24th, November 1996

Following is a statement issued by Sri Lanka Ekiya Sandvidhanaya

The convention and practice in making appointments to fill vacancies that occur in the Bench of the Supreme Court is that such vacancies are filled as soon as they occur. Strangely, the last two vacancies that occurred in the Bench of the Supreme Court in April 1996 and August 1996 respectively were left unfilled until the recent appointment of Dr. Shiranee Bandaranyake to one of those vacancies. No explanation has been advanced for the delay in of one of the said vacancies and the continuing failure to fill the other vacancy.

The usual practice (with a few exceptions) has been to fill a vacancy that occurs in the Bench of the Supreme Court by appointing the senior most Judge below the Supreme Court (who is presently the President of the Court of Appeal) or the Solicitor General as a Judge of the Supreme Court.

The incumbent President of the Court of Appeal Dr. Justice Asoka de Z Gunawardene and the incumbent Solicitor General Mr. Upwansa Yapa P.C. are indisputably persons eminently suitable for appointment to the Bench of the Supreme Court.

Dr. Justice Asoka de Z. Gunawardene not only counts about 24 years of active practice at the Bar and about 6 years as a Judge of the Court of Appeal, but has also earned the academic distinction of a Dotorate in Law. More important, he, like his brother Judges of the Court of Appeal, all of whom who are obvious candidates for appointment to vacancies in the Bench of the Supreme Court, has displayed an uncompromising independence in the discharge of his judicial functions. Such independence is a sine qua non for judicial office. Mr. Upwansa Yapa counts over 25 years of active practice at the Bar.

On the other hand Dr. Justice Shiranee Bandaranayake, while having earned the academic distinction of a Doctorate in Law (which Dr. Justice Asoka de Z. Gunawardene too has earned) has no experience whatsoever either at the Bar or on the Bench of any Court, and was admitted to the Bar as an Attorney at Law, a mere 13 years ago.

The question that cries out for an answer is "what was the motivation of the Government in delaying so long to fill the vacancies that had occurred in the Bench of the Supreme Court and overlooking the President of the Court of Appeal, the Solicitor General and all Judges of the Court of Appeal in filling but one of the two said vacancies?"

The overlooking of Dr. Justice Asoka de Z. Gunawardene for appointment to the Bench of the Supreme Court becomes all the more sinister when one considers the fact that he recently gave judgment holding that the dissolution of the Provincial Councils of the North Central Province and Sabaragamuwa were illegal, null and void and of no force or avail. It is impossible to resist the conclusion that he has been victimized and overlooked for appointment despite his credentials that cry out for his appointment to the Bench of the Supreme Court because he delivered a judgment in the said case that was, to say the least, not to the liking of the Government. It is apparent that he has been victimized by the Government for his sturdy independence an unimpeachable integrity.

The said victimization of Dr. Justice Asoka de Z. Gunawardene is reminiscent of the unpardonable victimization of Mr. Justice R.S. Wanasundera by the J.R. Jayewardene Government in or about 1987 when he, being the seniormost Judge of the Supreme Court, was overlooked for promotion to the office of Chief Justice because and only because of the judgment he gave in the case relating to the 13th Amendment which also, to say the least, was not the liking of that Government.

It is a tragedy of untold proportions that the present Government seems to be intent on following the malodorous precedents that had been set by the UNP Governments of the past. The present Government of the PA should realize the self evident fact that the people did not elect it to office to rule the country as the UNP did, and become in effect a 'surrogate UNP Government' in the garb of a PA Government.

The appointment of Dr. Justice Shiranee Bandaranayake to the Bench of the Supreme Court has been made at a time when the Government is about to introduce the most controversial piece of legislation ever presented to Parliament, namely legislation to implement the "Devolution Package" that is designed to change the unitary character of the Constitution of Sri Lanka to one of a Federal Character. As the Government would by now have realised, this Bill to introduce the Package will be challenged before the Supreme Court by those who oppose it such as the members of the Sri Lanka Ekiya Sanvidhanaya, on the ground that it is one that could not be passed into law even with a two thirds majority of the entire membership of Parliament and approval at a Referendum.

The people of this country, both those who support and those who oppose the Devolution Package, are entitled to have any challenge to such Bill being determined by a 'full Bench' of the Supreme Court that is both impartial and have open minds on the subject. Since justice must not only be done but also must manifestly be seen to be done, there should not be on the Bench of the Supreme Court determining the legality of such a Bill, a Judge who has been either a publicly identified supporter or opponent of the said Package.

Dr. Justice Shiranee Bandaranayake is one who has come out openly as an ardent supporter of the Devolution Package. She has left no room for doubt regarding her commitment thereto, and made several public pronouncements in favor of the Package expressing the view that it is the need of the hour.

While no aspersions are cast or sought to be cast on the character or integrity of Dr. Justice Shirani Bandaranayake, it would appear from all the aforesaid circumstances surrounding her appointment as a Judge of the Supreme Court, that the Government is seeking to pack the Supreme Court Bench with those who are committed to the Devolution Package in a bid to ensure that the Bill for the implementation of the Devolution Package finds easy passage through the Supreme Court. By so doing the Government has done grave injustice not only to the Judges of Court of Appeal, Members of the Judiciary, the Attorney General's Department, the unofficial Bar and the People in general, but also to Dr. Justice Shiranee Bandaranayake.

For the reasons set out above, the Sri Lanka Ekiya Sanvidhanaya deplores the conduct of the President in appointing Dr. Justice Shiranee Bandaranayake to the Bench of the Supreme Court.