A judicial system is fragile. It requires care and vigilance to ensure its efficacy and prevent destruction. It also requires a positive mindset among judges, lawyers and litigants, as well as the confidence of ordinary people.
When conditions promoting negative attitudes and habits among members of the judiciary arise, the entire judicial system can rapidly collapse. Such conditions include when judicial authority is in doubt or when judicial independence and integrity cause adverse results. Members of the legal profession, who are closest to judges in the judicial process, will quickly pick up on any negative attitudes. It is up to them to resist such negative behaviour and to redirect the judicial institution to its normative position. The failure of such resistance will hasten the degeneration of the judiciary.
The legal profession, as all professions, will also comprise those willing to use the degeneration for personal gain. These persons manipulate the situation to the extent that the system is no longer perceived as rational or functioning. It is the litigant who is caught in the middle. If he loses faith in the rational outcome of the judicial process, he may be inclined towards extrajudicial means of dealing with his grievances, including corruption and violence. In fact, there are likely to be many persons unwilling to contest legal wrongs in a court of law due to their perception that it is might and not right that determines the ultimate result.
When ordinary people observe the negative behaviour of their fellow citizens who are judges, lawyers or litigants, they will inevitably be affected as well. There will be no public confidence in the judicial process and negative attitudes towards judicial and legal professionals will develop. When these attitudes permeate throughout society, it is an enormous–if not impossible–task to bring back any belief in a rational or logical system.
There is common consensus that Sri Lanka reached this stage some time ago. The only attempt made to undo the situation was the adoption of the 17th Amendment to the Constitution in 2001. While the attempt was inadequate to deal with the gravity of the situation, it was the first step towards restoring society to a logical and rational way of functioning, and as such, it was deserving of public support. Together with the 17th Amendment, other measures to improve the behaviour and attitudes of the judiciary, lawyers, litigants, civil servants and all citizens should also have been initiated. Instead, as of March 2005–when members of the Constitutional Council finished their term of office–the ruling government abandoned even this small towards positive change.
To worsen the situation, President Mahinda Rajapakse subsequently decided to ignore the Constitutional Council and make presidential appointments to the commissions under the 17th Amendment, in violation of constitutional provisions. This has finally culminated in President Rajapakse making direct appointments to the Court of Appeal and Supreme Court. This clearly demonstrates that the Sri Lankan state is unable to provide the care and vigilance needed to keep the judicial system functioning effectively. Unless the people of Sri Lanka mourn their loss of a rational society and reorient their attitude towards building strong and capable institutions, their lives are likely to be even bleaker than at present.
