Rajapaksa’s Second Choice: Corrupt Justice Hettige As Acting CJ?

By Uvindu Kurukulasuriya –

Uvindu Kurukulasuriya

“The independence of the Judge is dependent on and is linked to the question of his moral integrity. His knowledge of the law and his skills in legal reasoning and analysis in the process of adjudication, though very desirable, are in a sense secondary and of less importance. An honest mediocrity is to be preferred to a clever crook when it comes to the act of judging. Intellectual dishonesty in adjudicating though often hard to demonstrate is to be deplored, while moral depravity and corruption of any sort are wholly outside the pale and must be condemned without equivocation,” – President’s Counsel H. L. de Silva addressing the Conference of the Independence of the Judiciary, August 25, 1999 –BMICH

There is currently a prevalent sense of grave concern and apprehension, one may even say an angst  among a section of the legal community that the deeply cherished values of judicial independence and moral integrity among judges are under serious threat and in a state of crisis. Over the years the foreshadowed dangers have  increased in intensity and have now reached a critical point.

Sometime back, we raised serious issues affecting the integrity of the Sri Lankan judiciary. We raised the issue of the appointment of retired Chief Justice Asoka de Silva as Senior Legal Advisor to the President. Today the Chief Justice, tomorrow an advisor to a controversial head of the state. What does this imply? Where is the integrity of Sri Lanka’s judiciary?

We raised the serious conflict of interest issues relating to the present Chief Justice. We wanted the Chief Justice to answer how her husband was appointed Chairman of Sri Lanka Insurance Corporation, and to the Lanka Hospitals Corporation PLC as a member of its Board of Directors. How was he also appointed as Chairman of the National Savings Bank? Had he applied for the job? Was he interviewed? Who were the other applicants? Were there qualified applicants other than her husband?

At the end, Chief Justice Shirani Bnadaranayaka is impeached unlawfully, without giving her a fair trial. Tonight or soon she will be removed by force. Rajapaksa’s first choice is to appoint corrupt former AG Mohan Pieris as CJ. To do this he is going to appoint his second choice CJ as acting CJ. The plan is to appoint Sathya Kada Hettige as acting CJ, then  Mohan Pieris as the Chief Justice. The Colombo Telegraph has already exposed Mohan Pieris’s misconduct.

Sathya Hettige, who had changed his name after leaving the university, was nominated for an appointment of a Court of Appeal, but on both occasions, the Constitutional Council rejected it on the basis of inefficiency. However when the Constitutional Council was abolished, he was directly appointed as the President of Court of Appeal by the President. Then to the Supreme Court.

He invited President Rajapaksa to his daughter’s wedding, where the President signed as a witness and stayed more than one hour at the wedding ceremony. When Sarath Fonseka challenged his Court Martial in the Court of Appeal, this matter came to light, and Fonseka’s counsel Romesh De Silva P.C., objected to Hettige sitting in the case, since the President appointed the Courts Martial against Sarath Fonseka. But the objection was overruled and Sarath Fonseka’s writ applications were also rejected.

The International Bar Association’s minimum standards on judicial independence, at clause 44  says, “A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.”

Hettige has also been the subject of serious criticism over accepting ruling party nomination papers despite alleged procedural errors, and rejecting opposition nomination papers for local government elections.

I also drew attention to the new tradition of judges inviting politicians to parties. Justice Sathya Hettige invited President Mahinda Rajapaksa, his brother Minister Basil Rajapaksa, and the Prime Minister D. M. Jayaratne and some other politicians to celebrate his promotion to the Supreme Court.

Hettige is also a Judge of the Supreme Court of Fiji, which is under a military dictatorship. The main issue here is the impact his Fijian job has on Justice Hettige when he is sitting in the Supreme Court at Hulftsdorp. Can we expect justice and independence from servants of military dictators? What is their judicial mentality? What is their ethical compass in relation to the judicial function? What principles of judicial independence do they adhere to? Do they make a distinction between their Sri Lankan and Fijian judicial roles? Can someone serving under a foreign military dictatorship, legitimately and credibly, sit at the same time on the bench of the Supreme Court of Sri Lanka? What can be expected of judges in Sri Lanka who serve a military dictatorship elsewhere?

Some would say there is no difference between a military dictatorship in Fiji and an elected dictatorship in Sri Lanka. But others still have a hope about Sri Lanka’s Supreme Court and the judiciary, because there are still judges who have been forthright and dispense justice without fear or favour.

Justice Sathya Hettige must explain why he invited President Rajapaksa to his daughter’s wedding to sign on behalf of their family, it being unlikely that Rajapaksa imposed himself as a witness. What is his relationship with the President? Is it appropriate that a Supreme Court judge should continue to have personal and social relations with the executive branch, especially of a government whose behaviour is extremely questionable from the viewpoint of democracy and the Rule of Law? Why is he going to work under the Fiji military dictatorship? How does his Fijian experience influence his high judicial role in Sri Lanka? Did he not compromise his integrity and independence with the President when he got permission to go to Fiji?

If President Rajapaksa is going to appoint Hettige as the acting Chief Justice he and his government must answer the above questions too!

I hope those who criticised Chief Justice Shirani Bandaranayaka will do the same about Sathya Hettige’s misconducts!!