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Rajpal's Column

29th August 1999

Some thoughts on judicious decision making…

By Rajpal Abeynayake

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The so - called momentous appointment of a Chief Justice in the next few weeks has raised a babel of voices. But some voices have risen above the cacophony, and this includes the formidable voice of H L de Silva, who was Prime Minister Sirimavo Bandaranaike’s regular counsel in the 1970’s, and the winter of discontent thereafter ...

At a seminar of legal eggheads held last week at a seminar room in the BMICH, H L De Silva lent his voice to the gathering discourse, and said that he was surprised at the fact that two Judges have been found guilty of misconduct by the Judicial Services Commission. This and other input by legal luminaries present, led to a general consensus that credibility of the judiciary has been undermined in an unprecedented way by the soft landing that was provided for two Judges by the JSC. One had been found guilty of “transgressions’’ as severe as rape, and the other of doctoring the judicial process.

The nexus between this and the appointment of the next Chief Justice is so bizarre that it would have been grist to the mill of Daymon Runyon. Lenin Ratnayake, a Judge accused of rape, is apparently the relative of the next Chief Justice designate, or Chief Justice elect ( albeit unconfirmed ) of the government. Upali Abeyratne handled , or as it turned out, mishandled the case in which the same Chief Justice elect was named co - respondent in a divorce case. This latter Judge who was earlier sent on compulsory retirement after the charges against him were upheld by the JSC, has now been the recipient of a lighter reprimand. And the Chief Justice elect remains, in all probability, still the Chief Justice elect.

None of the luminaries present at the seminar could talk in isolation of the obvious nexus between the government’s probable choice of CJ, and the cases of the two Judges who have been found erring by the JSC. The issue of the two Judges seems to be the last in a line of events that has cast the collective credibility of the judiciary in a murky nadir.

At least some of the intellectual and political elite in the country seem to have decided that certain connected developments such as the appointment of a Chief Justice have to be addressed now and not after the event. But, the bulk of the intellectual community has decided to wait until the fait accompli, and this is characteristic of an elite that generally raises the hackles after a man is dead, for instance, by issuing a collective condolence dirge.

The facts in this case are rather bald. The President, the appointing authority of the Chief Justice, has to consider that judicial appointments have to be kept above the partisan fray . That’s an imperative because undermining the judiciary amounts to sending an invitation to the barbarians to come to the gates. Clichetic though it may sound, the judiciary is the last bulwark of the system. Even the most crass and corrupted of Sri Lankan governments have not sought to subvert the judiciary from within. J R Jayewardene subverted the judiciary from without, by setting thugs on Judges, but even his re - appointment of the Supreme Court after the constitution was overhauled, had some respect for the basic tenets such as the integrity of Judges.

The next factor that the appointing authority has to consider is that Supreme Court Judges are held accountable to the people, even though the trappings of the judiciary may be heady even now for some judges. The constitution provides that a Supreme Court Judge can be impeached, by a resolution in Parliament and that’s the part of the accountability that is provided for constitutionally. Countries such as the United States seek to ensure this accountability before appointment.

For example, all prospective Supreme Court Judges have to face a senate select committee which whets the Supreme Court - Judge - elect for basic but mandatory attributes such as integrity and professional conduct.

There was one Judge , for example , who was grilled before the senate sub committee, for alleged sexual harassment, and for making jokes about the presence of a Secretary’s pubic hair in a can of Coca Cola.

Even at the cost of trivializing the process, these are the checks that are built into the US judicial system to make sure that the people’s faith in the highest totem of the polity is not disturbed.

In a civilized system, these checks for accountability were generally enforced by convention. But if such checks and balances cannot be enforced by convention they alternatively have to be enforced by stricture because the stakes are high, and because its suicidal to play dice with the system.

All of this places us where we began. If acknowledged non - partisans such as H L de Silva have voiced their dismay over the way in which the affair of the erring Judges was handled, there is no gainsaying that an impending appointment of a Chief Justice may be fatally flawed.

In short, the social elite cannot acquiesce in a national hara - kiri, if the undermining of the last bulwark of the system is imminent.

In sum, it would be naive on the part of the President not to step back form the brink to take an impartial objective look at the issues.

As long as Sarath Silva’s name is not totally and absolutely disentangled from the decided cases of impropriety concerning Abeyratne and Ratnayake — the government’s apparent choice of Chief Justice elect may very well look fatally, irreparably and dangerously flawed.

The people first, and the government may stand to lose immensely by it.

Hulftsdorp Hill

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