Opinion

Executive and the Judiciary should respect each other: Justice Marasinghe

15 May 2013 - {{hitsCtrl.values.hits}}

Addressing the ceremonial sittings yesterday, May 15, newly appointed Supreme Court judge Justice Rohini Marasinghe said that one of the basic requirements that is necessary to maintain that independence is to evoke a sense of respect from the executive for the judiciary. That sense of respect is often lost once the judiciary becomes beholden to the executive for benefits sought and benefits granted by and from the Executive she said. Here follows full address made by Justice Marasinghe.

As is customary at ceremonial sittings of this nature the new judge chooses a topic for his/her address. The topic I have chosen is “Some aspects of judicial independence”.
Let me first deal with the nature of and the requirements for maintaining an independent judiciary.
We all swear an oath to administer justice ‘without fear or favour, affection or ill-will.’ Judicial independence requires that judges should be true to that oath. And, if the rule of law is really to prevail, the individual citizen must be confident that the judges will apply the law to them without fear or favour, affection or ill-will.
I shall be true to that oath until I relinquish my office, and step down from this August office which I have now begun to hold.
I believe the public will lose confidence if judges are subjected to influences, pressures or inducements to decide cases to the satisfaction of those sources from which such influences, pressures and inducements arise.

All nations are directed to follow principles expressed at Latimer House. Those principles are not particularistic. They are universalistic and apply in a global sense when doing justice to all those who seek it. Those principles are vital for the maintenance of ‘law and order’ by upholding the ‘Rule of Law’.

Its Preamble Reads, most eloquently that:
“An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.”
To this I would add - The rule of law will not fully prevail unless the domestic law of a country permits the judges to review the legitimacy of executive action. This is necessarily becoming the single most important function of the judge in the field of civil law, at least in my own country.

At Latimer House it was further stated that:
“Best democratic principles require that actions of governments are open to scrutiny by the courts.”

I would put it even more strongly. The rule of law requires that the courts have jurisdiction to scrutinize the actions of governments, to ensure that they are lawful. Today the individual citizen is subject to controls imposed and enforced by the executive in every aspect of life. The authority to impose most of these controls comes directly or indirectly from the legislature. The citizen must be able to challenge the legitimacy of the resulting executive action before an independent judiciary. It is the executive that exercises the power of the State. And in one form or another, frequent litigation in our courts involves challenges to executive action.
Let me start with the appointment of judges to the higher judiciary. I believe that if we are to have a judiciary that has the confidence of the public it is essential that the judiciary has a fair representation of those who have been nurtured in all areas of the legal profession. At present there is only one career judge in the Supreme Court. What happened to the other career judges? I have been in the judiciary for more than three decades. It is more than 35 years since I was called to the Bar. It had taken me more than 31 years to reach this position. There was a growing tendency to appoint officers of the Attorney General’s Department and place those officers above the career judges. It is unfortunate that these judges who had more years in the judiciary had their career progressions frustrated. I hope that career judges who join the judicial line of progression are given due respect for their aims and aspirations in achieving these heights rather than being blown away and sent home early by side winds that seem to blow from parallel sources.

" The judges in the apex court should not consider themselves prisoners in an ivory tower. They should periodically leave such an enclosure and commence a dialogue with the executive arm of the government. The Latimer House guidelines to which I have previously referred encourages the judiciary and the government to have periodical dialogues without compromising judicial independence "

Next, an issue that often arises with the judiciary is its relationship with the Executive. The Latimer House Guidelines provide a most useful starting point to establish the parameters of that relationship. It reads:
“While dialogue between the judiciary and government may be desirable or appropriate, in no circumstances should such dialogue compromise judicial independence”.

One of the basic requirements necessary to maintain that independence is to evoke a sense of respect on the part of the executive for the judiciary. That sense of respect is often lost once the judiciary becomes beholden to the executive for benefits sought and benefits granted from and from the Executive. Barring that the relationship between the Executive arm of the government and the judiciary should be a cordial one evoking mutual respect for each other. There is a most pointed reference to this relationship which Lord Phillips the Lord Chief Justice of England made in a speech to the Commonwealth Law Conference, held in Nairobi, on 12th September 2007. He said:

“I have always believed that it is important, if possible, for judges to maintain good relations with Ministers. I have to date managed to achieve this, both with the Home Secretary and with the Lord Chancellors. It is important at such meetings that the line is clearly drawn between what are and what are not appropriate areas of discussion and ministers are, in my experience, quick to accept if told a topic is “off limits”.

Sometimes laws are made by parliament with a view to providing the country with security and social justice. When such laws come before the courts raising their constitutional validity, the courts should take a broader view of the social policies engaged by such legislation and show some consideration for its usefulness and its larger benefits to the country. There are many laws enacted in many countries, targeted towards social developmental and security concerns. The judges when considering the validity of such laws should not take purely a legalistic view of the constitutional problem but a broader view of its necessity for securing social justice, social cohesion and economic development. Lord Philips, the Lord Chief Justice of England in the course of his speech at the Commonwealth law conference in 2007 to which I have referred earlier mentioned an incident between Lord Bingham who was a senior Law Lord and the Home Secretary Hon. Charles Clarke. The Home Secretary had invited Lord Bingham to meet to discuss matters pertaining to terrorism and national security. Lord Bingham had declined that invitation to meet. Then the Home Secretary Charles Clarke acidly remarked “that the judiciary bears not the slightest responsibility for protecting the public, and sometimes seems utterly unaware of the implications of their decisions for our security.” The Home Secretary further remarked that “it is now time for the senior judiciary to engage in a serious and considered debate on how best legally to confront terrorism in modern circumstances.

The judges in the apex court should not consider themselves prisoners in an ivory tower. They should periodically leave such an enclosure and commence a dialogue with the executive arm of the government. The Latimer House guidelines to which I have previously referred encourage the judiciary and the government to have periodical dialogues without compromising judicial independence.

In conclusion on the topic of judicial independence there are just a few words that I would like to say.
That is, a judge should value his independence above gold; not for his or her own benefit, but because it is of the essence of the rule of law and a judge should care passionately for the rule of law. It is the satisfaction of reaching decisions without fear or favour, affection or ill -will that makes being a judge a vocation that has no equal.

Let me thank His Lordship the Chief Justice and the Honourable judges of the Supreme Court, as well as the Court of Appeal. And I also thank the Honourable judges of the High Court, District Court and the Magistrate’s Court for honouring me by their presence here. I also thank the members of the legal profession and each one of you present here for gracing this occasion.

It is with a sense of sadness that I remember on this occasion the passing away of my parents. Their advice, encouragement, and guidance which they gave me with their love and affection had brought me today to the highest pinnacle of my career. I recall the day on which I embarked on this career, that is when I took my oaths as an Attorney-at-Law 37 years ago, my mother whispered in my ear these words, she said “success is yours but memories are mine,” The sadness I have today is whilst I have success I do not have my parents to share my memories.

Before I conclude, it is important that I say a special word of thanks for my husband Lakshman, my daughters Surani and Tarini, their spouses Janek and Adrian, my son Leelan and his spouse Nikki, my youngest son Irantha, and my two little grandsons Jayden and Aiden. I also thank my brothers, my sister and their spouses, my nieces and nephews and their spouses and all my very dear friends for gracing this occasion to share this moment of glory.

Opinion

Executive and the Judiciary should respect each other: Justice Marasinghe

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