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INDEPENDENCE OF THE JUDICIARY

2018-12-05 00:00:17
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(Not by passing arbitrary judgments does a man become wise. A wise man is one who investigates both right and the wrong. He who does not judge others arbitrarily according to the truth, that sagacious man is a guardian of law and is called just. One is not wise because one speaks much. He who is peaceful, friendly and fearless is called wise. A man is not versed in Dhamma because he speaks much. He who, after hearing a little Dhamma, realizes its truth directly - Dhammapada)

 

Highest Expectations on the Judiciary

Citizens have the highest expectations of the judiciary, and Judges’ rights are guaranteed by the Supreme Law of the country (Constitution) international conventions and Charter of the United Nations. Therefore States give special emphasis and protection for the judicial independence, Judges and the system of Justice. Independence of the Judges and judiciary should be real and not merely apparent safeguards in which guarantees is jealously guarded by all.   

Judicial independence or independence of the judiciary is the principle that the Judiciary should be politically independent from legislature and Executive Authority. Courts should not be influenced by any political authority or external influence. Are Judges competent Independent learned practical and/or with proper training and judicial temperament are issues raised by the concerned citizens today. Is the Sri Lankan Judiciary independent? Is a million dollar question to which the answer is only known to the inner co-conscious of the citizen always in the receiving end who possess the proper answer with no proper mechanism to express their views freely. Judges are no angels and subject to scrutiny in glass boxes in the public eye.   

Citizen should have trust in Judiciary

Judiciary should be acceptable and recognized, for the citizen to have trust or faith on; being the branch of government primarily responsible for the judiciary is interpretation and acting as impartial umpires to the citizen pleading for justice. According to UN guidelines and accepted norms of constitutional law under the doctrine of separation of powers are outlined in details in international instruments and conventions, to be followed by the family of nations which trickles down to national laws in democratic models. It is doubtful how many do follow the guidelines and concepts of good governance in conduct of justice and fair play.   


  • Judiciary should be politically independent from legislature and Executive Authority
  • Country is going through a crisis due to the man-made conflicts created between the Executive and the Legislature
  • Judiciary should be acceptable and recognized, for the citizen to have trust or faith on

Ultimate trust

Tenure of the office of the judge are guaranteed and enshrined in the Constitution. No pressure, threat or interference is exerted on the Judges who will act impartially on facts based on legal knowledge, experience and humanity. Judges should be respected and expected to respect the litigants who have entrusted the utmost trust on these human beings learned and trained for this honourable service. Judges always command respect and therefore need not demand. How do Judges show respect and respond?   

By treating everyone with dignity, by being polite and courteous, by listening carefully to the testimony presented and arguments of counsel, by being patient, and in general showing that the judges genuinely care about the matters presented, understand that it is an impartial meeting of those involved and convey the attitude that he/she will do the best to decide the case forming objections on the evidence presented and applicable to the law and judges should not be political animals and have any interest in politics, any religion or any activism in any form other than fair and impartial adjudication.   

Country is going through a major Crisis

Country is going through a crisis due to the man-made conflicts created between the Executive and the Legislature which may lead to and entangle the Judiciary too into a crisis situation unless acted with extreme care. Judges should be politically insulated and free to make decisions because they are charged with the ultimate decision over life, properties, rights and duties of the citizen including all kinds of freedoms enshrined in the Constitution and by way of conventions powers and traditions vested with the Executive with great trust to be impartial and should not be undermined overlooked or destroyed.   

Judges and the Judiciary are the guardians of the supreme law and the citizen depending for justice. It is also unfortunate that successive governments and the leaders of the have misused and violated this sacred responsibility entrusted to them as the guardians and temporary trustees of the ”Temple of Justice”, which is the backbone of the freedom and equality exercised through the people to whom the Judiciary is responsible for.   

Constitution is a Living Document

Constitution of a country is a living document and therefore it must be interpreted in a manner it can work and not in a manner it can perish- with the Nation! In this living document sovereignty is with the people embodied in Article 3 of the constitution as follows - Article 3 –“ In the Republic of Sri Lanka Sovereignty is in the People and inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise” Judicial power is exercised through legislative power in the Parliament, Executive powers through the President and judicial powers also exercised directly by the people through the Parliament for the citizen waiting and depend on for justice and fair play. Duties of the main three branches of the Government should be performed in harmony, understanding and in the interest of the Nation at large following due process and the constitution with the conventions and good practices in governance.   

Facts and details of the two crisis situations are well known to the citizen and world over with many distortions exaggerations resulting uncertainty and ambiguity in administration paving the way for international vultures with worldwide reputation of destabilization of sovereign independent states for regime changes and fish in troubled waters for their own benefits and international agenda. Constitution is a mixture of Law and Politics supported by conventions and interpretations. Since Independence Sri Lanka had three main constitutions - in 1946 Saulbury - a Westminster Modelled Constitution - 1972 a Republican and 1978 – “Gullist” Constitution – a mixture of Presidential and Westminster model again when 19A miserably failed to transform it to a Westminster model Prime Minister aiming to make Legislature and the Prime Minister supreme and powerful leaving the President as a figurehead and the admiration and governance into uncertainty.   

The author can be reached on sarath7@hotmail.co.uk  


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