25 June, 2019

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One Retired Chief Justice Turns To Monkhood While Another Returns To Advice A Kleptocracy

By Uvindu Kurukulasuriya

If you hear that a former Chief Justice has became a Buddhist monk, your first thought may perhaps turn to the former Chief Justice of Sri Lanka Sarath Nanda Silva.
Chief Justice Silva while a sitting judge thought nothing of preaching Buddhism on national television. Not only that, he openly claimed Sri Lanka to be a Sinhala Buddhist country. Chief Justice Sarath N. Silva was also a friend of President Mahinda Rajapaksa. Many years ago, Silva’s young son was even among Mahinda Rajapaksa’s wedding entourage as a page boy.

retired Chief Justice Asoka de Silva upon his retirement as Chief Justice was appointed as the Senior Legal Advisor to the President. This is unprecedented. Today the Chief Justice, tomorrow an adviser to a controversial head of state. What does this imply? Where is the integrity of Sri Lanka’s judiciary?

But Chief Justice Silva also gave up other things in the true spirit of sacrifice. He was embroiled in controversy over his personal life and his love of many women. He gave up one to be with another and so on. He also sacrificed his professional integrity and became a henchman of the government. He even sacrificed his friendship with former President Chandrika Kumaratunga, and worked hard to make Mahinda Rajapaksa the President of Sri Lanka. Having done so he later gave up his friendship with Rajapaksa and became a supporter of the opposition presidential candidate and former army commander General Sarath Fonseka.
Post-colonial Sri Lanka once possessed a healthy and well-respected legal fraternity. The separation of powers between the legislative, executive and judicial arms of government was respected in letter and spirit. Alas with the 1978 Constitution, J.R. Jayewardene began the tradition of political interference in the judiciary by making a political appointee Chief Justice. To some extent, however, this backfired, as Neville Samarakoon did not always toe the line. Eventually he was hounded out of office by the very government that appointed him.
President Chandrika Kumaratunga appointed Sarath N. Silva as Chief Justice in 1999. After serving on her Special Presidential Commission investigating the murder of her husband, Vijaya Kumaratunga, he was made Attorney General. He was subsequently appointed Chief Justice over Justice Mark Fernando, the senior-most judge on the Supreme Court bench at that time. As Chief Justice, he became ex officio chairman of the Judicial Services Commission (JSC). As the then second in line, Justice Mark Fernando should normally have been on the JSC. But President Kumaratunga instead appointed retired judge Justice Ramanathan, who had chaired the Vijaya Kumaratunga Commission.

His daughter Kanishka is married to the son of another (then serving) Supreme Court judge, Jagath Balapatabandi. The son, Isuru Balapatabandi was even appointed as the second secretary of the Sri Lankan embassy in the Netherlands breaching Foreign Service rules

At the time, a major issue in the appointment of Sarath Silva as Chief Justice concerned two petitions from members of the public seeking his removal from the roll of attorneys–at–law, on grounds of professional misconduct during his tenure as Attorney General. One petition by the Ravaya editor Victor Ivan alleged attempts to suppress evidence in the case of a magistrate accused of rape and misappropriation. Ivan’s petition was based on a confidential document written by Sarath N. Silva to then Minister of Justice, G. L. Peiris. (As one of Ivan’s Ravaya colleagues at the time, it was this writer who in fact got that document from Peiris ‘diary). The other petition concerned the allegation that Silva had influenced a District Judge to remove his name as co-respondent in his own divorce case.
This petition was made by Rajpal Abenayake, who was then the deputy editor of The Sunday Times, and is now the editor of Lakbima News. Sarath N. Silva managed to survive with the help of the President and Mahinda Rajapaksa, then a Minister in government.
Sarath N. Silva became the most corrupt Chief Justice of Sri Lanka. By helping to make Rajapaksa President, by ensuring that Kumaratunga left office in 2005 (in a constitutional interpretation that stretches the meaning of the wording to breaking point), Silva expected to be made Prime Minister. Unfortunately, Mahinda Rajapaksa’s brothers, Basil and Gotabhaya – the latter an American Citizen, the former an American Green Card Holder, returned from America brimful with all sorts of political ambitions themselves. Sarth Silva’s ambitions were now dashed and at the time he had a bitter argument with his good friend Mahinda Rajapaksa. In the end, Silva didn’t get anything from Rajapaksa and after leaving office has even confessed to his past misconduct.
However despite his confessions and his propensity to preach Sarath N. Silva has not become a Buddhist monk.
Sarath N. Silva’s successor to the Apex Court was Justice Asoka N. de Silva. He has his own connections. His daughter Kanishka is married to the son of another (then serving) Supreme Court judge, Jagath Balapatabandi. The son, Isuru Balapatabandi was even appointed as the second secretary of the Sri Lankan embassy in the Netherlands breaching Foreign Service rules. One can remember the case related to Secretary to the Treasury, P. B. Jayasundara. Chief Justice Sarath Silva during the tail end of his career all but declared Jayasundera to be corrupt and ordered him to pay personal compensation in the Colombo Port Fuel Bunkering Case. Jayasundera was order to tender an affidavit to Court undertaking never to hold public office again. Once Silva had retired, however, Jayasundera was quietly allowed to withdraw that affidavit. The Supreme Court bench that allowed his motion to withdraw the affidavit comprised Chief Justice Asoka de Silva and Supreme Court judges Shirani Bandaranayake and Jagath Balapatabendi.
When Asoka de Silva retired, Shirani Bandaranayake was appointed Chief Justice. What is shocking is that breaching all existing conventions retired Chief Justice Asoka de Silva upon his retirement as Chief Justice was appointed as the Senior Legal Advisor to the President. This is unprecedented. Today the Chief Justice, tomorrow an adviser to a controversial head of state. What does this imply? Where is the integrity of Sri Lanka’s judiciary?
Filling the office of Chief Justice is not a matter to be lightly undertaken. It is a most serious matter and only those who exhibit the requisite learning in law and who are otherwise qualified should merit appointment to this most prestigious post.
It is worth repeating the basics: “The Office of Chief Justice is a critical one in any democracy in which the courts play a key part in resolving disputes between citizens. This role helps the Government in an indirect way to carry out its responsibility for peace, order and good governance of the society. But apart from this rather indirect and distant involvement in the governance of the society, the judiciary is independent of the Government and is charged, among other things, with the higher responsibility of ensuring that the Constitution and the fundamental rights provided there under for the protection of the citizens are upheld in accordance with the doctrine of the supreme law. The courts can therefore slap down the Government if laws are passed which infringe the rights of people and contravene and offend the Constitution. The offices of a judge of the Supreme Court and of the Justices of Appeal are therefore very important and standing at the apex of this system is the post and office of Chief Justice. The Chief Justice, as presiding officer of the Court, is responsible by statute for its administration, in addition to hearing cases and writing opinions.”

Whither Sri Lanka’s judiciary? It is becoming a highly politicized and corrupt judiciary, serving to protect an authoritarian kleptocracy.
Sadly, since Rajapaksa came to power, we cannot see many of these acts of misconduct discussed in the Sri Lankan media. The editors who fought for the independence of the judiciary are sleeping, or converted to the Mahinda Chinthana. How did these journalists and activists who stood for democracy get into this blind alley?
Finally the Chief Justice who became a Buddhist monk was not a Silva from Sri Lanka but an American – Michael Zimmerman, a former Chief Justice of the Utah Supreme Court. Unlike some of Sri Lanka’s Chief Justices Zimmerman won the Utah State Bar Appellate Judge of the Year Excellence in Ethics Award, Distinguished Service Award from the Utah State Bar, and Honorary Doctor of Laws from University of Utah.

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