Malinda Words: 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]

22 November 2023

Merit, integrity and seniority in superior courts

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