Unfair criticism of judiciary and legal profession

Any fool can criticize, condemn, and complain, but it takes character and self-control to be understanding and forgiving. – Dale Carnegie

It was reported that the Asian Human Rights Commission (AHRC) in a Statement dated 25 August 2017, titled “SRI LANKA: Lawyers, prosecutors and judges should face the mirror” stated that “a press release issued by the Bar Association of Sri Lanka (BASL) has threatened contempt of court action being taken against a deputy minister who has made some serious criticisms against the Courts and the legal profession.” The AHRC in its statement points out that the paragraph in the BASL statement “… The Bar Association of Sri Lanka notes with concern the undue and unwarranted attacks on the law enforcement authorities, the Attorney General’s Department and now the judiciary….” is even more disturbing and questions: “What are these undue and unwarranted attacks? An association like the Bar Association should specify what it considers as the undue and unwarranted attacks on the law enforcement authorities, and the Attorney General’s Department.

May we ask, as to whether is it undue and unwarranted to state that the law enforcement authorities, namely the Police have failed in their primary function of enforcement of the law in Sri Lanka? It is rather strange that the AHRC does not see it fit to reproduce the disparaging comments made by the said deputy minister which are contained in the opening paragraph of the BASL statement dated 23 August 2017 which are “….alleging that a majority of the judges and lawyers are corrupt and was the main cause for the country’s present predicament” and the comment, “While condemning the said statement we demand the deputy minister to complain against any corrupt person to the relevant authorities, including the Judicial Service Commission with a view to take necessary action if he has evidence to establish such allegations instead of making generalized statements casting aspersions on the entire judiciary and the legal community.”

Corrupt practices

In other words, the BASL has demanded to know from the deputy minister: “Who are these corrupt judges and lawyers? “What are the instances of corrupt practices and instances of corruption committed by them?” The AHRC has thought it fit to question the BASL. The most important question is “What is the country’s present predicament?” If such a predicament is present it is for the deputy minister and his government to address such problems and prosecute the corrupt judges and lawyers. The AHRC has questioned the BASL “What are these undue and unwarranted attacks?” It is obvious that the deputy minister in the event of being unable to produce any evidence to substantiate his allegations, has made such an undue and unwarranted attack.

The AHRC would do well to note the following words of Lord Denning which they have quoted from [In] Regina vs Commissioner of Police of the Metropolis ex. parte Blackburn, 2 W.L.R. 1204 which states: “All we ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to those criticisms. We cannot enter into public controversy, still less political controversy. We must rely on our conduct itself to be its vindication.” Thus, the BASL in its statement in paragraph 4 aptly states: “The Bar Association reiterates that, it is an imperative requirement for a democratic society founded upon the rule of law to preserve, protect and safeguard the independence of the judiciary.” It further states in paragraph 6: “In the circumstances, any unwarranted remarks and interference with regard to the judicial mechanism and its credibility will erode the confidence the establishment. This in turn would have serious consequences on the Rule of law.” If the AHRC were to reread the BASL statement, the AHRC would realize the truth of the statements. While constructive criticism based on facts is beneficial, arbitrary baseless criticism could be destructive and damaging to the administration of justice in Sri Lanka.

Unwarranted criticism

The AHRC also poses the questions “Is it an unwarranted criticism that as the prosecutor against crime, the Attorney General has failed to impartially and competently prosecute all the crimes that are taking place in Sri Lanka? Is it an undue and unwarranted criticism to say that the entire system of administration of justice is beset with undue and unwarranted delays and such delays have threatened the very prevalence of the rule of law in Sri Lanka?” The deputy minister and the government should respond to these questions. Has the government provided sufficient human and material resources to the Attorney General’s Department to fulfil the said demand? Are there a sufficient number of investigators in the Criminal Investigation Department (CID) and judges to meet the ends of justice without delay?” These are not questions that should be addressed to the judiciary, prosecutors or the legal profession of Sri Lanka. The government has to provide the answers to these questions. Thus the main cause for the country’s present predicament becomes obvious if the deputy minister addresses his mind to the above questions.

Concerning the judiciary as Lord Denning stated [In] Regina vs Commissioner of Police of the Metropolis ex. parte Blackburn, 2 W.L.R. 1204 : “…(This) 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. Let me 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 the 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 we are mistaken and our decisions erroneous, whether they are subject to appeal or not.”

Outspoken comments

Here it is important to note that even outspoken comments must be fair and to be fair such comments must be based on the truth and nothing but the truth. Unfair baseless comments uttered to gain undue political advantage or cheap publicity could be very damaging to the fair administration of justice due to the erosion of public confidence that such comments bring forth and Contempt of Court proceedings lie to punish such irresponsible persons.

As the AHRC states: “It is far better to look in the mirror and recognize whatever that is ugly that may have begun to emerge in one’s own appearance. Such honesty and frankness does no harm. However, hypocritically evading criticism is letting down the legal profession, the independence of the judiciary and the freedom for the people to live without fear and suspicion.” It is true indeed. AHRC has given valuable advice in the form: “When criticisms are made for whatever purpose they may be, the wise course to follow is to listen carefully and utilize every opportunity to achieve radical reforms that are essential if the rule of law and the recourse to justice are not to become an illusion for the people who seek justice. The legal profession is noble to the extent that lawyers are willing and capable of leading the fight for justice. If we lose a fighting Bar, we virtually lose the battle for justice.”

In conclusion, the government must take immediate steps to strengthen the human and material resources in all institutions dealing with the administration of justice including the judiciary, Attorney General’s Department and the law enforcement agencies in order to ensure an efficient system of administration of justice in Sri Lanka without further delay. Finally, as Winston Churchill said, “Criticism may not be agreeable, but it is necessary. It fulfills the same function as pain in the human body. It calls attention to an unhealthy state of things.”