Thursday Sep 19, 2024
Thursday Sep 19, 2024
Friday, 16 January 2015 00:03 - - {{hitsCtrl.values.hits}}
President Maithripala Sirisena being sworn in
Lost and found – the people’s sovereignty
Last week (see ‘My new year’s wish – a change of status quo’) I quoted excerpts from the US declaration of independence, that said, “… when a long train of abuses and usurpations … evinces a design to reduce (the People) under absolute Despotism, it is their right, their duty, to throw off such Government.” Well the peo
ple have done just that. Sri Lankans have exercised that right and spoken in an overwhelming majority and instilled their 6th Executive in office.
Thus if 4 February 1948 was our first independence from colonialism and the 19 May our second, from terrorism, then this must certainly be our third, the day the Sri Lankan citizenry stood united in one voice across the country against what was seen as an indefatigable force of abuse, corruption, tyranny and autocracy to declare loud and clear that we were reclaiming our sovereign right to govern ourselves, which Article 3 reposes in us absolutely, inalienably and forever.
From the three “separated” Article 4 organs of government - (a) Legislature (b) Executive and (c) Judiciary - I shall deal with the first two with only a passing reference, mostly as I have very little direct involvement with their daily operation, as opposed to the third arm, the people’s judicial power, which I am obligated by an oath of office to protect and uphold, which we have been attempting to do against severe obstacles during the tenure of this last administration.
Reforms in (a) legislative and (b) executive government
In our joint campaign for change of Government, our demand for extensive amendments to both these arms has found voice in the 100-day reforms assured to us. Thus with the latter we expect immediate restrictions to the largely unchecked powers of the Executive President, a limited, low-cost, zero “show-off” Cabinet made up of experienced members and the independent commissions reverted to the 17th Amendment model (thus negating the dictatorial 18th Amendment).
We welcome the clear statement by President Maithripala Sirisena that
he has no intention of running for a further term and applaud him. He has made the ideal choice relying on the experienced administrative capabilities of the newly sworn in Prime Minister Wickremesinghe. Might I add (even in passing) that there is no merit in the argument circulating “the grapevine” that this appointment is unconstitutional, Article 43(3) is quite clear in the wording – “… who in his opinion (President’s) is most likely to command confidence of Parliament …”; this is in stark contrast to provisions like in the UK where Her Majesty invites the leader of the party with a majority of seats to form a government, we have no such requirement.
Of the former, immediate amendments are expected on the Legislative front giving prominence to what we constantly addressed on our common platforms ‘for change’, to this process of ‘preferentially electing’ members that lead to more amanaape than manaape, but encouraging more public-spirited, service-oriented and eligible persons to run for office in an accountable electoral basis; not only those who can afford multi-million rupee district-wide campaigns or super-star candidates who contribute very little upon being elected.
We also encourage the resurgent JVP, who have been exposing several large-scale corrupt, non-transparent ‘deals’ to preside over/convene parliamentary oversight committees, particularly the important ones such as “High Posts” (dealing with diplomatic/statutory boards appointments), Public Expenditure, etc. so that we “plug” the loopholes and “purge the system” during this interim period of “100 days” to secure a new and clean government in the future.
It may also be an idea for both the ministers as well as these legislative committees to pool-in advisors, technocrats and the like with proven qualifications (not on some nepotistic “my cousin” basis) so that their words and actions are backed-up by sound expertise of professionals. We wish them well!
Regaining people’s judicial power - Article 4 (c)
(1) Instilling lost confidence in the judicial process:
As we have been maintaining for a while now, the brunt of the attack of recent executive action aimed at securing superiority over the other two branches of government has been borne by the judicial arm; we have suffered tremendously (not irreparably we hope) by several carefully orchestrated moves to demean our hitherto strong arm of the law; thus issuing a very unhealthy common sentiment amongst the masses that “there is no law in the country”.
(2) Issue at the apex:
Our pyramid of issues starts right at the top, with the appointment of judges to the higher judiciary. This is where several complaints have resulted over the years, of direct Executive interference and you will need to tackle this once and for all.
In this regard priority must be given to some closure on this niggling question of the 43rd/44th Chief Justices of the Republic, which has been referred to as a De Jure and De Facto situation. The President too appears to have made his intentions quite clear from the very act of being sworn-in, not before the 44th but the most senior judge of the Supreme Court, thus indicating a desire to re-visit this question in his administration.
Let us hope that he hastens to do so, even at the cost of ruffling a few feathers of our dear learned-friends at the Bar or indeed the Bench, pray; permit an observation in the long-term interests of the profession.
Our judicial process that was so zealously protected over centuries by generations of honourable men and women and was acclaimed as such the world over, suffered severely over the absurd “impeachment” of 2012/13.
This was struck down by both the Supreme Court and Court of Appeals here, in addition to the entire process of hearing being questioned over its illegality both regionally and internationally. This to me personally, was perhaps the single-most motivating factor to be so actively involved in this campaign for a change of guard, that this regime was arrogant enough to defile those pure fountains of justice, to touch that very fabric of purity that guarantees a “rule by law” to the people.
Thus when the battle was brought to our door-step in Hulftsdorp we had no alternative but to react, and boy did we respond? The Bar went on the offensive (being the best form of defence), channelling the collective thrust of some of the most incisive and judicial minds in practices and won in both courts.
Having said that however I must declare that we must let all that remain in history now (as has been amply recorded); we have won our mini-battle and vanquished the enemy with this election! For the people to regain our judicial sovereignty, the most important consideration in adopting any corrective measure is that no further harm is suffered by the institution; it has suffered almost irremediable derogation and ridicule in the public eye over this issue and I doubt it will survive another.
I personally do not believe that “street fights” are the best answer in this matter, where all sides must be pragmatic in approaching, tread very “softly” taking care to avoid unnecessary embarrassment to any one party but swiftly do what is necessary to put things right without too much public attention to the issue. This as I said is my personal view. However I will stand with the Bar, as in the past, in whatever measure we may rightfully adopt as necessary.
(3) Prosecuting those who had abused office/violated the law:
It would be expected from this administration to take immediate measures with necessary severity to prosecute all those, however big or small, against whom legitimate and well-founded complaints of abuse, corruption or outright unlawfulness exists. This is important both for the punitive purposes of social healing as well as to stand as a deterrent to future would-be violators.
Let us finally have some meaning afforded to Article 12(1) equality provisions and allow the law to deal with anyone and everyone fairly and fearlessly. This is after all, the people’s judicial power in action. However, let it not be a politically driven witch-hunt against those who opposed us, but an objective evaluation upon even scales of evidence and justice; lest we may also be tagged no better than those whom were replaced.
(4) A final resolution to ‘Laws Delays’ and maladies:
Take a cross-section of any societal strata and pose the question as to how many actually consider litigation as a means in itself to resolving a dispute; the majority will disagree. Particularly civil and commercial processes are largely relied on by only those who can afford protracted legal battles as part of a larger strategy; to use the system’s delays and prolonged procedures (thus actually abusing the process) to get some undue advantage in their favour.
None of us are “totally clean” in this system if we really question our conscience, deep down, mostly as this is a lucrative practice bringing in the big bucks demanded by sheer economic need. However, ask ten good litigators whether they would not prefer trying cases on real issues (as opposed to “manufactured” ones) or mounting arguments on what they are truly passionate on; nine out of the ten will agree or may even disclose that the most personally gratifying cases had been so, with no big fees, perhaps even a totally pro bono brief!
a. Civil/Commercial Litigation:
We need to work hard to restore public confidence back in the system, and all three arms of government need to make a conscious effort to do this. The people need to be reassured that the judicial process is the first option when they are aggrieved and that it will hear your matter fairly and even-handedly and afford them just redress, quickly and efficiently and that it will not cost them a fortune.
Perhaps we could also think of introducing a jury system in appropriate civil matters to overcome the public sentiment that cases are “fixed”, so that the litigants know they are being judged on the facts by 12 men and women who are their equal peers in society.
b. Criminal prosecutions/unnecessary prolongation of remand custody:
We need to clean up the system with set time limits for trials, a streamlined criminal prosecution system where the decision to initiate criminal proceedings is not left entirely in the hands of a police sergeant with very little (if any) specialised legal training. There must be direct intervention and oversight by the Attorney General in the matter; if not we will never rid ourselves of the abuses of the system. For instance there are civil disputes like money recovery being “converted” by one influential party (with the “assistance” of the aforesaid court-sergeant) into criminal prosecutions, where under threat of imprisonment, monies are being extorted from another party abusing the legal process, it may have actually been a matter of contract with no criminal intent whatsoever.
The system of collecting simple fines and punishment for their non-payment etc need to be revisited, as our prisons are overcrowding daily; the rich somehow manage to obtain bail for even the most heinous of offences whilst the poor who cannot afford such eminent Counsel languish in jail for years, mostly for simple offences awaiting trial, not that they have actually been found guilty – this isn’t right!
(5) Efficacious case management – Conduct and competence of officers of court:
The profession too needs to work with the new Executive/Legislative branches, particularly with the Justice Ministry to secure some long-overdue changes, to make the system more accessible and receptive.
Case management systems are a must, using modern technology and implementing systems like conference calls between judge and counsel prior to the case to set up time limits, faxed skeletal arguments prior so that all are prepared, working on “soft-copies” and desktop screens to minimise delays in handling (or losing) bulky briefs, evidence of experts or foreign witnesses via skype or other such technology to minimize time-wastage and expenditure; most of these can be secured with simple practice directions to complement our existing procedure codes.
It is high time that we also came to terms with some transparent billing system for our time and services in par with universal practice; hourly rates (or divisions thereof) and acceptable disbursements that are clearly explained to the client.
Continuous professional training for both judges and practitioners are a must; sometimes cases with the most novel and intricate technological issues are being tried where neither have updated themselves with the law since leaving law school – thus adding to the row of appeals to higher courts.
The system is to blame, we have not moved with the times. It is also time we have a further one-year training on advocacy, court-craft, drafting and client care, etc. for those attorneys who intend on making a career at the Bar and subject ourselves to periodic training and licensing to keep a current “practice certificate” displayed at all times in chambers.
Others not wishing to so engage in everyday practice may simply obtain their law school training and following enrolment proceed to employment, lecturing, or even take up politics. However, if you wish to practice at the Bar we need to raise and maintain certain standards. A sine qua non in this endeavour is a code of conduct (like the Bangalore Code) of judicial ethics, with a proper complaints mechanism for litigants, a hearing process with sanctions and punitive measures for those found to be errant or having abused their judicial office.
Therefore President, even if not within your immediate 100-day plan, your Minister with the Justice portfolio should look at medium- to long-term avenues where the judicial process serves its intended purpose, even look at how other systems have amended their laborious procedures (like the Woolf Reforms in the UK) to make justice more accessible and feasible to those its meant to serve; the people whose judicial sovereignty we are e6xercising.
Let us build a new future with this opportunity
We’ve been given a new lease of time to build a better system, for our children and their children. We just witnessed our new Executive addressing us from the historic Paththirippuwa in Kandy assuring us that he did not wish to be “a king” but “a servant.”
Let us also carry that message forward into practical application and be servants ourselves to the public. Our people finally deserve to be the beneficiaries of that sovereign power they have vested in us, innocently in public trust, they don’t deserve its unfair exploitation, which has been dished out to them all these years, time after time!
John Adams was asked in the French Court (at the time of building the Union and seeking so desperately for the world to recognise the US as such) as to why he was wasting so much time in politics when there were so many artistic and cultural distractions in gay Paris. His answer was prompt and eloquent; (something to the context of) “… Madam, I take pains in the study of politics today so that my children may one day take up the study of mathematics and sciences, so that their children may then, one day, enjoy the leisure of admiring the arts and culture” and they are there today.
I believe that on the 9 January morning our present generation was given another chance to put things right, for our children and their children – so, shall we?
Ithin hadamu den ALUTH RATAK!!!
