The
concept of judicial independence is not a one way street depending on the
judges alone
(
December 11, 2012, Colombo, Sri Lanka Guardian) Justice C. G. Weeramantry,
former senior vice president of the International Court of Justice and the
Senior Most Retired Judge in Sri Lanka, said yesterday it was essential that a
tribunal deciding on the rights of any citizen must consist of persons who are
totally uncommitted before the hearing.
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In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
If
any members of the tribunal have directly or indirectly indicated their views
upon the matter in advance of the hearing, that tribunal ceases to be
impartial, Justice Weeramantry said in a statement amidst a growing controversy
over the impeachment of Chief Justice Shirani Bandaranayake. Justice
Weeramantry said:
“As
the senior-most retired judge in the country and as one who has been associated
with the law both locally and internationally for 65 years I feel compelled to
make some observations in regard to the current crisis facing the Sri Lankan
Judiciary. It is a judiciary which has been a great pride to the country and
has been highly esteemed both domestically and internationally.
“An
independent judiciary is vital to democracy, for without it citizens lack the
basic protections, without which a democracy cannot exist.
“The
concept of judicial independence is not a one way street depending on the
judges alone. It needs not only strictly independent judges but also a
commitment by the state to respect and protect the independence and security of
tenure of judges.
“The
independence of the judiciary and their security of tenure are hard won rights
secured after centuries of struggle against authoritarian regimes. Such hard
won rights need considered attention and protection by citizens and governments
alike. An independent judiciary is the last bastion of protection of the rights
and liberties and the equality and freedom of every citizen.
“The
following propositions, which are associated with the independence of the
judiciary, are unassailable and require observance and protection in any
democratic state.
“In
the first place there can be no democracy in a country unless the rule of law
prevails at every level from the humblest to the most exalted citizen.
“In
the second place the rule of law is not present unless a fair hearing is
available to every citizen who is called upon to defend himself or herself
before a tribunal on a matter affecting his or her rights.
“In
the third place there cannot be a fair hearing unless the tribunal is totally
and patently impartial. It is essential that a tribunal deciding on the rights
of any citizen must consist of persons who are totally uncommitted before the
hearing to any conclusion on the matter.
“In
the fourth place if any members of the tribunal have directly or indirectly
indicated their views upon the matter in advance of the hearing that tribunal
ceases to be impartial. It follows that such a tribunal is not functioning
according to the rule of law.
“In
the fifth place the rule of law demands that every person investigated by a
tribunal has a right;
to
be informed of the charges to know the evidence against him or her to have a
full and fair opportunity to scrutinize that evidence and to respond to it.
“A
denial of any of the above factors vitiates the inquiry and its findings. Such
an inquiry is a violation of the rule of law, a denial of basic human rights
and a negation of democratic principles.
“So
fundamental and universal are these principles that even the Universal
Declaration of Human Rights spells out in Article 10, that ‘everyone is
entitled in full equality to a fair and public hearing by an independent and
impartial tribunal in the determination of his rights and obligations …’ Since
the Universal Declaration asserted this principle in 1948, there has been
extensive development of it over the years in all jurisdictions committed to
human rights and the rule of law.
“Where
the issues involved are as grave as misconduct of the Chief Justice of a
country these general principles of law need to be applied with the greatest
strictness that is possible and it is the duty of the inquiring authority to
ensure these basic safeguards which human rights demand.
“Traditional
constitutional law depends heavily on the principle of separation of powers
which gives each of the three organs of government a province of its own, with
authority which is to be exercised without fear or favour.
“It
is a prerequisite to the rule of law that each of the three organs of
government – Executive, Legislature and Judiciary – must act according to the
rules and principles set out earlier.
“As
I have said in many of my writings and lectures, all three branches of
government – Executive, Legislature and Judiciary – rest upon the bedrock
concept of the rule of law. If the rule of law is not observed, the work of all
three organs of government is impaired, with resulting damage to equality and
freedom. Every citizen from the lowest to the highest has the right to defend
himself or herself before a patently impartial tribunal and with full knowledge
of the evidence against him or her and with a full opportunity of scrutinizing
and refuting it.
“In
short unless all these principles are observed in an inquiry where security of
judicial tenure is involved, there is profound damage to the independence of
the judiciary with a resulting undermining of the rule of law and of democracy
itself.
“This
should be a cause of concern to every citizen and every institution in the
country.”
