28th February 1999
Judicial independence & appointments to the judiciary
Professor K.N.O. Dharmadasa, Dean of the Faculty of Arts, University of Peradeniya had a few weeks ago translated this column, the subject of which was the order made by the Supreme Court against Mr. Reggie Ranatunga, Deputy Minister in a Fundamental Rights application.
Professor Dharmadasa, master of the Sinhala language, was able to convey to the reader the message in my article, about the most important safeguard the people of this country have to protect themselves against their elected representatives, who after assuming power had metamorphosed from angels to devils, namely an independent judiciary.
The paradox was that it was these very same people in the opposition who stood in the forefront of the campaign to eradicate the period of terror which the people were supposed to be under when they were out of power and pledged not to interfere with the judiciary.
Governments changed with their elected representatives. The power the new posts wield make them instantly forget their past.
They believe that in order to misuse their power they must be surrounded by gun toting goons, travel in new vehicles without number plates and at the slightest provocation assault anyone who transgresses their path, sit in the chair reserved for the OIC of the Police Station and issue illegal orders to arrest citizens of this country.
Now with the Wayamba doctrine, the latest weapon was to stuff ballot boxes before anyone could even think of casting their votes. They not only prevent the opposition from voting, but in the hurried process prevent their own party men from casting their votes.
One of the songs that had hit the top of the popular chart and remains at the top from the time it was released depicts a politician who had been defeated at the polls. The song 'Singnore labana sere api denava bate' sung by Sunil Perera of the Gypsies represents the Sri Lankan politician in defeat.
What Sunil Perera does not depict is that the newly elected member gets in to the same shoes of the defeated candidate in no time. It would be instructive to compose another song where the victor is surrounded by the same goons as that of the vanquished.
In the struggle for power, and riches, the corruption and terror unleashed by the elected representatives has become the staple diet dished out to the ordinary voter.
I have in this column repeatedly said that the Supreme Court, the Court of Appeal and the judiciary in general have been the last bastion of justice for the ordinary people.
The message has been well taken and from the letters that we receive it is clear that the ordinary people have got disgusted with the prevailing party system and the two parties which control it.
For these people who yet believe in the resurrection of the angel from the demonized politician who had been voted by them to power, it has become a lost cause and as most people who live in hope die in despair. They have realized that if not for the Supreme Court the last remnants of a democratic Government would have been lost with a landslide majority like J.R. Jayewardene got when he was elected.
The letter written by Professor Dharmadasa, to this column demonstrates emphatically that he is one of many Sri Lankans who believe that all people of this country should steadfastly protect this hallowed institution. Protecting the Supreme Court would necessarily mean that they are only protecting themselves.
Some of the questions that have to be determined in the future by the educated elite are how the institution could be protected from the interference of the executive.
A good example would be the promotion of judges. As long as judges are appointed by the Judicial Service Commission, there can be only very little room for complaint. But when the appointments to the high court, Court of Appeal and the Supreme Court are made by the President, a political head of a party creates pandemonium.
The judgment in the Shirani Bandaranayake case clearly enunciated the rules that ought to be followed by the President in making these appointments. It must be said that even after this judgment the President has consistently violated the spirit, the 'ratio decidendi' and the 'obiter dictum' of the judgment.
One of the many judges who had to suffer due to the haphazard, arbitrary and capricious power vested with the President, is Mervyn Wijetunga, the senior most district judge presently functioning as magistrate, Fort. The chief justice had without any hesitation recommended Mervyn Wijetunga to be appointed to the high court Colombo.
At that time, Sarath Ambepitiya another fiercely independent judge functioning as the district judge of Colombo was tipped to be appointed as a judge of the high court.
Sarath Ambepitiya met the Chief Justice and informed him that Mervyn Wijetunga should be promoted over and above him and that he could wait in the line to take his place without jumping the queue.
He was informed that as there were two vacancies it was likely that he and Mr. Mervyn Wijetunga would be promoted. But the President for some unexplainable reason appointed Mr. Sarath Ambepitiya, and another officer from the Attorney-General's Department to the high court. Later Mr. Eric Basnayake, the District Judge Colombo was promoted to the high court to fill another vacancy.
Mr. Sarath Ambepitiya, Mr. Sisira de Abrew and Mr. Eric Basnayake as judges and State Counsels had won the admiration of the Bar and the people. There was no question of anyone even remotely complaining that any one of them was unsuitable to be appointed to the high court.
But Mr. Mervyn Wijetunga, the present Fort Magistrate is equally suitable. What crime has Mr. Wijetunga committed, to be overlooked for promotion?
Is it because there were some controversial judgments delivered by him as the Fort Magistrate, which embarrassed the Government?
Was he not promoted so that other judges could be taught a bitter lesson? Ishini Wickremesinghe's case was a clear example of a judgment of an independent judge.
Similarly, Ms. Shirani Thilakewardene, a present judge of the Court of Appeal, was not promoted. There were rumours that she was punished for having delivered a judgment acquitting the accused in a criminal defamation case.
The Bar Association has taken a lukewarm attitude to this naked transgression on the independence of the judiciary committed by the executive. The Bar Association has adopted a resolution urging the executive to fill the vacancies.
But it has not even urged the executive to fill the vacancies according to the recommendations of the Chief Justice, which would be more or less binding on the Executive.
Mr. Wattegedara, high court judge, Kurunegala is due to retire in the month of March, and it is hoped that the President would fall back on the recommendations made by the Chief Justice, and appoint Mr. MervynWijetunga to fill the vacancy. If the President fails to do so, it is up to the lawyers to challenge the non-appointment of Mr. Wijetunga by way of a fundamental rights application in the Supreme Court. Otherwise by these actions the Executive would be in a position to forewarn the judges not to overstep the boundaries of the so called independence, and toe the line of the Executive and spinelessly deliver judgements in favour of the Government in order to obtain promotion to the higher Court of this country.
In India, after a long and arduous struggle, the Supreme Court had taken upon itself the responsibility of appointing judges of the Supreme Court and the high court. By judicial activism the Supreme Court has made the President or the Prime Minister lose power, to even suggest any changes in the selection process of judges made by the Chief Justice.
Recently the President of India, K.R. Narayanan, recommended that scheduled castes and scheduled tribes be duly considered for appointment as judges of the Supreme Court.
On the 20th of October 1998 the Supreme Court of India, by judicial interpretation ruled that in the appointment of Supreme Court Justices, the CJI would constitute a collegium of four of the senior most judges to recommend a candidate for the Union Government for approval.
Soon after the judgment, the CJI set in motion the selection process for the vacancies.
Now the procedure is that the CJI sends names for appointments as Justices, then the Law Minister sends the list to the Secretary of the Justice Department, who then forwards the names to the Intelligence Bureau, for investigation of corruption, abuse of judicial powers and other related misconduct, which would prevent such a judge from being appointed. The file is then forwarded with the names and with the Investigations Report of the Intelligence Bureau to the Prime Minister, and subsequently for the assent of the President.
The President or the Prime Minister of India has no say whatsoever in the selection process of judges to the Supreme Court and high court of India.
How did the Indian Supreme Court secure the power from the Executive? There had been continuous judicial evaluation and interpretations of the provisions of the Indian Constitution which provides for the selection process of judges.
Though there are criticisms that the Supreme Court of India has become so powerful that it runs a parallel Government that of the executive, a large majority of the people had been clearly and unequivocally in support of the Supreme Court.
It was this position which began with judges like Justice Kuldip Singh who was able single handedly to take over one of the most powerful Governments and a charismatic leader of India, Prime Minister Indira Gandhi. During her infamous emergency rule, even the Supreme Court faltered and flawed and became weak kneed.
Justice Kuldip Singh sacrificed his promotion as the Chief Justice of India, and made courageous and independent and anti-establishment judicial orders which shook the very foundations of hypocritical, dishonest, corrupt governments run by politicians in India.
The ball then started rolling and gradually the judges knew that only by deliverance of judgments with positive interpretations of the Constitution that would lead to an independent judiciary. The appointment of judges to the higher courts is done by a collegium of judges. They would then decide on promotions, transfers and appointments to the higher Courts and the judges would not have no reason to cow down to the politicking weasels to obtain their promotion.
Similarly in Pakistan, the Supreme Court has set another time bomb. This time against a socalled protector of the Supreme Court, Nawaz Shariff. When Bhutto made several appointments of her political henchmen to the high court, the Supreme Court reacted absolutely.
President Farooq Laghari dismissed Bhuto's Government, one of the main charges against her being inter meddling with judicial appointments with a view to subverting the judiciary.
The Supreme Court of India and Pakistan have reacted positively to maintain the institutional independence and thereby reassert the role of the judiciary. In Sri Lanka the Executive even after four and a half years of power is still making vile and baseless allegations about the judges of the Supreme Court. The intention seems to be mainly to bring down the estimation of the Supreme Court in the eyes of the public. But the remarks have not made the Supreme Court weak kneed.
We have had some great judgments delivered widening the scope of the fundamental rights litigation the latest been the judgment in Anura Bandaranaike's case. It is necessary therefore that the Supreme Court of this country look at some of the decisions of the judgments of India and Pakistan and take a great leap forward and prevent any future interference by the Executive in appointing judges and thereby further assert its judicial independence.
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