By Vishvamithra –

Bad experience of the post independence judiciary in Sri Lanka

A vibrant, and independent Judiciary is an integral organ in any democracy and the trust and confidence it earns is of paramount importance for the proper maintenance of the Rule of Law. Therefore it becomes the duty of all citizens to be vigilant and mindful that the Judiciary exercises people’s judicial power strictly in accordance with the Rule of Law, protecting democratic rights of the people enshrined in the Constitution, giving not even a slightest impression to the people that it aligns with the Executive but steadfastly devoted to defend the independence of the Judiciary.

Sadly Sri Lanka’s judiciary has had bitter experiences under several regimes, beginning from the rule of President JR Jayewardene in 1978. Since then the interference with the judiciary for political reasons became a common sight and the situation worsened with every passing regime and the Judiciary itself should be held accountable for the erosion of people’s respect for varied reasons.

The undue interference by President Kumaratunga administration resulted in weakening the judiciary, probably to the lowest levels during the post-independence era. Abusing the Executive power to deny the respected Judge Mark Fernando, his legitimate expectation to the office of the Chief Justice was one amongst many. For purely political reasons, President Chandrika Kumaratunga chose Sarath N Silva, then one of the most junior judges in the hierarchy, to the office of the Chief Justice.

It is interesting to learn the process adopted by President Kumaratunga to make Sarath Silva the CJ. He served in the Court of Appeal at the time. Then he was   made the Attorney General and thereafter circumventing all accepted norms he was appointed to the office of the Chief Justice. This had demonstrated that there is no recognition or place for the Judges who fearlessly uphold the Rule of Law and the fundamental freedom of the people. Full credit should go to the journalist Victor Ivon for exposing the lawlessness in the Judiciary under CJ Sarath N Silva.

The people voted for Mahinda Rajapaksa hoping that all these wrongs would be corrected as pledged by Rajapaksa in his two Presidential election manifestos presented to the people in 2005 and 2010. However this was not to be.

Unfathomable damage caused during the Rajapaksa era

The harm caused to the judiciary during the Rajapaksa regime became unprecedented. The professional body of the lawyers, the Bar Association criticized the damage caused by the executive to the judiciary in no uncertain terms in a number of public appearances and also through number of press releases.

The Bar Association launched several protest campaigns and rightly rose against the abuse of Judiciary by the Rajapaksa regime including the unlawful removal of the CJ Dr Shirani Bandaranayake in January 2013. These actions undoubtedly reinforced the people’s will to rise against the lawless Rajapaksa regime.

Bar Association condemns the unethical judicial appointments

All the right thinking people were delighted and grew in confidence when the President of the Bar Association lashed out at the humiliation of the Judiciary in the hands of the President Rajapaksa on several occasions.

As the President of the Bar Association has declared, if the independence and the pubic confidence in the judiciary to be fostered and an efficient and proper administration of justice are to be established, due process should be followed in all judicial appointments, especially concerning the appointments to the superior court system. Further it is always necessary to have a transparent criteria and a due process for the appointment and promotion of Appellate Judges. This should not be vested solely in the hands of the Executive President. However, this was not adhered to by the Rajapaksa administration, thus deteriorating the Public confidence in the Judiciary.

The President of the Bar Association reiterated the need for judicial appointments to be made on the basis of merit and seniority alone and not on political considerations. He further hit out at the neglect and overlooking of career Judicial Officers who have worked hard over their entire careers, denying their legitimate expectations.

Unjust removal of CJ Bandaranayake

Dr Bandaranayake was elevated to the office of the CJ by the President Rajapaksa in the year 2011. She had been in the good books of President Rajapaksa and it climaxed when the bench presided over by her endorsed the 18th Amendment without referring it to the people at a referendum. However, she lost the ‘pleasure’ of the President when the Supreme Court ruled certain bills unconstitutional. Finally she was removed unjustifiably even without affording a fair hearing.

Unlawful appointment of Mohan Pieris to the office of the Chief Justice

The appointment of Mohan Pieris to the office of the CJ is viewed as the culmination of the lawless Rajapakse regime. At the time of his appointment there was a serious charge of misconduct and dishonesty against him, before the Supreme Court and further there was no vacancy in the office of the CJ. By then both the Supreme Court and Court of Appeal had ruled that removal of CJ Bandaranayake was unlawful.

Appointment of Public Officers to Superior Courts

This is a bad practice that is never followed in other leading democracies like the UK, where not a single officer from the Crown Prosecution Service is appointed to the Judiciary. But in Sri Lanka such officers are given a preferential treatment when filling vacancies in the superior Courts, denying the career judges of their legitimate prospects. On the other hand, this leads to laws delays as the lawyers representing Attorney General are excused for violating the Rule Book by such judges, compelling innocent litigants to suffer through the denial of justice with no regard or respect to the delay of justice.

Simply the Justice delayed is justice denied.

Criticising the appointments of Priyantha Jayawardena to Supreme Court and Vijith Malalgoda from the AG’s Department, as the President of the Court of Appeal, the Bar Association questioned the thinking behind these appointments and asked the Executive whether it wants a subdued Judiciary that makes orders on the will and desires of the Executive.

Dignity of the lawyers at risk

The President of the professional body said that if it loses the struggle for Judicial Independence and professional integrity, and cannot defend the lawyer’s right to practice the profession with dignity whilst ensuring the safety of the Judiciary on the basis of the highest principles on which the legal profession is founded, then every person who seeks justice will be at great risk.

Association President silenced with an offer by the new regime

Now the President of the Bar Association has accepted a political appointment offered by the new regime as the Chairman of the Board of Investments and Maithripala Sirisena regime has made it stand clear (through the 19th amendment bill published) that it has no desire or will to install a brand new judiciary with fair-minded judges with integrity, wisdom will. In this backdrop the membership in the profession who refused to compromise their integrity are compelled to face the full force of the subdued Judiciary dominated by some unfit subservient elements, as claimed by the Bar Association, appointed by the defeated President Rajapaksa.

Ill effects of appointing Mohan Peiris to the office of the CJ

The subservience of the Court under Mohan Pieris became a humiliation to the office of the Chief Justice. He openly declared that there is nothing called separation of powers and that the judiciary should always maintain a cordial relationship with the executive. The undermining of the judiciary during his unlawful occupation of the office of the CJ was such that it was viewed by the right-thinking members in the profession with utter contempt.

The constitutional law expert Dr Reeza Hameed impressively described the pathetic state of the Judiciary in this country not just Mohan Pieris (but all the other Judges in the Supreme Court including Justice Sripavan) who conveyed their ‘considered opinion expressed in very submissive language’ on two questions referred by the President Rajapaksa to the Court as follows

“… Court virtually regarded that it is duty bound to give its opinion on the reference. The feature that stands out in the opinion is not only the unctuous tone which the Court has adopted in responding to the President’s request for an opinion, but also the sanctimonious view it has taken of the importance of its own opinion given in an advisory capacity, and the un-judicial language with which it has chosen to castigate those who have taken a view contrary to its own…”

“… The Supreme Court effectively let its integrity to suffer in the eyes of the people, and only the Court to be blamed itself. The opinion expressed by the full bench of judges in the Apex Court headed by Mohan Peiris on the two questions referred to the Supreme Court by the President Rajapakse, without affording a fair hearing is no ‘opinion’ at all and it has no legal effect as the Supreme Court has acted in breach of its Constitutional duty to have hearing on the reference made to it by the President…”

“… Given the virtually surreptitious manner in which the Court gave its opinion on the reference and the equally surreptitious and hasty manner in which it went about preparing its opinion without giving an opportunity to interested persons to make oral submissions, it cannot be said that the Court’s opinion is deserving of any weight. Yet, Mohan Peiris, did not consider it improper to consider the pleas of the citizens including the Bar Association of Sri Lanka to contest the legality of the two questions in the open court…”

Vilified pseudo judges

Chief Justice K. Sripavan, speaking at the recent ceremonial sitting of the Supreme Court, said the power of the judiciary depended largely on its reputation for independence and, integrity and wisdom. “The strength of the Judiciary entirely consists in the moral allegiance which it can evoke by the hold it has over the hearts of the people …”

Can a public spirited and fair minded citizen trust this person who, amongst other judges in the Supreme Court, simply betrayed the people’s judiciary power and surrendered their sovereignty to President Rajapaksa through Mohan Pieris make a statement of this nature. Can Sripavan J, a man who failed to demonstrate impartiality and firmness under pressure be trusted to defuse the crisis in the Judiciary? The answer is absolutely not. Truth is that these are pseudo judges responsible for ruining the dignity and independence of the judiciary.

Dignity of the judges

Respect for the Judiciary is of paramount importance in any democratic society for the proper maintenance of the Rule of Law and the Bar Association has rightly observed that the criticisms in the public domain of the personal lives of judges are most unfortunate and the interference with the judiciary by the President Rajapaksa was questioned whether he wanted to break the backbone of Judicial Independence?

End result of the failure of the Rule of Law

The Bar Association always urged that if the Executive continues to ignore the merit, seniority and eminence for political patronage in making appointments to the superior court system then there is a great danger that people will have no hope for justice and declared that the Judiciary under Mohan Pieris failed miserably in this direction too.

New regime under duty to reconstitute the superior court system

President Rajapakse appointed public officers from the Attorney General’s Department to the Superior Court System as judges with no regard to the accepted norms. More than half of the total number of judges currently serving in the Apex Court had been the former public officers served in the AG’s Department, including justice Sripavan. Therefore, it is obvious that, as always demonstrated their bias towards the AG, these judges afford preferential treatment to the Attorney General Department thus causing laws delays, denial of justice to the people and ill-treatment of lawyers who refuse to compromise their integrity and upright stand against the   corrupt system of judiciary manipulated by the Attorney General’s Department.

The style of governance of the new administration suggests that it is happy and content with the removal of Mohan Peiris, apparently believing that the rule of law has been restored in this country. The government ignores the fact that the judges arbitrarily appointed during the forcible occupation of the office of the CJ by Mohan Pieris continue to be in office.

The transitional provision in the proposed 19^th Amendment

Transitional provision in the 19th Amendment provides that the members of the Public Service Commission, National Police Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption and Finance Commission, shall cease to hold office on the date on which the 19th Amendment becomes law. However it is silence on the office of the Judges occupying the Superior Court System, giving a signal to the people that they have to live with the subdued judiciary bestowed by President Rajapaksa that failed to uphold the people’s judicial power and surrendered it on a plate to President Rajapaksa who held a firm grip of the Judiciary through Mohan Pieris. Therefore if the new regime is truly concerned about the upholding the rule of law and the burning desire of the people that brought it to office to install a independent and vibrant judiciary, the transitional provision to the 19th amendment must also includes a clause that the office of all judges in the superior court system too become vacant, when the 19th amendment becomes law.

The writer believes that this is the only way forward to restore the integrity in the Judiciary that would commit to uphold the people’s judicial power with due regard to the trust and confidence placed on it by the people, with appointment of competent judges with integrity and exemplary character purely on the recommendations made by the absolutely independent Constitutional Council. Only such Judges appointed to the office on merit and seniority alone would guarantee the due process of law avoiding inordinate delay in the dispense of justice in conformity with specific time frame of two months specified by the Article 126 (5) of the Constitution in disposing rights violation petitions filed in Court.

The reinstatement of the Constitutional Council

The new administration, in its Presidential Election campaign pledged to restore the Rule of Law and to observe the Good Governance with reinstatement of the 17th Amendment to the Constitution. The reestablishment of the Constitutional Council is one of the most urgent needs in the process. The selection of members to the Council guarantees Good Governance and Rule of Law, as it would consist of 10 members amongst which the Executive President appoints only one member. Five of them will be nominated by the Prime Minister and the Leader of Opposition and another one by the minority parties in the legislature other than the parties to which the Prime Minister and the Leader of Opposition belong. The rest of the members would be the Prime Minister, the Speaker, and the Leader of Opposition. This process then, will ensure the appointment of members to the high profile pubic offices including the judges to the superior Court System transparent and acceptable to the people.

Glimmer of hope for a vibrant and independent judiciary

Surely this is a better arrangement that provides citizens of this country to have a hope that appointments made through the Constitutional Council will help to defuse the crisis in the Judiciary and to install a better and orderly one, ensuring the people the justice they deserve with no delays, realising the aphorism that justice must not only be done, it must also be seen to be done.

Lets hope the new regime would understand the maxim that justice delayed to the litigants is nothing but justice denied