The Sunday TimesNews/Comment

10th, November 1996



Monkeying with the judiciary

Uproar at Hulftsdorp over the appointment of Shiranee Bandaranayake. formerly Associate Professor at the faculty of low, University of Colombo continued last week unabated.

Intense debate raged over the appointment between lawyers, at times degenerating into frankly politicized mud stinging battles. Heard too was adverse comment from the bench in open court by judges at all levels.

While the much maligned Felix Dias Bandaranaike (Justice Minister in the Coalition Government in the 70's) also stretched the judicial system to sometimes unbearable limits, he did not try to break the system," commented one senior lawyer.

"His people whom he appointed to high judicial posts were also on the basis of Their political affiliations, but they were senior respected people," he pointed out. He added that the difference was that nowadays attempts are being made to actually break the system, and depart from established rules of judicial convention.

What is primarily being objected to in the recent appointment is Professor Bandaranayake's relatively junior position within the legal profession with only thirteen years as an attorney-at-law.

Moreover, 38-year-old Professor Bandaranayake's appointment will make her eligible to sit on the Supreme Court bench for the next twenty seven years, and on present calculations she will be the Chief Justice of the country for a record 17 years or so. Such a position would shut out the chances of all incumbent judicial officers in the Court of Appeal and the original courts from ever becoming the Chief Justice..

"This would be unprecented in the judicial history of this country," say lawyers protesting against the appointment.

In the past, it has been only once before that the legal profession has revolted in this manner and expressed their concern over the actions of the Executive. This was when Mr. Wijedasa Liyanarachchi was brutally murdered by the police.

On that occasion, at a Special General Meeting of the entire Bar it was resolved firstly not to appear for the police and for any police officer and secondly not to attend the ceremonial opening of the Superior Courts Complex, until the police arrested and prosecuted the murderers.

One remembers very vividly the leadership given to the Bar by the then President Mr. H.L. De Silva, P.C. and the support given by Mr. K.N. Choksy, P.C. then a stalwart of the ruling party. When Mr. Choksy walked into the group of lawyers supporting the resolution, there was a deafening roar. It must be noted that even the lawyers getting fat fees from government corporations not due to their forensic skills but due to their other abilities to support the government in power, and the few lawyers who were chairmen of corporations, voted with the resolution. Whatever commandments they got from their party they ignored, and did what they thought was correct.

When the then Parliament appointed a Select Committee headed by Mr. Lalith Athulathmudali to investigate the alleged misconduct of one the most independent and fearless judges Mr. Neville Samarakoon Q.C. a resolution was adopted expressing its grave concern regarding the appointment of the Select Committee.

The then Executive appointed Justice Parinda Ranasinghe as the Chief Justie over and above the senior-most judge Mr. R. S. Wanasundera. The Bar deplored the appointment of the new chief justice and disapproved that action as compromising the integrity and the independence of the judges.

Now, some members of the public want to know the reason for the Bar opposing the appointment of Dr. Bandaranayake. Is there a gender bias? Is she not a highly qualified academic who has excelled in her academic achievements?

Does one have to get grey hairs to mount the Supreme Court bench? Arguments there are for and against, let's begin with those submission made on her behalf.

She is 38 and therefore brings in youth into an otherwise strict bench. She is a woman and the world-wide trend nowadays is to give equal consideration to professional women after International Women's Groups have raised their collective voices on the gender issue. She is a Professor of law and therefore learned in law, at least in the principles and theories.

Against her, it is argued that were she to apply to become a District Judge (Grade1) with her present academic record the Judicial Service Commission would not even call her for an interview. The minimum requirement to become a judge of the District Court is that the applicant should have been an Attorney-at-Law for at least 15 years. She has only 13 years as an Attorney-at-Law.

If Dr. Bandaranayake is not qualified to become a District Judge, then is she qualified to become a Supreme Court Judge. I am afraid even her mentor, the affable Minister of Justice, who is one of the most qualified academics this side of the Suez cannot even become a Primary Court Judge, as he has not sat or not passed the Attornery's finals conducted by the Law College.

When the Bar deplored the appointment of Chief Justice Parinda Ranasinghe superseding Justice Wanasundera, the Bar was not oblivious to the political connotations the appointment had. Justice Wanasundera was one of those judges who gave a dissenting judgment against the government. The executive by this action was clearly trying to subvert and subjugate the judiciary.

Similarly some members have expressed the opinion that the appointment of Dr. Shiranee Bandaranayake was done with a similar intent of sending a signal to the judiciary when they have over looked Dr. Asoka Gunawardena, the President of the Court of Appeal, who gave two judgments against the government concerning the dissolution of two provincial councils.

A question has been raised in Parliament as to why vacancies in the Supreme Court and in the Court of Appeal have not been filled since April this year, and ironically those whose promotions have been held up are the de Z. Gunawardene brothers Upali and Asoka.

It was possibly this question the week before that triggered the sudden appointment of Dr. Bandaranayake which has upset a hornets nest here in Hulftsdorp.

There is another view that Dr. Bandaranayake has openly expressed her views in support of the political package over the media. As the political package is expected to go before the Supreme Court the government has decided to fill the Supreme Court with pro package judges. If the government is subverting and undermining the judiciary with such a purpose in mind, then it is the Bar that has to voice its protest.

Unfortunately the Bar and the judiciary of this country is getting polarized more and more on political colors. "He is a UNP lawyer" or "he is a PA judge" or oft-heard comments of the black-coated fraternity.

The Shiranee Bandaranayake appointment has fast turned into a political battle of wits, and being an assistant of the Justice Minister (who raised some eye-brows by being present when she took her oaths before the President), she will be stamped with the PA label.

The PA supporters therefore say what is wrong with her appointment. To the argument that she has no experience in practice they ask did not H. N. G. Fernando have no practice except for some six months as a Solicitor General. He turned out to be an accepted Chief Justice.

When lawyers say she is too young they ask wasn't Christy Weeramantry not too young to get on the Court at age 40 or 41. Was it because he was Dudley Senanayake's polling agent in 1965 that he got the job. And Justice Weeramantry went on to sit on the World Court.

But the point is that what the PA lawyers say is "Didn't the UNP do the same thing" rather than "Is this a proper appointment" and that is what independent lawyers wish to know. It's not whether the UNP did the right thing. It is whether the PA having condemned everything the UNP did, is now doing the right thing.

Appointments to the judiciary in Sri Lanka has three routes (i) the judicial officers (ii) the AG's officers and (iii) the un-official Bar.

In England, it is only through the Bar that higher judges are appointed, but then that is a unique system where lawyers having earned well during the prime of their career prefer the status of knighthood and a seat in the House of Lords and their wives to be called "Ladies".

In USA on the other hand, appointments are all political made by the Executive President and on ethnic grounds as well as those holding views on public issues advocated by the President. They can be Judges, lawyers or academics. Are we following the US method? Are we coming to terms and laying a further foundation to the very Executive Presidential System which this PA government has said they are committed to dismantle and abolish?

This is what Justice Minister G.L. Peiris himself had to say not so long ago as the Vice Chancellor under the US system;

There are several problems. One is, of course, the question of judicial objectivity, impartiality and detachment. You know that the strength of an English Judge lies in his impartiality and in public perceptions regarding his impartiality. That is a very different tradition from that prevailing, for example, in the United States of America where some degree of involvement in areas of public controversy is inevitable, as far as the judiciary is concerned. Secondly, if the Courts get into areas like this, can they achieve any degree of coherence, of consistency, with regard to the formulation of policy? Because they are dealing ad hoc and piecemeal with particular situations. It may well be that an administrative tribunal dealing with, for example, valuation, compensation, land acquisition, liability to pay taxes and the like can over a sustained time frame develop a coherent administrative policy in a methodical way. That function cannot be discharged with equal effectiveness and acceptance by a Court of Law. Thirdly, and more fundamentally, there is the whole problem relating to political accountability and the demarcation of functions under a constitutional instrument. If it is perceived that the Court is trespassing into areas which the paramount law has entrusted to other organs, then inevitably there would be an unacceptable degree of tension and strain between divergent organs of government. And that holds out horrendous implications. Fourthly, are the Courts equipped to carry out this kind of function? Empirically, is that an area where the Court has the aptitude and the ability to make a worthwhile contribution to society? And fifthly, what about the enormous expenditure of time and energy? Can that be justified in pragmatic terms?

Now these are essentially the factors that we must bear in mind in assessing and evaluating critically the way in which the principles relating to judicial review are being refined and developed throughout the Commonwealth today.

In conclusion, my plea is this. Throughout my recent writings published in British journals I have made a plea that we should not spoil a good thing by trying to have too much of it. (Law Gazette March 1991)

Unlike in America where there is a Congressional hearing through which the President's appointee must filter to get confirmed as a Supreme Court Judge, in Sri Lanka even Cabinet Ministers get to know of such appointments by reading the morning newspapers.

And all hell breaks loose thereafter that is the unique Sri Lankan system.

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