I make no apologies for coming back to the excellent paper prepared by Nagananda Kodituwakku about the measures needed to restore public confidence in the Justice system. Previously we looked at the systems that need to be put in place to ensure the swift dispensation of justice. Now I shall look at ways in which we can promote confidence in the personnel involved.
First of all Kodituwakku deals with the need to ensure integrity and independence in judges. This requires a
Transparent recruitment process to select judges to Superior Court System
He notes that now supreme court vacancies are filled at the pleasure of the President, which leads to a disregard for merit. We are well aware that this needs to be changed, and it is essential to have checks on the power of the President to make appointments at will. But we should not depend only on the predilections of others. It is necessary to have systems in place, guidelines that are clear and based on rational criteria, with a requirement that any appointing authority follow established guidelines in a transparent manner.
One point Kodituwakku raises, which had not occurred to me before, is that it is a mistake to fill most vacancies with officers from the Attorney General’s Department. He notes that in the United Kingdom from where we claim to have derived out traditions, ‘not a single judge to the Judiciary is appointed from the Crown Prosecution Service headed by the Attorney General of the UK.’ He suggest instead that ‘Priority should be given to eminent career judges over other applicants. Public officers serving in the AG’s Department and the members in the private bar should be afforded an equal opportunity to submit their application for vacancies. But no preferential treatment whatsoever shall be afforded to the lawyers serving in the Attorney General’s Department over the other applicants. This merit-based system shall be implemented to the appointments to the lower Courts as well.’
Another vital factor Kodituwakku notes is that there should be
No inducements with gratifications after retirement
The system of giving appointments after retirement should stop. This should not preclude work in the private sector, and short term assignments such as special inquiries should be possible. But judges must accept that they should not be appointed to any salaried position in government after retirement. As he puts it, the prevalent practice ‘conveys a wrong message that those who are inclined towards the executive would get a preferential treatment over others after their retirement. This naturally affects the independence of the Judiciary.’
In addition to his strictures on the judiciary, Kodituwakku also notes the need to restore public confidence in lawyers. He begins with the Attorney General’s Department, the lawyers who represent the public as a whole. They prosecute in criminal cases, and appear for government and government departments, which means they appear for the people.
Kodituwakku asserts that the
AG’s office shall be made absolutely independent
It was in fact a grave mistake to put that Department under the President. That was a temporary aberration, but even when it comes under a Minister we might find it acts ‘according to the whims and fancies of the Executive. It withdraws the indictments serve on ruling party politicians and suppresses cases where serious charges are being leveled against those who hold high profile public offices.’
We should move back perhaps to the situation under the Soulbury Constitution where the Minister of Justice was a Member of the Senate. Perhaps constitutionally the position could be entrusted to an appointed member of parliament, who would be permitted only one term in the position. He would also be held accountable to a Parliamentary Consultative Committee chaired by a member of the Opposition.
Kodituwakku also notes the need for higher standars with regard to
Recruitment of lawyers to the AG’s Department
As he puts it, the lawyers who join the AG’s department are public officers. At present there is no proper and transparent selection standard. This is based on connections to the AG’s staff and to the serving judges in the superior court system. Instead recruitment should be based on a competitive exam followed by an interview by a panel of serving judges in the superior court system through a transparent process.
But in addition to his comments on the official Bar, he notes also the need to regulate the private bar. This is essential, since the public should have confidence in the professionalism of those they employ in so vital an area. He suggests therefore the
Establishment of a Regulatory Authority for AALs
‘At present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK, there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either dis enrolled, suspended or imposed compensation orders.
The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established. To protect the citizen and to instill discipline in the profession a similar body should be established by law with wide ranging powers.’
Amongst measures he suggests to strengthen professionalism and accountability are –
1. Each client be issued with a client care letter – This shall be made immediately after the initial instructions are given and it should specify the nature of the case, the law involved the rights of the client, fees and how to pay and details of the regulatory authority to make complaints in cases of professional misconduct or negligence.
2. Introduction of a annual practicing certificate system – This shall be earned through a competency check in the relevant field of law practice by the AAL. The issuance of the practicing certificate shall be subject to a specified fee of not less than Rs 10,000/- annual license fee
3. Mandatory regulation to display the license at a prominent place for client’s scrutiny
4. Mandatory 20 hour Continuous Professional Development for all AALs
5. Introduction of a mandatory indemnity insurance policy to all AALs – with a minimum of threshold of Rs 1,000,000/- , which should go up according to the practice. Any compensation order be made against the indemnity insurance
6. All complaints made to Regulatory Authority shall be published in the Law Gazette which has be published twice a month
7. All punishments such as compensation awards, suspension and removal from the Roll shall also be published
8. Mandatory maintenance of the Accounts (client and office) with mandatory submission of the accounts authenticated by a certified auditor to the Regulatory Authority by a specified date
9. Stipulation that no fees over Rs 500.00 be charged by cash but by cash but by ‘account payee’ Cheque only
10. All interests accrued for money in the client account be credited to the respective client
11. Establishment of a Code of Ethics Conduct to all AALs
These are excellent ideas, and I hope the Parliamentary Consultative Committee on Justice and the Minister take them up.