Silva’s Style Of Judicial Governance: Silva Used The World Bank To Extract Personal Favours
By International Crisis Group –
International Crisis Group Asia Report No 172, 30 June 2009
Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights
3. The chief justice
The president’s unfettered appointment power includes selecting the chief justice of the Supreme Court. The chief justice in turn influences fellow judges of the Supreme Court and members of lower tribunals. The recently retired chief justice, , is widely regarded as having played a central role in the judiciary’s current politicisation. His appointment is viewed as a “turning point for the judiciary” He developed his position into an alternative political centre to the presidency. In the words of one lawyer in late 2008, “there are now two dictators in our system”.
As a result, one commentator noted, “the court ceased to restrain government actions and indeed arbitrarily upheld the powers of government against citizens”.
Another commentator described Silva as having “ruined [the judiciary] from within”.
Silva’s style of judicial governance has left a problematic legacy for his successor.
President Kumaratunga swore in then-attorney general Sarath Silva as chief justice on 16 September 1999.
At the time, Silva was subject to two pending complaints of misconduct. The UN special rapporteur on the independence of judges and lawyers Param Cumaraswamy indicated concern about the appointment given the pending complaints.
Two petitions in the Supreme Court challenged the appointment. Those petitions were heard and rejected by the Supreme Court’s seven most junior judges. That bench had been chosen by Silva, in a clear conflict of interest.
In his nearly ten years as chief justice, Silva used both traditional and innovative methods to control the judiciary. First, in a break from tradition, he assigned junior judges who were his close allies to decide on the panels (or benches) of judges for particular cases in the Supreme Court. By tradition, assigning benches had been the responsibility of the most junior judge, who placed judges randomly on cases.
By directing who hears what cases, the chief justice wielded possibly decisive influence on outcomes. Early in his tenure, Chief Justice Silva ensured that justices with independent views, such as Justice Mark Fernando and Justice C.V. Wigneswaran, did not sit in significant constitutional cases.
Second, the chief justice also stacked the Judicial Service Commission (JSC), which is responsible for discipline and promotions in the lower judiciary. As discussed below, the JSC was a vehicle for Chief Justice Silva to ensure that lower court judges “toe[d] the line” he wished.
Third, the chief justice tightly controlled discretionary funding and training, with judges having to seek his approval for overseas travel, conferences and other side benefits.
Between June 2000 and late 2007, the World Bank managed an $18.2 million judicial reform program that primarily funded “huge, mainly infrastructure” projects and had little success with its larger reform objectives.
The chief justice chaired the program’s steering committee.
According to one former Supreme Court justice, “Silva used the World Bank to extract personal favours…. It was a patronage system”. Watchdog groups have complained that beyond new physical infrastructure, there is little evidence that the World Bank funds have benefited the courts.
Finally, the chief justice exercised significant influence through the attitudes he expressed while adjudicating. “When he takes cases lightly, this permeates the whole judiciary”, said one lawyer. Early in his tenure, for instance, Chief Justice Silva made disparaging comments from the bench about the importance of detention and torture cases. In the following years, there was a marked decline in the number of fundamental rights petitions filed and judgments rendered.
As a result of these levers, Chief Justice Silva gained “a complete hold on both the JSC and the Court. He uses his juniors to get his own way”, said one former Supreme Court justice.
One sign of this control was the near-complete absence of dissenting opinions in the court’s judgments under Silva. This is in clear contrast to the 1970s and 1980s, when dissent was common.
In June 2009, President Rajapaksa appointed as chief justice Asoka de Silva, the most senior justice on the court – regrettably without involvement of the constitutional council. The appointment offers a chance to reverse the former chief justice’s legacy of a hyper-politicised judiciary. De Silva is known as a cautious, capable and fair jurist, without his predecessor’s strong and highly political personality. He is expected to work more closely and cooperatively with his colleagues on the court. His experience as a judge on the International Criminal Tribunal for Rwanda gives him a welcome familiarity with international legal practices and perspectives. Whether the new chief justice seizes the opportunity will help determine whether the judiciary reclaims its constitutional role as a check on abuses by the executive and legislative branches which have deepened Sri Lanka’s ethnic conflict.
C. APPOINTMENTS AND REMOVALS IN
THE LOWER COURTS
1. The JSC and the Seventeenth Amendment
The JSC is “vested” with power over the “appointment, transfer, dismissal, and disciplinary control” of lower court judges. While still chaired by the chief justice, the two other judges on it, per Article 112(1), were initially selected by the president.
The president has delegated to the JSC authority to handle those issues for high court judges.
The constitution says nothing, however, about how the JSC’s powers are to be exercised or the procedures to be used when imposing penalties. Nor has the JSC promulgated rules on these matters. Before 1999, most promotions within the lower judiciary followed a seniority rule. Promotions and transfers were done in a predictable manner. Judges would be assigned for fixed three-year slots to specific courts. “Everyone knew the rules, and they were followed”. Newer judges were first assigned to a position far from Colombo, and then rotated on a predictable basis to new, gradually better stations.
During Chief Justice Silva’s tenure, the JSC was troubled. Silva rejected the tradition of appointing the two senior justices of the court. He removed from the JSC Justice Mark Fernando, a respected jurist with a long record of independence from the executive, with the stated goal of increasing its “diversity”. He then passed over the most senior Tamil judge, Justice C.V. Wigneswaran, in favour of more junior judges. “The two remaining judges on the JSC were then very weak”.
The deliberate sidelining of the constitutional council further undermined the JSC. Under the Seventeenth Amendment, the two members of the JSC other than the chief justice are to be appointed by that body. In February 2006, the two appointed members of the JSC, Justices Shiranee Bandaranayake and T.B. Weerasuriya, resigned from the JSC over differences with the chief justice about the use of its disciplinary powers. The president appointed two new members based on recommendations from the chief justice without input from the constitutional council. These appointments “created a perception that the government accords … more favoured treatment as a reward for … ‘co operation’”.
The June 2009 re-appointment of Justice Bandaranayake to the JSC is a positive step that holds out some hope that the JSC may be able to move away from the politicised legacy of the former chief justice.
2. Appointments and removals by the JSC
As early as November 2001, an International Bar Association delegation found “consistent complaint[s] relating to improper judicial supervision under the auspices of the JSC and [Chief Justice Silva]”. The World Bank also found that “complaints against the judiciary are not always investigated”.
The UN special rapporteur on the independence of lawyers and judges, Malaysian jurist Param Cumaraswamy, in addition has expressed concern about “allegations of misconduct on the part of Chief Justice Sarath Silva” in the exercise of JSC powers.
There is currently no established procedure for evaluating judges on the basis of which transfers, promotions and punishments can be decided in a relatively fair and objective manner.
The earlier, more predictable schedule of transfers and appointments has been “abandoned”, leaving judges uncertain as to where they will be living and whether they will rise or fall in the hierarchy.
This creates opportunities for abuse. Judges who did not decide in favour of friends and political allies of the chief justice have been removed or transferred to unfavourable locations. By contrast, allegations of impropriety or misconduct against the former chief justice’s allies were not pursued in the JSC. One case in particular highlights the scope for abuse of the chief justice’s and the JSC’s discretionary power. According to one former magistrate, Chief Justice Silva, while attorney general, intervened in a pending criminal case before the magistrate and sought dismissal of charges against his allies. The attorney general does not normally appear in criminal cases; his intervention was reportedly through back-channels rather than a formal legal filing. On becoming chief justice, Silva pressed charges of misconduct against that same magistrate, alleging he had told police at a checkpoint that he was a high court judge, not a magistrate judge. In the JSC proceeding, this magistrate was not allowed to see the findings against him or to know why the JSC reached those findings.
When the magistrate vigorously challenged them in the JSC, he was denied the right to call witnesses and told that his earlier refusal to help the attorney general could also be grounds for dismissal.
The magistrate appealed, but the JSC neither considered nor ruled on that appeal.
The magistrate then submitted a communication to the Human Rights Committee, a UN body established under the Optional Protocol to the International Covenant on Civil and Political Rights. In July 2008, this body concluded the dismissal had been arbitrary and lacked basic procedural guarantees.
Nothing came of this communication. The former magistrate judge observed that: “In general, judges are not independent” of political influence. “Judges are very scared. The chief justice’s secretary can just phone anyone”, and get the result he wants.
Another judge who had sat in various magistrate and district courts inside and out of Colombo was removed by the JSC after having a falling out with former Chief Justice Silva while secretary of the judges’ association. He too noted that Silva had attempted to influence outcomes of cases by offering benefits to judges who would decide the way he wished.
Former judges and legal analysts agree that the JSC had become a conduit for those with connections to the former chief justice. This includes not just the present government, but also elements of the Buddhist Sangha and business figures. One magistrate, Hiran Ekanayake, was dismissed as “mentally unfit” after he refused to “finish … briefly” a set of cases in which the chief justice had an interest. Ekanayake had earlier been abruptly transferred from Thambuthegama, near Anuradhapura, after pushing an investigation into a political bombing possibly linked to the SLFP.
Other instances of JSC intrusion have cut short inquiries into human rights violations allegedly committed by the Sri Lankan military. For instance, in prosecutions involving the disappearance of Fr. Jim Brown in Jaffna and the killing of seventeen Action contre la faim (ACF) aid workers in Mutur, both in August 2006, magistrate judges were ordered to transfer the cases to new judges just as they neared their investigation’s end.
These examples are not outliers. One former judge estimates that at least twenty judges were pushed out by Chief Justice Silva. “Mainly these judges refuse to do something”, he explained, “They refuse to do something the chief justice wants, or make an order against the justice’s friends [or] Buddhist monks [who are close to him]”.
Pretexts were often found to penalise judges not in the good graces of the chief justice.
In addition, the manner in which JSC proceedings are conducted raises due process concerns. According to former lower court judges who have faced proceedings in the JSC, judges are still not always informed of the evidence against them or of the ultimate disposition of charges. The JSC instead suggests they resign rather than being dismissed. Because a formal dismissal makes it difficult for the judge to return to private practice, many judges will resign rather than fight charges.
The JSC was not the only vehicle for the chief justice to exercise influence. According to former magistrate judges, the chief justice also appointed allies as the secretary to the Judges’ Institute, where all lower court judges train. That position served as a conduit for messages to and from the chief justice, where judges would signal the places they wished to be posted and the chief judge would select judges for favoured treatment.
Read the full report here
Read more about Sarath N. Silva here