Great injustice commensurately results in great anger. When that injustice is alleged to be perpetuated by the one individual in whose hands is vested the final authority to remedy wrongs of lesser human beings, namely the head of a country's judiciary, an unstable and dangerous edge hones that injustice.

This column has not been sparing in its criticisms of the manner in which the former Chief Justice presided over his Court since 1999. It has also not swerved from such criticisms notwithstanding the hurrahs of the populace in response to the several ostensible 'good governance' decisions of the Court during the last two and a half years of the former Chief Justice's term. It has had good reason for such a dogged persistence.

Judicial distemper and contempt of court

This Court's scandalous disregard for judicial precedent and convention alike during this term is common knowledge. Counsel who cited judgments of the Court that were unfavourable to the former Chief Justice's thinking in a particular case were castigated, those judgments were referred to as 'kitchen judgments' and legal precedent was completely disregarded.

Some counsel had books and files thrown at them and others were threatened with contempt of court. Litigants who even unknowingly trespassed on court decorum were handed down severe and summary punishments; the sentencing of a middle aged teacher of English to one year rigorous imprisonment for talking loudly in court and filing several motions, is just one of those palpably unjust instances.

Media comment on any matter regarding the judiciary was tightly controlled; in one quite hilarious example, media institutions were warned against mere reportage of disputes between the former Chief Justice and subordinate judges who had accused the Chief Justice of bullying them.

Inconsistency of judicial reasoning

The Court's early years in relation to the Kumaratunge administration were meanwhile irreversibly defined by a refusal to castigate her for legion abuses of power. The doctrine of Public Trust articulated by the GPS de Silva Court and expanded through reasoned thinking by Justices Mark Fernando and ARB Amerasinghe during the eighties and early to mid nineties, was thrown to the winds. The post 1999 Court even declined to intervene in clear cases of abuse of the Public Trust doctrine, where the state airwaves, even though maintained on public funds, was being used for blatant party political propaganda during the 2001 elections. These cases are, in fact, still pending in courts. The political negation of two impeachments against the former Chief Justice as well as the reversal of Kumaratunge's fortunes at the tail end of her term is now documented history.

These years were however remarkably in contrast to the Court's pitting itself against the political authority from about the year 2007, some time after a honeymoon period with the Rajapaksa administration had lapsed into turbulence. The reasons and background for such a change needs to be written about in detail elsewhere than in the short spaces of a newspaper column.

Suffice to state that, this time around, a collision course was charted with the executive, resulting in many of the Court's orders being openly ignored. Thus, we saw a new spectre raising its head; this time around, it was the overreach of the Court in stretching the boundaries of the Public Trust doctrine to an extent that many justifiably argued was unsustainable. In the 60th Anniversary Oration of the Faculty of Law, senior attorney-at-law Dr RKW Goonesekere, examining some of the recent court orders, raised the relevant question as to whether the original fundamental rights jurisdiction given to the Supreme Court had acquired a criminal jurisdiction?

It is this overreach which has now led to applications before the new Chief Justice urging a re-hearing of old cases on the basis that injustice has been caused. In a related development, a petitioner has also filed a fundamental rights application claiming that the former Chief Justice had misused his judicial powers to keep him in remand for 294 days to avenge a personal grudge.

Is a Chief Justice above the law?

Undoubtedly however, the current dilemmas before Chief Justice Asoka de Silva are prickly. Insofar as the functioning of the Judicial Service Commission is concerned, the new Chief Justice has pledged on record that reforms will be effected. The arbitrary disciplining of minor judges who had incurred the displeasure of the former Chief Justice and was denied even the minimum of natural justice, had been a further feature of the past decade leading to senior judges of the JSC resigning in protest. What further applications may be filed against past judicial orders remains to be seen. In principle, it may well be said that if the actions of a former President have been ruled to be not above the law, then that same principle should apply surely to the actions of a former Chief Justice?

A legacy of judicial injustice

Clearly however, these events are unprecedented even if measured by the colourfully chequered history of Sri Lanka's Supreme Court. In a system where the disciplinary control of judges is in the hands of politicians who themselves wish to control the courts, there is little that one can do with a subverted judicial system except to wait for the wheel to turn in the fullness of time.

Though this time has come, the question as to how the injustice caused to litigants must be redressed while not further damaging the institution of the judiciary is the most vexed dilemma that confronts the present Chief Justice.

In the ultimate analysis however, one might ask if this most unpleasant phenomenon of judicial injustice is what we are left with after ten years of what may be referred to as the Sarath Silva Court.