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qrcode.29266949I 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. Read the rest of this entry »

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presidency 21There has been much exultation in some quarters in Sri Lanka about the conviction of Jayalalitha, but I was glad to see that at least some articles also noted the need for stringent measures in Sri Lanka too, to combat corruption. One article however missed the point, in citing as an example of what needed to be dealt with firmly the Ceylinco case.

The failure to deal with that swiftly, and provide compensation to the victims of the scam, is indeed appalling. But that failure has to do with the delays, not necessarily arising from corruption, of our judicial system. Certainly we also need measures to make our courts move and it is sad that those have been forgotten. Though it is featured in the Human Rights Action Plan, as far as I can see no one has bothered about that plan following my resignation as Convenor of the Task Force to implement its recommendations.

But that is a different issue, and what we are talking about in Jayalalitha’s case is the corruption of politicians. Now this is nothing new, and it also happens all over the world. I remember the scandals in Local Government in Britain when I was a student, more recently we had the horrors of the Bush administration dishing out contracts in Iraq to agencies in which senior officials had interests.

Nearer home however aggrandizement seems to be excessive. The Jayalalitha case is about disproportionate assets, and in Sri Lanka too it is the inordinate greed of those who are plundering the state which has skewered development plans whilst also contributing to the increasing unpopularity of the government. And sadly government seems to be conniving at this corruption, given the mechanisms it has set up this year, with no transparency, to spend public money. Read the rest of this entry »

Presidency 19When I began this series, over four months ago, the title may have seemed excessive. And even my good friend Dayan Jayatilleka thought I was being unduly pessimistic about the President’s pulling power when I said that the UNP would poll at least 40% in Badulla. But the results there have shown that the threat is even more serious than I had thought.

Over the next few weeks I will explore how the threat might be averted. But I suspect that that will serve no purpose, for Basil Rajapaksa, who may be the only one of the decision makers who reads what I write, would by then have dragooned the President into having an early election. He did this in 2009 when, as the President then put it to me – with a hint of contempt I think for what he deemed the amateur nature of our advice – only Gota and I told him not to have the Presidential election so soon.

That haste, to entrench not the President, whose popularity was unrivalled at the time, but his rent seeking friends and relations in power, has been the root of the evils we have suffered. Contrariwise, Mahinda Rajapaksa, if left to himself, would I think have gone ahead with the reforms he had promised. And he can still save himself, and his legacy, if he works on reforms such as those so helpfully suggested by Vasantha Senanayake, which aim at strengthening the effectiveness of the Executive, not its power. But even now, understanding that having the Presidential election soon would be unwise, the rent seekers are trying to precipitate an early Parliamentary election. They ignore the fact that Parliament has a year and a half to go, and the President more than two years, ample time for the pluralist Mahinda Rajapaksa to recreate himself, free of the baggage he has been compelled to carry.

But can he do this? Does he have the will and the ability to assert himself again? Sadly, the way in which he has allowed little things to get out of control, through a combination of indulgence and lethargy, suggests that the will is weakening, even if his abilities are still in good order. I will illustrate this in my column this week by exploring the sort of embarrassment to which he allows himself to be subjected, when he forgets that the leader of a country should not let himself get involved in trivialities or in criminal activities. Read the rest of this entry »

An important item on the legislative agenda over the last few years has been a change to the 1939 Children and Young Persons Ordinance. A few years back, when Milinda Moragoda was Minister of Justice, he had asked for reports in various areas where it seemed justice was not being served. Not all the committees appointed have reported as yet, and there seems to have been little concern to expedite these. However, the indefatigable Shirani Thilakawardhana headed the committee asked to report on children, and she did a typically thorough job.

Unfortunately in the silly way we sometimes function, it seemed to have been decided to do nothing till all the reports were in, and so the proposed amendments have not yet come to Parliament. However the new Secretary to the Ministry of Justice understood the urgency of going ahead, and got comments from various urgencies, and has sent now sent what should be a final draft to the Ministry of Child Development for taking forward.

The new draft is certainly an advance on what we had before, and if we cannot improve on it soon, we should go ahead with it anyway, simply to get rid of provisions for caning, and the generally punitive approach taken 70 years ago to children in need. However it would be best if we had some intense consultation and produced something better, since this would also help with introducing some general principles with legislation.

Read the rest of this entry »

Rajiva Wijesinha

June 2019
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