20 October, 2020

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SC & AC Judges Should Resign Voluntarily

By ANI Ekanayaka

Prof. A.N.I. Ekanayaka

Prof. A.N.I. Ekanayaka

Hon Justice K Sripavan,
Chief Justice,
Supreme Court Complex
Colombo 12

Your Honour,

Volountary Resignation of Judges Enabling New Appointments by Constitutional Council

As a citizen I am writing to you hesitantly and with a sense of trepidation not even knowing whether in doing so I might be guilty of some impropriety. If so I hope you would forgive me for I write respectfully in a spirit of humility motivated purely by a zeal for righteousness truth and equity in the administration of justice.

SripavanIndeed for those of my generation it has always been natural to regard the judiciary with the utmost reverence bordering on awe. In my younger days names like Gratien, HNG Fenando, Hema Basnayake, HWR Weerasooriya, TS Fernando, Weeramanthri and Sansoni were icons of sturdy judicial independence and integrity. They shaped the lofty esteem with which we came to regard the judiciary. In later years they were followed by others like Percy Colin Thom, Neville Samarakoon and the late great Mark Fernando who typified a certain nobility and lofty detachment that one associated with judges of the superior courts. Such judges ( and there have been others besides ) were able to “ Inspire Public Trust and Confidence” as stated in the current vision statement of the Supreme Court.

However as you know all that has changed for the worse in recent years especially during the Rajapaksa regime and particularly after the passage of the notorious 18th Amendment. The corruption of the judiciary through political appointments and political influence has shattered “public trust and confidence” in the legal system. Most depressing of all has been the proclivity for fawning judges to happily bow to such interference where they had the undoubted choice of saying “no” as demanded by the high calling of their office.

Against this background the 19th Amendment and the refreshing attitude of the new regime created high expectations of the restoration of a free and fair judiciary. However the recent judgment precluding the former defence secretary from being taken into custody for the next 5 months has shocked the nation. It is the kind of judgment that offends the moral conscience of ordinary citizens and consequently brings the law into disrepute. It smacks of special treatment favouring a wealthy, powerful and influential politician with a concession that is hardly available to small people facing arrest for even small crimes.

Consequently it seems now that the restoration of “public trust and confidence” involves more that constitutional enactments and good governance by politicians. What about the judges themselves ? Will a new regime committed to restoring the honour and independence of the judiciary avail anything where judges still sit on the bench and hand down judgments – who were appointed by and were in their own way loyal to the former regime which had a contempt for the judiciary and consistently manipulated the courts to suit its own ends ? Just because politicians stop influencing judges under the new dispensation it does not follow that judges who are accustomed to being influenced by politicians and enjoyed political patronage under the old dispensation will change their spots. More likely they will continue to be manipulated by diabolical politicians now licking their wounds in the political wilderness and biding their time after being thrown out by the people. All this raises serious doubts in the public mind surrounding the credibility of judges. It is possible that my concerns on this account are shared by millions of people who long for a truly independent and impartial judiciary.

In this situation ( and in the aftermath of the 19th Amendment ) it would be a wonderful gesture if all judges of the Supreme and Appeal courts were to voluntarily tender their resignations enabling those qualified and of good repute to be reappointed by the newly created Constitutional Council. If this is too much to ask perhaps such resignations may be confined to judges who were appointed after the 18th Amendment which empowered the President to make such appointments in a particularly arbitrary manner.

I venture to hope that you might kindly consider this proposition and do what you can to promote such resignations. That would help clear the air, dispel much of the current public anxiety and disenchantment about the men and women who now sit in judgment over us, and create a platform leading to the firm restoration of “public trust and confidence” in the judiciary in keeping with its own vision statement.

Thanking you

Yours respectfully

Professor A.N.I. Ekanayaka, Ph.D (Lond.), DDPH.RCS (Eng.), BDS
Emeritus Professor ( University of Peradeniya )

cc.

His Excellency the President
Hon Prime Minister

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Latest comments

  • 14
    0

    Prof Ekanayake makes my hair stand on end.
    Good edtiros, please translate this into Sinhala and Tamil please straightaway – all need to contribute towards good governance in all vertical and horizontal levels.

    • 6
      0

      Yes, translations into swabasha (both Sinhala and Tamil languages) is a must for what’s said in English hereof is worth considering but it does really fall into the deaf ears presumably because of those in the lower rungs (the so called new comers into the profession) of the judicial structure are not at all fluent in English.

      What I do know for sure is, most of those lawyers qualified in the swabasha wont even bother to read the contents of this write-up the moment they realize its in a language they are not fluent enough as a result of which they seem to hate.

    • 2
      0

      Professor A.N.I. Ekanayaka, Ph.D (Lond.), DDPH.RCS (Eng.), BDS
      Emeritus Professor ( University of Peradeniya )

      “As a citizen I am writing to you hesitantly and with a sense of trepidation not even knowing whether in doing so I might be guilty of some impropriety. If so I hope you would forgive me for I write respectfully in a spirit of humility motivated purely by a zeal for righteousness truth and equity in the administration of justice.”

      Thank you very much, Professor, you are a Real Professor and a Real Citizen!

      Will they behave like entrenched politicians or entrenched judges? Let’s see how they respond. Be prepared to wait a century or two.

  • 9
    5

    Hello Prof….

    Tamils still remember the anti-Tamil pure racist FULL PAGE articles written by your favorite ex-supreme court judge…….. HEMA BASANAYAKA appeared regularly in DAVASA and SUN newspapers ..these newspapers contributed and encouraged Tamils massacre for many years ..

  • 11
    0

    Some of these judges went behind the defense secretary and addressed him as ‘Sir’ and promised to do his bidding (and in the process sold their soul) to get these appointments.

    Justice Aluwihare was rewarded for prosecuting Sarath Fonseka and did the above as well.

    Fat chance these fellows would tender their resignation!

    • 2
      0

      poosa

      “Fat chance these fellows would tender their resignation!”

      “Justice Aluwihare was rewarded for prosecuting Sarath Fonseka and did the above as well.”

      Can they be charged for Double Standards in Justice, and Collaborating with the to twist and corrupt the law?

      • 1
        0

        can some Pro Bono Lawyers assist and file for contempt of court by “Judges who gave arbitary judgements” . Contempt of court by citizenry is an offense punishable by a fine and jail..So what happens when the Judge is in violation of the same …?

        Isn’t it contempt of Court IF the Judges, knowing that their judgements were wrong..still went ahead and issued judgements favoring someone who they know or for something in return? IF so take action against them…

        Why was Gota given SPECIAL privilege? Is he ABOVE the law? will an average Joe get the same treatment? are there 2 sets of laws one for the Rich and Powerful another for the poor and timid?

  • 6
    2

    Fat hopes!!

    I guess there are 11 SC judges and atleast 9 of them would not get reappointed if they resign.

    So why should they resign ???

    Are we day dreaming??

    • 1
      0

      Jagath Fernando

      “I guess there are 11 SC judges and atleast 9 of them would not get reappointed if they resign.
      So why should they resign ???”

      Yes.

      They have a little more intelligence than Mahinda Rajapaksa, but nevertheless was willing to interpret the law the way Mahindaa Wanted.

      So, need term limits. Otherwise, you have to wait until they die.

  • 3
    0

    ” In this ( and in the aftermath of the 19th Amendment),it would be a wonderful gesture if all judges of the SC and Court of Appeal were to voluntarily tender their resignations………….”

    While reserving my comments on the aspect of the judges decision to resign or not as the author of the article says,I would prefer to confine myself with the aspect of the decision of the two judges in deciding to preclude the former Defence Secretary from being arrested for a period of five months and if the reasons for arriving their decision was motivated in good faith or extraneous considerations which should not have been of no concern to them.

    On the other hand,if their decision was based on a misdirected on a fact or of law a higher bench of the SC court should deal with that,remembering that here we are concerned with good governance and the welfare and future of the country and it’s peoples at large.

    The issue here is if a final ballot should be a matter for the people or not.

  • 0
    2

    Prof:Ekanayake.

    You type…..

    In this situation [and in the aftermath of the 19th Amendment] it would be a wonderful gesture uf all judges of of Supreme and appeal courts were to voluntarily tender their resignations and enabling those qualified and of good repute to be reappointed by the newly appointed Constitutional council……

    [Edited out]

  • 2
    0

    In agreeing with your thinking it is unthinkable that those who have been compromised for fear or favour would even consider resigning.

    What Sri Lanka needs is a “Integrity act” in the constitution that allows each an every one to be responsible for all their actions without a statute-of-limitations or time-bar.

    The damage caused by those who act without integrity for whatever reason tantamounts to treason.

    Glaring example is where the Former Chief Justice has claimed on more than one occasion he has acted ultra vires

    At this point in time – we would not have the problems we are facing now should Sarath Silva had been guided by a stringent Integrity act.

    He has the audacity to claim that he acted in bad faith with respect to the Tsunami funds and Mahinda Rajapakse.

    He and people of such ilk should even now be held responsible for their acts of omission and commission.

  • 3
    1

    Why not appoint another Parliamentary Select Committee to review the qualifications of all judges.
    These laymen ‘examined’ a former CJ and found her ‘guilty’!!
    Where was this Prof. Ekanayake then?

    Now, another almost similar group of “eminent” laymen called a “Constitutional Council”, is going to perform a similar exercise.

    Earlier we had Supreme Court judges who found even actions of a president & a few ministers unlawful, and, also the actions of an army commander and election commissioner.

  • 2
    0

    If we are to start afresh Let the CC appoint the Independent Judicial commission and they intern Appoint the Judges of the SC , CA, Then nobody will question the integrity of the Judges, and they too will be free to do their job independently and deliver proper justice, and not be dictated by anyone

  • 1
    0

    Hats off Prof ANI Ekanayaka for writing this letter to CJ of the SC expressing your concerns that perhaps all who want to see SL transforms into a just and fair society are having. Although the voters against all the odds have expressed their preference to clean up institutions that are detrimental to restore the good governance, the parasites left in these places are still in full swing and hard to get rid of, and they seem to be hell bent on returning favors to the master who put them in such respectable positions, ignoring all the moral and ethical norms, which doesn’t appear to confine to the SC but all the law and order establishments. The verdict on Gota FR case is clear manifestation of how MR Government has wrecked the judiciary and, Y3 removing Mohan from the CJ position doesn’t mean anything unless Justice system functions maintaining its neutrality.

    In fact the Chief Justices in the recent past are the notorious ones that did the unrepairable damage to the trust and confidence of the people regarding the judiciary. When Mr Silva, the former CJ says he himself was responsible for letting MR off the hook in one of the cases he presided, as he believed that he might make a good PM, doesn’t he denigrate the justice system?. I was wondering, cannot he brought in front of the court and punished for his comments alone. How could a responsible person like a CJ can make such utter foolish comments and got away enjoying his pensions and retirement benefits. Then, madam Siriyani posing photo with Namal, the brilliant Lawyer that SL produced in the recent past, breaking all the norms. When such give-ins allowed what to expect, more and more demands from executive to work for them, even as HE’s Agent resulting in the Amendment to lift Presidential term. Subsequently when she realized that the position severely undermined had to be put an enough is enough, it was all too late and she was removed. Then, Mohan, who even on the last day of MR’s Government, was in the elite company of the President, trying to see if an Emergency can be declared when sensed that voters turned their back to MR. So, if the heads behaved in this fashion, what to expect from the next layers judges, obviously, such situations expected to encourage a competition among them in showing their willingness to readily oblige for politicians needs and wants. These two judges have now shown what they are up to, and it is now up to the politicians to pick which is best out of the two.

    I don’t think these judges who have got the nominations after 18th Amendment will simply render their resignation, rather they would be aiming for the top job doing the ground works necessary. To think they will resign is a wishful thinking on the part of not you alone but every citizen who wants to see the resurrection of good governance that you related was in the good old days. However, the letter at least serves to send the feeling of the people and how they do see the recent drama at the SC.

  • 2
    0

    Silly Lanka has already become a totally corrupted nation, gone to ‘dogs’ and it’s not that easy to ‘straighten the dog’s tail’..

    The mindset of most of the people have changed for the worst. RW, MS can only do so much, they can’t afford to do everything they wish to, under the prevailing fluid situation. They just can’t trust every one, the forces loyal to MR & Co., and the untrustworthy prostituting’ politicians of all colours.

    RW and MS cannot be blamed for not taking strong action in many cases as many people expect them to. Unfortunately they have to walk a razor sharp sword with caution and care….until things change for the better, slowly and surely.

  • 1
    0

    Sensible request. Typical simpleton with a yearning for the past.
    The remedy is to change the culture of impunity. Good Luck.

  • 2
    0

    Prof:

    We did not hear from you when Hon:Shirani Bandaranayake CJ WAS IMPEACHED!

    I notice that you have left out Justice C.Nagalingam, Justice H.W.Tambiah from your list of Judges of the Supreme court.

    Why?

  • 1
    0

    Chief Justice could offer an attractive voluntary retirement scheme for the judges appointed under the 18th amendment.

  • 2
    0

    Dear Prof. Ekanayake,

    Your letter to CJ is timely and well thought out. Let us hope good decision would be forthcoming.

  • 1
    0

    Sri Lanka’s judiciary has always enjoyed respect and esteem for its independence, integrity. intelligence and hard work.If there is any corruption or partiality amongst some there is no reason for all to resign. The corruption and partiality if any is a by product of the authoritarian system of government without a respect for democracy and the Rule of Law which Sri Lanka has had to suffer for some time now. The bad by products will hopefully soon be a thing of the past.

  • 1
    0

    Prof Ekanayake does not give direct reasons why the judges should resign. It is clear what Upul J and Co did before. Is Prof Ekanayake showing some signs of mental decay upon aging or is he a part of another uprising giving a some warning sign?

    I have noted that he rightly or wrongly praising the DG of CIABOC for good work as published in the CT. So is she also ear marked as a promotee to the restructured judiciary as envisaged by Prof Ekanayake and his set of men?

  • 0
    0

    Thanks Prof Ekanayake. We have read some timely articles in the newspapers before too. You have come forward when a need arises.
    These Judges may not resign as most of them know that they have come there the wrong way and will not have any chance of getting reappointed. However, it is good to raise this as a public concern and a debate.

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