22 September, 2020

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The Process That Brought In The New Chief Justice Is A Yahapālana Achievement 

By Shyamon Jayasinghe

Shyamon Jayasinghe

“What yahapalanaya essential aims at is to establish systems so that individual politicians and ordinary citizens are impelled to fall in line. Anyone who violates the laws of the land is automatically booked and hooked by the steel hand of the system.”

Cheers To Chief Justice Dep!

We saw His Excellency Priyasad Dep come, and now we see the latter going on retirement. The fact that a judge cannot get an extension is also sacrosanct; because if that was permitted it could lead to abuse, with judges giving decisions with a view to seeking extension. Justice Dep gave inspired leadership to the paramount doctrine of independence of the judiciary. The judiciary is the pinnacle of good governance that is known as yahapalanaya. Justice Dep leaves his position with the patriotic and ethical satisfaction of having helped to develop a strong system of good governance in his country. All praise to him!

Systems

What yahapalanaya essential aims at is to establish systems so that individual politicians and ordinary citizens are impelled  to fall in line. Anyone  who violates the laws of the land is automatically booked and hooked by the steel hand of the system. You touch a hot oven with the naked hand and you will burn your hand. In the same way, you offend the law and you get into trouble  as a matter of course irrespective of your personal standing. This is the system working. In this way, once the system is established the government need not have to depend on well behaved persons to ensure required outcomes. 

The sovereignty of the law ensures the sovereignty of the people, which is the foundation of democracy; the judiciary is the ultimate protector of the law and, by inference, of the peoples’ sovereignty. What has been accomplished by the 19th Amendment to the Constitution is a system that ensures an independent system for the judiciary.

Recent History

Tensions may naturally arise between the executive arm of government and the judiciary. Sri Lanka did experience such conflicts even before the Mahinda Rajapaksa era. The executive would desire a judiciary that can be bent as it wants. Under JR Jayawardene we saw that tension in action. During that era we also observed an exemplary Chief Justice, Neville Samarakoon, refusing to carry out a JR whim.

On the other hand, Sri Lanka’s recent history has been tragically marred by unholy men in that high position of  public trust. We had former Chief Sarath N Silva once reportedly saying openly and shamelessly that he could have jailed Mahinda Rajapaksa if he wanted to, over the Tsunami episode; but that he saved him. What kind of talk was that? The CJ is not an emperor who has arbitrary powers to save or punish according to his whim anyone who comes before court. This statement implies that it is acceptable for the CJ to grant personal favours. Justice Sarath N Silva’s subsequent political gymnastics after retirement confirmed his misunderstanding of the role and status of the Chief Justice. The treatment given by the then President and his government to another former Chief Justice, Shirani Bandaranayake, is also on record. The assumption of the Rajapaksa regime was that a CJ is there to give judgment in favour of the government and that if that be not done the government can brow- beat the CJ into retirement. This is what, sadly, happened to Justice Shirani. Former Chief Justice Mohan Pieris reportedly did further violence to his sacred role. The media reported that when Mahinda Rajapaksa was defeated in 2015, Justice Pieris had promised to give judgment in favour of the new government if he were appointed. I haven’t seen Mohan Pieris denying that report.

In this way, concerned and discerning Sri Lankans with a social conscience witnessed before their shocked eyes the open undermining of the doctrine of independence of the judiciary. This undermining process came in both ways: one by acts of commission and omission by the then President and his government. Two, by the reciprocative cooperation on the part of the holders of the high office of the judiciary. Some judges of poor quality were appointed on the grounds of their personal links to the government. This further enhanced the vicious mutually cooperative process.

Ensuring Independence in Selection

The need to have the crucial appointment of the Chief Justice made as impartially as possible according to merit and not as a personal favour of the President done with expectation of favoured judgments is thus self-evident. This was the whole reason for the provision in the 19th Amendment  to the constitution that required the setting up an independent Constitutional Council and other independent commissions. The Constitutional Council plays a pivotal role and it is formed by seven members including the Prime Minister, The Speaker and the Leader of the Opposition.  The latter constitute the ex-officio component. Persons of unquestioned integrity have been appointed as the non-ex-offico component of the present Council.

The process that brought in the new Chief Justice, Nalin Perera, is a working illustration of the of the efficacy of employing independent commissions as embedded in the 19th Amendment to the constitution. In this instance, the President had to give a nominee only and the Constitutional Council’s consent must be obtained to translate that nomination into an appointment. This precondition would naturally put the President on the alert to ensure he nominates somebody that may be acceptable. This was’t the case in the past, as we know. The President used to appoint anybody according to his will and pleasure. “My car, my petrol”! that was.

Furthermore, a Chief Justice appointed in the yahapalanaya  way would carry credibility among the rest of judges, among the Bar and among the whole community at large.

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Latest comments

  • 0
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    I have some reservations.

    These are early days for the new constitutional council.

    But they must develop consistent and reliable processes,criteria and procedures, not only for the appointment of a Chief Justice for all such posts and for o all commissions…

    • 1
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      If Prez appointed that Eva Wanasinghe, things would have very different today. I think what we get to expereience today in media is always the mislead.
      They the press authorities are made toothless bodies by the press freedom, so that any minions could spread hearsays making them headlines.
      This is very unfair and will have serious consequences for the society. Not good thoughts or steps woul dhave been promoted by today press media. Press media has become unavoidable area where many become helpless.
      See, there had been rumours about so many things, but got appointed by Prez is a neutral person. THere, I am very pleased and thank to president, but I am vehemently against with President, since he behaves as if he has no powers to act whenever it is mandotory. At the time, long awaiting murder cases are questioned, he points the finger as UNP, as if President in the country as no powers.
      He has lot more powers that he can exercise, if HE REALLY WANT tTO do so. No matter, SLFP or any other highly corrupted parties would have been maginalized, he as the first citizen, take the very essential steps fulfiling the pledges he sworn before LATE REV Sobitha Thero. He the president owes more within the next few months. He should not be relected, but he should finally send MOST abusive Rajakshes to long term jail sessions. Just allowing those men to roam free, he has been doing a great threat to LANKENS that kept the faith on him, hoping he would FULFIL the promise.

  • 1
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    Mr. Shymon Jayasinghe: Don’t you think that there is ONE more step, that has to be taken to ensure that the “MOST ELIGIBLE” nominee of the President is appointed to the named “JOB”? The “NOMINATION” has to be put to a “TEST” by this “APPARATUS” called the “Constitutional Council” set up in terms of the 19th Amendment to the Constitution. This apparatus called the “CC” must “Check” and “Balance” the SUITABILITY of the person nominated, for which purpose there must be in place a mechanism to put the “Nominated” through a “Litmus” test, that which must also be OPEN and TRANSPARENT. Perhaps, you would remember, there was an instance where this President nominated two persons for such a SINGLE job. What happened? The President was requested to re-nominate ” ONE” person. What did that convey? Any “ONE” person nominated would be appointed . That should not be the “Criteria”; Let the President nominate any numbers; but this “Independent” authority must see to that the MOST SUITABLE from among the nominated candidates is given the “JOB” and he/she would thereafter be named the “STATE OFFICIAL” who carries out “STATE FUNCTIONS”; but NOT “Obligatory to a Political Authority”. That most required IMPUNITY to function as an “STATE OFFICIAL” (as long and as far as he/she does not violate and abuse the rules) must also be enshrined in the legal system of the country. Just one more step FORWARD only.

    • 0
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      D.
      Better to have a few names e.g. 3 candidates names to be submitted to the CC by the Pres; CC who will decide on the most suitable Justice by a Majority vote.

  • 0
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    Not really. If the CJ SL reaches 65 too soon, all the good work (if any) can be undone by the successor.

  • 0
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    Shyamon Jayasinghe : That is enough for to go for an election. How about toilet paper worth Rupee. One NEws clip says Sri lanka was printing money for the past several devades and it has gne up exponentially. Now there way is borrowing. what happened to the Remnimbi they got from china, Indian rupee they got from India. thsoe were loans too.

  • 0
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    Constitutional Council should be the one recommending. Parliament should be confirming. President appoint him only after that.
    Within one day recommendation, confirmation appointment and Oath are eye washing gimmicks. That is not a selection process at all.

  • 0
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    Douglas, further to your observations one can clearly see a clear imbalance in the nominations to the Constitutional Council. Three independent nominees against seven politicos. Against the back drop of what the Prime Minister RW has said in Parliament regarding the powers of Judiciary it is not difficult to understand the motives of having the wielding power with the parliament and controlling the judiciary in a subtle manner. If the Yahapalana Govt. is so honest as they proclaim constitutional Council should not have the majority from members of parliament, their representation should be limited to the Speaker, Prime Minister and the Leader of Opposition. The most recent appointment of CJ is a glaring case where the two leaders were not acting in unison.

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