A. Objective:

To understand the concepts of judicial accountability as outlined in international law, and compare these to current Sri Lankan institutions. The lesson is split into two sections, covering judicial accountability and contempt laws.

I. Judicial accountability and impartiality

?

"Judges are conferred and clothed with independence in their adjudicative process so that they can dispense justice without fear or favour in accordance with the facts, evidence and the law presented to them. For this purpose many national constitutions provide for conditions with regard tot he appointments, promotions, discipline, security of tenure and immunity to insulate them. These conditions are prerequisites for protection of their independence... The guarantee of judicial independence is for the benefit of the judged, not the judges. There have been cases where judges are said to have abused this independence. These insulations are sometimes used as a shield against investigations for judicial misconduct including investigations for corruption... Judges are accountable to the extent of deciding the cases before them expeditiously in public (unless for special reasons), fairly and delivering their judgments promptly and giving reasons for their decisions; their judgments are subject to scrutiny by the appellate courts... Beyond these parameters, they should not be accountable for their judgments to any others. Judicial accountability stretched too far can seriously harm judicial independence. ... It is not their [the judges? role to make disparaging remarks about parties and witnesses appearing before them or to send signals to society at large in intimidating and threatening terms, thereby undermining other freedoms like freedom of expression." (D'ato Param Cumaraswamy, 'Tension between judicial independence and judicial accountability - An International Perspective.' Columbo, 17 October 2003.)

International Covenant on Civil and Political Rights (ICCPR), article 14

"1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

Sri Lankan Judicature Act No. 2 of 1978  (as amended)

Section 49(1) stipulates that "no judge shall be competent and in no case shall any judge be compellable to exercise jurisdiction in any action, prosecution, proceeding or matter in which he is a party or personally interested.

Sub-section (2) of that section provides that no judge shall hear an appeal from or review any judgement, sentence or order passed by himself.

Sub-section (3) of that section states that where any judge who is a party or personally interested, is a judge of the Supreme Court or the Court of Appeal, the action, prosecution, proceeding or matter to or in which he is a party or is interested, or in which an appeal from his judgement shall be preferred, shall be heard or determined by some other Judge of Judges of the said court." (Sri Lanka Legal Reforms, Vol. 1, No. 3, p. 8)

According to international norms of fair trial, a just and impartial tribunal is essential for a fair trial, which is a fundamental right of all peoples. It is for this reason that the no-bias principle for judges requires any judge personally involved or interested in a case to not determine/hear the case. In light of this, Chief Justice Silva should not have been a presiding judge in Tony’s case.

II. Charge of contempt

Another factor involved in judicial accountability is the charge of contempt:

"Another source of concern is the manner in which contempt of court powers are used to instill fear. When judges resort to such conduct, they lose their judicial decorum and eventually their insulation from the guarantees for judicial independence. They open the door for public criticism of their conduct and bring disrepute to the institution. That could lead to loss of confidence in the system of justice in general. Respect for the judiciary cannot be extracted by invoking coercive powers except in extreme cases. The judiciary must earn its respect by its own performance and conduct..." (Cumaraswamy, ‘Tension between judicial independence and judicial accountability - An International Perspective.?

Contempt of court laws are not to be used lightly. According to the often cited judgment made by Lord Denning in 1968,

"It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Le my say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, would I add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

So it comes to this. Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the utmost."?Qtd. in Cumaraswamy, ‘Tension between judicial independence and judicial accountability - An International Perspective.?

For Tony to be sentenced to one year imprisonment while seeking justice, is the height of injustice perpetrated through the judicial process. The absence of judicial accountability is a central problem in the implementation of human rights, particularly in Asia. The judiciary is the last resort for citizens when the executive, legislature and others commit human rights violations. Thus, when the judiciary itself ignores human rights, it participates in the abuse of power.

?lt;/p>

B. Questions For Discussion

1. What do you think would have happened if there was no campaign for Tony?

2. What is your opinion about the select committee of Parliament that is currently meeting about the contempt laws?

3. What are the problems and obstacles with regard to the judiciary, laws and legal system, in your country, in bringing human rights cases before courts?

?lt;/p>