25 September, 2020

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Evolutionary Decline Of The Sri Lankan Judiciary

By Elmore Perera

Elmore Perera

Bishop Duleep de Chickera has opined (Island of 23rd and Daily Mirror of 26th February 2013) that “The episode of the impeachment of CJ  Bandaranayake is 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 5/6ths 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 19th and 20th 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 22nd 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 23rd 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 29th November.

Certain that Parliament would continue with the wholly unlawful steps being taken to impeach the CJ, on 30th November 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 4th December, I requested the Supreme Court to permit me to support the application on 3rd 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 11th December I tendered an updated application seeking to support it on the 12th, 13th or 14th 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 14th December to fix a date for support.  On the 14th December, Court very reluctantly fixed the matter for support on 18th December. When the matter came up on 18th 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 21st 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 15th January 2013, notwithstanding my submission that by 15th January  there may be no ‘truly Supreme’ Court, in existence.

On 21st 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 3rd January 2013. Predictably, this notice was also summarily rejected, with contempt. On 1st 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 15th 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 of S.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 18th 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

 

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Latest comments

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    We hope that the new BASL President Upul Jayasuriya who was elected by a thumping majority is as much interested in restoring the rule of the law and the independence of the judiciary as you are, Mr. Elmore Perera. His priority number one should be removing that illegal Chief justice. Some of our leading lawyers appear to be in a convenient slumber when some international legal luminaries are raising their voice against the mock trial that impeached Chief Justice Dr. Shirani Bandaranayake!

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    When it comes to democracy and rule of law the status quo cannot be accepted and all efforts should be made to mitigate and restore the situation. This should be through political and legal methods by publicising and challenging the HR violations and corrupt practices of the govt.

    The final restitution of the sovereignity of the people can only be achieved through political change and redrafting of the constitution. The social debate and constant reminders should serve to prevent these issues of democracy and rule of law being forgotten and status quo accepted by the people.

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    Elmore Perera writes ‘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.’

    Wjat is this rose spectacled view of Shirani’s actions when she became Chief Justice?

    Has Elmore forgotten that she presided over the disastrous 18th Amendment? Is this called ‘leading from the front”??

    In numerous other cases of fr, she refused leave to proceed and insisted that the AG be notided first. She posed for a shameless photo with that MR’s first born.

    I strongly condemn her impeachment and applaud her guts for standing up to a tyrant but do NOT look at her through rose coloured spectacles!

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      Remember the story of the last straw that broke the camel’s back ? I think the Divineguma bill was this last straw and the 18th amendment the one before that.

      Dr. Rajasingham Narendran

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    Like all right thinking people Elmore Perera has delicately pointed out that the judiciary itself has been weak and vacillating and must share the blame in this “evolutionary decline”. Sri Lanka’s situation is therefore quite serious. The country has an intellectually challenged parliament. Is it the same with the judiciary?

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    I think Elmore has tried to present a dispassionate analysis without allowing prejudice to colour his judgment. I mean prejudice against Dr. Shirani Bandaranayake for allowing the passage of the 18th Amendment. I appreciate Elmore has placed his analysis at an academic level.

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    At this point of time, especially with the US proposal going forward, the best action the President can do is to establish a National Government and the National Government to have participation of all political parties in Sri Lanka. Defence Secretary should be removed from his position, and if required he can become the Secretary to the President. The National Government should then decide how to come out of the mess we are in.

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    There is no point in writing accademic articles once the horse has bolted. A close reading of the article indicate the unhealthy attitude of shutting out of litigants by trivial preliminary objections that was condoned by SC including ex-cjs when they adorned the bench. What goes around comes around.

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