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Why can we in Sri Lanka not bring more of a balance and transparency to our apex courts by involving the people more in the process of selecting judges beyond simply State control?
The law of the jungle – survival of the fittest
Last week in Kenya, even as the brilliant morning sun raised its glorious rays over the vast savannah of the mighty Masai warrior (or the Masai Mara), even as we witnessed the majestic lion, emperor to that kingdom, dig in to his breakfast kill of a weaker creature, similar unrelenting laws of nature were also being played out in the capital Nairobi where a different kind of battle was raging amongst the more intelligent of the species; legal battles over man-made law this time but equally fierce as it appeared to me who was simply observing it, with neither side willing to give up their fight for supremacy, whether it was in the Masai jungle or the Kenyan Judicial system.
I listened intently to excerpts of the Supreme Court ruling read out by the presiding judge in the ongoing controversy over its top position, that of its Chief Justice where, pending a full inter-partes hearing, the Court made a conservatory order:
a.Suspending the ruling on retirement age of judges (affirmed by the Court of Appeal just hours earlier);
b.Directing their Judicial Services Commission (JSC) and Registrar not to serve any retirement notice nor even advertise the vacancy; nor,
c.Commence in any manner the recruitment process in any media
Watching this process unfolding in Nairobi, another Commonwealth jurisdiction was quite interesting from several aspects for me. It obviously brought back vivid memories of a similar operation defending our own “Hulftsdorp hill” not that long ago, to protect the integrity of our judicial independence from the aggression of dictatorship; fighting at most times fairly close to the firing line.
Beyond that personal nostalgia, those few days away observing their system detached from the monotony of routine court work here afforded me a window of opportunity to objectively glance at our own system from the outside, to ponder a while of our own status quo here; particularly the constitutional mechanism of our judicial appointments, how transparent or effective was it? At the end of it all were the people, who are supposedly the ultimate repositories and beneficiaries of their sovereign judicial power being best served by this present system we have in operation?
The Kenyan JSC was required to publicly advertise vacancies of their superior court judges so that (presumably) anyone qualified may apply; even the USA follow a system where the proposed name goes before a Senate Judiciary Committee and it is with such stringent microscopic inquiry into their character and career by the people (the Congress) that even the President of the most powerful democracy may appoint a federal or supreme court judge; but what of us here? Thus with these thoughts raising through my mind, even in the midst of an exciting safari that followed I simply had to pen these thoughts down, at least for the sake of our future; so that perhaps some thought process may be employed in this direction when our new supreme law is drafted finally (if and when) in our next Constitution.
Should kissing go by favour (by-passing the people)?
In so far as my mind reaches I have never seen a public advertisement seeking applications for the appointment as Chief Justice (or any other appellate judge) in our newspapers; of course the JSC advertises Primary Court positions and these career judges will in turn, accumulate experience over the next 15 to 20 years in several districts and if fortune favours; end up being identified by the Executive President for appointment to the apex courts. We have some brilliant judges with razor-sharp incisiveness, metalled over the fires of years of trial experience handling all sorts of cases and equally quick-witted Counsel who bring that wealth of experience to the superior courts.
It is a pleasure to argue a brief before such an experienced judge with ideal judicial temperament who will give all sides a patient hearing; even litigants who have lost their case before such a judge delivering a well-considered judgment returns home content, realising the nature of our adversarial system, that one must necessarily be defeated for another to be a victor! Similarly some who pass out as Attorneys opt to join the State as Counsel, setting aside the glitter of a private practice and following several years of employment in the Attorney General’s Department and having reached their seniority in eminence, some are fortunate to be identified by “the system” itself and where a vacancy occurs in the appellate courts; a timely mention of such suitability will see the Executive President making their appointment.
It is only natural that some of them as former State officers, as they begin their new role having for years defended allegations of arbitrary actions by the Executive arm of Government, may possibly start off requiring quite a bit of convincing that a citizen can actually suffer injustice at the hands of public officials. More often than not however most of them gradually mould into a more independent position, some have gone on to become fierce defenders of the rights of the people in their new role as judges; the Court becoming an armoury of protection to the otherwise defenceless citizen and Counsel under attack by dictatorial regimes.
In contrast there are only a few occasions, you could almost “count with your fingers” (as our colloquial saying goes) of practitioners from the private Bar (non-State) that find favour by an Executive President for appointment to the superior benches, begging the question why? If in the United Kingdom the Crown Prosecution Service (CPS) instructs Barristers from the private Bar to defend Her Majesty’s Government or to prosecute on behalf of the State and some are even seconded on short tenures as judges of the higher benches and in several states in the USA even District Attorneys who prosecute on behalf of the people are elected from amongst private practitioners; why can we in Sri Lanka not bring more of a balance and transparency to our apex courts by involving the people more in the process of selecting judges beyond simply State control?
Surely it is the people’s sovereign judicial power that all of us exercise in public trust on their behalf, so why should they not have a system in which they too get a say in who is appointed as their top judges? Yes, with the 19th Amendment that we finally passed (which was a filtered-down version from what we originally sat down to draft) we made some headway in getting the Constitutional Council to ratify their appointments to the apex courts but what happened; ultimately the number of ordinary citizens originally proposed to the Council were filtered down to a handful creating a majority of parliamentarians including Ministers in that Body!
Furthermore, even those three citizens have no say in the actual selection of persons but only approving the names placed before them. Surely there must be an ample amount of adequately senior, eminently suitable and judicially tempered lawyers across the country (if we look for them) who may adorn our appellate benches with an abundance of sound legal acumen and contribute to the development of our laws in giant leaps; but how will their candidature ever reach the ear of the Executive President for reference to the Constitutional Council if the people are not consulted?
Over-burdening our present system/judges
It doesn’t take a rocket scientist to notice when you walk into any one of our apex courts the stacks of briefs almost covering the poor judge’s vision that the Court is expected to get through in the short space of approximately six hours of work. A simple calculation of 30 minutes for a Counsel (which would only permit an executive summary at most – as most these of these cases are quite complicated and run into thousands of volumes) in a case with three parties, you’re looking at least at a two hour hearing; leaving room for interventions by the bench or objections by the others.
Thus even if we allow a mere 20 minutes for lunch (surely human beings are entitled for at least that) this still leaves room for only two more cases for that day. However an average list in our apex courts will at least contain 10 cases to be mentioned, another five to seven for a preliminary hearing (or leave) and at least three cases to be fully argued; this is the simplest explanation to the question as to “why laws delays”? Let us not forget that these judges must then retire to actually peruse written submissions and write out lengthy, reasoned judgments at the end of that court session; similarly Counsel must rush back to their evening consultations and studying their briefs for the following day’s ordeal.
In such a backdrop it is only a natural human reaction to look at escape routes; many lawyers end up seated the entire day in a Court to only return without their case being even taken up; consider the plight of the litigant in such a case, who at times travel far and wide from across the country to only return home, dreading that he will have to return another day. What effect does all this have on that over-burdened judge; it is futile to blame the system for taking “short-cuts” in this vicious cycle without finding a solution.
At times the most complicated of cases that require detailed and patient hearing suffer in the haste to dispense “some justice” making a mockery of our noble system of laws that we have inherited, which we still strive to protect; judges and lawyers alike. For instance lets us look at some Rules of Procedure that are now commonly observed in the breach due to these very demands on time, although technically, they require compliance –
Therefore we need to realise that there is a very serious issue at hand, a time-bomb that we are sitting on which will not simply go away if we ignore it long enough; it will blow up and it will be very unfortunate if we are to lose all that our forefathers have nurtured, so zealously guarded over the years and handed over to us to be passed on to our future generations. Perhaps the answer lies in more Courts and Judges, or specialised Courts dealing in one particular area of expertise, or setting up time tables, pre-case scheduling, case management tele-conferences between Judges and Counsel as many other jurisdictions do; or we find our own home-grown solution all by ourselves!
Finally – let the record speak for itself (if not today, some day)
For the purpose of easily conveying the message I have permitted these passages to assume a very light-hearted narrative form, attempting to copy (very poorly I must admit) the style employed by giants in this field, like the great law-teller Lord Denning who is a master at reducing complex legal principles to a level easily discernible by a non-legal reader. This does not however in any manner demean the seriousness of the issues I’m trying to raise here, nor indeed cast any disrespect at any pillar of Justice that I have sworn an oath to uphold and preserve; which I should gladly part with life or limb to protect, as many of us have risked several times over the past era.
Indeed a close “learned-friend” with whom I share most of these thoughts, usually prior to circulation was somewhat circumspect, as to whether I was not commenting on things “too close to home” for us as regular practitioners appearing in these very Courts, but my response to him was (and I remain confident) that my intentions will not be misunderstood; I mean to discuss real issues facing us and possible mechanisms to make things better which is in no way meant as a disrespect or affront to any person or institution. Even if it were unfortunately interpreted to be so, perhaps one day I shall be relegated to sing those lyrics of Sinatra –
“... for what is a man, what has he got, if not himself, then he has nought, to say the things he truly feels ... and not the words of one who kneels ...”;
Thus, let the record speak for itself, if not today, one day…!
Power to the people!
