Corruption, Governance and Judiciary, A Case Study Based on Sri Lanka

By Dr. S.W.S.B. Dasanayaka
E-mail: sarath.iba07@gmail.com

Abstract

There are very many strong evidences available for corruption and bad governance in Sri Lankan society. Today this endemic issue is so widespread and it renders many consequences for whole society especially it very much harms the poor and in most cases powerful rich and ruling elites and their supporters and regime loyal bureaucrats are main beneficiaries of this. Sri Lanka is generally considered as the world’s largest inefficient government with over hundred cabinet, non-cabinet and Provincial Council ministers and highest number of per-capita government employees. Some of these become very corruptive within a very short period. The Transparency International always ranks Sri Lanka as the bottom level country where the corruption is tolerated and informally legalized. Especially from authorities no visible actions are taken to control it. The Parliamentary Committee on Public Enterprises (COPE) revealed that the country had lost colossal amount of wealth due to financial malpractices of many state institutions and departments. According to the latest (2008) corruption ranking, education, police, health, defense and judiciary are the most corruptive institutions in the country. In this context, this paper assesses the corruption and governance aspects of Sri Lankan society with special emphasis on judiciary. Many strong evidences exist regarding the abuse of entrusted power for private gain by undermining justice by the judiciary of Sri Lanka. On the one hand it denies victims and the accused the basic human right of a fair and impartial trial and on the other, it has a far reaching negative implication for whole Sri Lankan society and its main socio-economic and political fabric. These implications can be erosion of the ability of the international community to tackle transnational crime and terrorism, diminish of trade, economic growth and human development and finally it denies citizens impartial settlement of disputes with neighbors or the authorities by loosing confidence of the law of the land. Especially, if judicial system dishonored by bribery and corruption undermine confidence in good governance across all sectors of government by giving a blunt message: corruption is tolerated and legalized in this society and people must find alternative ways of justice. It has many negative impacts for sound less poor people in Sri Lankan society. The bad governance in Sri Lankan judiciary starts from political interference in judicial processes by the executive or legislative branches of government to bribery and nepotism, etc. The Sri Lankan judiciary has very many provisions to improve its checks and balances, transparency and accountability aspects. But practical implementations of these are not happening due to very many reasons explained in this paper. Therefore most institutions related to judiciary are out of the equation of good governance and personnel and political agendas are the day of reality. This paper concludes that Sri Lankan Judiciary need full reforms with decentralization of courts system with introduction of very tight good governance framework by empowering independence with high quality human resources in apex and auditing bodies. Furthermore, the judiciary should be more open to civil society and international norms to improve its governance, transparency, accountability and quality aspects.

Key words: Corruption, Governance, Judiciary, Sri Lanka.
JEL Classification: K4, H11.

1) Introduction

The legal system of Sri Lanka is a highly complex mixture of English common law, Roman-Dutch law, Muslim law and customary laws. The basis of criminal law and procedure is the English common law. After Sri Lanka was colonized by the British Empire, British laws were gradually applied throughout the nation. Sri Lanka has an adversarial system of justice. The Attorney-General is the principal law officer of the state. The District Attorney and state counsels in his department conduct prosecutions. However, the bulk of prosecutions in minor cases are instituted in the Magistrates' Courts by the officer in charge of a police station. This may be the start of bad governance and corruption in all judiciary. However, due to the unsatisfactory nature of the existing criminal laws, which led to a state of uncertainty, the Penal Code of Sri Lanka was first enacted in 1883. It was based on the corresponding Indian law. The Criminal Procedure Code of 1898 was established and then replaced by the Administration of Justice Law of 1973. This was later replaced by the Code of Criminal Procedure Act of 1979 and the Judicature Act of 1978 as amended by the Judicature (Amendment) Act of 1979. The hierarchy of the judicial system is as follows: the Supreme Court in three courts in session, the Court of Appeal six or seven courts in session, 25 High Courts, 77 District Courts, 92 Magistrates' Courts and 18 Primary Courts. All these courts have around 220 judges and over 3000 court employees. The criminal courts of first instance are the Primary Courts, Magistrates' Courts, Combined Courts, and the High Court. Cases may be appealed to the Court of Appeal and further review may be sought in the Supreme Court. The High Court is the court of first instance for all prosecutions initiated with an indictment. The court of second instance is the Court of Appeal. The Supreme Court exercises final appellate jurisdiction as well as special jurisdiction for alleged violations of fundamental rights and freedoms guaranteed by the Constitution. The Judicial Service Commission has responsibility for the appointment, promotion, discipline, transfer and dismissal of all judges except those in Court of Appeal and supreme court. During the last few decades the integrity of the whole judiciary was been questioned by very many researchers (Marga Institute, 2001, Ivon.V, 2002) and openly debated by many international bodies. Most of the reported stories regarding the integrity and bad governance of the Sri Lankan judiciary start with political interference in judicial processes by either the executive or legislative branches of government and various forms bribery and other human evils due to very many reasons. In this context this paper ascertains the corruption and governance aspects of the Sri Lanka with special emphasis on the judicial system by using questionnaire survey supplemented by the literature survey and interviews with various stakeholders in the judicial system.

2) Objective

The main objective of this paper ascertains the corruption and governance aspects of Sri Lankan society with special emphasis on the Judiciary.

3) Methodology

A comprehensive literature survey was carried-out to find the situation of other countries and the works done in this field of Sri Lanka. A structured questionnaire was administered to conduct interviews with various stakeholders in the whole judiciary system. This structured questionnaire was carried-out at lower and upper level courts in the Western Province of Sri Lanka. But most of the times judges and senior lawyers declined to respond to the questions due the fear of contempt and defame of court and very many other excuses. In addition to this series of interviews were undertaken with key lawyers, legal sector managers, and important officers in the court system and justice Ministry decision makers.

4) Key Issues in Sri Lankan Judiciary

• Many recorded and un-recorded strong evidences are existed regarding the abuse of entrusted power for private gain undermining justice by the judiciary in Sri Lanka. This is happening in lower level to high courts in various forms (Ivon.V, 2003; Marga Institute, 2002).
• On the one hand it denies victims and the accused the basic human rights of a fair and impartial trial and on the other, it has a far reaching negative implication for whole Sri Lankan society and its main socio-economic and political fabric.
• Sri Lankan judiciary mainly understands their duty as to settle disputes between different citizens and their organizations. Judiciary is very weak in settling disputes between state and the citizens.
• This can lead to erosion of the ability of the international community to tackle transnational crime and terrorism, diminish of trade, economic growth and human development and finally it denies citizens impartial settlement of disputes with neighbors or the authorities by loosing confidence of the law of the land.
• Dishonored judicial system undermine confidence in good governance across all sectors of government by giving a dull message: corruption is tolerated and legalized in this society and people must find alternative ways of justice or get used to live with corruption. It has many negative impacts for sound less poor people in Sri Lankan society.
• The main forms of bad governance in Sri Lankan judiciary starts from political interference in judicial processes by the executive or legislative branches of government to bribery and nepotism, etc.
• The Sri Lankan judiciary has very many provisions to improve its checks and balances, transparency and accountability aspects. But practical implementations of these are not happening due to very many reasons.
• Judges form only one part of the ‘judicial system’ in Sri Lanka. They only operate after the police, prosecutors, lawyers and other court personnel have entered to the scene. Therefore, judges alone can not be achieved so called good governance without proper stakeholder integration in the whole chains of Judiciary.

5) Reasons for the corruption and bad governance in Sri Lankan Judiciary

• The failure to appoint judges on merit, which can lead to the selection of corruption-oriented judges.
• Appointing judges with a bad record and misconduct for senior judicial position gives a bad example for the whole Sri Lankan society.
• Poor salaries, bad working conditions and lack of training makes judiciary personals vulnerable to bribery.
• Unfair processes for the removal of corrupt judges, which can lead to the politicization of judge transfers and removals.
• Complex and outdated court procedures that can make it difficult for the media and civil society to monitor court activities.
• Insufficient resources and backlogs of cases.

6) Concluding Remarks

• The Sri Lankan Judiciary needs full reforms with decentralization of courts system with introduction of very tight good governance framework by empowering independence with high quality human resources in apex and auditing bodies.
  
• Special attention should be given to improve governance in lower level courts system.
  
• Furthermore, the judiciary should be more open to civil society and international norms to improve its governance, transparency, accountability and quality aspects.
  
• Delayering also may be good. It involves a radical redesign of an organization’s structure to take account of late 20th-century developments in information technology, education and consumer demand, and other socio-economic and politico changes.
  
• Among the benefits claimed for the delayered organizations are the following: it needs fewer managers, it is less bureaucratic, it can take decisions more quickly, it encourages innovation, it brings judicial managers into closer contacts with the organization’s customers and it produces cross-functional employees.
  
• Very recently the country’s highest court improved its credibility by giving very controversial judgments regarding high powered politicians and senior bureaucrats. Removal of Country’s powerful Finance Ministry Secretary and Chairmen and Minister of Oil Corporation, interrogation of powerful former President and many more…..These judgments improved Chief Justice’s past bad image and improved people’s trust and respect to upper level Judiciary.

7) Policy Remarks

• Non-existence of a good mechanism with proper checks and balances to improve transparency and accountability of whole judicial system is the main factor responsible for lower level of governance with corruption in Sri Lankan judiciary.
  
• Actually there should be some promotional campaign to get the best talented people into this legal profession. At the moment in many countries good quality talents are not in the door-steps of law colleges.
  
• Formulation and implementation of good Information and Communication Technology (ICT) framework may improve the efficiency in whole judiciary in a very transparent and accountable manner.
  
• Introduction of many ethics and value based soft sciences into law curricula may be a good way to start the inculcation of these good practices into the legal professional’s minds at early stages.
  
• There is no magic set of guidelines, formula or mechanism to completely eradicate the judicial corruption in Sri Lanka. Case by case approach necessary taking into consideration of each and every court system’s special operational circumstances.
  
• It can start with formulation of the minimum standards for developing and maintaining integrity, accountability and transparency in whole judicial system.
  
• The critical question is that in a country where each and every sector is highly corruptive how only the judiciary can be expected to be non corruptive.
  
• Actually the extent of corruption and bad governance in judiciary is a reflection of the society which it operates. It is less likely in societies where there is board adherence to the rule of law, transparency, trust, good codes, good perks and job security and independence for all legal workers and accountability measures are in place.

References

Cooray.A (1984), Court and Legal System in Sri Lanka – Historical Analysis.

Ivon.V (2003) An unfinished struggle, An investigative exposure of Sri Lanka judiciary and the chief justice, Rayvaya publishers.

Karunaratne, N.H.A., "Dispositional Decisions in the Criminal Justice Process in Sri Lanka," UNAFEI Resource Material Series, No.16, pp. 234-241, Tokyo, Japan: UNAFEI (1978).

Law and Society Trust, personal communication of unpublished research data dated October 13, 1993, Kynsey Terrace, Colombo 8, Sri Lanka.

Marga Institute (2002), A system under siege, An inquiry into the judicial system of Sri Lanka.
The Parliamentary Committee on Public Enterprises (COPE) (2008), Corruption on Government Depts and Institutions, Sri Lankan Parliament.

Singh. A and Zahid A (eds.2008), Strengthening governance through access to justice, PHI Publishers, New Delhi, India.

Singh.A, Kapoor.K and Bhattacharyya.R (eds.2008), Governance and poverty reduction, Beyond the cages of best practices, PHI Publishers, New Delhi, India.

Transparency International (2008), Annual Report - 2007.