WikiLeaks: EX CJ Sarath Silva’s Judicial Pedigree

By Colombo Telegraph -August 1, 2012

“The Supreme Court, headed by Chief Justice Sarath De Silva, has shifted over the past month from regularly supporting the President in its rulings to deciding against the Government on key issues. When former President Chandrika Kumaratunga appointed De Silva over more senior judges to sit as Chief Justice of the Supreme Court in 1999, the public criticized De Silva as a tool of the Kumaratunga administration. However, in 2005, De Silva ruled that Kumaratunga would have to step down from office one year earlier than expected, paving the way for then-Prime Minister Rajapaksa to run for President.” the US Embassy Colombo informed Washington.

A Leaked “CONFIDENTIAL” US diplomatic cable, dated June 27, 2007, updated the Secretary of State on Sri Lanka’s Judiciary under the Chief Justice Sarath N. Silva details Silva’s judicial behaviour. The Colombo Telegraph found the related leaked cable from the WikiLeaks database. The cable was written by the charge d’affairs James R. Moore.

James wrote “After Rajapaksa won the Presidential election, De Silva continued to support him in significant court cases. In 2005, De Silva’s bench issued an injunction to keep police from further investigating the President’s alleged misappropriation of tsunami funds. In March 2006 the Court ruled the investigation violated Rajapaksa’s fundamental rights and ordered a United National Party (UNP) parliamentarian and two others to pay the President compensation for opening the investigation. In October 2006, De Silva ruled to de-merge the Tamil dominated North and East provinces, a politically sensitive and important decision for the President and the JVP (ref B).”

Referring to Silva’s shift from regularly supporting the President in its rulings he wrote “In the following cases this month, however, De Silva reversed this trend and ruled against the President in a string of popular decisions many hailed as brave and just in its protection of fundamental rights. –June 8: The Supreme Court issued an interim order to prevent the Inspector General of Police from taking steps to evict Tamils from Colombo or prevent them from entering Colombo despite orders widely believed to have come from the Ministry of Defense (ref A). (Note: De Silva was not on the bench for this case but sources close to the Court told us De Silva was behind the decision. End Note) –

June 14: De Silva issued a stay against Government plans to sell nearly 25 percent of its shares in Sri Lanka Telecom to a Malaysian company. The Court also subpoenaed all Government documents related to the sale. –

June 18: De Silva granted Tiran Alles’s petition to file a Violation of Fundamental Rights case against the Government for his arrest on May 30. Alles was arrested on charges of supporting terrorism after the President fired Alles’s allies, Mangala Samaraweera and Sripathi Sooriyarachchi, from their ministerial posts. The Government also froze business accounts for Alles’s two newspapers, which were critical of the President and his policies, forcing them to close. Observers of the case said the Government’s actions were politically motivated. –

June 19: The Court permitted a prominent UNP member to file a Violation of Fundamental Rights case against the Government for bribery solicitation and harassment of his company, Sevanagala Sugar Industries.”

Under the subheading “SILVA’S MOTIVES POLITICAL, NOT JUDICIAL” charge d’affairs James wrote “Legal insiders say that while they are pleased with the recent rulings, they are not necessarily the result of an improved judiciary, but rather, are born in part out of De Silva’s political ambitions and alliances. Embassy contacts say De Silva has close ties to members of the Sinhalese nationalist Janatha Vimukthi Peramuna (JVP), who are increasingly displeased with the Rajapaksa administration and who back De Silva’s recent decisions. Former Attorney General and De Silva colleague, Shibly Aziz, told us De Silva was ‘riding the wave’ of JVP and Jathika Hela Urumaya (JHU) support. He cited the rapid fire manner in which the Court issued decisions in June designed to target the President and his Administration and win popularity with the public. Aziz explained that De Silva was playing to Buddhist sensitivities while portraying himself as a populist who is not anti-Tamil. Bhavani Fonseka, Senior Researcher at the Center for Policy Alternatives (CPA), claimed that De Silva made the politically savvy decision to stay the eviction of Tamils from Colombo in order to garner UNP and public support while still maintaining his allegiance to the JVP which expressed its disapproval of the evictions in a June 7 session of Parliament. Saliya Pieris, a prominent private attorney that tries Supreme Court cases, told us other judges privately say De Silva has gone as far as engineering cases he wants to adjudicate by inviting petitioners to file their case using lawyers known to him.”

“Aziz told us that never in the judiciary’s history has there been a chief justice with such absolute control over the rest of the country’s judges. Aziz and Pieris said De Silva is charismatic, cunning, and vindictive, as well as one of the great legal minds of Sri Lanka, making him the last person anybody wants to challenge. From the Supreme Court down to the Magistrate Courts, De Silva dominates. Although there are 11 other Supreme Court justices, the Chief Justice chooses which ones sit on a given bench (usually consisting of three judges per case). Aziz said De Silva picks the most compliant judges regardless of their seniority. Pieris told us that even when De Silva is not personally on the bench, the Supreme Court justices make decisions approved by De Silva. Pieris said the only Supreme Court justice who dares challenge De Silva, Dr. Shirani Bandaranayake who is second in seniority, has now been marginalized. Aziz and Pieris point to the small number of dissenting opinions written during De Silva’s tenure as further evidence of his dominance.” he further wrote.

James Moor wrote “Thus far, President Rajapaksa has remained publicly silent on De Silva and his recent rulings, but there is little doubt he is unhappy with the Chief Justice. Supreme Court Justice Jagath Balapatabandhi (strictly protect) told our political FSN that, in mid-May, President Rajapaksa privately asked De Silva to retire. He said the President identified Supreme Court Justice Nihal Jayasinghe as his desired replacement. Pieris told us Jayasinghe is the fourth most senior on the bench and known as more pliable than De Silva. If De Silva does not voluntarily retire, the President would have to convince Parliament to impeach De Silva to put his man in the Chief Justice’s seat, which is unlikely given De Silva’s current level of public support. De Silva retires in 2009. In the meantime, President Rajapaksa consistently appoints Jayasinghe over the more senior Shirani Bandaranayake as acting chief justice when De Silva is away.”

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