By Kamal Nissanka –

Kamal Nissanka

If my recollection is correct from Sir Edmund Codrington Carrington the first Chief Justice of Ceylon (maritime areas) to the Hon Dr (Mrs.)Shirani Bandaranayake there had been 43 chief justices in Ceylon and Sri Lanka. After the introduction of the 1978 Republican Constitution the judiciary was under eight Chief Justices beginning from Hon Mr.Neville Samarakoon to incumbent Dr (Mrs.). Shirani Bandaranayake. Out of eight Chief Justices three were destined to face impeachments. It is noted that Impeachment motions of both Hon Mr. Samarakonn and Hon.Dr (Mrs)Bandaranayake were initiated by the respective governing parties in the parliament  of the day under  the tenure  of respective Presidents. The two impeachment motions against   former Chief Justice Mr.Sarath Nanda Silva were initiated by then governing United National Party (UNP) government without the blessings of the President Mrs.Chandrika Kumaratunga. Mr. Silva was lucky to evade from the impeachments firstly as a result of proroguing the parliament and secondly by dissolution of the parliament by Mrs Kumaratunga. According to Sunday Leader of 28th September 2008 in an article written by  Ms. Sonali Samarasinghe (MR gets set to battle the judiciary as war takes its toll on IDP)an attempt had been taken to impeach Hon  Mr.Saleem Marzoof,  a  judge  of  the  present  Supreme Court  against a  comment made by him on non implementation of 17^th amendment to the constitution.(17^th amendment to the constitution is repealed now)

So, under this 1978 constitution as at present isn’t that there is a chance of 37.5 percent for a Chief Justice to be impeached?  If this is so, it is a grave situation and I must suggest that this unfortunate occurrence should be a deep concern to all honorable judges in Sri Lanka specially the superior court judges. In scrutinizing the   manner of appointments of these three judges who faced or facing impeachment one salient feature that could be clearly identified is that all three were not carrier judges.  For some reasons , late Mr.J.R. Jayawardene ,  former President ,founder of the 1978 constitution had relied and trusted  on  Mr. Samarakoon ,a  respected lawyer among the legal fraternity but  who at a crucial stage of the understanding of the  present constitution  felt that  the judiciary in Sri Lanka was not independent  as same as  under the Soulbury  Constitution. Further he clearly understood that the president of the day, his personal friend was marching expressly towards authoritarianism under the blessings of his draconian constitution. A man of principles and much respected Chief Justice Mr.  Neville Samarakoon courageously faced the proceedings of “Standing Orders” which were solely framed to trial him under the direction of his estranged friend, Mr. J.R.Jayawardene. (Similar to the Criminal Justice Commission that was formed to try Mr. Rohana Wijeweera in 1971 or 1972)

Mr.Sarath Nanda Silva was the most long standing Chief Justice after the introduction of 1978 constitution. He had been on the respected seat for ten years.  Mr. Silva who hailed from Katana was regarded a personal friend of late Mr.Vijaya Kumaratunga, actor turned politician of the same locality, the husband of former President Mrs. Chandrika Kumaratunga. President Kumaratunga who always had a style of working with trustworthy friends wanted to bring Mr. Silva,  who started his legal carrier at the Attorney General’s Department, later  as a judge in the Court of Appeal (also President),  sometime later as a judge  in the Supreme Court    to the post  of Chief Justice for reasons best known to her. Elevation of Mr. Sarath  Nanda Silva to the highly respected post was also regarded as a political appointment.

However by the end of 2005 the the working rapport between the Chief Justice Mr. Sarath Silva and President Mrs.Chandrika Kumaratunga seemed to have been diluted.  An application for question of interpretation regarding the duration of the term of the President who have been elected to second term was before the Supreme Court for interpretation. During the period of the proceedings of this case articles appeared in the media that the former President had taken a secret oath before Mr. Silva for some other reason.  It should be noted that Just after the 1999 Presidential Election Mrs. Chandrika Kumaratunga took an oath before CJ in public but an article written by Mr.Rohan Edirisinghe (Senior Lecturer, Faculty of Law, University of Colombo) and another article written by late Presidential Counsel Mr.H.L. de Silva maintained the view that it was not the time, an oath to have been taken as the remaining period of her first term of the President Kumaratunga   had by then not yet been over.

At the time of filing case for interpretation of the Presidential term Mr. Silva‘s good relationship with Mrs.  Kumaratunga was in descending status. The SC under Mr. Silva delivered the judgment declaring the period of Chandrika ends on a certain date.

When President Mr. Mahinda Rajapakse won the 2005 presidential election he had to take the oath before Mr. Silva, the Chief Justice.  No doubt he was one of the architects, in fact a decisive architect of 2005 victory of Mr. Rajapakse. However his relationship, a personal friend of Mr. Rajapakse did not last long and the UNP and alternative media was also attacking him on numerous allegations.  Mr. Silva suddenly found that the immense power he could wield through the post of Chief Justice and dared to deliver some people friendly but anti government judgments. He exhibiting his authority dared to punish Mr. S.B.Dissanatake, then UNP parliamentarian. Thus Mr. Sarath Silva became a Frankenstein; the Executive President was not in a position to control him during his last few years in the office.  With his retirement the President found a tamed Chief Justice in the apex court who is now an advisor to the President

Hon Dr (Mrs.) Shirani Bandaranayake no doubt in every sense a clear cut political appointee was appointed to the Supreme Court  in 1996 by then President Mrs.Chandrika Kumaratunga while serving as a an academic in the University of Colombo. There was unrest in the higher legal circles including the judges during her appointment, however she remained there and gradually became the most senior Supreme Court judge at the end of Mr.Asoka de Silva’s tenure.  At this juncture it is interesting analyze the episode of Chief Justice’s husband who was suddenly appointed to high profile financial posts and later involved in a financial scandal. It seemed that CJ was in very good terms with President initially. However matters were not so conducive and an estrangement had been developed between the two.  Now there is a question as to whether the appointments offered to Chief justice’s husband were given by the President on Mrs. Shirani Bandaranayake’s own request or by President himself as a future taming strategy on the Chief Justice?

Unlike in the first two impeachments, this time a question is posed by the legal community as to the constitutionality of standing order 78 A, as to the jurisdiction of the  Parliamentary Select Committee(PSE.) These issues will be determined in near future. It should be noted by all including the lawyers representing the PSE as well as lawyers who signed the impeachment motion as members of parliament that the interpretation of the constitution only could be done by the Supreme Court itself and abiding by any decision thereof is a must to any lawyer whose enrollment as well as removal is within the wielding power of the court. The Supreme Court by requesting the PSE not to proceed with until it determination has exemplary shown its maturity and judicial temperament.

For judges and lawyers and the legal fraternity, it is not a question of safeguarding the Chief Justice but a mission bestowed upon them by circumstances and nature to safeguard the integrity, independence and self respect of the judiciary.  I think CJ as of now, is also fighting to achieve the same objective as ours, the people’s sovereign right of the independence of judiciary.   If not within the sight of the hangman, within sight of gallows she would not have opted to have chosen the difficult path of facing the challenge at this difficult moment. As in the field of politics the legal profession is also not without jokers and court jesters.  These jokers may suggest the chief justice to resign but what we need is the ongoing debate. The non resignation will definitely intensify the debate. The Bar and the Bench have no option but work in unison to safeguard the self respect and independence of the judiciary not becoming a passive stooge of any branch of state.

From the retirement of Mr. Neville Samarakoon up to date it is almost over three decades and it is evident that  during this concerned period  number of constitutional issues , writ issues and  fundamental right applications   were  argued and determined by superior courts to produce a  set of  highly valued challenging judgments as a result of dedication of legal  luminaries of both judiciary(Bench) and Bar which lacked at the time of impeachment of  Mr. Neville Samarakoon.

However, the impact of three examples of impeachments against three Chief Justices places us in a precarious political-legal trap.  A President is always is in search of a tamed Chief Justice who could be manipulated to his own tunes, whims and fancies. On the other hand an upright, erudite, honest, intelligent, reasonable judge akin to new developments in the international arena cannot be submissive to  a President who clearly manifests dictatorial and authoritarian tendency, in other words to a disciple of Machiavelli. Therefore it seems that the plea for independence of judiciary under the 1978 constitution to be a myth.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)