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Weliamuna’s frank take on the state of the

Judiciary

Thursday, 20 July 2017

J.C. Weliamuna, President’s Counsel, Eisenhower
Fellow, former Member of the Transparency International Global Board, and
Constitutional Law practitioner in Supreme Court for over 28 years, in an interview
with the Daily FT shares a frank inside view into the status of the Judicial organ of
the State today. Following

are excerpts:
Q: How do you measure the Judiciary after 8 January 2015?

A: Major positive changes took place, taking the Judiciary out of the clutches of
the politicians. Despite political interference under the last regime, many judges in
all courts acted independently but maybe not all. External interference appears to
have vanished. All judges are now at liberty to give decisions without external
interference. Analysis of judgements and orders given in politically sensitive cases
will bear testimony to it. No doubt there are areas to improve without which the
Judiciary cannot deliver, most of which are structural.

Q: Laws delays still continue; why is this not improving?

A: Laws delays is a national crisis, which cannot be answered in my view by the
Judiciary alone. There are reasons for it. The judges, lawyers and the registries are
responsible for some but there are many other reasons beyond them as well. The
reasons also differ from court to court.

Q: Please explain how?

A: For example, a Supreme Court Bench has to deal with about 20-30 cases a day,
which is humanly impossible. An average, two Benches are dealing with about 50
cases daily, of which about 15 are mere calling cases. Many cases are for support
and about 10 cases are listed for full oral arguments. Naturally, more than half of
these cases are postponed. We do not have a system of limiting the time given to
a Counsel to make submissions. As such the backlog is huge.

While cases are being disposed of, another set of cases are also being filed.
Sometimes, lawyers fall ill. Objections are not filed by Respondents in time. Due
bench is not constituted for the argument date. Motions and documents filed in
Registry are not in the file when the cases come up. Sometimes judgement are
not delivered for months and years. These are a few reasons.

Trial Courts have a few additional problems. It takes about 10 to 12 years for an
average criminal trial to come to an end from investigative stage to the conclusion
of all the appeals. Of course settlements are different. Presence of witnesses, not
having appropriate advice from the Attorney General in time, not having reports
such as EQD, not having translators, etc., are a few other reasons. Another issue is
not having proceedings of the previous day prior to the trial.

However, most of these issues could be resolved if the judges and lawyers
cooperate in the interest of justice. Registries are also not properly managed. The
environment depends much on the practice and commitment of judges and
lawyers. Summary disposal is as bad as laws delays but a firm and fair judge
always disposes cases early.

Q: How do you think other countries manage cases?

A: Many successful methods are used by many other jurisdictions to dispose of
cases within a short time. They have all moved away from archaic practices and
looked to the future. Sometimes unpopular strategic decisions have been taken to
move away from weak systems. Keeping down cases or moving out cases is no
longer a routine practice in those countries. The court administration and case
management is done not by judges but by a separate set of competent officials.
They modernised the case filings systems and allocation of day-to-day affairs of
courts.

E-filing is done in most of the countries and access to the cases records are
regulated efficiently. Only a manageable number of cases are coming up before
the judges and the rest are orderly done at pre-trial stage. Lawyers cannot waste
time of court in cases because they are allocated with limited time slots and the
rest is all on written material. Both judges and lawyers do read material filed in a
case and are well prepared for the case when a case comes up.

Q: Aren’t there good practices on case management and international standards
on case administration?

A: Case administration and governance principles for effective administration are
well recognised. For example, the American Bar Association has developed
‘Principles for Judicial Administration,’ which recognises certain principles which
are generally practiced in the countries which have effective judicial systems.
Those principles include firstly the court leadership which should ensure that the
court system has a highly qualified, competent and well-trained workforce while
the judicial leader should be selected based on competency.

Court leadership should have control over legal process. The court procedures
should be simple, clear, streamlined and uniform to facilitate expeditious process
with lowest cost. Court system should be transparent and accountable through
the use of performance measures and evaluation at all levels of the judiciary.
Those are few of the principles followed and in my humble view, we have long
way to go.

Q: Most of the courts including the Supreme Court and Court of Appeal here are
crowded. Lawyers wait for hours for a case that is taken up perhaps in the
afternoon. Isn’t it a waste of legal time?

A: Agree. We cannot prevent litigants attending courts but due to our own
procedures, litigants and witnesses too waste their time in courts pending a case.
Let’s talk about the higher courts where litigants are not compelled to attend. We
have an unfortunate system of not having a consistent practice of how an appeal
in a higher court is disposed of.

No one is certain which of the listed cases would be taken up at what time of the
day. Sometimes, a lawyer has to wait four to five productive hours in the court
room waiting for his or her case to be taken up. This shows that we need to
organise case management at the highest level and this can be done if there is a
constant dialogue on the subject between the judges, lawyers and other
stakeholders. This can probably be addressed with allocating time slots for cases
but if the number of cases is unmanageable, then that is not possible too. We
have a crisis in case management, perhaps due to multiple reasons.

Q: What is your view on the quality of judges?

A: As a practicing lawyer, perhaps it is better not to give a complete answer.
However, we have always seen high quality judges as well as poor quality judges in
all courts. The issue begins in my view with the recruitment and selection of
judges. We do have amazingly talented individuals who can adorn a court of law in
any part of the world. We must accept that we have a crisis in not having sufficient
number of them. We cannot forget that the judges of the day are selected from
the lawyers of the day. Judiciary can attract talented legal practitioners by securing
high salaries and perquisites. I think present salaries are grossly inadequate.

Unfortunately, in our Judiciary there is no serious evaluation or assessment of
judges on their performance. Promotions are virtually on seniority only. Judges
are rewarded for age and not on merit. If you look at the seniority list of judges of
any court, you can argue that basically the best and most competent judges are in
the middle. Enormously talented judges are not being considered for promotions
because senior judges are promoted whether they are efficient or not. This is a
tragedy.

We have the same issue with most of the other public institutions, be it the
Attorney General’s Department, Police, civil service, universities, you name it. You
take political parties or professionals – same crisis. We have a crisis of leadership
that needs to be addressed as a national priority. Decision makers – even in
Judiciary – must take strong and firm decisions to remedy this situation so that
talented leaders come to the top early, in their mid-career. Otherwise, we cannot
secure quality. We should also evolve a system to have performance evaluation for
judges of all courts.

It is also important to select the best talent from official and unofficial bar in
addition to the career judges for higher Judiciary. Whatever the source of
recruitment it may be, they must be competent, honest and people with integrity.
Under the 19th Amendment, both the President and the Constitutional Council
have a duty to ensure the most competent judges (as opposed to mere seniority)
and suitably qualified practitioners from official and unofficial bar are appointed
to the higher Judiciary. I must also say in passing that most recent appointments
to higher Judiciary were on merit due to the President and the Constitutional
Council having approached the selections more objectively.
Q: You say judges are not evaluated. What about the performance evaluation of
the Judiciary as an institution?

A: The Judiciary is also a public institution, sourced from public finance. It is the
public who funds courts and the entire judicial system. Therefore, the organ of
Judiciary is answerable to people on its performance. This is a delicate issue
because, we must also be mindful of the fact that in the guise of accountability,
Parliament as a whole should not challenge the independence of the Judiciary.
However it is possible to do in a well-defined system.

For example, under Article 154, the Auditor General should audit performance of
all State institutions including the Judicial Services Commission and in my view,
the Auditor General should audit all administrative units of all courts, including
the Supreme Court registry. They should not limit themselves to some audits
carried out through the Ministry level. I would suggest that a panel of senior
Supreme Court judges, serving or retired, regularly examine the decisions of the
original courts high courts judges, selected at a random, in performance exercise
mechanism. I am sure the JSC and Constitutional Council would get a very good
feedback on the contenders for higher judicial positions.

Q: Will the Auditor General commit contempt of court if they examine case
records?

A: This is a tough issue because, some say, there seems to be an opinion of the
Attorney General on this. I humbly submit that Auditor General should be
empowered to check how many cases are handled by each judge each year but he
may not be permitted to judge the quality of the decision and all aspects of
financial administrations. The second aspect i.e. the quality of judgements is a
matter for JSC or any other body.

Q: You were in the anti-corruption field for over a decade. What is your take on
corruption within the Judiciary?
A: I do not wish to comment on individual judges. Corruption in judiciary is a
widely-discussed topic all over the world and in fact there is a strong global
network among judges to combat corruption. Like any other institution,
preventive measures could be taken at all levels to prevent corruption. For
example, integrity systems must be installed in case filing to court managements.
Registrar or key staff members of any court should not be related to a judge of
that court. Modernisation and computerisation is a well-recognised system.

Preventing judge shopping by lawyers and case shopping by judges is another
issue to be addressed. However, if the lawyers and judges do not take lead on this,
allegations of corruption will undermine the reputation of the courts. You need to
carefully examine the potential corrupt links and possible networks to prevent
judicial corruption. There are always bad eggs but judicial corruption is much
bigger topic.

Q: Contempt of court is always a tricky subject. Some are pointing to new web
media attacks on judges and courts. Do you not think that the judicial organ
must be protected from criticism?

A: The Judiciary is not immune from criticism. Contempt of court is not primarily
to shut the critics. I think Lord Atkins once said that no wrong is done by any
member of public who exercise the ordinary right of criticising in good faith in
public or in private in the public act done in a seat of justice. Scandalising courts is
certainly contempt of court. I remember my mentor Mr. R.K.W. Goonesekere
saying that exposing bad judges in a dignified way is the only way to protect good
judges. I have seen contempt of court law abused in the highest court of the
country. I think it is important to introduce a composite procedural law on the
subject. I think some of those criticisms on judges found in websites are not false.
What we should work for is to ensure that we have a judiciary that will not be
subject to such criticisms.

Q: Many speak about decisions of different courts on garbage dumping. There
are also global debates on judges’ bias on ethnic and religious lines. Any
comments?

A: Judges are also human beings with socio economic backgrounds. Their
decisions are no doubt influenced by their own background and what they are
exposed to. In American realism, there is a concept called “inarticulate major
premises”, which admits an undisclosed hidden thought process that may form
the basis for decisions of judges. That thought process come from background of
each judge. However, an experienced and conceptually superior judge may not be
influenced by extraneous considerations.

I cannot comment on each case, but public perception on judges and their
decisions matters. For example, if garbage cannot be dumped somewhere, the
local authorities, the Executive or Judiciary for that matter, cannot deal with much
bigger health issues. In my view, the Judiciary is not the answer to all problems in
a country and litigants should be mindful of the limitations of the Judiciary.

Q: What do you think is needed to make our Judiciary the best in the region or
the world?

A: For that we need firm leaders with a vision in all three organs, Executive,
Parliament and Judiciary. We need long-term and short-term plans to have high
quality lawyers and judges. We should take all steps to ensure best individuals are
selected for all positions in the Judiciary. We must also get rid of bad eggs. We
have enough and more competent honest individuals for such positions. We must
have a national programme where all three organs of the State are equally
committed to upgrade the level of our judicial quality. The Government should
realise that improvement of the Judiciary is not a matter for the Judiciary alone. It
is our collective responsibility.
Posted by Thavam