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qrcode.31030374I had intended, in what was to be the last article in this series, to look at the question of external security, and how to work towards bipartisan consensus in the conduct of international relations, so that the nation as a whole is strengthened. At present, on the contrary, we seem, while pursuing partisan political agendas, to allow ourselves to become the playthings of other countries.

Instead of that however, in what will be the last article in this series, I will look at what seems an even more vital issue in the context of the events of last week, namely the question of internal party democracy. That question has been raised by others too previously, but the dismissal by the President of two party secretaries off his own bat has highlighted the problem of intra-party decision making.

Those who defend the actions of the President claim that he was under great pressure, both political and emotional, but even they feel that the actions took away from the great reputation for decency that he had established. And in the long run, given the way the results worked out, it has taken away from what would have been his stature in presiding over a national government. It is still not too late to develop a national consensus, but everyone will have to work all the harder for this purpose if we are to avoid confrontational oppositioning.

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qrcode.29977451In dealing with the Law in this series, I have added much to the text of the book that was published some years back by Cambridge University Press in India. This is because the decline in our legal system in the last couple of decades has been appalling. So in addition to my analysis of what law is about, I thought it essential to include some recommendations on establishing a system that will help restore the confidence of the people in the justice system.

For this purpose I have drawn much on the suggestions of Nagananda Kodituwakku, whose deep commitment to a professional and honest public service has been heightened by his experience as a lawyer in England. His paper shows that, whereas we claim that our system is based on the forms developed by the British, we have failed to move with the times as Britain has done.

I realized from what he wrote that it will not be enough to restore the independence of the judiciary. That is essential, and we must ensure that appointments are made in accordance with clear criteria and transparently, through a system that ensures consultation and professional input that weighs more than politican convenience.

But in addition we must ensure that the court system is responsive to public needs. Costs must be controlled so that justice is not beyond the reach of the majority. And justice should not be delayed, since that is not justice. Read the rest of this entry »

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 »

Rajiva Wijesinha

September 2017
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