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Does ‘sorry’ swansong soap Sarath Silva’s sins?
View(s):The Hindus cleanse their sins in the flowing waters of the sacred Ganges. The Catholics use the private confessional box to confess, repent and, through the sacrament of penance, atone for their sins. Lanka’s former Chief Justice, Sarath Nanda Silva does it in public, basking in the limelight and loving every minute of the attention he so desperately craves.
Last Saturday at a public seminar organised by his new found comrades, the JVP, at the New Town Hall in Colombo, the former Chief Justice professed regret and sought absolution from the Lankan public for the errors of his wayward ways at the zenith of his judicial powers. He apologised to the nation, saying a terse sorry for giving a wrong judgment in a case concerning the presidential election of 2005. Sarath Silva also indicated the supposed torment in his heart when he declared that his legal folly had caused the present turmoil in the country.
Ex-CJ Sarath Silva: Guilty conscience?
If by a simple sorry a man could cancel out the consequences of his transgressions, could cursorily dismiss with three little words the resultant ‘turmoil’ of a nation and absolve himself of all responsibility and blame, then the world will be turned to a devil’s playground for every passing imp and goblin to cast his mischief and for every full bottomed wigged head to interpret laws according to his own whimsical twisted fancy and consign the nation to the flames with scorn. Then neither the Buddhist theory of Karma nor the Catholic concept of divine justice with God as the supreme arbiter will hold any sway. Crime and punishment in man-made law; cause and effect in the natural law which deliver justice will be effectively rendered redundant, replaced by the new catch phrase courtesy of “Sorry” Silva”: Throw thy seeds to the wind and reap not the whirlwind.
And, pray, where did this great pang of remorse strike this silver-haired former chief judge? Apparently this great revelation that he had boobed on the bench came to him when he was shopping, no doubt, for his greens and carrots for the JVP at the Narahenpita pola.
Describing his momentous tryst with truth, he said: “I met a JVP member at the Narahenpita pola recently and he asked me as to why I did not give the right judgment in 2005 and I could not answer him. But today I tender an apology for it. I am very sorry. I am asking the whole country: forgive me.”
So does he think he is off the hook? Innocent as a new born lamb, fleeced of his stained wool and virginal as the freshly fallen snow? Clean as a whistle to blow it again in cacophonous conceit?
In 2005, as the Chief Justice of the Supreme Court Sarath Silva is called upon to hear a case concerning a candidate contesting in the national election of that year. His judgment of the case will decide who will be the next leader of the nation. Upon his judgment, rest the fate of Lanka. He is expected to discharge the highest duty of care, to consider the applicable law, to apply relevant legal dictum to the circumstance of the case and through strict legal reasoning devoid of bias, come to judgment. He delivers his judgment and the natural consequences of his decision ensue. Now, nine years later, quite nonchalantly, he says his judgment was wrong; and says sorry about it and very sorry too that his wrong judgment has plunged the country into turmoil. But will that do?
What Mr. Silva does not realise is that his failure to give the right judgment is not a venial sin, not a partial lapse of grace on his part which can be easily excused by the mere mouthing of a few ‘very sorry’ epithets, dropped casually at a town hall meeting. Given the gravity of the issues that lay before the Supreme Court in 2005, he was then being called upon to exercise all the skill and experience of a person held fit to be the Chief Justice of Lanka, to tender with all care, responsibility and integrity a judgment based solely upon the laws of the land. His admitted failure to do so, his unforgivable impudence to use the law as a tool to forge ends not envisaged in jurisprudence, make his transgression a moral sin, a permanent break of the trust bonded with the public, a permanent breach of the relationship of integrity with the nation; and no summary ‘sorry’ will do to redeem trust betrayed. It must come through, what the Catholics call, genuine repentance and penance.
But then Sarath Silva’s sanctimonious confession and his hollow sorry were not made to purge his soul but to clean his political slate. It is no different to the JVP saying a meaningless sorry after leading thousands of Sinhala youth astray to their lamppost deaths.
But the amazing factor to emerge is that despite Sarath Silva’s downright confession that he blotted his legal copybook by delivering the wrong judgment in a major case of national importance which by implication has cast doubts on his fitness and competence to have ever adorned the high office of the Chief Justice, he still continues without a blush to offer legal opinion to those dumb enough to pay the slightest importance to it.
Last Saturday, immediately after admitting he erred in his judgment and wronged the nation, he goes on to offer legal opinion to his JVP sponsors that the Government cannot hold a snap presidential election according to the third amendment to the Constitution and that the incumbent president is disqualified from contesting a third term.
For the unquestioning JVP faithful their savant is infallible even when he is wrong, provided, of course, he says the things they wish to hear. For these ignorant bigots, still following a theory even Marx would have discarded today as being wrong and said sorry for plunging the world into turmoil in the twentieth century, the value of private citizen Sarath Silva’s present farcical opinions have not reduced to naught even after he admitted he blundered in his judgment as Chief justice and claimed it plunged Lanka into ‘turmoil’.
They thus provide a gullible but great awe struck audience for the glib ex chief justice to peddle his pseudo legalistic patter as if he was the chief justice in exile and the New Town Hall his supreme court. And he revels in it. For the Sarath Silva Doctrine, like the Mervyn Silva Thesis, dictates and impels him to find in the utmost depths of human behaviour, a deeper still; and spurring to wallow in controversies or to create new ones to splash in as long as it feeds the ineradicable urging of his bloated ego to be in the news, however odious it may be.
Like his namesake Mervyn Silva, Sarath Silva has also dug his own grave before the oil in his lamp had run dry. But unlike Minister Mervyn who is still hanging around waiting for a last minute reprieve, Sarath Silva has jumped into the crypt, head first.
| SUNDAY PUNCH 2
Ex CJ’s self-impeachment bid Former Chief Justice Sarath Silva’s ‘sorry, I was wrong’ episode staged last Saturday where he unabashedly admitted he committed a grievous error of judgment and delivered a wrong verdict in an important case involving the Presidential election 2005, raises a vital question: For judgments of the Supreme Courts are final. No appeal lies from it. Whether a judgment is considered right or wrong, it will remain the law of the land; and the precedent set will bind all subordinate courts, until and unless a similar issue comes before the Supreme Court and presents an opportunity for a fuller bench of the Supreme Court to overturn it. Apart from sitting judges and members of Parliament within the chamber of the House, no other person can openly hold it as being a wrong judgment. Certain leniency will be allowed for academic criticism based on justifiable grounds and praiseworthy motives but it is not open for the general public to cast an outright denunciation as being a wrong judgment and furthermore to add that it is the cause and the curse of the present turmoil in the country as if they were commenting on the decisions of the third umpire at a T20 cricket match. The Supreme Court’s power to deal with contempt of court is extensive and what will amount to contempt and how the courts will deal with it cannot be predicted by any means. Article 105(3) places no limitation on the punitive power of the court and a person found guilty of an offence of contempt would be liable to any term of imprisonment or fine as may be considered appropriate by Court. In other words the courts have total discretion in both finding and sentencing. In 2004, S. B. Dissanayake who was then a UNP MP found to his chagrin what it was to make comments against the Courts outside Parliament without the cloak of absolute privilege. He was jailed for two years by the Supreme Court for making a speech described by the Supreme Court of which Sarath Silva was Chief Justice, as a speech that ‘strikes at the root of the administration of Justice by the court by eroding public confidence and whipping up public opinion against the decisions and processes of the court.” The day Chief Justice Sarath Silva disrobed his ermine cloak and laid aside his full bottomed wig and retired from his position as the head of the Supreme Court, he became to all sense and purposes, a retired judge, a lay member of the public, effectively disbarred from his legal profession on account of him having served as a judge of the Supreme Court. He became a private citizen of the country. His chief justice voice was stilled. But the echoes of the precedents he set would still ring. He became divorced from the judgments he delivered as Chief Justice. He left them behind, lodged as the sole property of the Supreme Court. They no longer belonged to him. From the day of his retirement, they assumed a spirit of their own, became free of their Frankenstein, and would hover over and help, harangue or haunt the lives of even those still unborn until a supreme judicial stake is driven to their hearts to finally slay them and leave them coffined in the sepulcher of damned precedents. Until such time it is no more open for their creator to criticise his creations, however monstrous, than it is for any other member of the public to dare lambast it as grotesque. No doubt there may be other judgments pronounced by Sarath Silva in his capacity as chief justice which he now regrets. Perhaps, he will also like to apologise for having sired them too, especially his decision in 2004 which opened the floodgates for UNP MPs to crossover in droves to the government. This decision later enabled the government to obtain a two-third majority in Parliament without any legal bar by the simple expediency of enticing MPs to turncoat; and, in turn, empowered the government to amend the constitution and bring in the 18th Amendment which, among other things, abolished the two term limit of the president to contest again. This is a situation Sarath Silva vehemently deplores. Would he like to state that he was wrong in giving the judgment that made this chain of events possible, and say sorry for that too? If there are other demons howling in his closet, he should keep the cupboard doors closed and his much flapping trap shut and purge his spurious contrition in private. Or Mr. Silva may well find himself within the ambit of contempt of the very court he once lorded over. The Rule of Law, clothed in the majesty of awe inspiring respectability and vested with an aura of infallibility, cannot afford to have former chief justices turned wandering political minstrels, hanging around with political groupies, singing their political songs at various levels of political pitch and condemning judgments they themselves once made as being totally off the mark and even satanic in its operation. Imagine if former chief justices were to come out in Sarath Silva’s crabwise steps and were to shuffle out of their responsibilities by soaping their souls in public and bemoaning the wrong judgments they once gave which, mind you, may well still be law? What will be the case if impeached Chief Justice Shirani Bandaranayke, taking a cue from Sarath Silva, were to come forward at a UNP rally and say she gave a wrong judgment in approving the 18th Amendment and that she regretted having done so and bewailed the disaster it had wreaked? What if she were to say she deserved to be impeached for that alone? What if other former chief justices too, still alive, were to air in public their private misgivings as to the judgments they had delivered? How would a riot of regrets and shoals of ‘sorries’ reflect upon the judicial establishment and upon the rule of law? Would it not tend to lower the standing of the courts in the public eye and wouldn’t that tantamount to contempt of court? Wouldn’t that erode public confidence in the courts? At the time Sarath Silva delivered his judgment he was also facing an impeachment resolution against him. But he managed to manipulate the fates and outwit his opponents and remained as chief justice until he retired in 2009. Now, however, fate seems to have finally caught up with him for, by publicly acknowledging he had committed a gross and grave error of judgment which, in his opinion, had plunged the country into turmoil, he has unwittingly but successfully impeached himself. |