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Hulftsdorp Hill

3rd October 1999

Judicial appointments: rules that matter

By Mudliyar
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Sarath Silva was sworn in by the President as Chief Justice. He was received at the Attorney-General's Department after having been sworn in, by Acting Attorney General K. Kamalasabaysan. 

Mr. Kamalasabaysan was expected to be sworn in as the Attorney-General. He was told that there was a difficulty in preparing two warrants, one for the appointment of the Chief Justice and the other for the appointment of the Attorney-General. Soon there was reports in the government media that Justice Asoka de Silva would be sworn-in as AG. But so far neither Mr. Kamalasabesan nor Justice Asoka de Silva has been appointed as AG.

According to Desmond Fernando PC ( one time President of the Bar Association) the ceremonial sitting to welcome the new Chief Justice was hastily arranged. The usual practice, according to Mr. Fernando, was for the President of the Bar Association to meet the Chief Justice and inform him of his desire to welcome the Chief Justice at a ceremonial sitting. Instead, he said the ceremonial sitting was arranged by the Presidential Secretariat. Mr. Fernando as a President's Counsel was invited over the telephone by a woman officer working for the Secretary to the Supreme Court. 

Usually letters are sent to President's Counsel inviting them to the ceremonial sittings. Mr. Fernando made these disclosures in the presence of Bar Association President Upali Gunaratne at a BASL Human Rights Committee seminar where Param Cumaraswamy, UN rapporteur on the independence of judges and lawyers, made some forthright comments about the appointment of the chief justice. 

Mr. Gunaratne did not contradict what Mr. Fernando said. Of the most senior and respected counsel who frequently appear before the Supreme Court, the notable absentees were R.K.W. Gunasekera, E.D. Wikramanayake, Ranjith Abeysuriya, P.C., Desmond Fernando, P.C. 

Justices Mark Fernando, A.R.B. Amarasinghe, and D.P.S. Gunasekera were absent. Justices Amarasinghe and Gunasekera were out of the country. Of the High Court Judges the most notable absentee was Mahanama Tilakeratne. Of the District Court Judges the most notable presence was that of Upali Abeyratne. 

The draft speech prepared by a very senior member of the Executive Committee of the Bar Association which did not include the word "welcome" was later altered by the members of the Executive Committee. The Executive Committee of the Bar Association comprises Anoma Gunathilake, instructing Attorney of Mr. Sarath Silva, Ikram Mohamed, who had given affidavits on behalf of Upali Abeyratne to the Committee that found him guilty of the charges framed against him on the complaint made by W. A. Jayasekera, Parakrama Karunaratne, one time confidante of Sarath Silva, now under a cloud, and others. 

After the Chief Justice took oaths he attended a ceremony organized by the Mahabodhi Society at Maligakanda to commemorate the birth anniversary of Anagarika Dharmapala. When the organizers requested the Chief Justice to sit next next to the Speaker, he politely refused and sat on the steps, and listened to the oration of Rev. Keeniyawe Palitha, extolling the virtues of the newly appointed Chief Justice; momentarily, the late Anagarika Dharmapala, was forgotten. Incidentally, two factions, one supported by Rev. Keeniyawe Palitha, are in courts fighting for the property at Maligakanda. 

Judge Tilakeratne who was nominated to High Court No:7 Colombo which was kept vacant till his case was concluded at Kesbewa has been transferred to Balapitiya High Court effective from October 15. 

Mr. Tilakeratne wrote to the Judicial Service Commission and withdrew his earlier letter requesting that he be posted to a station out of Colombo. This he did because there were a number of cases were pending before his court. 

Mr. Tilakeratne, after assuming duties as High Court Judge Colombo, had made a series of orders concerning the suspects produced before him, charged under the PTA, the only evidence being the confession recorded by a Gazetted officer. 

It must be said that a majority of the cases ended in acquittals as the voluntary nature of the alleged confessions was attacked by the defence.

It is the usual practice for a judge to be in one station at least for three years, but there have been exceptions to this rule with Judges remaining in one station for more than three years. Suddenly he was transferred to Balapitya High Court. Balapitiya High Court Judge Kalawila was transferred to Colombo Commercial Court and Judge P. Wijeratne was transferred out of the Commercial Court. 

It is necessary to mention here that Mr. Tilakeratne filed a fundamental rights case, naming Sarath Silva, the then Attorney General, personally responsible for violations of his fundamental rights. Sarath Silva in his affidavit stated that he came to know that judge Tilakeratne was in custody around 8.00 p.m. on that day. 

Ranjith Abeysuriya,Counsel for Mr. Tilakaratne, raised a pertinent question. If Mr. Tilakeratne was kept in custody at the CID after 8.00 p.m. till next day morning was not Sarath Silva guilty of violating Mr. Tilakeratne's fundamental rights? The Supreme Court thought otherwise. The Supreme Court made no finding against Mr. Silva. It is also important to remember that Mr. Silva in his affidavit stated that the police notes produced by the respondent Police Officers to show that they got instructions from the Attorney-General, were concocted and fabricated. 

In the meantime, W. A. Jayasekera filed a complaint to the Supreme Court against Sarath Silva, requesting it to strike him off the roll. Those who supported Mr. Silva were of the opinion that a mere complaint to the Supreme Court means nothing. He has not been found guilty of any misconduct. After all, every man is presumed innocent until found guilty. 

But it has been the practice in the case of a lawyer applying to become a Magistrate or Primary Court Judge that he should disclose whether there is any complaint pending against him in the Bar Association or in the Supreme Court. It is expected that the non-disclosure is fatal for him to be admitted to the minor Judiciary. Similarly when an attorney-at-Law applies for silks, the past presidents have inquired from the Supreme Court and the Bar Association whether there are any complaints against him being investigated. If there is any, it is expected of the president, in keeping with the high traditions of appointing President's Counsels, not to appoint such a person. 

Similarly the Chief Justice is not expected to recommend judges to be nominated to the higher Judiciary if there are any complaints pending against them to be investigated by the JSC. 

An important opinion in this regard was expressed by columnist Nayana in her column 'Legal Watch' which appeared in the Sunday Island of September 26. She says "it could be argued that a Judge, no less than any other person, is entitled to be considered innocent until proven guilty. On the other hand, it could also be pointed out that the presumption of innocence does not prevent ordinary persons from being remanded, released on bail or interdicted from their places of employment whilst inquiries against them are pending." 

In addition they are not permitted to enter their place of work until the inquiry is concluded. Justice demands that severe conditions should be placed upon a suspect or any person interdicted, and that he should not interfere or intermeddle with the inquiry that is pending against him. These procedures are laid down so that no one could even remotely accuse the institution that it had permitted the suspect to mingle in the establishment which would enable him to trifle with the evidence which is being gathered against him. 

Mr. Tilakeratne requested that he be sent on compulsory leave until his case was concluded. Though no action was taken against him, when he was produced and bailed out by the Kesbewa Magistrate, the JSC quite correctly acceded to the request of Mr. Tilakeratne and placed him on compulsory leave.

The irony is, according to Nayana, that the matters of controversy surrounding the Chief Justice were public knowledge before the appointment was made, and hence, and if the appointment is to be faulted, a primary blame lies with the appointing authority. The appointment has raised debate about the wisdom of giving sole discretion in respect of Judicial appointments to the President.

Many lawyers in the High Court of Colombo who fought in defence of Mr. Tilakeratne, are aghast that he has been transferred to Balapitiya and the letter of transfer has been signed by the Chief Justice. 

Many may not know that Mr. Jayasekera who complained against Sarath Silva annexed to his affidavit a supporting affidavit from Hemalatha Tilakeratne wife of High Court judge Mahanama Tilakeratne.

The Jungle Telegraph 

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