22 November 2023

Merit, integrity and seniority in superior courts

I do not know whether there’s as much drama in our courts as is portrayed in the 1979 US film ‘…And Justice for All’ directed by Norman Jewison for which Al Pacino, playing Baltimore defense attorney Arthur Kirkland received an Academy Award nomination for Best Actor.

I do not know, but I am certain that the following individuals would: Upul Jayasuriya, Dr. Jayampathy Wickramaratne, Geoffrey Alagaratnam, M.A. Sumanthiran, Dinal Phillips, S.T. Jayanaga, M.M. Zuhair, Attorneys-at-law Prof. Savitri Goonesekere, Prof. Deepika Udagama and Upul Kumarapperuma. They, among others, belong to a group of President’s Counsels (PCs) called ‘Lawyers’ Collective (LC).’ Among those named above are two professors, two former Presidents of the Bar Association of Sri Lanka, one Member of Parliament and one former Member of Parliament. The LC is made up of PCs. All of them, without exception, would know.

At the end of the film, following Kirkland charging his own client, Judge Henry T Fleming (played by John Forsythe) of rape and battery in an impassioned opening statement, the presiding judge, Francis Rayford (played by Jack Warden) thunders, ‘Mr Kirkland you are out of order!’

Kirkland’s response is part of what is widely acclaimed as one of the most dramatic court scenes scripted (Valerie Curtin and Barry Levinson were also nominated for the Academy Award for the Best Original Screenplay):

‘You’re out of order! You’re out of order! The whole trial is out of order! They’re out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he’d like to do it again! He *^$%ing told me so! It’s just a show! It’s a show! It’ “Let’s Make a Deal”! “Let’s Make a Deal!” Hey Frank [Bowers, the prosecuting attorney played by Craig Nelson], you wanna “Make a deal”? I got an insane judge who likes to beat the shi*t out of woman! Whaddya wanna gimme Frank, three weeks probation?’

Kirkland clearly violates the principle of confidentiality. Unethical. Deserving of license-revocation. Ironically, though, Kirkland is essentially raising questions about ethics of a larger order, that which is supposed to signature the foundations, edifice and all trappings of the justice system. And that’s the intersection where Kirkland meets the LC.

The LC has issued a statement in response to allegations made by the Sports Minister regarding abuse of judicial office by the President of the Court of Appeal. The LC notes correctly that any allegation of abuse of office by a superior court judge is a serious matter, but observes that it is equally problematic to undermine orders by a court under the cover of parliamentary privileges. Again, correct.

The LC is concerned about protecting the integrity and independence of the judiciary. To this end, the LC, pleading that on this side of impeachment there is no transparent and accountable process in place for disciplinary investigations and actions against judicial officers of the superior courts, proposes that the said courts establish ‘an internal regulatory system that addresses ethics and discipline.’

Self-regulation is good. A binding code of conduct and ethics for superior court judges, which too the LC proposes, is good. The call for credible investigation of allegations related to conflict of interest or dereliction of duty or misconduct  is also good.

What these concerns imply is that there is probably dereliction of duty, misconduct, unethical behaviour and disregard for the principle of conflict of interest. Moreover, it is reported that the LC, in this statement, has insisted that appointments to the superior courts should be on merit and integrity rather than seniority. Implied here is a concern that among those who have ascended in the judicial service are some at least who lack merit and integrity.  

The question that comes to mind is, ‘how are you going to assess ‘merit’ and ‘integrity’? Sure, if allegations of misconduct are investigated, through an internal mechanism as well as an external one (because we know that the pithy Sinhala dictum naduth haamuduruwange, baduth hamuduruwange — essentially ‘conflict of interest,’ which the LC abhors we are to understand — applies to one and all) and the accused are publicly exonerated or their guilt is confirmed, as the LC puts it, we could sort out the issue of integrity. Simply, those who are found guilty are deemed unsuited for promotion.

What about merit? Is the LC proposing that all judgments are scrutinised by some competent authority (who, though?) to assess competence in judicial conduct? How else can ‘skill’ be assessed?  

The ‘who, though?’ above is a bummer (those in the courts who were junketed off to the USA courtesy that country’s State Department would be familiar with the term). Is the LC thinking of an ‘internal mechanism’ and/or an external mechanism to assess the integrity of all judges of superior courts as a matter of routine, i.e. instead of waiting on allegations and the assessment of their validity? In the absence of such a mechanism, does it not devolve to ‘whim and fancy’ of the determining authority? And if there are no allegations, then should seniority be considered the default?  

In other institutions, incompetence and wrongdoing are punishable and punishment can detract from seniority. In the case of judges, who will assess competence and how? If a higher court overturns a determination issued by a lower court will the judges of the latter get demerits stamped on their record which could adversely impact chances of being promoted? Regular and rigorous auditing of judges: is that one way of weeding out those who lack integrity? The LC, one hopes, would come up with options. 

Integrity. Now that's pretty mercurial isn't it? Who makes the calls and based on what? It is astounding that the LC doesn't seem that have understood that the measurement of integrity is subjective. There are several people among those named who, if they said they had integrity, I would laugh out loud. I'm sure most of them if not all are members of the Bar Association of Sri Lanka (BASL), which has in no uncertain terms made it impossible to associate the word integrity with this club. The professors in this collective could supervise a doctoral dissertation titled 'Lawyers and Integrity: the BASL's Dimensions of Compromise.' 

But that's me. But that's exactly my point. Subjective. Except of course I can offer a cogent argument to substantiate my claims.

The LC’s statement is clearly prompted by justifiable concerns about political interference; put another way, a fissure in the lines that separate the judiciary, legislature and executive spheres of the state. It is a legitimate concern. I have some questions for the LC, since ‘appointment’ trouble them:

Do you agree that the Attorney General’s Department is like a half-way house for those who aspire to serve on the Supreme Court? Could you investigate the career paths of those who made it to the Supreme Court over the past 50 years and tell us about the flaws which the patterns indicate? Could they also examine the performance of judges in the superior courts in cases concerning high-ranking politicians or when they opined about constitutional matters? Why isn’t the system adjusted so that those who opt to represent clients cannot aspire to hear representations and vice versa, as is the case in Britain for example? Why is there no discussion on the merits and demerits of adversarial and inquisitorial systems of justice? What are the reasons for inordinate delays in court, especially when it comes to land cases? Why have we retained long court vacations, originally instituted so British judges could go home for Christmas and/or Easter?

There’s a trial going on here. The justice system is on trial. The LC is not yelling like Arthur Kirkland in the movie but is nevertheless saying ‘the trial is out of order! It’s a show! It’s a show! Its “Let’s make a deal!”’

These people are senior lawyers. They could demonstrate the merits of the title they hold. Let them now show integrity by addressing the questions raised. 

['The Morning Inspection' is the title of a column I wrote for the Daily News from 2009 to 2011, one article a day, Monday through Saturday. This is the 273rd article in the new series that began in December 2022. Links to previous articles are given below]


Other articles in this series: 

Hunters and 'victims' of immemorial light

The unbearable lightness of pause

Magic carpet to Dutuwewa

Gauze, blood-stained and torn

Seasons bookeneded by leaves on park benches

Writers' blocs and dead lines  

Stop Press!

The world shall not be emptied of poetry

Reclaiming the everyday with solidarities of tender fury

An Aussie broke a SLan heart in Ind for Afg

Writing magical pieces about something beautiful when time permits

The scattered archives of art and protest

Friendship that keep friends permanently at 16

Amherst: silent, rural, poetic and serendipitous 

The virtues of unemployability

A breathless hush at the close

Ahmed Issa, fearless and audacious in Gaza

Let us take a deep breath now...

How Grolier Poetry writes 'Harvard Square'

Let us write beautiful poetry

Following children and their smiles

Let's plant words in cracks and craters

Re-weaving lives and love

When the earth closes upon us...

Let us now march to the battleground of words

The most pernicious human shield

Who bombed Frankfurter Buchmesse

The truly besieged 

Love's austere and lonely offices

The mysteriously enjoined in the middle of nowhere

Serendipity now!

Reflections on the unimaginable 

Jackson Anthony is a book and will be read 

A village called Narberth Bookshop

Gateway drugs to A-B-C

'Irvin' and other one-word poems

Earth pieces Kerala and Sri Lanka

Obligation as bomb and ocean

In the land of insomnial poets

In and out of shadows

Over to Eve

When you don't need an invitation, it's home

When the Canadian House of Commons applauded a Nazi...

Touching the touch-me-nots

The importance of not skipping steps

No free passes to the Land of Integrity

Hector Kobbekaduwa is not a building, statue, street or stamp

Rajagala and the Parable of the Panner

Let's show love to Starbucks employees!

You've got mail?

Octavio Paz and Arthur C Clarke in the stratosphere 

Enduring solidarities 

Coco 'Quotes' Gauff!

9/11 and the calm metal instrument of Salvador Allende's voice 

What a memory-keeper foregoes 

Whitman, Neruda and things that wait in all things

Thilina Kaluthotage's eyes keep watch

Those made of love will fly

Profit: the peragamankaru of major wars

Helplessness and innocence

The parameters of entirety

In loving memory of Carrie Lee (1956-2020)

Mobsters on and off the screen

Transfixing and freeing dawns

We're here because we're here because we're here

Life signatures

Sha'Carri Richardson versus and with Sha'Carri Richardson  

A canvas for a mind-brush

Sybil Wettasinghe's shoes

Love is...

A stroll with Pragg and Arjun along a boulevard in Baku

Meditation on tree-art

Daya Sahabandu ran out of partners but must have smiled to the end

Gentle intrusions 

Sleeping well

The unleashing of inspiration

Write, for Pete's sake

Autumn Leaves Safeness

 Sapan and voices that erase borders

Problem elephants and problem humans

Songs from the vaekanda

The 'inhuman' elephant in a human zoo

Ivan Art: Ivanthi Fernando's efforts to align meaning

Arwa Turra, heart-stitcher

Let's help Jagana Krishnakumar rebuild our ancestral home

True national anthems

Do you have a friend in Pennsylvania (or anywhere?)

A gateway to illumination in West Virginia

Through strange fissures into magical orchards

There's sea glass love few will see 

Re-residencing Lakdasa Wikkramasinha

Poisoning poets and shredding books of verse

The responsible will not be broken

Home worlds

Ownership and tenuriality of the Wissahickon

Did you notice the 'tiny, tiny wayside flowers'?

Gifts, gifting and their rubbishing

History is new(s)

Journalism inadvertently learned

Reflections on the young poetic heart

Wordaholic, trynasty and other portmanteaus

The 'Loku Aiya' of all 'Paththara Mallis'

Subverting the indecency of the mind

Character theft and the perennial question 'who am I?'


A degree in people

Faces dripping with time

Saji Coomaraswamy and rewards that matter

Revolutionary unburdening

Seeing, unseeing and seeing again

Alex Carey and the (small) matter of legacy

The Edelweiss of Mirissa 

The insomnial dreams of Kapila Kumara Kalinga 

The clothes we wear and the clothes that wear us (down) 

Every mountain, every rock, is sacred 

Manufacturing passivity and obedience 

Precept and practice 

Sanjeew Lonliyes: rawness unplugged, unlimited 

In praise of courage, determination and insanity 

The relative values of life and death 

Feet that walk 

Sarinda's eyes 

Poetry and poets will not be buried 

Sunny Dayananda 

Reunion Peradeniya (1980-1990) 

What makes Oxygen breathable?  

Sorrowing and delighting the world 

The greatest fallacy  

Encounters with Liyanage Amarakeerthi 

Beyond praise and blame 

Letters that cut and heal the heart 

Vanished and vanishing trails 


A forgotten dawn song from Embilipitiya 

The soft rain of neighbourliness  

The Gold Medals of being 

Jaya Sri Ratna Sri 

All those we've loved before 

Reflections on waves and markings 

A chorus of National Anthems 

Saying what and how 

'Say when' 

Respond to insults in line with the Akkosa Sutra 

The loves of our lives 

The right time, the right person 

The silent equivalent of a thousand words 

Crazy cousins are besties for life 

Unities, free and endearing 

Free verse and the return key

"Sorry, Earth!" 

The lost lyrics of Premakeerthi de Alwis 

The revolution is the song 

Consolation prizes in competitions no one ever wins 

The day I won a Pulitzer 


Ella Deloria's silences 

Blackness, whiteness and black-whiteness 

Inscriptions: stubborn and erasable  


Deveni: a priceless one-word koan 

Enlightening geometries 

Let's meet at 'The Commons' 

It all begins with a dot 

Recovering run-on lines and lost punctuation 

'Wetness' is not the preserve of the Dry Zone 

On sweeping close to one's feet 

Kumkum Fernando installs Sri Lanka in Coachella, California

To be an island like the Roberts... 

Debts that can never be repaid in full

An island which no flood can overwhelm 

Who really wrote 'Mother'? 

A melody faint and yet not beyond hearing 

Heart dances that cannot be choreographed 

Remembering to forget and forgetting to remember 

On loving, always 

Authors are assassinated, readers are immortal 

When you turn 80... 

It is good to be conscious of nudities  

Saturday slides in after Monday and Sunday somersaults into Friday  

There's a one in a million and a one in ten 

Gunadasa Kapuge is calling 

Kumkum Fernando installs Sri Lanka in Coachella, California 

Hemantha Gunawardena's signature 

Pathways missed 

Architectures of the demolished 

The exotic lunacy of parting gifts 

Who the heck do you think I am? 

Those fascinating 'Chitra Katha' 

The Mangala Sabhava 

So how are things in Sri Lanka? 

The most beautiful father 

Palmam qui meruit ferat 

The sweetest three-letter poem 

Buddhangala Kamatahan 

An Irish and Sri Lankan Hello 

Teams, team-thinking, team-spirit and leadership 

The songs we could sing in lifeboats when we are shipwrecked 

Pure-Rathna, a class act 

Jekhan Aruliah set a ball rolling in Jaffna 

Awaiting arrivals unlike any other 

Teachers and students sometimes reverse roles 

Matters of honor and dignity 

Yet another Mother's Day 

A cockroach named 'Don't' 

Colombo, Colombo, Colombo and so forth 

The slowest road to Kumarigama, Ampara 

Sweeping the clutter away 

Some play music, others listen 

Completing unfinished texts 

Mind and hearts, loquacious and taciturn 

I am at Jaga Food, where are you? 

On separating the missing from the disappeared 

Moments without tenses 

And intangible republics will save the day (as they always have) 

The world is made of waves 


The circuitous logic of Tony Muller 

Rohana Kalyanaratne, an unforgettable 'Loku Aiya' 

Mowgli, the Greatest Archaeologist 

Figures and disfigurement, rocks and roses 

Sujith Rathnayake and incarcerations imposed and embraced 

Some stories are written on the covers themselves 

A poetic enclave in the Republic of Literature 

Landcapes of gone-time and going-time  

The best insurance against the loud and repeated lie 

So what if the best flutes will not go to the best flautists? 

There's dust and words awaiting us at crossroads and crosswords 

The books of disquiet 

A song of terraced paddy fields 

Of ants, bridges and possibilities 

From A through Aardvark to Zyzzyva  

World's End 

Words, their potency, appropriation and abuse 

Street corner stories 

Who did not listen, who's not listening still? 

The book of layering 

If you remember Kobe, visit GOAT Mountain 

The world is made for re-colouring 

The gift and yoke of bastardy 

The 'English Smile' 

No 27, Dickman's Road, Colombo 5 

Visual cartographers and cartography 

Ithaca from a long ago and right now 

Lessons written in invisible ink 

The amazing quality of 'equal-kindness' 

A tea-maker story seldom told 

On academic activism 

The interchangeability of light and darkness 

Back to TRADITIONAL rice 

Sisterhood: moments, just moments 

Chess is my life and perhaps your too

Reflections on ownership and belonging 

The integrity of Nadeesha Rajapaksha 

Signatures in the seasons of love

To Maceo Martinet as he flies over rainbows 

Sirith, like pirith, persist 

Fragrances that will not be bottled  

Colours and textures of living heritage 

Countries of the past, present and future 

A degree in creative excuses

Books launched and not-yet-launched 

The sunrise as viewed from sacred mountains 

The ways of the lotus 

Isaiah 58: 12-16 and the true meaning of grace 

The age of Frederick Algernon Trotteville 

Live and tell the tale as you will 

Between struggle and cooperation 

Of love and other intangibles 

Neruda, Sekara and literary dimensions 

The universe of smallness 

Paul Christopher's heart of many chambers 

Calmness gracefully cascades in the Dumbara Hills 

Serendipitous amber rules the world 

Continents of the heart