Synopsis of the key note address delivered by Justice A. W. A. Salam, former President of the Court of Appeal at the Judicial Service Association (JSA) annual conference held recently.
Could there be a worse injustice than to push an innocent man struggling to switch off his phone in court to jail?
If judges are expected to discharge their duties honestly they must be sufficiently paid by the State
Enhancing public confidence in the judiciary through judicial independence” is the theme of this year’s conference. Paving the way for an independent judiciary so as to command the public confidence is a paramount duty not only of the judiciary but the executive and the Legislature as well.
There is also a corresponding duty cast on every citizen of this country to preserve and protect the independence of the judiciary and its dignity. We live in a society in which the judicial institutions are treated as sacred as our places of worship. The people of the country are therefore obliged to protect the judicial independence not for the benefit of the judiciary alone but for their own benefit as well.
What is independence of judiciary? Judicial independence means and includes that Judges are not subject to pressure and influence and are free to make impartial decisions based solely on the fact and law. It is a concept widely spoken but hardly put into effect except in very few countries across the globe. A question worth being raised at this point is whether we have ever enjoyed such an independence, commanding the public respect or had there been any serious threat to the independence of the judiciary in the past? It is of course a difficult question to find an answer at once.
We are a nation with a historical background of having an organized judiciary for 200 years. Our current judicial system was first introduced into the coastal areas by the Royal Charter of Justice in 1801. In the year 1815 the British forces conquered the Kandyan Kingdom with Sri Wickrama Rajasinghe, the last known king of the country being taken as a prisoner. With the Kandyan Kingdom falling into the hands of the British Empire, the entire country became a British Colony. The Royal Charter was later amended from time to time as and when changes became necessary to meet the exigencies. The British rule continued from 1815 to 1948 -- that is for 133 long years. There is no doubt that from 1815 to 1948 we have enjoyed the real independence of judiciary. No doubt that right through the period of British Colonial rule, the judiciary was held in high esteem. In administering justice, the English Judges were never influenced by the race, cast, creed, colour or even as between the rich and poor or affluent and non-affluent.
The British rulers were quite emphatic that no one should be appointed a Judge if there is a possibility of his throwing his weight about. Those who behave in a way which shows that they are more important or powerful than other people are totally unfit to hold judicial positions.
The independence of judiciary, we need to keep in mind, does not mean that we are given the power or licence to do whatever we like undermining the law and the widely accepted judicial ethics. The misuse of the independence and the abuse of the privilege of the office of a Judge has led to the erosion of the public confidence many a time. The manner in which proceedings relating to contempt of court had been dealt by our courts on various occasions have given rise to public debates and eventually the public perception of the court have got shaken from time to time. However, quite fortunately, with all the damages being caused to the good image of the judiciary particularly the higher courts of the country, yet the public at large has greater confidence in the system of our administration of justice and those who administer it. The reason for the public confidence and trust which they repose in the judiciary is that we are still privileged to have judges from Magistrate’s Court to Supreme Court particularly the career Judges who command the public respect. For this very reason it has now become the need of the hour to safeguard the confidence that people have in the judiciary, in spite of certain misconceptions entertained by the public in the recent past with regard to the manner in which the judiciary functioned at times.
On the question relating to the contempt of Court committed in it’s presence, Lord Denning, MR said that to maintain law and order, the Judges have, and must have, power at once to deal with those who offend against it. It is a great power – a power instantly to imprison a person without trial – but it is a necessary power. However this power must be sparingly exercised.
The courts have stressed that the summary power of punishing for contempt in facie curiae should be used “sparingly and only in serious cases”. An act in Court which causes little or no disruption but which tends to interfere with the administration of justice in general may be penalized.
As opposed to the concept of contempt of Court, acts which obstruct or tend to interfere with the administration of justice must be viewed with a degree of sympathy unless the circumstances demand enhanced punishment. There had been instances where members of the public had been unnecessarily dragged into contempt proceedings and meted out excessive punishment. A sentence of imprisonment passed on a person who attends Court without properly putting his shirt buttons may be too excessive, unless there are other circumstances to pass a custodial sentence.
There are also cases where the court rightly drag certain offender’s into contempt of court proceedings and rightly passes severe sentence. To deal with an accused for obstructing the course justice or interrupting the proceedings in a court of law the judges are bound to act with cautiousness. As was stated by Lord Dennings, let me repeat- this power has to be sparingly used.
There are few instances where disappointed accused had thrown human excreta at Judges in open Court. These are several cases where the authority of the Court to administer justice had been directly challenged. At the same time, there are number of instances reported from various parts of the island, where injustice had surfaced in the name of preserving the dignity and decorum of Court. The misuse of the power to preserve the dignity of Court which ends up in blatant violation of the law finally ends up in the legal system being looked down upon by the public.
For example take the plight of a man who struggles through to switch off a mobile phone when it goes off in Court. Finally being unable to switch it off what does he do? He makes his exit from the well of the Court in a lightning speed. His face becomes red and the entire body starts shivering in a state of fear. Can you find a better person in the well of a court who may have a higher degree of respect to court than the person who struggles with his mobile phone like this? This clearly shows the absence of mensrea and highest respect he has towards the temple of justice and the Judge who presides over it. The subsequent conduct shows the respect he has towards court and not disrespect as he is branded by us. Can there be a worse injustice than to push this innocent person into jail for the lapse on his part after demonstrating the highest respect to court which may be relevant as subsequent conduct.
If you target every one whose phone may go off without exception for a charge of contempt, then the day on which you might have to hold yourself liable for contempt may not be too long.
It is reported that a Michigan Judge Raymond Voet whose smartphone disrupted a hearing in his own courtroom in the year 2013 has held himself in contempt and paid $25 for the violation. Ohio is a State located in the Midwestern United States, bordered by Pennsylvania and Michigan. On August 20, 2015, Judge Rocky Coss in Ohio who is known for having very strict guidelines for those who attend his courtroom apologized and fined himself $25 for the disturbance caused to Court proceedings when his cellular phone went off playing a song. Upon being asked to explain the incident in detail, Judge Coss summed up in few words stating “I don’t see how I can hold someone else in contempt and fine them for disrupting the proceedings when I do the same thing and not fine myself.
In dealing with this type of contempt proceedings we have to bear in mind that we are living in the 21st century. Unlike in the 18th or 19th centuries a cellular phone has now become a basic necessity for any citizen in the country. As such, more than to impose prohibition against cell phones being carried into Courts, it is time that we take steps to have mobile phone jammers in every Court house to prevent cellular phones receiving signals from base stations. This instrument when used, effectively disables cellular phones. If jammers are fixed in Courts the general public, Lawyers, Judges and the staff will receive a life time guarantee against being charged for misuse of mobile phone. I don’t for a moment say that no charges can be maintained at all for disruption caused to a court in session. Judicature Act provides for situation like that. You can even cause the invocation of Article 105 of the Constitution. But all what I say is that the charge must be preferred only in extremely deserving cases where the fact clearly show the offender was undermining the authority of court. To share my personal experience on this issue, my cellular phone once went off while being on the bench in the court of appeal. Being exited and disturbed over the issue and unable to reach the phone that was in the trouser pocket below my cloak, I had to adjourn court and resume within two minutes and tender my unqualified apology to the Lawyers and the general public. Fortunately, I did not impose any fines on me like Judge Rocky Coss in Ohio, as I had never pulled up anyone for letting the mobile phone go off. I was told that the mobile phone of one of the Chief Justices whose name I don’t wish to reveal here, went off recently and he promptly switched it off and apologized to the bar.
During tenure of my office as a Judge in various Courts, mobiles phones of both lawyers and members of the public would have gone off at least 15 times or even more. Every time it happened I pretended on the bench as if I was a born deaf and dumb Judge to facilitate the holder of the phone to handle the situation with ease. Fortunately, I have not had the bitter experience of having to charge a mobile phone holder for intentional disturbance caused to the Court proceedings.
In a Chicago courts in the year 2009, a person named Clifton Williams, 33, of Richton Park, faced with a charge of disrupting the Judge by letting out a very loud, boisterous, deliberate yawn from his mouth and ended up in jail for contempt of Court where Judge Daniel Rozak’ presided.
He was later released after being jailed for 24 days based on an unconditional apology.
We, in Sri Lanka, had the first ever experience of a disruption to proceedings caused by an intentional big and boisterous involuntary yawn recently. The accused doesn’t appear to have challenged the sentence before a higher forum.
This probably shows that the accused had conceded the disturbance caused was intentional and directed at disturbing the proceedings. I am hopeful the Judge who dealt with him would have sparingly exercised his power to punish
Generally speaking, disruption caused to legal proceedings is undoubtedly punishable in our law. But as was stated by Lord Dennings the power to punish for contempt should be sparingly exercised and not as a matter of rigid rule with no exception. In short, a person whose shirt button falls off in a crowded bus on his way to Court and then he attends Court in deference to the summons served on him, should not run the risk returning home after six months by reason of his not having button on his shirt and pushed into the prison on that account. If that is the yardstick by which we are to Judge the degree of respect each man has for the judiciary, then the day is not very far from us when the people decides to resort to have alternative methods to resolve their disputes.
In order to win the public confidence, every Judge needs to treat the Court staff with utmost courtesy. Instances where Judges had meted out punishment to the members of the staff including the minor staff members and sometimes police officers in an unreasonable manner are also reported though the number of such occurrences may be negligible. Judges should not take it for granted that they have authority to punish the members of the staff as he is able to do in the Court House. As regards the members of the staff we are only heads of department and we have no judicial powers. Simply because the purported authority some Judges arrogate to themselves is not challenged by the staff, we don’t become the authority to punish the staff as we deal with offenders. Members of the staff do not challenge the authority of the Judge even when a derogatory punishment is imposed on them due to their poverty and fear of the judicial power the Judges are vested with but in the heart of hearts they will continue to curse you during the rest of their life. This will be worse than their challenging your authority in the long run. More irrational a Judge is in his administration of the office, higher the degree of confidence that may drop in the administration of justice. Although there may be negligible number of misuse of power against the members of Court staff by the Judges what we have to concern about is that as was stated by Martin Luther King, Jr. Injustice anywhere is a threat to justice everywhere. Hence, even if a single Judge commits a wrong or omits to fulfil an obligation, yet in effect it is entire fabric of justice will be damaged.
Independence of the judiciary is sometimes regrettably misunderstood. It is misunderstood as being a concept for the sole benefit of the judges. No doubt the judicial independence is meant to protect the Judges and their right to adjudicate without unnecessary interferences. But the judicial independence in actual truth is for the benefit of the people.
Our judicial system is founded upon a number of interrelated principles. The first of these principles is the Rule of Law, which is needed in order to restrict arbitrary government power. The Rule of Law is put into effect through a constitutional system by which power is separated and balanced among three branches of government. Under the separation of powers, the judiciary functions as an independent branch of the government so that it may enforce the Rule of Law. An independent judiciary can properly enforce it only if it is learned in the law and is characterized by impartiality and integrity.
The doctrine of separation of powers identifies the judiciary as a separate branch of government that is coequal to the legislative and executive branches of government. It is the doctrine of separation of powers that underlies the need for an independent judiciary that acts as a counterweight to the legislature and executive. Accordingly, there is a delicate balance between the three branches of government. To maintain this balance, the judiciary has been granted the power of judicial review. This means that the Courts have the authority to review the acts of the other branches of government to determine if they meet Constitutional Standards. If, in the opinion of the Courts, an act of the legislature or executive is contrary to the Constitution, the Courts have the authority to nullify that act. Thus, the judiciary stands as the final arbiter of the Constitution, and has the responsibility to review legislative and executive action to determine its constitutionality, and hence its validity. Judicial review is the most significant function performed by the judiciary and operates as an integral wheel in the system of checks and balances created by the Constitution.
Primarily, therefore it is the responsibility of the government to ensure the safety and well-being of the people, ensuring justice and fair play. This is based on the notion of Dharma, which means that one’s life should follow the principles of nature and accord with what is right. A truly noble and righteous ruler would live in accord with Dharma, ruling without violence or oppression. Here is a succinct summary of a king’s duties according to an early Buddhist text. “What is the duty of a Noble emperor? Depending on the Dharma, honouring it, revering, cherishing it, one should establish guard, ward and protection according to Dharma for one’s own household, troops and nobles for town and country folk, and for beasts and birds. Let no crime prevail in your kingdom, and to those who are in need, give property.”
In a democratic set up, it is vitally important that every individual vested with the right to adjudicate upon the affairs of others is impartial and independent of all external pressures. The Judges should also be free from interference from each other namely among the Judges themselves so that the Bar and the wider public can have confidence that their cases are heard and decided fairly and in accordance with nothing but the law. In carrying out the judicial function, every Judge needs to be free of any improper influence. Such influence could arise from the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other Judges, in particular from an unscrupulous Senior Judge.
It cannot be easily forgotten that the Judges of the original Court particularly the Magistrates and the District Judges are the backbones of any judiciary.
Without exaggeration the Judges of the original Court can be identified as “the pillars of our entire system of justice,” and therefore the public has a right to demand “virtually irreproachable conduct from anyone performing judicial function in an original Court. In actual truth the Judges of the original court are more independent than the higher judiciary. They are equally knowledgeable in law and willing to undertake in-depth legal research, and able to write decisions that are clear and cogent. Judges should be fair and open-minded; and should appear to be fair and open-minded. They should be good listeners but should be able to, when required, to ask questions that get to the heart of the issue before the Court. They should be courteous in the Courtroom but firm when it is necessary to rein in a rambling lawyer, a disrespectful litigant or an unruly spectator.
Judges who have served in a lower court are sometimes promoted to a Higher Court, such as a High Court, Court of Appeal and Supreme Court. As far as the elevations to the Higher Courts are concerned appointments to those Courts from and among the most senior sitting Judges had never given rise to any controversies. In other words the elevation from and among the sitting Judges had proved to be quite safe. The sitting Judges have proved themselves that they are worthy of being elevated, and both the bar, and the public at large had expressed full satisfaction over such appointments. But, when going through the media, we find that that the appointments to the Higher Courts from the Bar in the recent past had paved the way for absolute dissatisfaction among the various segments of the society. There was a section of the Bar which blamed the Lawyer for unduly influencing the appointing authority seeking appointments to the Higher Court over and above the deserving Judges in service. As was mentioned by Upul Jayasuriya, President of the Bar Association, at a ceremonial sitting of the Supreme Court recently, quote “many persons who did not fall within the time tested and respected criteria to become Judges of the Appellate Courts, were in fact seeking appointments to the Superior Courts putting forward the lame excuse that they were unable to turn down the Executive invitation to be the Judges of the Supreme Court,” unquote.
We all know that the power to appoint Judges to the High Court, Court of Appeal and Supreme Court is also a large power; and vesting it exclusively in the executive is likely to undermine the independence of the judiciary.
Furthermore, if the power of appointment is vested solely in the hands of the executive, it is not unlikely that those aspiring for judicial appointments might lobby with the executive with a view to seeking the favour of judicial appointment. If they are so favoured by appointment on the Bench, they would then carry with them a sense of obligation to the executive and unconsciously, if not deliberately, be inclined to support the executive in the adjudicatory process.
But with the introduction of the 19th Amendment to the Constitution, and the formation of the Independent Constitutional Council things appear to have changed and the sitting Judges seem to be quite content with the existing system of appointment. The confidence the general public had in the judiciary is getting restored. Let us look forward to have a free Sri Lanka showing hatred to none.
If Judges are expected to discharge their duties honestly, they must be sufficiently paid by the State for the job they do. The emoluments of a Judge of an Original Court and Judge of the other Courts; particularly the Appellate Courts from recent time shows a bigger disparity and inequality than ever before and in particular what existed prior to 2013. As such it is the duty of the JSA to bring it the notice of to those who are responsible to look into this aspect of the anomaly to maintain the same difference in regard to the difference of remunerations as between the Judges of the Original Court and the Appellate Court.
Let me conclude quoting Prof. Weeramantry, who cited Lord Buddha as having said in the Diga Nikāya. “If a person maintains justice without being influenced by favouritism, hatred, fear or ignorance, his lustre grows like the waxing moon”…