Evolutionary Decline Of The Sri Lankan Judiciary

By Elmore Perera -March 3, 2013

Elmore Perera

Bishop Duleep de Chickera has opined (Island of 23^rd and Daily Mirror of 26^thFebruary 2013) that “The episode of the impeachment of CJ Bandaranayakeis not to be seen as an isolated incident. It is part of a wider design in governance, strong and predictable enough to be identified as evolutionary decline ….. the nation finds itself in a dangerous state of moral decline which neither National Day parades nor the occasional outburst when a little girl is arrested for stealing coconuts, can conceal…. The people’s resilience clearly ruled that CJ Bandaranayake did not receive justice. True to the doctrine of Public Trust, she put public service first in spite of knowing what was coming. She will be remembered with admiration long after those who hurt her are forgotten”.

All legislators and judges are to bear in mind the sense of Natural Justice within the people which spontaneously scrutinises the integrity of the legal process. This scrutiny probes whether Constitutions and the Rule of Law liberate and benefit people as a whole or benefit mostly people in power and hinder and harass the people instead.

Judge Weeramantry felt compelled to make some observations re the crisis that faced the Sri Lankan Judiciary which, he said, had been a great pride to the Country and has been highly esteemed both domestically and internationally.

President Jayawardena appointed “his good friend” Neville Samarakoon, with wide experience in the theory and practice of Law but with no judicial experience, as Chief Justice in 1977. This CJ’s unswerving commitment to the cause of dispensing Justice without fear or favour as required of him by the Doctrine of Public Trust, was not exactly what President Jayawardena expected of him. A surreptitious attempt by the President to rid the Supreme Court of this strongly independent Chief Justice and other Justices who disappointed the President, was thwarted by a 9-judge Bench headed by this Chief Justice holding that the President’s act of treating them as having ceased to hold office as Justices of the Supreme Court was invalid and also making the historic ruling that “Actions of the Executive are not above the law and can certainly be questioned in a Court of Law. An intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution. The President cannot be summoned to Court to justify his actions. But that is a far cry from saying that the President’s acts cannot be examined by a Court of Law. A party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by Law. The seal of the President will not be sufficient to discharge that burden”.

Not to be outdone, President Jayawardena, who was possessed of undated letters of resignation from more than 5/6^ths of the Members of Parliament, moved quickly to impeach this CJ. However the 6 Government MPs and 3 Opposition MPs appointed by the Speaker in terms of Standing Order No 78A, all held that CJ Samarakoon had done nothing to merit impeachment. It is noteworthy that the President’s own brother as de facto Head of the Private Bar, unequivocally opposed the President’s attempt to impeach CJ Samarakoon.

Bereft of the leadership of CJ Samarakoon, who retired on reaching retirement age in October 1984, the Supreme Court displayed a disconcerting eagerness to deliver judgements recognising wider Presidential Immunity, in disregard of the aforementioned 9-Bench decision, all of which were therefore made per incuriam. The Judiciary, ably supported by the official bar, succeeded in effectively stultifying itself by purporting to hold that the President had been conferred blanket immunity and that his acts could not, directly or indirectly, be questioned in any Court.

With little or no experience of how the wheels of Justice were moving or grinding to a halt, in the face of vehement objections from the Private Bar, CJ Bandaranayake was first appointed a Justice of the Supreme Court in 1996. She apprenticed, as it were, under 3 Silva Chief Justices, from whom she learned the good, the bad and the ugly aspects of Judicial Conduct. She tried hard to dispense the kind of unadulterated Justice that, as a true academic, she was acquainted with. She never rocked the Judicial boat, except perhaps when together with Weerasooriya J. she resigned from the Judicial Service Commission in January 2006 citing matters of conscience but without divulging the real sordid reasons for doing so.

In June 2011 President Rajapaksa appointed “his good friend” Shirani Bandaranayake as Chief Justice. It was then her responsibility to reverse the ominous trend of Executive friendly judicial activism, to set the standards for an Independent and strong Judiciary. Encouraged, and actively supported by the Judicial Service Commission and some of the Justices of the Superior Courts, she led from the front. Predictably, it was not long before she incurred the displeasure and even wrath of the Executive. Peeved by what was considered her audacity to act independently, the President decided that it was necessary to dis-appoint his appointee as Chief Justice.

A clearly unlawful process of impeachment (based on a deliberate misinterpretation of Standing Order 78A) was set in motion. Fourteen charges were levelled against her. On 19^th and 20^th November, 2012 several concerned members of Civil Society sought the intervention of the Court of Appeal to pre-empt this unlawful course of action. The Court of Appeal sought an interpretation of Article 107(3) from the Supreme Court. Having considered the reference, on 22^nd November the Supreme Court recommended to the Speaker and PSC members that the inquiry be deferred until the Supreme Court made a considered determination. Confidently, the CJ met a Parliamentary Select Committee on 23^rd November 2012. In the case of a Bill which, in the view of the Cabinet of Ministers is urgent in the national interest, the Supreme Court is required by Article 122(1)(c) to make its determination within twenty-four hours of the assembling of the Court and communicate its decision to the President and the Speaker. That is a clear indication of the levels of knowledge and skills of analysis expected of a Supreme Court Judge. However, in this matter of the greatest importance in the National Interest, the Supreme Court made no determination until more than a month after their request was explicitly rejected by the Speaker on 29^th November.

Certain that Parliament would continue with the wholly unlawful steps being taken to impeach the CJ, on 30^thNovember I invoked the special Jurisdiction of the Supreme Court under Article 126 to inter alia “quash Standing Order 78A as being inconsistent with Articles 3, 4 and 74(1)(ii) of the Constitution” and to “request the Chief Justice to refrain from taking any further part in the unlawful and invalid trial being conducted in terms of Standing Order 78A”, pending the final determination of the Supreme Court”. In view of the fact that the inquiry was to recommence on 4^th December, I requested the Supreme Court to permit me to support the application on 3^rd December. Notwithstanding the extreme urgency clearly indicated by me, I was shocked and disappointed when I was directed to furnish 3 dates for support of my application. It seemed to me then that the Supreme Court had chosen to be unaware of the grave consequences of the continuance of this clearly unlawful process and to leave room for the PSC to claim that they had arrived at their (predetermined) findings of guilt consequent to an inter partes inquiry.

After the CJ and the 4 Opposition Members withdrew from the unfair and unlawful proceedings of the PSC, the 7 Government MPs on the PSC persisted in going through the motions ex-parte, and predictably, found the CJ guilty. Even then, the wheels of justice moved only sluggishly. On 11^th December I tendered an updated application seeking to support it on the 12^th, 13^th or 14^th of December. Without listing it for any one of the 3 dates mentioned, a ludicrous order was made that the application be “only mentioned” on the 14^th December to fix a date for support. On the 14^th December, Court very reluctantly fixed the matter for support on 18^thDecember. When the matter came up on 18^th December, Wanasundera J was absent and the Presiding Judge Amaratunga J (who presided over the determination hearings aforementioned) opined that my petition included an important constitutional issue, which I believed was the reference to Article 78(1)(ii), and that therefore it would be better if it was supported before 3 Judges. I reluctantly agreed to this proposition and the matter was refixed for the 21^st December, the last date before the Court vacation. On that date too, Wanasundera J was absent and the other 2 judges viz. Sripavan J and Dep J (who, together with Amaratunga J constituted the Bench considering the interpretation of Article 107(3) and were therefore presumably well aware of the urgency of pre-emptive action), refused to let me support my application on that occasion, and refixed the matter for support on 15^th January 2013, notwithstanding my submission that by 15^th January there may be no ‘truly Supreme’ Court, in existence.

On 21^st December 2012 itself, the Court of Appeal considered an application by CJ Bandaranayake for the quashing of the PSC findings and issued notice on the Speaker and PSC Members returnable on 3^rd January 2013. Predictably, this notice was also summarily rejected, with contempt. On 1^st January 2013, (40 days after receiving the reference from the Court of Appeal) the Supreme Court determined that “It was mandatory under Art. 107 (3) for Parliament to provide by Law (and not by Standing Order) for matters relating to the impeachment”. Fortified by this interpretation, the Court of Appeal quashed the findings of guilt already arrived at by the PSC. Predictably again, camouflaged by largely orchestrated counter proposals for saner counsel to prevail, Court orders were treated with contempt and the impeachment process concluded expeditiously. Several members of the Judiciary lost no time in jumping onto the band waggon.

On 15^th January 2013, I supported my application which was effectively reduced by then, to an attempt to “lock the stable door after the steed had bolted”. Sripavan J, Hettige J and Dep J seemed anxious to shut me out on the basis that my petition appeared to fall within the category of Public Interest Litigation – as if that was a crime! The fact that very specific orders made by the Sri Lankan Judiciary had been blatantly flouted, did not seem to concern the Bench, one whit. The only submission made on behalf of the AG was that my petition contained 71 paragraphs, was therefore “prolix” and should be dismissed in terms of a Judgment ofS.N. Silva CJ, Bandaranayake J and Asoka Silva J, all three of whom the DSG emphasised, had risen to the exalted position of CJ. That seemed sufficient for the Bench to hold (without even scrutinising the relevance of the judgment cited) that they had heard the petitioner in support and the DSG in opposition and that leave to proceed was refused in consideration of the submissions of the DSG. I was dumbfounded, to say the least.

My disillusionment with the attitude of the Supreme Court in placing obstacles to my attempts to prevent the CJ from falling into the rather obvious trap laid for her, were certainly compounded when I perused the judgment cited. As Attorney General, S.N. Silva had proposed a course of action that effectively circumvented the very specific course of action decided on by the Cabinet of Ministers in respect of a patent fraud, exposed by my client who was appointed Director, soon after S.N Silva was appointed CJ. Several actions instituted by my client to prevent continuance of the fraud were strongly resisted by the AG’s officers. My client was unlawfully and unjustly interdicted. The FR application challenging this interdiction had necessarily to refer to the Cabinet decision and the AG’s manipulation. Hence the alleged prolixity. Being well aware of the facts, CJ, S.N. Silva should never have heard this case. My insistence on exposing the involvement of the CJ led to the application being supported by another Counsel. This CJ disregarded the punctuation marks in concluding para 111, reproduced it as para 11, upheld a preliminary objection that SC Rule 14(1)(a) had not been satisfied and dismissed the action for that reason alone. Thereby he effectively shut out the facts that cried out for justice. This was only the tip of the iceberg of ‘suppression of justice’, which has contributed to the startling ‘Evolutionary decline’ referred to by Bishop Chickera. Perhaps CJ, Bandaranayake, after appointment as Chief Justice, had resolved to curb this kind of ‘Judicial activism’ and paid dearly for attempting to uphold the doctrine of Public Trust.

On 18^th December 2012, the Judiciary was eloquently alerted to the fact that “Barbarians are at the gate of the Temple of Justice. You let them in, they will destroy all that is sacred and install in the Temple of Justice, FALSE PROPHETS”. In fairness to our Judiciary one must concede “They tried”. However, within one month the “Barbarians” had their way and false prophets were enthroned and even welcomed within the Temple of Justice!

Many of those who demonstrated exemplary courage under CJ Samarakoon’s leadership, wilted rather quickly under the relentless pressure from the Executive, after his retirement. Is history about to repeat itself? Are we witnessing an escalation of that same process now? Even the Justices of the Superior Courts who delivered these landmark judgments in relation to the unlawful impeachment process, and were briefly held in very high esteem, (both domestically and internationally) seem to be conceding that the swift dispensation of justice by the 7 eminent PSC members, is certainly superior to their laboured judgments. Under the new dispensation these judgments may well be reviewed and even reversed.

Though yet unwritten, the prevalent ‘Supreme Law” seems to be that “The Executive (including its kith and kin) can do no wrong”. But all is not lost – as yet! As stated clearly by Bishop Chickera “Evolutionary decline inevitably breeds an alternative people’s resilience, which refuses to succumb to the former. Vibrant and alive in all corners of the country this resilience exposes the irregular system by sifting and sustaining the truth in the security of twos and threes, when doing so publicly could be costly. It is this ability to engage in critique and interpretation across all ethnic, political, religious and class barriers that safeguards human dignity and the national image”. When justice, is distorted the people’s resilience will prevail.

Hope springs eternal in the human breast!

*Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA