Former Sri Lankan Justice Secretary Nihal Jayawickrama recently wrote a scathing article on the corruption and co-option of the Sri Lankan judiciary. You can access the full article here. This is part of a recent trend of retired Sri Lankan judicial officials finally speaking out against the destruction of Sri Lanka’s independent judiciary. Former Chief Justice Sarath N. de Silva also criticized the president while launching his “voices against corruption” website.

We have summarised the key points below:

The decision of the Chief Justice to accept employment as an Adviser to the President barely weeks after his retirement from office raises serious questions not only in terms of his own decision but also the probity of his judicial decisions in politically sensitive cases and the spectre of judicial corruption.

Judicial Corruption: A conventional form of corruption arises though the interaction between the Judiciary and the Executive. For example, the political patronage through which a judge acquires his office, a promotion, an extension of service or even if the Executive were to provide employment or other preferential treatment to an immediate family member. Therefore, a high range of decisions in favour of the executive would raise suspicion that the judge is susceptible to undue influence.

Independence and Accountability: Judicial independence, both individual and institutional, is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. Credible evidence has surfaced that in many jurisdictions, including Sri Lanka, that judicial independence was being traded for personal gratification or benefit. The United Nations had requested all member states to consider the Bangalore Principles of Judicial Conduct, based on six core judicial values of Independence, Impartiality, Integrity, Propriety, Equality and Competence and Diligence, when developing rules for professional and ethical conduct of Judges. As to knowledge, apart from the Sri Lankan judiciary, many countries have either done so or are engaged in doing so.

Post Retirement Employment: The Country has not been informed, whether the post-retirement employment was sought by the Chief Justice himself or was offered to him by the Executive or even whether discussions on post-retired employment took place while the Chief Justice was still in office presiding over politically sensitive cases.

A Sense of Futility: Comments made by the President of the Bar Association and a senior lawyer appear to be typical of the feeling of futility or karmic inevitability. Today, failing standards, or no standards at all are accepted as “fate” which contrasts with previous times, where unlike now, there was a period where there was respect for a clear distinction between the Executive, Judiciary and the Legislature.

A Judge May Serve The Community: It is not to say that the Chief Justice or a Judge of any other superior courts should not serve the country but if and when a judge decides to serve the Executive branch of government, soon after retirement, will definitely give rise to alarm bells. The country is entitled to know the compelling reasons that led to such an unprecedented step to determine whether or not it is valid and legitimate. The appointment of a judge to a diplomatic position three years ago, without any diplomatic skills, knowledge or experience is believed to have bewildered the establishment of a country in which a clear distinction exists between the Judiciary and the Executive. Statues which require the appointment of a retired judge as a member of a board or commission also will surely create and illegitimate expectation in the minds of judges approaching retirement age.

Should the Judge Serve the Executive?: The public’s perspective of a Judge, to embody and pledge to serve the ideals of justice and truth, and the confidence in the judiciary is found not only in competence and diligence but also in their integrity and moral uprightness. Therefore, the relationship with the Executive branch of government is a litmus test. The decision of the Chief Justice raises questions as to whether he thought of public perception and whether his actions would compromise the independence, integrity and credibility of the courts. Was it not a breach of faith?