Q: You said in your last statement on the bench that there was a constrained atmosphere within the judicial system. How is it constrained and who is responsible for it?
A: My answers to your other questions must have enlightened your readers as to how such constrained atmosphere came to engulf the judiciary and who could be the cause for it.
The compulsions have come about due to an administration that expected a departmental hierarchical obedience from judges. In order to achieve such obedience wedges were driven into the system. Patronage to some and punishment to others were meted out. Comply or be condemned, was the underlying threat.
Errant politicians and policemen who should not have received any patronage from the judiciary were perceived as important persons and original court judges have been compelled to comply with orders illegally issued to protect or pamper such errant offenders. Judges who publicly recorded such issuance of orders by intermediaries on behalf of their principals were dealt with severely.
Perceived wrong judicial orders by judges must be challenged in the appropriate appellate court. Any attempt by persons howsoever highly placed to countermand such orders through extra judicial means must be considered to be a constraint on the original judiciary.
Finding answers for our
When Justice Michael Kirby commented in Hong Kong in 1998 that "a judge without independence is a charade wrapped in a farce inside an oppression", he was merely restating the commonest principle of the rule of law, albeit in predictably colourful language.
Justice Kirby, (at that time President of the International Commission of Jurists and formerly Special Representative of the Secretary-General of the United Nations for Human Rights in Cambodia and Justice of the High Court of Australia), was discussing basic principles and new challenges confronting the judiciary at a colloquium organised by the International Bar Association.
His crackling description of that most obscene of phenomena, a political judge who remains irrevocably tainted by his or her political partisanship, comes immediately to mind when reading through the interview given by a recently retired justice of Sri Lanka's Supreme Court, CV Wigneswaran to a Sunday newspaper in this country.
One of the very few truly bold persons to speak out in regard to issues that most in the legal and judicial arena remain quiet about, Justice Wigneswaran's comments are telling in their impact. They reflect the parlous state in Sri Lanka today, of a separate and independent judicial branch of governance, historically expected to rise above mundane politics and impartially apply disinterested legal rules to disputes that may arise between citizens themselves or the citizens and the State.
As this columnist has stated previously, the degeneration of that branch of governance has implications that go beyond the politicians who have been all collaborators in this degenerative process. The implications go beyond the equally few individuals who profess to head civil society in this country. They also go beyond those miserable souls who head the legal profession or indeed, those eminent legal personalities who have also participated in this most fundamental of all betrayals and with regard to whom, accountability ought to be particularly severe.
Instead, these implications strike at the very heart of the claim that Sri Lanka can profess to make as a basically civilised nation. Justice Wigneswaran's answer to the question, as to whether he agreed with President Chandrika Kumaratunga's recent observation that Sri Lanka's judicial system is the most corrupt in Asia, is therefore very illustrative. He points that, if that were indeed the case, then the most important remedial measure is that political manipulation of the judiciary must be stopped forthwith.
His warning is extraordinarily apt to the context of the question directed at him; " the judiciary must be left to be independent, it must become self sufficient with adequate resources to enable it to maintain its independence. The judiciary must not be filled at its higher echelons with executive-pliant officers who have had very close relationships with the executive and the legislature."
His assertions in regard to the original judiciary are also pertinent. When asked as to whether he thought that the judicial process in the country is becoming redundant because of a lack of independence, he observes that; "any attempt to cow down judges to suit the hierarchical perception of some members of the higher judiciary would affect the judicial process. Unless those who understand and empathise with the judges of the original courts, run the administration of the original courts, the judicial process will suffer tremendously.
We may have to think of a Judicial Service Commission hereafter consisting of retired senior original judges only with adequate financial resources and self-sufficiency to run the original courts. Unless recruitment of judges and the process of judicial administration undergo radical change, I see the judicial process becoming a question mark."
Minute analysis of the issues raised in this interview belongs to another forum due to lack of space. However, Justice Wigneswaran's observations summing up the intense politicisation of the system should be of grave concern to all those in this country who possess even a shred of conscience regarding the viable functioning of our institutions beyond our lifetimes.
The guideposts have changed therefore and changed radically and for all time. Our earlier notions of safeguarding the independence of the judiciary drew its inspiration essentially from the old notion of the judiciary vis a vis the government. Learning bitter lessons from the subjugation of the colonies to the King, James Madison, in drafting the amendments to the United States Constitution, which became the Bill of Rights of that country, emphasized that;
"Independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights".
But what happens when subversion comes from within? And where indeed, do we find the answers for our collective collapse (like the proverbial pack of cards), as a result of the deeply problematic challenges that this subversive process continues to pose?