22 September, 2020

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We Have To Grill Aspirants To The Supreme Court

By Malinda Seneviratne

Malinda Seneviratne

Problems between the Executive and Judiciary, interestingly, have all been related to judges whose appointments have been colored by political preferences.  It is not that they were unsuited, but nevertheless their appointments and therefore integrity were naturally questioned.  Still, as happened when Chief Justice Dr. Shirani Bandaranayake was impeached and removed from office, the focus was less on injudicious selection than on constitutional provision for removal.  Thus, until such time appointments to the Supreme Court are made only consequent to a stringent screening process provided for or supported by relevant legislative enactment, there can and will be impeachment circuses while the 1978 Constitution remains effective.

Now that it’s all done and dusted it is perhaps time to think of ‘starting point’ rather than anticipating and taking precaution against endpoints similar to what we saw a few weeks ago.

In many countries aspirants or nominees to the Supreme Court are subjected to rigorous scrutiny.  Their histories, professional track record, all judgments passed, political positions taken, statements made as well as the lives of close associates including friends and family, are carefully considered in order to evaluate impartiality and integrity.  Not so in Sri Lanka.

True, a president cannot pick just anyone off the street.  There are certain categories that are privileged.  We have had judges of the Supreme Court promoted from lower courts, moved from the Attorney General’s Department or drawn from the academic community.  Thus, there are some basic credentials that one must possess.  On the other hand, credentials are only part of the story.  An example might shed better light on the matter and hopefully prompt appropriate safeguards to be put in place.

Shirani Bandaranayake was an academic and one with explicit ideological preferences.   In fact she was admonished and instructed not to take cases that had anything to do with devolution, given certain outcome preferences and particularities of political reading.  She did.  She irked the Executive.  She paid the price, and the legality or ethicality of process of the matter are not our concern here.  The issue is ‘ideological preferences’. The issue is past record.  Let’s consider these via an unlikely appointment which is useful for purposes of illustrating the importance of circumspection in appointment.

Let us assume that President Mahinda Rajapaksa goes for certificate-weight. Let us assume that he picks Dr Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Canada, Attorney-at-Law and Barrister-at-Law (Inner Temple), one time Visiting Professor of Law, University of Colombo and Legal Director of the Secretariat for Coordinating the Peace Process (SCOPP) during the early days of the Ceasefire Agreement.  Impressive indeed, no one would dispute the fact.

But is Marasinghe ‘clear’ on other issues, especially but not limited to matters arising from the constitution (as is) and questions of sovereignty, territorial integrity and so on?

In an interview published in the Sunday Observer (March 14, 2004), Marasinghe waxes eloquent on ‘extra constitutional methods to change the constitution’.  He interjects an interesting term: ‘the doctrine of necessity’.  It’s about measuring evils and picking ‘the lesser’.  Subjective to core, one would observe.  He also interjects ‘efficacy’, in the event of a coup d’tat.  He adds that all that is required is ‘judicial control in the determination of (the) particular formula’ when certain articles are changed.  Now, if he were Chief Justice in a time of upheaval, say in an Arab Spring, post-Gaddafi Libya or ‘Imminent Syria’, where political control is dispersed, what then?  It would depend on his political preferences!   ‘Necessity’ then would justify and legitimate judicial action even if it amounted to recognizing de facto control of part of Sri Lanka by the LTTE and thereby conferring such with illegal control, with de jure status.

Marasinghe also spoke about ‘extra constitutional means to set up an interim administration a la the infamous ISGA proposals.  He states, ‘A two-thirds majority is not relevant’ according to the present constitution’ a claim that has been disputed.  More importantly says that ‘if you set up an interim administration outside the constitutional framework (as would have been the case if the ISGA proposals had gone through) then you would be recognizing that, that territory is apart from the constitution and not within the territory of Sri Lanka’.

He illustrated the point graphically thus: ‘If you cover a table with a green cloth and put a white cloth over it and then withdraw parts of the white cloth, the green will appear.  Setting up an interim administration outside the constitution would be similar – two different territories.’

Marasinghe, in his capacity as Director (Legal) of SCOPP, was involved in preparing the MOU to be entered into between the Government and the LTTE in order to place foreign funds directly in the hands of the LTTE.  The MOU, moreover, provided that these funds would be treated as loans to the Government and repaid therefore by the Government, although they would be sent directly to accounts not controlled by the GOSL, accounts which the LTTE could access!  The Supreme Court, later, stayed these provisions as unconstitutional (Weerawansa v Attorney General).

Marasinghe advocated this mechanism at the relevant government ministries and departments.  His approach was clearly unprincipled as demonstrated by the SC decision

It’s all scholarly.  Eminently ‘respectable’.  Impeccable academic credentials, however, is still only a thin film in the matter of covering up political project, ideological drive and such.

The problem is that the current system is so loose that a Marasinghe could very well creep into the Supreme Court.  When Bandaranayaka was appointed, her ideological preferences were not scrutinized or rather they may have been scrutinized and won approval from a like-minded political establishment.  Bandaranayaka subsequently went on to do her utmost to wreck the Government’s signature development project.  That was scripted, not when Divi Neguma came up but when she was appointed to the Supreme Court.

The question is, can we (forget the Government) afford to err?  Should we not subject those who are recommended to such positions to rigorous scrutiny?  Isn’t that a price that aspirants ought to be ready to pay?  Or is a Marasinghe going to wreck us somewhere down the line?

*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com

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Latest comments

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    Malinda,

    Was Dr. Shirani Bandaranayake, the CJ, wrong in interpreting the provisions in the Divineguma bill, in terms of the provisions in the 13th amendment? If she was wrong, you can attribute it to an ideological preference. If she was right,as many perceive, it then proves that she has done right by defending the constitution, which was her duty.

    ” In fact she was admonished and instructed not to take cases that had anything to do with devolution, given certain outcome preferences and particularities of political reading. She did. She irked the Executive. She paid the price, and the legality or ethicality of process of the matter are not our concern here. The issue is ‘ideological preferences’. The issue is past record.”

    This is a quote from your blog. How can a CJ be instructed by anyone including the Executive, not to take up cases relating to devolution or any other matter relating to the constitution? Can the CJ be a captive of the Executive and its captive parliament? Does the fact the the Executive was irked matter? Does it justify what was staged to remove her from office? It is not a past record as you term it. It is a matter of intense concern, even for the man on the street. The issue is not dead. It is a live and kicking isuue both here and internationally.

    The screening process you suggest is practiced in the US. However, it has also failed in practice. The president nominates those who are acceptable to him ideologically and if his type dominate in the congress, he has his way. The process, only filters out the unfit, but favours an ideological bias in the Supreme Court. What is important is the ability of a Supreme Court judge or a CJ to overcome personal opinions and ideological biases and uphold the constitution.If not the Supreme Court will at best become another political player and at worst a Kangaroo Court.

    Dr.Rajasingham Narendran

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    Speaking of Lakshman Marasinghe, whose special field I believe is constitutional law, I kept expecting to see him add his mite to the impeachment debate, in one forum or other, including CT. But, as far as I know, he was silent. Utterly, incomprehensibly silent. It seemed absolutely a time for such ‘experts’ to voice their opinion. Even if only out of ‘objective’, scholarly interest!
    I dunno that ‘ideological preferences’ had anything to do with his silence. Anyway, I am not sure exactly what the writer here means by that term — as he has used it here. Is he recommending setting up political commissars? Or that a person’s political views should be scrutinised before he/she is employed in future?
    What precisely WERE Bandaranayake’s ‘explicit ideological preferences’? Does ANYONE know?
    And I ask the question as someone who thought her original appointment to the SC WRONG!

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    The problem is that the current system is so loose that a Marasinghe could very well creep into the Supreme Court. When Bandaranayaka was appointed, her ideological preferences were not scrutinized or rather they may have been scrutinized and won approval from a like-minded political establishment. Bandaranayaka subsequently went on to do her utmost to wreck the Government’s signature development project. That was scripted, not when Divi Neguma came up but when she was appointed to the Supreme Court.

    Appointments based on ‘Ideological Preferences’. No chance for senior career judges who rise from district level and maintain impeccable moral and ethical credentials?

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    Okay, so the President cannot pick ‘anyone off the street’. But isn’t it there that he picks them anyway? And isn’t it there that he would prefer to pick them? That is the first thing that must be stopped. We need not look at ideological preferences and other biases of the individuals shortlisted. We need to consider only whether they are persons of integrity and knowledge willing to apply the law to their judgements. And if their judgements go against the wishes of the government, so be it. We cannot mould the judiciary to support any lofty ideals of the executive. The judiciary must stand by the law as it exists now.That is all.

  • 0
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    its rich to see Malinda S. putting Lakshman M. on the chopping block.

    Marasinghe is an pro-establishment a figure as possible and will wax and wane depending on which political party is in power.

    Does anyone realise that he is the husband of Rohini Marasinghe, one of the avowedly pro impeachment judges in the CA who has taken a vicious line as much as Shiranee T. in persecuting lawyers who supported the former Chief Justice?

    In that context – and despite the theoretical fact that one spouse cannot be held liable for the actions of the other but taking the practicalities into account,expecting Marasinghe to take an enlightened view of the impeachment is sheer rubbish.

    • 0
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      Even Though I am not an Leagle Eagle, I want to express that,
      As you say;
      “In that context – and despite the theoretical fact that one spouse cannot be held liable for the actions of the other but taking the practicalities into account,”

      I like to Modify the context like this,

      “”despite the theoretical fact that one’s SON cannot be held liable for the actions of his Demonic Father but taking the practicalities, Time and the Opportunity [Gold. Money, or Some Treasures] into account, after getting into custody of low,some body can kill a young boy in cold blood.””

  • 0
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    How does the A-Team member of the Rajapaksa Pandankarayas propose to “grill” judges? Using the existing system of taking them away in a white van as his masters do and not returning them if they don’t meet Rajapaksa “standards?”

    • 0
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      A A,

      You Did not mentioned about the Aspirants To The Supreme Court, Grilling by half baked political morons like modawangsa, kudu mervin, Jaathiye Urumakkarayo,ect, at diyavanna oya piggery

  • 0
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    Constitution clearly says about pro.council powers and how ‘Divi Naguma’ bill pass without consulting those p.c. Why only one minister gets supreme power on financial matters more than the cabinet.

    • 0
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      Only one Minister or Family-Minister is entitled to it and lot more.
      These so-called SLFPers are shivering in their boots`!

  • 0
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    Malinda,

    You say “Let us assume that President Mahinda Rajapaksa goes for certificate-weight. Let us assume that he picks Dr Lakshman Marasinghe….”

    What about moral-weight? Lakshman Marasinghe may have a lot of certificate-weight but certainly not moral-weight. He was a walking bragging exponent of Viagra (even at his age). One only needs to talk to some of the ‘chauffeurs’ of a ‘peaceful’ government secretariat where he once whiled away his time for a tax-free salary to find out exactly what this man was up to there.

    This man Marasinghe at the expense of this ‘peaceful’ government secretariat traveled around the country with his lady-friend in tow and had the ‘peaceful’ secretariat pay the hotel bills for his nocturnal escapades with his lady-friend.

    There is much more to tell about Marasinghe, but you all will eventually find out when he becomes the next CJ.

    Marasinghe is a an opportunist and a snake that cannot be trusted!

  • 0
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    Once again Malinda tries hard to obfuscate the truth with words. One can clearly see Malinda´s preferences coming forth through his words.

    Dr. Shiranee Bandaranayake upheld the constitution by not allowing all of the Divi Neguma provisions. Plain and simple as that. That´s her job as well as the other judges on that bench´s.

    Malinda says,”The problem is that the current system is so loose that a Marasinghe could very well creep into the Supreme Court”. What nonsensus. This statement shows Malinda´s extremist inclinations. The simple fact is a Marasinghe has not crept in to the Supreme Court. A Mohan Peiris has.

    In the end, all this is because of an understanding that this Sri lanka is a sinhala-buddhist territory, which is one of the biggest myths that has been indoctrinated into Sri Lankans through teachings in schools, etc. Those who actually understand history, the real one, know that this is not the case. In the end this myth is what has led this country to ruin.

    The present system that we have, the present boundaries of the so called Sri Lanka were WHITE DRAWN Mr. Malinda Seneviratne. Simple as that!

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