Independence of judiciary essential for a democratic system ; AG

Independence of judiciary essential for a democratic system ; AG

Independence of judiciary essential for a democratic system ; AG

Written by Zulfick Farzan

20 Jan, 2021 | 2:35 pm

Colombo (News 1st); An independent judiciary is the corner of stone of the prevalence of the rule of law in a democratic society, said Attorney General Dappula De Livera on Wednesday (20) at a Ceremonial Sitting of the Supreme Court to welcome Justice Dileep Nawaz, Justice Kumuduni Wickramasinghe and Justice Shiran Gooneratne.

The credibility of a judicial system in a country is dependent on the Judges who man it, he said.

Judges must be people of impeccable integrity and unimpeachable independence, he said, adding a judge must discharge his judicial functions with high integrity, impartially and intellectual honesty said De Livera.

“Speaking of Intellectual honesty; the law would be like a ball of clay in the hands of an erudite Judge. Therefore, Judges should be ruthlessly honest, independent, and impartial and possess a judicial conscience to ensure that the ball of clay is molded according to law,” noted the Attorney General.

The independence and impartiality of the judiciary is essential for a democratic system of government to function under the Rule of Law, said De Livera.

The Courts must necessarily occupy a high position of power, privilege, and independence in the life of a nation, he added.

The Attorney General said the Judges in the exercise of judicial functions should be immune from outside control and influence and intimidation, and independence is also necessary from the other branches of government and from private and partisan interest.

Judges should be above suspicion and should not leave even a glimpse for that suspicion to occur.

THE FULL STATEMENT IS AS FOLLOWS : 

My Lord the Chief Justice, Your Ladyships and Your Lordships,

I am constrained by time but I shall not waste a minute. It is my singular privilege and honour to welcome Your Lordship Justice Dileep Nawaz, Your Ladyship Justice Kumuduni Wickramasinghe and Your Lordship Justice Shiran Goonaratne to the Apex court of the country on behalf of the entire Bar at this august assembly.

My Lords and My Lady you commenced your legal careers and were moulded in the Attorney General’s Department and after long and faithful service to the Institution of the Attorney General finally adorned the Bench and embarked on a career in the Judiciary which has now already spanned several years.

There is no doubt that Your Ladyship and Lordships are well equipped and experienced to undertake the responsibilities and discharge the functions of this onerous and exalted office. I have also no doubt that today, must be a very satisfying and memorable day for your Lordships and Ladyship. A sense of achievement and accomplishment no doubt.

It would also be a time and a day to look back and reflect on the past and take stock of that long journey and reaffirm your commitment to overcome challengers and uphold the rule of Law meting out good quality justice to the yearning men women and children of this country.

In Sri Lanka the courts have quite justly come to be regarded as the sentinel over the powers of the legislature and the executive in order to safeguard the rights of the citizen under the law and the constitution.

The credibility of a judicial system in a country is dependent on the Judges who man it. Judges must be persons of impeccable integrity and unimpeachable independence. A Judge must discharge his judicial functions with high integrity, impartially and intellectual honesty. Speaking of Intellectual honesty; the law would be like a ball of clay in the hands of a erudite Judge. Therefore, Judges should be ruthlessly honest, independent, and impartial and possess a judicial conscience to ensure that the ball of clay is molded according to law.

For over 2000 years of the Island’s long history, the Courts of Law have occupied a unique place in the system of government. Public acceptance of the judiciary and public confidence in the judiciary is necessary for the rule of law to prevail in the country. Public confidence in the judiciary is dependent on the independence and integrity of the judiciary.

The sovereignty is in the people and is alienable and that sovereignty of the people is exercised by the judiciary in the public trust. The independence and the integrity of the judiciary ought to be preserved for justice and the rule of law to prevail in a society. A judiciary should not only be independent but appear to be independent in order to gain the confident of the people.

An independent judiciary is the corner of stone of the prevalence of the rule of law in a democratic society.

The essence of rule of law has been said to be that the Administration is bound by the law and that in it cannot interfere with the rights of the individual except in accordance with the law.

The International Congress of Jurists meeting in New Delhi in January 1959concluded “that an independent judiciary is an indispensable requisite for a free society and for the Rule of Law to prevail in a society.

The independence and impartially of the judiciary is essential for a democratic system of government to function under the Rule of Law.

The maintenance of the independence of Judges and of the quality of the administration of justice would largely depend on the Judges themselves and the state of public opinion of the country, which demands their independence and impartially.

Within the limits of their power and jurisdiction the courts are required to perform a dynamic role as the fearless upholders of the principle of equal justice under the rule of law.

“Not all the guns of the Garrison leveled at their lordships would intimidate the Court” said Chief Justice Carrington in 1804 to General Wemyss who was brought up on a charge of contempt of court and had appeared with his staff wearing sidearms and bayonets.

In 1937 Chief Justice Abhrams questioned the deportation order of Mark Anthony Bracegirdle and said “the crown takes its stand upon what it submits are the unquestionable absolute powers of the governor and it is our duty to say that those powers are limited”. The governor’s order was made without Authority. The arrest and detention was illegal and Mr. Bracegirdle must be released”.

The Courts must necessarily occupy a high position of power, privilege and independence in the life of a nation.

The Judges in the exercise of judicial functions should be immune from outside control and influence and intimidation.

That independence is also necessary from the other branches of government and from private and partisan interest.

Judges should be above suspicion and should not leave even a glimpse for that suspicion to occur.

When Pompeia the wife Julius Ceasar secretly sneaked a man dressed as a woman into a roman religious ceremony. Her husband divorced her.

It was girly prank. But the discovery of the man celebrating the mysteries of Bona Dea in the male free temple scandalised Ancient Romans and led to remours that Pompeia is having an affair. Pompeia hadn’t committed adultery but it didn’t wash with Ceasar who kicked her to touch and insisted that his wife must be above suspicion.

Judges like Ceasar’s wife must also be above suspicion and the fundamental principle is that there should not be even a hint of bias or prejudice in the judicial process as is as vital today as it was 118 years ago when Lord Bowen famously compared judges to Ceasar’s wife.

The people will be judging you when you are judging them therefore that accountability and transparency ought to be seen and perceived from the judgments, pronouncements and orders that are delivered by the Courts.

Judge Ralph Mac Allister on the occasion of taking oaths as a Judge, State of Ohio in December 1976, prayed for the Court as follows;

He prayed that the Court always function with honour and integrity. That its pronouncements always be just. That its proceedings be conducted impartially. And finally that all its actions preserved the Peace and Dignity, the Rights and Prerogatives and the freedom and morality of all the people. That is my prayer too for this country.

Before I conclude may I wish your Ladyship and Your Lordships good health and fruitful and productive tenure in office.

May the good gods bless you and guide you always My Lords!
Thank You!

Dappula De Livera, P.C.
Attorney General

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