25th January 1998

Executive needs to respect the independence of judiciary

By Mudliyar

The appointment made by the President, of Dhammika Kithulagoda as Secretary of the Judicial Service Commission has been hailed by most members of the Bar as one of the most fitting appointments ever made by this Government, which are connected with the administration of Justice. The President of this country has been severely criticized by the members of the Bar when she made references to some Judges of the Supreme Court. These references were not only factually incorrect but were faulted as an interference by the Executive on the Judiciary. The Judicial independence is a sine qua non for a democracy which is vibrant and living. Any intrusions by the Executive on the independence of the Judiciary should be condemned by the entire country.

But all right thinking people should applaud and cheer the appointment of senior District Judge of Mt. Lavinia, who was to be promoted as a High Court Judge, whose integrity and independence were known to the entire Bar. I believe that it was Dr. G.L. Pieris who was instrumental in recommending to the President the appointment of Mr. Dhammika Kithulagoda as the Secretary of the Judicial Service Commission. When Dhammika Kithulagoda went before the President he was nonplussed about the remarks made by the President.

The President said to Dhammika Kithulagoda "I do not want you to be another Lal Pieris, referring to Mr. Lal Pieris, (the former Secretary to the JSC under UNP rule). Some Ministers might give you calls requesting favours or order you to do this or that. Please tell them that I told you to ignore such requests or orders.

From past experience under the SLFP, UNP and PA rule this remark of the President would make the hearts of the members of the Bar glow with happiness. Anyone who had any doubts about having an independent Judiciary under the present President should now heave a sigh of relief. It is the wish of the Bar that the President will continue to uphold the independence of the Judiciary without intermeddling.

The Judges must have the freedom to act as independently as possible. It is the hope of the public that the President will keep completely aloof and distance herself from the Secretary JSC and that she will not like some of her predecessors use the Secretary of the JSC to influence and pressurize Judges to deliver judgements in favour of the Government.

Dhammika Kithulagoda is known amongst the members of the Bar for his sturdy independence. I distinctly remember an injunction brought by some members of the UNP against the UNP hierarchy to prevent them from holding their annual convention.

This injunction was submitted to Mr. Dhammika Kithulagoda as the District Judge of Mt. Lavania. If the injunction was granted there would have been a chaotic situation and the UNP would have fallen into disarray and the rank and file would have been disgusted with the turn of events.

But Mr. Kithulagoda acted as an impartial Judge and refused to grant the injunction and later the matter was settled amicably and both the Petitioner and Respondent were happy with the manner in which the dispute was resolved. Mr. Kithulagoda acted as a Judge - independent, fearless and forthright and everyone who knew about the case was quite happy about the sturdy independence Mr. Kithulagoda displayed. When a young lawyer applied to become a Judge to the Judicial Service Commission to become a judicial officer, Mr. Kithulagoda was one of his referees. Immediately after he was appointed as a Primary Court Judge he came back to Mr.Kithulagoda and sought his advice. He said there are three important principles one should follow as a Judge. The first principle is 'integrity', the second principle is 'integrity', and the third principle is also 'integrity'.

This clearly shows the standards Mr. Kithulagoda maintained as a Magistrate and a District Judge. When some lawyers complained against him to the Judicial Service Commission, he was called before the JSC and the Commissioners seemed to be very angry after they read the representations of some lawyers.

They fired a number of questions based on the Petition and directed them at Mr. Kithulagoda. Mr. Kithulagoda displayed calmness and restraint and asked the Commissioners whether there was a single letter or Petition against him impugning his integrity. They found out that there has never been any complaint alleging that he was dishonest or was influenced or pressurized to take decisions in favour of a particular party based upon extraneous considerations other than the merits of the case. The Commissioners found that some lawyers had harboured a grudge against him in the manner in which he disposed of their cases. He served with distinction and got the unstinted co-operation of the Bar and was extremely popular wherever he officiated.

The Bar knows their Judges and that is why there is universal acclaim about the appointment of Mr. Dhammika Kithulagoda as the Secretary of the Judicial Service Commission. We sincerely hope that he will use his vast experience gained as a Judge in the original Courts and the manner in which he conducted with honour and dignity without yielding to any political pressure, he would use the same principles to advise the Commissioners in respect of disciplinary matters in respect of Judges.

It is the feeling amongst the members of the Bar and the public that the actions of some Judges have created suspicion among the litigants. The people of this country always had looked upon their Judges as persons of absolute integrity and impartiality and they would never be pressurised by the Executive to make order on the dictates of the Government in power. We sincerely hope that Mr. Kithulagoda, one of the most suitable persons among the senior District Judges to be appointed as Secretary of the Judicial Service Commission will uphold the noble principles. The Commissioners are mostly dependent on the advice given by the Secretary to them.

"I am the Chief Justice"

I wish to correct some errors I committed last Sunday with reference to the father of His Lordship The Chief Justice G.P.S. De Silva, and Mrs. Bhutto's husband. The father of the Chief Justice was not late Dr. M.W.H. De Silva, but G.C.T. Arthur De Silva, who in fact was a Senator, and was appointed the Minister of Justice by Mrs. Bandaranaike. The late Mr. M.W.H. de Silva (and not Dr.) was appointed by Mr. S.W.R.D. Bandaranaike as the Minister of Justice in 1958. The error is regretted.

Also I said that Mrs. Bhutto's husband was known as 'Mr. Five Percent'. This is incorrect. Mrs. Bhutto's husband, Mr. Asif Ali Zardari was known as 'Mr. Ten Percent'. It was rumored that he took ten percent from every deal.

Mr. Zardari bought an estate for four million dollars called the 'Rockwood Estate' in England in the Surrey countryside. Mr. Zardari was questioned about the deal. He said "How can anyone think of buying a mansion in England when people in Pakistan do not have a roof over their heads".

Investigations found that this was a lie to mislead the Pakistani people. This is how the Bhuttos looted and plundered the Pakistanis.

I have commented on the simplicity and humility of His Lordship The Chief Justice. The following story would prove to the reader the truth of my opinion.

One day a frail looking person was walking on the Galle Face Green with another tall well built person. Though the other person exhibited athleticism by walking with great speed in order to cover the one and a half miles within a specific time, the frail looking person in shorts, and in middle age, was equal to the task.

He walked as fast as the other person could walk. Though the other person was panting on his return walk, the frail looking person was not showing any tiredness. When they returned to the Galle Face Hotel end, the sturdily built person asked whether the other person would accompany him to his workplace. The frail looking person agreed to go along with him to his workplace.

The other person walked up to a Department store and told the frail looking man that he was working there and holding a very important position in that establishment and wanted to know whether he could wait for few minutes till he attends to his routine work. The other person agreed.

The Executive went into the nearby departmental store and spent about ten minutes inside the building and came back. Then they both walked to the Galle Face Green where their cars were parked. The Executive boasted about the important position he was holding and was describing the workforce under him and the decisions he had to make in controlling the workers.

The frail looking man was silently listening to what was being said. After about ten minutes the Executive had said all about his departmental store, which also manufactures aerated water, about his position and the importance of his job.

He was surprised that the frail looking man did not respond to his remarks and was briskly walking with him.

The Executive was annoyed and asked the frail looking man "I say you have not told me where you are working".

Then the frail looking man smiled and said that he was working in the Courts at Hulftsdorp. Then the Executive smiled and said "Ah, you must be one of these Perakadoruwas" The frail looking man said "No" and smiled. The Executive was angry and said, "then you must be a Magistrate" "No, not in the Magistrate Court". Then the Executive took the hint and said "Ah! then you must be a District Judge" The frail looking man said 'No'.

The Executive went on to the High Court, and to the Court of Appeal. The frail looking man was walking briskly and said 'No" and the Executive was red in his face as all of his guesses were proved wrong.

Then he blindly guessed that the frail looking man must be a Judge, if he is not a Magistrate, not a High Court Judge and not a Judge of the Court of Appeal and the next place where a Judge could sit is the Supreme Court, but he could not believe that this man who was in slippers and shorts could be a Judge of the Supreme Court.

But before he reached his car he wanted to make sure who this man was.

He did not want to address a Judge of the Supreme Court as 'you' as he had done earlier. But he gathered some courage and said in a soft tone, "then Sir, you must be a Judge of the Supreme Court." The frail looking man said "not quite correct but not quite wrong". The Executive lost his patience and shouted at the frail looking man, "Who the bloody hell are you?"

The frail looking man walking briskly as ever in a very hushed tone said "I am the Chief Justice" The Executive felt that his limbs were getting benumbed and his legs were getting weak as if they could not carry his sturdy frame.

The Executive took an about turn, regained his composure and was seen running towards the departmental store.

Go to the Commentary

Return to the Editorial/Opinion contents page

Go to Rajpal's Column Archive