When I was asked recently, in fulfillment of my work on the Human Rights Action Plan, to assist the Ministries of Justice and of Child Development and Women’s Affairs to finalize the draft of an act to replace the Children and Young Person’s Ordinance, I was struck by the absurdity of a phrase which did not seem to worry anyone else at the consultation.

It related to proceedings conducted before a Children’s Magistrate’s Court (which the law sought to establish), and laid down that ‘The Chief Justice and any three Judges of the Supreme Court nominated by the Chief Justice may frame rules regulating the procedure to be followed’ in such proceedings. Leaving aside the question of the Chief Justice selecting any three judges, where I believe there should be greater precision to prevent arbitrary choices, the clause seemed to me wholly wrong headed in making such rules optional.

I was given what seemed to me two mutually contradictory answers when I made the objection. One was that the word ‘may’ in such contexts was generally held to create an obligation to act. The other was that, if there were a ‘must’ and action was not taken, then the law could not come into effect.

If the legislature wanted such rules in place – and obviously there must be rules, to prevent inconsistencies and irregularities – then it should not only make that clear, but should ensure that those rules were in place. My suggestion then was that the clause should read ‘…..shall frame rules regulating the procedure…within one month of this act coming into operation’.

It was granted that this might be effective, but then the question was raised as to what would happen if the Chief Justice failed to make such rules. The answer seemed to me simple, namely that a failure to abide by laws passed by Parliament indicated incapacity, and should therefore warrant removal. Alternatively, Parliament could decide that, were rules not formulated as laid down in the Act, Parliament would then formulate such rules itself.

Underlying the question was what I have previously characterized as a fundamental confusion about what independence of the judiciary means. What should be sacrosanct is the judgments made by the judiciary, with which there should be no interference. But there should be no question but that those judgments should be in accordance with the laws passed by Parliament. While judges obviously would have to interpret laws about which there is ambiguity, they certainly should not infuse ambiguity into any law and then decide just as they want (which is what the former Chief Justice did in cutting short President Kumaratunga’s term of office, though he seems to have been helped to do this, if his what he said in his judgment is true, by the failure of her Counsel to explain the strange phrase ‘whichever date is earlier’, which was a silly clarification of a silly provision in a silly amendment to a silly Constitution.)

What should be as sacred as the independence of judges to decide issues in accordance with the law is the law itself. Where the law is clear, judges have no business to change it. Of course if they believe a law is in conflict with the constitution, they should strike it down, or request amendment, and they should also have the right to do this subsequent to the law being enacted and its effect seen through actual implementation. I would suggest that this should apply also to laws which seem unfair, as with regard to that regarding statutory rape, and Parliament should review such laws. But, while perhaps exceptionally giving a suspended sentence while Parliament reviews the law might be acceptable, subject to Supreme Court review, ignoring laws should not be acceptable, however well-meaning a judge might be.

Apart from the law itself, due process should also be sacred. This can be laid down by law, though it makes more sense for the Courts to establish processes and guidelines, and make these known to all stakeholders. This is what I have been requesting right through the last year, and the Secretary to the Ministry of Justice also asked the Chief Justice, following a meeting of the Task Force to expedite implementation of the Human Rights Action Plan, to convene a meeting to pursue such matters. She did not get a reply.

If the Courts will not act responsibly in such matters, then the Legislature must take over. This is not advisable, but we cannot have a situation where random remanding takes place, where prisons and remand homes are not visited, where cases are postponed freely. It is the people who suffer from such carelessness, to give it no stronger a name, and it is the duty of the Legislature, which is responsible for the judicial power of the people through the Courts, to make sure that those Courts exercise those powers in the interests of the people.

I continue to believe that the independence of the judiciary as regards decision making should be strengthened, and for this purpose we should streamline systems of appointment to the judiciary, and allow for justiciability in this regard too, without allowing either the President or the Chief Justice unbridled power. But we must also make the judiciary accountable, not only through allowing appeals procedures even with regard to Supreme Court rulings, but through establishing transparent rules of procedure, and guidelines as to sentencing. These should be designed both to expedite the administration of justice and to increase the understanding of stakeholders as to the working of the judicial system. The Legislature should not hesitate to use its powers, not to usurp those of the Judiciary, but to ensure that the Judiciary too follows the laws, without flouting or misinterpreting or perverting them.   

Daily News 4 Jan 2013http://www.dailynews.lk/2013/01/04/fea03.asp