That Great Trait of Judicial Activism

A great deal may be done by severity,
more by love, but most by clear discernment and impartial justice.
-Johann Wolfgang von Goethe-Justice as quoted by Eckerman

This column dedicated to the notion of making Sri Lanka the Wonder of Asia turns its spotlight on that great trait of judicial activism as sometimes exhibited by our courts as Sri Lankan society would aspire for such activism in order to obtain just relief for litigants who apply to our courts for redress of their grievances.
It was reported in the media (DN 9th April 2012) recently that Hon. Justice Shiranie Thilakawardene said in a recent judgement that the Courts have power to grant an order that is appropriate, just and equitable particularly with regard to the violations of constitutional rights.
It was further stated in the judgement that the Courts have power to forge new tools in this regard, in order to grant appropriate relief apart from the declaration which the court usually makes in such circumstances.
In a case which concerned the non admission of a child to a school in spite of having met all necessary criteria the Court ordered the third respondent to pay a sum of LKR 500,000 as compensation from the personal funds of the respondent as the Court held that due to the cumulative actions of the respondent, the second petitioner child had not been granted admission which was his due claim on merit, as the child should have been accorded equal treatment as guaranteed under the Constitution thereby violating the said right resulting in the loss of twelve months of schooling in the school of his choice to which he had every legitimate claim.
A copy of the judgement was ordered to be sent to the relevant Director and the Secretary of the Ministry for necessary action.
It was also reported in the media that in a recent order of the Supreme Court in a case filed for the vindication of the fundamental rights of the depositors of the Golden Key Credit Card (GKCC) Company who were about to receive repayment on the proceeds of the sale of the Golden Key Eye Hospital suffered a terrible set back when the matter was reverted to the Commercial High Court (CHC) thereby thousands of depositors and their families who were anxiously hoping for repayment, at least partly, in time for the Sinhala and Hindu New Year lost that opportunity.
Counsel representing a depositors’ association submitted to court that the case can be referred to the CHC after the three assets are disposed of and a part settlement made to depositors. Cases in the CHC drag on for a long time. Justice delayed is justice denied. For the past one and half years, not a cent had been repaid to GK depositors. In any event as the Supreme Court is the final appellate Court the matter would eventually end up in the Supreme Court after protracted litigation by which time the elderly depositors who had invested their EPF and ETF funds in Golden Key in the hope of leading a comfortable life in the evening of their lives would have gone to their graves after spending their last days in misery.
The echoes of their mental agony would reverberate on the living who were either architects or contributed to the non refund of their hard earned money thereby resulting in their misery falling upon such persons and their families without a doubt. In the absence of judicial intervention, divine intervention would ensure punishment to such wrongdoers.
“We are shattered”, said Ms. Dushanthi Hapugoda, President of the All GKCC Depositors’ Association. “We thought we will receive at least another LKR 100,000 repayment to meet the pressing needs of our children during the forthcoming New Year”, “What a battle it was for three long years – we didn’t even have time for our personal commitments. We had to struggle and struggle in search of justice”, she said.
It was reported that a buyer for the ENT hospital was present in court with his lawyer and was prepared to place a non refundable deposit of USD 1 million within four days and pay the balance before April 30 with the permission of the Court as the Court had earlier ordered that the assets be advertised for sale, in the local media.
Prof. Lakshman R. Watawala, Chairman of the Committee of Chartered Accountants said that LKR 1.4 billion can be raised if the three key assets are disposed of. This will enable a repayment of at least LKR 200,000 each to depositors.
Ms. Hapugoda said that more than LKR 200 million has been spent on the Committee to carry on its work. The three members are paid LKR 200,000 each per month. “There are buyers for some of the GK assets. What we plead for is to sell these assets and make at least a part payment to desperate depositors, some of whom have already committed suicide in despair”, she said.
In an earlier media report it was stated that the Celestial Residencies, another Ceylinco property was to be acquired by the State without any repayments being made to the depositors whose money had been invested in the property. There is a speculation that a highly influential political figure is interested in the purchase of the Golden Key Eye Hospital at a very low price.
As Kautilya said in his Arthashastra speaking of the King or the ruler: ‘a king with a depleted treasury eats into the very vitality of the citizens and the country.’ At the same time ‘a king, who impoverishes his own people or angers them by unjust exactions will also lose their loyalty.’ Kautilya further stated ‘impoverishment, greed and dissatisfaction are engendered among the subjects, when the king:(i) fails to give what ought to be given and exacts what he cannot rightly take;(ii) does not punish those who ought to be punished but punishes those who do not deserve to be;(iii)  indulges in wasteful expenditures, destroys profitable undertakings and(iv) fails to protect the people from thieves and robs them himself.
Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.” Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune Magazine article titled “The Supreme Court: 1947.” Schlesinger’s article profiled all nine US Supreme Court justices on the Court at that time and explained the alliances and divisions among them.
The article characterized Justices Black, Douglas, Murphy and Rutledge as the “Judicial Activists” and Justices Frankfurter, Jackson and Burton as the “Champions of Self Restraint.” Justice Reed and Chief Justice Vinson comprised a middle group.
The phrase has been controversial since its beginning. An article by Craig Green, “An Intellectual History of Judicial Activism,” is highly critical of Schlesinger’s use of the term. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times
According to law professor Brian Z. Tamanaha, ‘Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices’ As Aeschylus stated in The Eumenides (Justice):’Wrong must not win by technicalities.’
The prime function of a court is to deliver equitable justice and relief to the aggrieved litigants who come before them in the hope of obtaining redress. It is unfortunate that at times the courts merely adhere to technicalities and choose to ignore their prime function of delivery of justice and equitable relief resulting in misery to the litigants. This column applauds the recent judgement of Hon. Shiranie Thilekawardene, a highly respected judge of our Supreme Court and greatly appreciates Her Ladyship’s dicta in that judgement. As usual let me conclude with an amusing anecdote. A burglar was caught leaving the scene of crime with a bag of loot. Within four days he was appearing before the judge. The judge asked: ‘Did you have an accomplice or did you commit the crime yourself?” ”’I was alone of course” said the burglar: ”Who can get honest and reliable help these days?”