Four Cheers For Judicial Independence

Elmore Perera

June 4, 2015

In his editorial in the Island of 12th April, 2015, under this caption the Editor stated, inter alia, that

“One of the best things that the present administration did was to get rid of aChief Justice who by no stretch of imagination could have been judged as independent, restore for a day his predecessor who was dumped in the worst possible manner and thereafter appoint the most senior Judge of the Supreme Court as the new Chief Justice.”

“All kinds of sorry deals are being struck even today under cover of a need for a National Government”,

“Now that the incumbent SC has broken from a sorry past which saw the Courts consorting with power centres, let us all hope that this sturdy independence will continue into the future.”

There was a time, when the Chief Justice Sarath N. Silva admonished the leading counsel at the time, the late Mr H. L. de Silva, for having the audacity to submit to the SC that the SC had no option but to observe the Rules framed by a Chief Justice and 3 SC Judges and thereafter approved by Parliament.

Confident that the ‘sturdy Independence’ the Editor referred to was not that kind of Independence, I had already raised three cheers for this independence.

Even during the tenure of the Chief Justice afore referred to, an objection raised by me that it was inappropriate for a bench of two judges (as the 3rd Judge had recused himself), to hear a Fundamental Rights Petition in which five Supreme Court Judges were respondents, was upheld and the matter postponed by 9 days to be heard by a panel of 3 Judges reconstituted by that Chief Justice.

However the manner in which the present SC acted in the fundamental rights petition filed by the former defence secretary raised in my mind, some concern as to whether my cheers had been premature. Whereas any manifestation that justice is being done is to be lauded, any attempt to do so, in disregard of the rules of the Supreme Court, cannot in my view be condoned under any circumstances.             Read More