For those of us who prefer to take refuge in comfortable illusions that this Presidency only hides a velvet hand in an iron glove (to mischievously twist that proverbial saying around), the motion of impeachment of the Chief Justice of Sri Lanka presented by 117 government MPs to the Speaker this week should dispel all [...]


The final nail in the coffin of the judiciary


For those of us who prefer to take refuge in comfortable illusions that this Presidency only hides a velvet hand in an iron glove (to mischievously twist that proverbial saying around), the motion of impeachment of the Chief Justice of Sri Lanka presented by 117 government MPs to the Speaker this week should dispel all such arrant foolishness.

Government’s intention in subordinating the judiciary
Whether the government goes ahead with the impeachment or not, let it be clearly said that the final nail in the metaphorical coffin of the institution of the judiciary in Sri Lanka is already hammered in. The fact that such a motion could have been brought at a time when a Supreme Court decision on the Divineguma Bill is due to be read out in Parliament, unequivocally spells out the government’s intention in subordinating the judiciary to its complete and utter control.

There is moreover a perceptible element of going beyond all norms of decency as exemplified in the scurrilous letter tabled by a government MP in the House last week which put the personal conduct of Sri Lanka’s first woman Chief Justice in issue without any formal verification or substantiation. Is this the purpose for which parliamentary privilege has been conferred upon these so called peoples’ representatives? What outrage is this? It may well be warned that henceforth, any judicial officer would be liable to be attacked in this manner if such abuse of parliamentary privilege is allowed to go unremarked and without collective protest.

Indeed, this incident is similar to the country being informed by none other than the President himself, of a complaint purportedly made by a lady judicial officer against the Secretary to the Judicial Service Commission (JSC), which complaint was in fact later denied by that judicial officer in the relevant inquiry. These are both equally shameful attempts to degrade judicial officers in an attempt to cow them into submission.

Public mystified as to precise charges against Chief Justice
Unlike in the case of the aborted impeachment motions against former Chief Justice Sarath N. Silva brought by the opposition during 2001-2004, the contents of which related to several counts of documented judicial misconduct that were in the public domain long before they were actually brought to Parliament, here the public is kept in the dark as to what the charges against the incumbent Chief Justice are.

All that we are told by the Media Minister this week is that the Chief Justice has ‘challenged the supremacy of Parliament.’ By logical inference, we are then supposed to link this objection to the fact that the Supreme Court had quite properly, in the initial Determination on the Divineguma Bill, insisted that the government seek the approval of all Provincial Councils prior to bringing it before Parliament? On that same logic, the Supreme Court will then stand accused of that same charge each and every time that it rules that a Bill is inconsistent with the Constitution. One may as well then do away with the Constitution once and for all.

Or is it the fact that one petition in the initial challenge to the Divineguma Bill had been sent to the Secretary General of Parliament and not to the Speaker in terms of Article 121 of the Constitution? Are these fit matters to base an impeachment of the highest judicial officer of the country? This question is self explanatory surely.

Incorrect interpretation of the Constitution
Meanwhile, the Minister of External Affairs has claimed that the very appointment of the Secretary to the JSC was unconstitutional as he was the 29th in seniority in the relevant list of judicial officers and that only a ‘senior most’ officer should have been appointed. Quite apart from the fact that this objection appears to have dawned on the Minister quite ludicrously only after all this time had lapsed after the appointment, let us enlighten this former Professor of Law who has not only forgotten the basic tenets of the law but has also veritably forgotten to read the Constitution as to what exactly the relevant provisions stipulate.

Article 111(G) of the Constitution states that ‘there shall be a Secretary to the Commission who shall be appointed by the Commission from among senior judicial officers of the Courts of First Instance.’ This Article was brought in by the 17th Amendment to the Constitution which repealed the earlier Article 113 which stated that ‘there shall be a Secretary to the Commission who shall be appointed by the President in consultation with the Cabinet of Ministers.’ Quite rightly the 17th Amendment conferred this power of appointment on the Commission itself.  On this reading, the appointment of the current JSC Secretary cannot be faulted. The term ‘senior most’ cannot be read as a gloss into this constitutional provision purely for political expediency and the Minister is himself in immediate breach of the Constitution in attempting to do so.

Moreover, from all accounts, the Minister of External Affairs is wrong not only on the law but also on the facts in his description of the JSC Secretary as being 29th in seniority. In any event, these objections appear not to have been applied to appointments made by former Chief Justices, one of whom had indeed appointed his own brother as the Secretary. Such objections therefore are clearly reserved peculiarly for those judges who dare to challenge this government even in the most minimal way.

An official communiqué from the JSC may clarify the precise factual issue regarding the seniority objection in the current context but in this environment of extreme intimidation, such clarification seems unlikely. We can only wait and see what the substance of the impeachment motion will disclose and which the Chief Justice will be called upon to answer before a Select Committee of Parliament.

The fundamental propriety of a political forum determining the impeachment of a judicial officer is meanwhile a different question altogether. It deserves to be dealt with in depth elsewhere. However, the notion of parliamentarians sitting as judges to decide the fate of the highest judicial official in the land impacts unpleasantly on the notion of safeguarding the independence of the judiciary.

Impact on the entire institution of justice
Even given this government’s flagrant flouting of the law at many different levels post war, the impeachment of the Chief Justice takes the degeneration of the Constitution to new depths. The contempt displayed for the law is patent. The threat that this holds out to the entire judiciary is clear. From this essential truth, there can be no retraction or withdrawal. In the absence of a spirited public reaction emanating from judges, lawyers, professionals and the general public against this most horrendous exercise of dictatorial power, we may well consider Sri Lanka’s judiciary as being totally unable to perform in its constitutional role in the foreseeable future.

Certainly it is not a mere question of one individual as the Chief Justice being impeached. And putting aside whatever questions that we may have regarding the political process of impeachment of judicial officers, the question here is the context of the impeachment, the vagueness of the charges brought and its clear link to the intimidation of the judiciary when controversial determinations are pending. This is the essence of the crisis that confronts us.

Moreover the fact that the government is going ahead with this farcical impeachment process at the precise time that it is called upon to answer with increasing severity by the international community in regard to its lapses in respecting the Rule of Law also signifies its profound contempt for such mechanisms. The recommendations in the report of the Lessons Learnt and Reconciliation Commission (LLRC) were all predicated on the basic foundation of an independent judiciary. For example, its stress on accountability for enforced disappearances and extra judicial executions flows from its assumption that the country will have independent and fair minded judges who will be able to hear and decide those cases impartially. If that element is taken out, then the LLRC report may well be discarded.

We can only rue what this means for the country, for the dignity of the legal system and for the integrity of the judicial branch of government, sadly battered as it has already been by the ravages of internal and external politicisation particularly in the past decade.

Right of reply: From Retired Chief Justice Sarath N. Silva
“Pistol whipping justice in Sri Lanka”
Dear Editor
An article bearing the above title written by Kishali Pinto Jayawardene was published in the Sunday Times of 21st October, 2012. The article is severely critical of my conduct as Chief Justice in the period 1999 to 2009. Her harsh and vitriolic comments directed at me have gone on through your news paper for several years reaching a crescendo in the article bearing the above title and I have to respond in the public interest.

She has commenced the highly damaging remarks based on harmful assumptions by stating that in 1999 I was appointed as Chief Justice by “one time personal friend Chandrika Kumaratunga”. I wish to place on record that I was appointed a Judge of the Court of Appeal by President J. R. Jayewardene after twenty years of service in the Attorney General’s Department commencing with my appointment as Crown Counsel. I was appointed acting President of the Court of Appeal by President Premadasa and President of the Court of Appeal by President Wijetunga. Later, I was appointed a Judge of the Supreme Court and in 1996 President Kumaratunga appointed me as Attorney General. In 1999, I was appointed Chief Justice following a clear precedent according to which an Attorney General who had served as a Judge of the Supreme Court is appointed as Chief Justice. Sir Allen Rose QC; Hema Basnayake QC and Victor Tennekoon QC were similarly appointed as Chief Justice. The writer who has never associated with me claims to have intimate knowledge as to my personal friends and worse still as to when such a personal friendship ceased. She has in a casual statement intended to ridicule my appointment as Chief Justice brought into contempt the entire constitutional process of appointments to the Supreme Court.

She has also commented adversely that the appointment was made “bypassing … late Justice Mark Fernando”. I wish to place on record that in 1988 when I was a Judge of the Court of Appeal, the late Mark Fernando who had not served as a member of the minor judiciary or the Attorney General’s Department was directly appointed to the Supreme Court, when every judge of the Court of Appeal had decades of experience in the minor judiciary or the Attorney General’s Department. The normal progression was from the Court of Appeal to the Supreme Court. But, none of us sulked that we were by passed or overlooked since upon appointment the office of the Judge is respected. The writer is taking up cudgels on behalf of the late Justice Mark Fernando in respect of an appointment made thirteen years ago solely to heap insults on me.

The writer has described the period I held office as the “disastrous decade” and that “one man was able to virtually destroy a once respected institution”. In many previous articles she has described this as the dark era of the judiciary. Now the level of malice has increased and it has become the “disastrous decade”. One wonders as to what would be the next description. Her venom directed at me seems to be increasing with the passage of time. The Chief Justice is only a cog in the machinery of the administration of Justice in which every judge from the level of Magistrate upwards, the members of the bar, court staff and Government agencies such as the Police, play important roles in different aspects. During this period the Legal and Judicial Reforms Project was implemented with the assistance of the World Bank and every court house in the country was refurbished and modernised. Many large new court complexes were constructed in all parts of the country including those areas hitherto controlled by the LTTE. Several automated processes were introduced with old typewriters and furniture becoming a thing of the past. Judges training with the Institute being based at the Chief Justices official residence (which was never occupied by me) became a regular process with specially structured programs of overseas group training being arranged. Remuneration of Judicial Officers at all levels and of the staff were nearly doubled leading to a situation where no demands for enhanced emoluments were made. In the writer’s perception this was disaster and destruction. There are none so blind as those who do not wish to see!
The writer has also stated that “books and files were thrown at senior lawyers” by me. In my seventeen years as a Judge of the Superior Courts, she has never argued a single case before a bench of which I have been a member nor has she appeared as a junior counsel in a matter that was heard. I recall one or two instances in which she made an application to obtain time on behalf of a senior, which I am sure was readily granted. So, all these tantrums cannot be matters of first hand knowledge. I think you as the Editor has spent more time in the court presided by me and know at first hand the degree of cordiality with which proceedings are conducted. But, no court can function well without firmness when required. The writer with her bizarre imagination has converted the court house presided by me to a veritable madhouse.

She has followed up by heaping insult on the senior members of the bar by stating that, “the absurdity of it all was that these purportedly eminent counsel took the abuse lying down”. I do not think that she has any right to insult the bar of this country using me as an avenue for doing so.

She has also used bits and pieces of judgements to castigate me further. A judgement maybe analysed to advance the administration of justice. It has to be a bona fide jurisprudential exercise. It is an abuse of media freedom to pick sentences of a judgement for the sole purpose of insulting the judge. The writer who has availed of columns in your newspaper over the years to condemn and insult me lacks the objectivity necessary to analyse any judgement to which I have been party. It has to be borne in mind that any matter for hearing in the Supreme Court has to come up before a bench of at least three judges and when the judgement is delivered and the seal of the court is placed, it becomes a judgement of the Court. Any attempt to ridicule such a judgement for the collateral purpose of finding fault with the judge is an insult to the court itself.


Setting the record straight – a response to Sarath N. Silva  by Kishali Pinto Jayawardene
Former Chief Justice Sarath N. Silva, evidently touched on the raw by the Focus column in the Sunday Times of October 21st 2012 (‘Pistol whipping justice in Sri Lanka’), has complained in a ‘right to reply’ response this week that I had been engaging in harsh and vitriolic comments against him, that I had ‘never argued a single case’ before a bench over which he had presided, that I was relying on hearsay and was motivated by malice.

I am immeasurably delighted by the former Chief Justice’s response.
I have criticized him throughout the years certainly harshly but with eminently good reason, though his definition of ‘vitriol’ may differ with mine. It is unnecessary to join issue with him on his heated defence of himself since that is a waste of space. The precise nature of his stewardship over the Court during 1999-2009 rendering it ‘a madhouse’ (I could not have said it better) is meticulously documented inter alia in the impeachment motions lodged against him from 2001 to 2004 even though these did not come to any finality due to the fortuitous prorogation/dissolution of Parliament by former President Chandrika Kumaratunga as well as in the reports of the International Bar Association (2001 and 2009).
Frankly, as a matter of principle and other than in exceptional instances, my every effort as a legal practitioner during that time was to avoid his Court as much as possible. However his confident allegation that I had been criticizing him based on pure hearsay is quite wrong as a matter of record. The former Chief Justice’s memory appears to have (unfortunately for him) turned remarkably faulty.

Responding also in the public interest, necessarily though reluctantly in a personalized manner due to the nature of the allegation that he has leveled against me, I take great pleasure in reminding him of at least one notable instance to the contrary, namely the hearings before the Supreme Court on 26th of November 2001, just days before the General Election was due to be held on 5th December 2001. This was when SC Case (FR) 633/01, along with two other similar applications, was called before a Bench presided over by the former Chief Justice. In that case, I marked appearance as counsel for the Free Media Movement in a fundamental rights application brought in the public interest to urge the doctrine of public trust, that funds of all tax payers of differing political persuasions should not be used to maintain a biased state media. Two other senior counsel, including a former Attorney General, marked appearance in two similar applications filed respectively by a constitutional law lecturer and by an activist also in the public interest

In response to my application which was heard first, the former Chief Justice, after hearing submissions during which several questions on the law were put to me and being unable to disregard settled legal precedents but still disinclined to put the Chandrika Kumaratunge government to such an onerous duty (though there was a notable change in this attitude later), threw the file across the desk in virtually dismissing the application and demanded to know whether my client was a tax payer? Further when I requested an early date for the matter to be next mentioned due to the urgency arising from the pending elections, he demanded to know if I was trying to intimidate the court. Outrageously and in complete disregard of the public trust doctrine, he then stated that if any tax payer was affronted by biased coverage by Rupavahini, all that had to be done was to turn to another television channel.

These three applications were then laid bye, which order still stands to all intents and purposes. The former Chief Justice’s cavalier attitude in this case was commonly criticized over political talk shows on television at that time. Despite his labored denials and cheap jibes now, his intemperate judicial conduct was well in the public domain in any event and one certainly need not have had the infelicitous experience of ‘arguing’ before his Court to be aware of this. I merely stated the above to buttress my excruciatingly distasteful direct experience in regard to the temper ‘tantrums’ as he refers to since he has chosen to base his entire ‘right to reply’ on denying the same. Needless to say, that was the last time that I chose to appear before his Court in whatever capacity.

But most tellingly, his long winded response to the Focus column in issue does not substantially engage with the critique made of the Helping Hambantota Case and his claim that he gave the decision in that instance expecting that ‘Mahinda Rajapaksa in turn would safeguard the rights of the other people but that is not happening today’ (Daily Mirror, October 16, 2012). True to form, he only uses an empty threat of contempt of the court process. I am quite unimpressed by this threat.

To the same point, I will continue to criticize members of the bar whenever appropriate, not to insult the entire bar but only those leaders who renege on the wider duties owing by them to the Rule of Law. In sum, as I said in these column spaces of October 21st, 2012 which he challenges, these are huge contributory factors in bringing about the crisis of constitutionalism facing Sri Lanka today. This was the main thrust of the column, to provoke an honest rendition of our collective failures in that regard, not to waste space in castigating the former Chief Justice, as well deserved as that may be in the opinion of many. The dilemma now before right thinking people who spurn the current attacks on the country’s democratic structures by this government is as to what political alternatives offer a genuine change? Will it be a case of exchanging one set of political rogues for another? As long as this dilemma persists, this government cannot be dislodged from its most authoritarian seat.

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