Editorial

President Gotabaya Rajapaksa this week swore in a new batch of Supreme Court judges asking them to protect the integrity of the Judiciary, and assuring them the independence they require for the dispensation of justice.

Coming as it does in the backdrop of legitimate questions on such speedy appointments coupled with a series of recent judgments freeing those currently in high office indicted with corruption charges, such assurances need more than mere words to generate confidence that all is well. After all, the old adage that ‘justice must not only be done, but manifestly appear to be done’ rings true to this date.

It is unfortunate that the new appointments were the result of an amendment slipped in while passing the controversial 20th Amendment to the Constitution (20A) bypassing the Supreme Court which went into the constitutionality of 20A. There seems to have been no consultative process with either the Chief Justice or the Attorney General who are customarily consulted on these matters, but merely rubber-stamped by a ‘no questions asked’ Parliamentary Council.

It does not help justice in any country, let alone nations with weak rule of law systems when the Judiciary is perceived as an appendage of Government. This impacts not only the aggrieved citizen whose last recourse is a court of law, and the Supreme Court, the last bastion thereof, but also the economic climate where the functioning of credible legal institutions is assessed by global ratings that genuine international investors look to in deciding whether to bring in money or not.

Unfortunately, allegations of ‘judicial partiality’ are all too common when powerful Presidents are vested with the sole authority to appoint senior judges at ‘their pleasure’, and Parliaments can remove them when they ‘misbehave’ according to their whims. Of course, this is not a one-way street. As much as the power to appoint judges may be exercised with a (political) wink and a smile, what happens thereafter to the judicial office depends on the sturdy calibre of those chosen individuals. The annals of Sri Lanka’s judicial history have been engraved in letters of gold with the names of upright judges, arguably none more glorious than the shining example of Chief Justice Neville Samarakoon, QC who on being controversially elevated to that exalted post by President J.R. Jayewardene, did not hesitate to cross swords with the powerful Executive for the sake of the independence of the Judiciary. And who can forget Justice Raja Wanasundera who was then the next senior-most judge – who refused to sign a prior letter of resignation if he was to be anointed as Samarakoon CJ’s successor, and didn’t get the job.

During that Executive Presidency and the Presidencies that followed, of R. Premadasa, Chandrika Kumaratunga, Mahinda Rajapaksa and Maithripala Sirisena, there were notable lows and famous highs of the Sri Lankan judiciary. Stones were thrown at the houses of judges who handed down ‘unpopular’ decisions in the Seventies but that did not deter constitutional principles being affirmed. In the Eighties and Nineties, the Supreme Court of Sri Lanka stood tall not just locally but in the Commonwealth of Nations as its constitutional jurisprudence on the separation of powers and the protection of civil liberties put the public interest first, even above the state.

In the decade thereafter, the record of the Sri Lankan Judiciary became more chequered, studded as it was with impeachments and attempted impeachments of Chief Justices, admonitions delivered by the International Bar Association that the judicial institution was becoming embroiled in politics and, most recently, the circulation of ugly tape recordings of judges canvassing politicians to get promotions. All this is not reassuring, despite intermittent judgments hailed by the public such as the Supreme Court’s ruling in 2018 of the unconstitutional dissolution of Parliament by President Sirisena, grounds on which he ought to have been impeached.

Now, we have Opposition accusations in Parliament that acquittals upon acquittals of ruling party politicians are ‘politically motivated.’ These have been met by familiar rebuttals by Government Ministers of ‘witch hunts.’ But each time a regime changes hands, one side cries false and the other responds by playing the victim. Even now, its opponents may contend that this Government is ‘witch hunting’ its opponents. And this familar ‘thattu maaru’ system goes on, and on.

President Rajapaksa’s departure from the traditional routes of appointments to the Supreme Court Bench has been the subject of discussion among the legal profession though limited to the corridors of Courts of Law and the private chambers of practitioners. For decades, the highest court in the land has been enriched by the infusion from three channels, viz., the Judiciary, the Official Bar (AG’s Department), and the Unofficial Bar (senior private lawyers and academia). The President has dispensed with this system and been advised to promote those largely from one of the channels, the Judiciary, all but one of those to the Supreme Court having served once in the AG’s Department however. Only the AG complained about what happened, the Bar Association remaining mute, indicating that silence is assent.

Judges themselves must be cognisant that the public gaze is on them in a critical assessment of their performance, as is the norm in any country calling itself democratic. As Samarakoon CJ once said about judges, no doctor in the world will be able to give them a spine if they don’t want one themselves.

There is a somewhat puzzling caveat to all of this. In his address, the President noted that, ‘it is a matter of some concern that there has been an onslaught on the dignity and independence of legal systems… the Judiciary must also rise and use its powers to fight this menace.’ While there can be no argument that the dignity of the judicial office must be upheld and malicious attacks thereto deterred, the best way to ensure this is by the transparent appointments of judicial officers                                                                                                                                         who must fearlessly and fairly uphold the values of blindfolded Lady Justice.

The Presidential cry to the Judiciary to ‘rise and use its powers’ calls into question as to whether he is urging an ‘open sesame’ to the use of contempt powers. Alas, Sri Lanka still does not have a Contempt of Court Act outlining the parameters of contempt to place safeguards against abuse of authority by a Court lightly considering itself ‘scandalized.’

Injustice heaped on injustice can only, as Sri Lanka’s Supreme Court itself has warned politicians at various times, lead to revolt. A country reeling under the exponential rise of COVID-19 numbers, a frighteningly fraught economy and a stressed public, can do without new controversies.