Neville Samarakone, QC

We as judges of this land must take the lead from our departed friend and colleague, that no bullets of any caliber, knives of any depth, clubs of any weight, shall ever deter us from taking the exalted and well traversed path to do justice for all those who come before us.’
Hon. Rohini Perera J, Secretary of the High Court Judges Association (2004)
The above mentioned words of Hon. Rohini Perera, Judge of the High Court of Colombo as Her Ladyship then was, (presently Hon. Rohini Marasinghe, Justice of the Court of Appeal of Sri Lanka) in her oration delivered at the funeral of late Justice Sarath Ambepitiya, in 2004, in essence epitomizes the values and principles held sacred by the judiciary of our land at all times. It was also said in the same oration that, ‘The first principle in judging is the maintenance of the Rule of Law. The maintenance of the Rule of Law requires both erudition and fortitude. The judge must both be learned and must be unflinching in the fair and equitable dispensation of justice.’
Irresponsible statements regarding the judiciary made without thought at public meetings by politicians will erode the public confidence and the respect for the judiciary. Any responsible person should refrain from making such unnecessary comments, which would not serve the public interest. Even if such statements were to be made it is the duty of responsible media, be it print or electronic, to refrain from publicizing such frivolous comments made without consideration for their effect on the greater public interest, since publicizing could erode the respect of the public for the judiciary.
Respect cannot be gained by demand. As the Buddha said in the Wasala Sutta: No one is born as a Wasala (a lowly person) or a brahmana (a highly respected person), but by one’s own conduct one would be regarded as a wasala or a brahmana. ‘A person should command respect for other human beings by such person’s exemplary conduct’. Lord Denning’s words with reference to the judiciary that, ‘We must rely on our conduct itself to be its own vindication’ become relevant in this regard. Imperfection is a human trait. Human beings in all walks of life be it the clergy or the judiciary, the legal, medical or engineering professions or any other are prone to such imperfections.  It is also equally relevant to note the words of Christ when He said, ‘he who hath no sin let him cast the first stone’, as people were getting ready to kill the sinner by stoning. Everyone turned away as there were none who had not sinned. When criticizing others it would do well to look into one’s own self first as no man (or woman) is infallible. As a legal practitioner, who has appeared before judges of both the superior and lower courts of this land, for whom the writer has the highest regard and respect, it is the writer’s personal experience that the dispensation of justice by the judiciary of this country is both fair and equitable to a very large extent.
Justice Wendell L. Griffin, Judge of the Arkansas Court of Appeal (Law and Contemporary Problems 1998) speaking on judicial independence and accountability stated thus: ‘I view the issue of judicial independence and accountability in three interdependent levels: political accountability, decisional accountability and behavioural accountability.
Elaborating on the above three levels Justice Griffin stated: ‘Political accountability includes selection, tenure and the extent to which judges are accountable to other branches of government for appropriation, definition of jurisdiction and other issues related to the terms and conditions of our service in the judiciary. Decisional accountability concerns the manner in which judges are held accountable for rulings and decisions. While this principally takes place through appellate review, it also includes academic criticism of judicial actions. Behavioural accountability involves judicial conduct made the subject of disciplinary proceedings.
Local media recently carried two articles, one titled ‘Whither independence when judges host parties for politicians?’ and the other titled ‘Judicial Ethics’. The writer of the second article stated, ‘When JR appointed Neville Samarakone QC as Chief Justice, Neville was JR’s lawyer. A former Bishop who knew how close Neville was to JRJ asked me, “How could there be justice now?” I replied, “Neville lacks neither position nor funds. We will wait and see.” When later on JRJ had tried to touch him, Neville seems to have said, “JR our friendship is at home. My duties are sacred. Please don’t touch.” Honour was greater to Neville than were material benefits and his duties were sacred to him.
A judge worthy of his appointment can never compromise his honour and integrity to the detriment of his ‘Sacred Duties’. The question posed by the writer of the first article, who was very critical of the recent appointments of the present Chief Justice and another well-respected Judge of the Supreme Court would do well to read the second article as the answers to all his misgivings have been supplied by the writer of the second article referred to above.
Respect for the judiciary is paramount in a democratic society for the proper maintenance of the Rule of Law. Unwarranted frivolous attacks in the public domain on the personal lives of judges who are presently on the Bench are most unfortunate and should be avoided as such criticism tends to erode the confidence of the public in the judiciary of a country. The writer of the first article quoted Article 38 of the statement issued by the Sixth Conference of Chief Justices of Asia and the Pacific held in Beijing as: ‘Executive powers which may affect judges in their office, their remuneration or condition or their resources must not be used, so as to threaten or bring pressure upon a particular judge or judges.’
In view of Article 107(2) of the constitution which provides that a judge of the Supreme Court or the Court of Appeal cannot be removed even by the President without a resolution being passed by the Parliament, the tenure of such judges are secured thereby ensuring judicial independence. Even President J. R. Jayewardene could not remove Chief Justice Neville Samarakone, who gave several adverse judgements against the state due to this provision. Thus, the said article issued at the Beijing Conference bears no relevance to the appointments to the Supreme Court. Although if the President deems the Parliament may impeach a judge at any time as the government at present commands a two thirds majority in Parliament, it is very unlikely that the President would resort to such an action jeopardizing the popularity of the government.
The erosion of public confidence and respect for the judiciary by unnecessary and unwarranted publications and utterances is not in the public interest and should be avoided at all costs. Those who make such publications and utterances would be contributing to the contempt for the Rule of Law in this country thereby bringing about the decay of spiritual and moral values of our society, which would finally affect the lives of all the members of our society. Such critics should do well to remember the words of Lord Denning, a great English judge, who said that ‘All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy.’
The fact that a judge hosts a party for politicians or a judge’s husband holds public office, does not necessarily imply that a judge is incapable of delivering impartial judgements without giving into any political or other form of pressure as seen in the case of Chief Justice Neville Samarakone. Decisional accountability makes it the sacred duty of a judge to deliver impartial judgements, in spite of any form of pressure.
Society does not suffer in any manner, whatsoever when a judge worthy of his appointment performs his/her sacred duty and delivers impartial judgements according to his/her conscience resisting any form of influence or pressure. The Chief Justice of Uganda was murdered by the dictator Idi Amin for delivering an impartial judgement despite the pressure brought upon that great judge by the maniac Idi Amin. His Lordship will be respected and venerated by the entire world for all time whereas the maniac Idi Amin will be despised by the world for his brutality.
As the writer of the second article says “We will wait and see”, the writer of the first article should bide his time and permit the new judges to perform their functions. The present Chief Justice is well-respected for Her Ladyship’s impartial judgements during the period of holding office as a Supreme Court judge even after her husband was appointed to public office.
There is also the misconception that our judiciary remains non-committed, neutral or silent in the face of many irregularities committed by the regime or politically powerful persons. It must be understood by the general public that the judiciary does not exercise investigative powers which is the domain of the law enforcement agencies. It is they who have to produce such wrongdoers in Courts and charge them with the relevant offences for the judiciary to deliver the requisite punishment for such offences. Members of the public too can initiate such actions through public interest litigation.
The media should act with responsibility to preserve the dignity of the judiciary of our land as our judges have always acted with dignity and honour in performing their sacred duty and delivered impartial judgements, thereby earning the respect of our people at all times by upholding that pristine principle of the Rule of Law.
May I conclude my article with that famous saying of Emperor Ferdinand ‘Fiat justitia, et pereat mundus’ which means ‘Let justice be done though the world perish.’

By

The judicial process should not be resorted to with the object of stifling freedom of speech and expression – that is misuse and abuse of process

“A nation without an independent press is a nation without a conscience”

It is a cause for alarm if actions for damages are filed at the drop of a hat and serious actions are filed on spurious grounds. The judiciary is nobody’s personal property but a constitutional body established for the purpose of protecting the society on whose mandate it was so established and accordingly the judiciary must also be protected from arbitrary usage in reciprocation. The judicial process should not be resorted to as a weapon of oppression but rather as the last sanctum for fugitives from illicit oppression.
The sanctity of a nation hinges upon its judiciary. Frivolous actions and fantastic claims only tend to belittle the system and bring it into disrepute and ridicule and maybe the time has come to give serious thought to invoking the full power of retribution that resides within the judiciary against such persons as would have the temerity to tamper with its dignity by moving for process on untenable grounds.
It would also be an abuse of process if such process is moved for the purposes of public propaganda or for the entertainment of the public and not for the settlement of a real grievance occasioned by the individual.
Freedom of speech and expression, so long as it is used wisely and not abusively is vital to the political stability of a community: a literate but uninformed public becomes resentful and restless and in turn becomes the hunting ground for makers of political mischief.
On the other side one wonders whether pecuniary settlements for defamatory statements can ever repair the damage caused to the victim of the defamation and restore his image to its original status. It is here that there appears to be a lacuna in the law in the absence of legal deterrent against the freedom of the wild ass in the freedom of expression. The right to pecuniary damages does not constitute protection from harassment and loss of reputation but is merely a compensatory action for the damage caused. Protection will come only with deterrence and deterrence lies in the criminal law: crime and punishment.  By popular demand the law of criminal defamation was repealed after the case against the editor of a newspaper relating to an article which was alleged to be defamatory of a former Head of State.
In turn, the law of criminal defamation can be misused to stifle the freedom of expression and unless there are checks and balances against such misuse such legislation can become suppressive. These checks and balances cannot be provided through legislation because the power of prosecution is with the Legal Executive and one cannot expect the Legal Executive to prosecute itself for launching an ill-conceived criminal action for defamation. There may be other civil remedies against frivolous prosecutions but then again the damage that has been done can never be undone.
The vibrancy of the law of criminal defamation lies with the independence of the Legal Executive on the one hand and on the independence of the Judiciary on the other. It is only when these two components conjoin in terms of criminal defamation that the true freedom of expression and speech and the freedom of the press and the freedom of the individual will be realized.
A nation without an independent press is a nation without a conscience and the illicit suppression of an independent press is the suppression of its own conscience.  A nation without information is a dangerous nation. Like the sound of silence, it begins to hear without listening and talk without speaking – and silence like a cancer grows. It breeds discontent, sparks fury, and ultimately explodes into rebellion.  The integrity of a nation resides in its Executive, its sanctity in its Judiciary, and its fate in the Press – in its right to be informed.
The suppression of the freedom of speech and expression judicially or extra judicially is the first sign of nervousness in a democratic system.  There is a story that once upon a time an American President met with the President of the USSR and the American President claimed smugly that  any American citizen had the freedom to get on to the steps of the White House and shout with impunity that the President is a fool! Such was the freedom of speech in America. His counterpart thought awhile and replied that even in the USSR any citizen can get on to the steps of the Kremlin and shout with impunity that the American President is a fool! Such was the freedom of speech in the USSR.
There is a saying that you can remand the body but you cannot remand the mind. Captivity of the freedom of speech and expression causes the mind to roam into the realm of conjecture and makes the body politic of a nation unstable with a sense of insecurity and tentative uncertainty as to its own status in the affairs of State. A democratic State is where the People have willed and entrusted their rights to an elected government- including the freedom of speech and expression. If this is curtailed in any way legislatively, judicially or extra judicially, for a prolonged period of time with a view to denying the People their right to information on current affairs, then the pot begins to boil with mischievous intent , and,
“When men run out of words, they reach for their swords.”
Oliver Cromwell