Colombo Telegraph

What A “Democrat” And Should He Go Scot Free ?

By Kusal Perera –

Kusal Perera

That so unlikely an outcome should accrue to a man possessed of such limited talent and so many flaws, and one lacking in a sense of ethics and decency, was one of the bitter ironies of history. – William Thomas Green Morton

This is a majority Sinhala Buddhist society in a country, introduced in song as the “The most noble of all countries in the World” (Loken Uthum Rata Lankawai), where an ex-Chief Justice could get on a platform that’s supposed to campaign for “democracy”(?) and say, “There are many complaints that it was I who was responsible to bring Rajapaksa into power. I admit it since Mahinda Rajapaksa was freed to become President because of this decision by the Supreme Court,” [DM – online ; Tuesday, 16 October, 2012 – 07:00] Then PM Rajapaksa was freed of allegations of misappropriation of Tsunami funds, to quote this man again, “We did this expecting Mahinda Rajapaksa in turn would safeguard the rights of the other people but it is not happening today”. It is for that reason he says, he admits responsibility in Mahinda Rajapaksa becoming President, And this man, a self proclaimed Buddhist preacher, and late entry into advocacy for “democracy” is applauded by the Sinhala audience in this country, for saying it.

As Sarath N. Silva now says, this decision is plain personal and nothing legal. Expecting a person  will be good, will be serving others, safeguarding the rights of other people in freeing a person indicted in a Court of law, is pure wishful thinking that has nothing legal in it for sure. But of course he did coin some legal jargon to make his personal decision look legal. Far worse is what he did to MP Kabir Hasheem. As CJ, he also slammed a torturous penalty on the complainant, Kabir Hasheem. That too now seems was done, to give his personal wish, a judicial colour and some credibility.

Ex-Chief Justice

History of Sri Lanka during the past decade would have been certainly different, IF he did his job right, as people expect a Chief Justice to do. If he did honour that high seat, maintaining its repute, trust and confidence. Sarath N. Silva’s utterances now prove, he had betrayed all that trust, all the confidence and the reputation of that high seat, he was expected to at least maintain, if he could not improve on them.

His personal interest and an uncompromising vindictive ego as a Judge heading the Supreme Court in making decisions is evident beyond doubt, in how he decided upon the Contempt of Court case against Micheal Anthony Fernando. Writing about that indictment, Mumbai High Court (Retd.) Justice, H. Suresh contributing an article on “Contempt” to Asian Human Rights Watch wrote, “….In my view, the imprisonment of Mr Michael Anthony Fernando ordered by the Chief Justice (Sarath N. Silva) of Sri Lanka is without the authority of law. In short, it is illegal (Emphasis added). The Chief Justice has no right to send any one to prison except in accordance with the law. Otherwise, he can only detain a person till the rising of the court.”

Let it be reminded that Fernando was even brutally assaulted while in remand prison and had to be hospitalised, was chained to the bed as a remand prisoner, while CJ Sarath N. Silva sat on judgment over the case in February 2003, while being a respondent in the case. The fundamental norm in the judiciary that “respondents” and judges should not be same, was violated. Such is this man, who was once CJ of this “most noble country of the world” and it goes to prove that he could have very personal reasons in arriving at decisions.

He has to be held responsible and never pardoned for another very serious dent he made in representative democracy that keeps violating the sovereignty of the people. His decision(s) that allowed any “cross over” in parliament to continue as an elected MP, despite his or her political party objecting to his or her continued presence in parliament as a MP, allowed hoards of UNP and SLMC Members of Parliament to jump camp to accept ministerial portfolios in the government. A week ago, when Leader of Opposition Wickramasinghe making a statement in parliament on the independence of the judiciary, took umbrage against former CJ Sarath N. Silva for not being independent, UNP Galle District MP Manisha Nanayakkara, another cross over interrupted to say, he is still MP thanks to CJ Sarath Silva.

The SC decision which allowed crossing over from one side to the other, in effect was to allow the government to “buy” over opposition MPs and at one point, Weerawansa was compelled to say, the parliament is like a horse dealing market. If not for that SC decision, 17 plus MPs from the UNP would not have been able to sit with the government and make themselves Ministers. All those millions of votes that went against the government and for the opposition party before they picked on their preferences, immediately became irrelevant. Allowing such huge cross overs made a mockery of representative democracy and the parliament a legislature with a wholly distorted people’s will.

Whether such a person who had been the sole reason in deforming the people’s verdict in electing a representative parliament of their choice as reflected at an election, a person who claims he is responsible in freeing a person to allow him to contest the presidency and one who violates the fundamental norms of the judiciary to sit on a case while he is a respondent, should be allowed on a platform for democracy, is what those who organise such platforms should decide. If they want to have such an opportunist of high repute on their platform, it would only define what “democracy” they would want, after Rajapaksa.

But what is more important is, whether such persons should be allowed to go free without being challenged both legally and publicly, for breaching social trust, for compromising the integrity and reputation of high office and undermining the independence of the judiciary for possible personnel reasons. It is important too that a sound precedent is created on such issues of Public Interest. At least for the future.

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