She has commenced the highly damaging remarks based on harmful assumptions by stating that in 1999 I was appointed as Chief Justice by “one time personal friend Chandrika Kumaratunga”. I wish to place on record that I was appointed a Judge of the Court of Appeal by President J. R. Jayewardene after twenty years of service in the Attorney General’s Department commencing with my appointment as Crown Counsel. I was appointed acting President of the Court of Appeal by President Premadasa and President of the Court of Appeal by President Wijetunga. Later, I was appointed a Judge of the Supreme Court and in 1996 President Kumaratunga appointed me as Attorney General. In 1999, I was appointed Chief Justice following a clear precedent according to which an Attorney General who had served as a Judge of the Supreme Court is appointed as Chief Justice. Sir Allen Rose QC; Hema Basnayake QC and Victor Tennekoon QC were similarly appointed as Chief Justice. The writer who has never associated with me claims to have intimate knowledge as to my personal friends and worse still as to when such a personal friendship ceased. She has in a casual statement intended to ridicule my appointment as Chief Justice brought into contempt the entire constitutional process of appointments to the Supreme Court.

She has also commented adversely that the appointment was made “bypassing … late Justice Mark Fernando”. I wish to place on record that in 1988 when I was a Judge of the Court of Appeal, the late Mark Fernando who had not served as a member of the minor judiciary or the Attorney General’s Department was directly appointed to the Supreme Court, when every judge of the Court of Appeal had decades of experience in the minor judiciary or the Attorney General’s Department. The normal progression was from the Court of Appeal to the Supreme Court. But, none of us sulked that we were by passed or overlooked since upon appointment the office of the Judge is respected. The writer is taking up cudgels on behalf of the late Justice Mark Fernando in respect of an appointment made thirteen years ago solely to heap insults on me.

The writer has described the period I held office as the “disastrous decade” and that “one man was able to virtually destroy a once respected institution”. In many previous articles she has described this as the dark era of the judiciary. Now the level of malice has increased and it has become the “disastrous decade”. One wonders as to what would be the next description. Her venom directed at me seems to be increasing with the passage of time. The Chief Justice is only a cog in the machinery of the administration of Justice in which every judge from the level of Magistrate upwards, the members of the bar, court staff and Government agencies such as the Police, play important roles in different aspects. During this period the Legal and Judicial Reforms Project was implemented with the assistance of the World Bank and every court house in the country was refurbished and modernised. Many large new court complexes were constructed in all parts of the country including those areas hitherto controlled by the LTTE. Several automated processes were introduced with old typewriters and furniture becoming a thing of the past. Judges training with the Institute being based at the Chief Justices official residence (which was never occupied by me) became a regular process with specially structured programs of overseas group training being arranged. Remuneration of Judicial Officers at all levels and of the staff were nearly doubled leading to a situation where no demands for enhanced emoluments were made. In the writer’s perception this was disaster and destruction. There are none so blind as those who do not wish to see!
The writer has also stated that “books and files were thrown at senior lawyers” by me. In my seventeen years as a Judge of the Superior Courts, she has never argued a single case before a bench of which I have been a member nor has she appeared as a junior counsel in a matter that was heard. I recall one or two instances in which she made an application to obtain time on behalf of a senior, which I am sure was readily granted. So, all these tantrums cannot be matters of first hand knowledge. I think you as the Editor has spent more time in the court presided by me and know at first hand the degree of cordiality with which proceedings are conducted. But, no court can function well without firmness when required. The writer with her bizarre imagination has converted the court house presided by me to a veritable madhouse.

She has followed up by heaping insult on the senior members of the bar by stating that, “the absurdity of it all was that these purportedly eminent counsel took the abuse lying down”. I do not think that she has any right to insult the bar of this country using me as an avenue for doing so.

She has also used bits and pieces of judgements to castigate me further. A judgement maybe analysed to advance the administration of justice. It has to be a bona fide jurisprudential exercise. It is an abuse of media freedom to pick sentences of a judgement for the sole purpose of insulting the judge. The writer who has availed of columns in your newspaper over the years to condemn and insult me lacks the objectivity necessary to analyse any judgement to which I have been party. It has to be borne in mind that any matter for hearing in the Supreme Court has to come up before a bench of at least three judges and when the judgement is delivered and the seal of the court is placed, it becomes a judgement of the Court. Any attempt to ridicule such a judgement for the collateral purpose of finding fault with the judge is an insult to the court itself.

I am immeasurably delighted by the former Chief Justice’s response.
I have criticized him throughout the years certainly harshly but with eminently good reason, though his definition of ‘vitriol’ may differ with mine. It is unnecessary to join issue with him on his heated defence of himself since that is a waste of space. The precise nature of his stewardship over the Court during 1999-2009 rendering it ‘a madhouse’ (I could not have said it better) is meticulously documented inter alia in the impeachment motions lodged against him from 2001 to 2004 even though these did not come to any finality due to the fortuitous prorogation/dissolution of Parliament by former President Chandrika Kumaratunga as well as in the reports of the International Bar Association (2001 and 2009).
Frankly, as a matter of principle and other than in exceptional instances, my every effort as a legal practitioner during that time was to avoid his Court as much as possible. However his confident allegation that I had been criticizing him based on pure hearsay is quite wrong as a matter of record. The former Chief Justice’s memory appears to have (unfortunately for him) turned remarkably faulty.

Responding also in the public interest, necessarily though reluctantly in a personalized manner due to the nature of the allegation that he has leveled against me, I take great pleasure in reminding him of at least one notable instance to the contrary, namely the hearings before the Supreme Court on 26th of November 2001, just days before the General Election was due to be held on 5th December 2001. This was when SC Case (FR) 633/01, along with two other similar applications, was called before a Bench presided over by the former Chief Justice. In that case, I marked appearance as counsel for the Free Media Movement in a fundamental rights application brought in the public interest to urge the doctrine of public trust, that funds of all tax payers of differing political persuasions should not be used to maintain a biased state media. Two other senior counsel, including a former Attorney General, marked appearance in two similar applications filed respectively by a constitutional law lecturer and by an activist also in the public interest

In response to my application which was heard first, the former Chief Justice, after hearing submissions during which several questions on the law were put to me and being unable to disregard settled legal precedents but still disinclined to put the Chandrika Kumaratunge government to such an onerous duty (though there was a notable change in this attitude later), threw the file across the desk in virtually dismissing the application and demanded to know whether my client was a tax payer? Further when I requested an early date for the matter to be next mentioned due to the urgency arising from the pending elections, he demanded to know if I was trying to intimidate the court. Outrageously and in complete disregard of the public trust doctrine, he then stated that if any tax payer was affronted by biased coverage by Rupavahini, all that had to be done was to turn to another television channel.

These three applications were then laid bye, which order still stands to all intents and purposes. The former Chief Justice’s cavalier attitude in this case was commonly criticized over political talk shows on television at that time. Despite his labored denials and cheap jibes now, his intemperate judicial conduct was well in the public domain in any event and one certainly need not have had the infelicitous experience of ‘arguing’ before his Court to be aware of this. I merely stated the above to buttress my excruciatingly distasteful direct experience in regard to the temper ‘tantrums’ as he refers to since he has chosen to base his entire ‘right to reply’ on denying the same. Needless to say, that was the last time that I chose to appear before his Court in whatever capacity.

But most tellingly, his long winded response to the Focus column in issue does not substantially engage with the critique made of the Helping Hambantota Case and his claim that he gave the decision in that instance expecting that ‘Mahinda Rajapaksa in turn would safeguard the rights of the other people but that is not happening today’ (Daily Mirror, October 16, 2012). True to form, he only uses an empty threat of contempt of the court process. I am quite unimpressed by this threat.

To the same point, I will continue to criticize members of the bar whenever appropriate, not to insult the entire bar but only those leaders who renege on the wider duties owing by them to the Rule of Law. In sum, as I said in these column spaces of October 21st, 2012 which he challenges, these are huge contributory factors in bringing about the crisis of constitutionalism facing Sri Lanka today. This was the main thrust of the column, to provoke an honest rendition of our collective failures in that regard, not to waste space in castigating the former Chief Justice, as well deserved as that may be in the opinion of many. The dilemma now before right thinking people who spurn the current attacks on the country’s democratic structures by this government is as to what political alternatives offer a genuine change? Will it be a case of exchanging one set of political rogues for another? As long as this dilemma persists, this government cannot be dislodged from its most authoritarian seat.