By ANI Ekanayaka –
Hon Justice K Sripavan,
Supreme Court Complex
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.
Indeed 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.
Professor A.N.I. Ekanayaka, Ph.D (Lond.), DDPH.RCS (Eng.), BDS
Emeritus Professor ( University of Peradeniya )
His Excellency the President
Hon Prime Minister