Judges
of the Supreme Court at a ceremonial sitting
The Bar and the people
have a dream, a dream that has been fulfilled by the Supreme court. Specially
after the inclusion of the Fundamental Rights Chapter of the 1978 Constitution,
the Supreme Court has acted to ensure that the dream becomes a reality, and an
independent Judiciary has sought that the people are protected against executive
tyranny.
Very few executives ever understood the role of an independent Judiciary.
Whenever the Judiciary made an order against executive action, they became like an ordinary litigant who has lost his case. But even the ordinary litigant did not blame the Judge, but castigated either the Counsel for the opposing side or his own Counsel.
Chandrika Bandaranaika Kumaratunga, like some of her predecessors, has not understood Judicial independence. When the Judges made an order against executive action which amounted to political victimization, or unfair or illegal action she did not criticise those who represented the Government but the Judges who made the order.
As Judges became more and more assertive, and implemented the law in the spirit of the Constitution, the Executive became more and more angry.
The Judiciary won the admiration of the people of this country. If this Government did not remove and transfer or victimize Public servants and Corporation employees, as frequently as they wanted, it is not because this Government acted fairly as a Government of the entire nation, and not as a Government of the PA supporters, but they had been compelled to act in a manner so as to minimise the political victimisation because of the Supreme Court. Whenthe aggrieved public went to the Supreme Court in appropriate cases they overturned the executive action.
Executive arrogance existed even in 1964.
I quote from one of the most respected Judges of the Supreme Court, Dr. A.R.B. Amarasinghe, from his book 'The Supreme Court of Sri Lanka'. In his conclusion to the Chapter on 'Becoming and staying the Court Supreme.'
He states: There is a dream, the impossible dream it seems, of an independent Judiciary with exemplary Judges whose every act is therefore accepted with dignified equanimity by an educated and enlightened Executive, Legislature and public. No one, perhaps, expressed it better than Chief Justice Basnayake did when, in his farewell address from the Bench on July 31st 1964, he said: the prestige which the Judiciary enjoys today is the cumulative effect of high tradition built up and sacredly preserved by a succession of Judges for over a century and a quarter. That prestige has increased over the years. The State should do nothing that will impair it in the slightest degree. It should not regard decisions against the State as unfriendly acts and resort to retaliatory measures, whether they be legislative or administrative. It should, like any other litigant learn to abide by the Judgement of the final Court. This is the surest way to increase its own stature and the power of the institution which it must in its own interests safeguard. A Judiciary is not independent unless the Courts of Justice are enabled to administer law by absence of pressure from authority, whether exerted through the blandishments of reward or the menace of disfavour. It is the duty of the Executive to preserve its independence. It should therefore be assiduous not to leave room even for the merest impression that such pressure is being exerted.
Judges too might do well to remember that the prestige now enjoyed by the Judiciary imposes on them a very heavy obligation to preserve and foster its fair name and honour. They should so regulate their conduct both in and out of Court so as to further increase the public confidence in them.
To the people, the Judiciary is the sole protection against tyranny, autocracy and intemperate acts of the bureaucracy. To them, it is the forum in which the liberty of the subject can be asserted. To them it is the place where their wrongs can be remedied, be they committed by a fellow citizen or by the State. To them, it is the only forum in which they can challenge the State on even ground. Every step the Government takes to preserve the Independence of the Courts, will inevitably rebound to its credit. No State is safe to the subservient Judiciary. It is the bane of a country and it enfeebles a nation to make cowards of its citizens'''.
On the 20th August, 1995 on Rupavahini President Chandrika Bandaranaike Kumaratunga said inter-alia '..however, some of the former license holders about 122 have gone to Courts. Actually the Court has given hasty decisions without consulting the point of view of the Government. Surprisingly all such decisions have been given by a particular Judge. All these cases have gone before him. Having given a long period of about six months liquor licenses had been made operative temporarily during the pendency of such cases...''.
Jeyaraj Fernandopulle who is a lawyer himself, on the 20th of November, 1995 addressed the Parliament and said inter-alia ''when speaking about the Judicial Service Commission, a few words had to be said about the Supreme Court and Superior Courts, Why? Today there is a big allegation among the lawyers practicing in the Supreme Courts and the Superior Courts, that a certain group of lawyers and a handful who are connected to the UNP are trying to control the affairs of the Supreme Court in the manner they want. This is a very dangerous situation, because we have come to know that one lawyer who is an ex-Attorney General gets a Bench constituted to be heard as he wishes. It is said that he selects the Bench he wants in cases against the Government. Having got the Bench constituted to obtain judgements in his favour he has done things to bring the Government into disrepute''.
Richard Pathirana on September 10, 1997 addressed Parliament and told the Speaker that they were condemning the ruling where a fine was imposed on Jeyaraj Fernandopulle, by courts and further the Government did not approve of it.
Dr. G.L. Pieris told the Island newspaper before the Dr. Shirani Bandaranayke judgement was delivered by the Supreme Court ''it was very important for the Court to confine itself to the proper sphere and not to overreach itself and not to arrogate to itself the functions that belong to the Executive and the Legislature''.
When the Supreme Court released Sirisena Cooray, the President made an observation and the innuendo was that Mr. Sirisena Cooray knew about the judgement in advance, otherwise how could posters appear on the day he was released, she asked.
Then again Chandrika Kumaratunga as recently as last week in an hour long speech criticized the Finance Ministry, the Administrative Service and the Supreme Court. This address was televised over National Rupavahini. Human Rights cases have become an industry and some people received huge incomes out of it, she said.
Then she went to show as an example where an officer who went to the Supreme Court alleging that his contract was not extended, but the Supreme Court extended the contract and she further said, an extension of service is granted solely at the discretion of the appointing authority and the decision of the Supreme Court was wrong.
As much as no head of state has confronted the judiciary like the present President, no head of state ever before has invited the Supreme Court for a discussion followed by dinner to his or her residence . I cannot find any reference to such an event even during colonial times. The orginal date of the discussion cum dinner had to be changed when Dr. G.L. Pieris learnt from the President of the Bar Association that most of the Judges of the Supreme Court who were to attend 'the National Law Conference' had declined to attend the Law Conference as the President's meeting was scheduled for that day. Dr. G.L. Pieris then rescheduled the Presidential party to another date enabling the judges to attend the National Law Conference. Later on the Judges of the Supreme Court attended the Presidential confab at which Mr. Lakshman Kadirgamar, P.C, and a Minister, and Dr. G.L. Pieris, Minister of Justice were also in attendance.
When some lawyers queried the propriety of the Executive inviting the Judges of the Supreme Court to her residence to dine, when she is also the complainant in a number of cases and her government is a party to so many cases before that very court. a P.A. politician angrily retorted and said it was not the President who wanted to see the Judges, but the Judges who wanted to see the President. Several memoranda had been written to the Government on the difficulties the Judges are facing and these memoranda had been overlooked and their grievances had not been redressed. Therefore the President took over the responsibility of talking to the Judges with a view to knowing the problems at first hand.
At the meeting which preceded the dinner party one Judge referred to the President of the recent report of a speech in which she has castigated the public service and the Supreme Court, and asked her whether it was a correct.
Before she could even reply some other Judges just brushed aside the question of the brother judge and said that these are mere newspaper reports. The President then explained saying she did not criticise the Supreme Court, she only disagreed with it. Many matters were discussed and the President and the Minister of Justice agreed to settle them. It was the request of Justice Amarasinghe that the Government should provide Internet services to the judges. Everyone would agree that internet is an essential tool for any professional. Various other matters concerning the Judiciary were discussed and the President readily agreed to look into these matters. One of the issues taken up by the Supreme Court judges was that they would take more overseas outings to keep pace with the changing world. It is always good for our judges to attend International Conferences and know the international trends of the interpretation of laws
Whenever judges are invited to participate at a foreign conference they have to get permission from the Executive. This I believe is another method of indirectly interfering with the judiciary. The President may not grant permission if she believes a particular judge is hostile. It is my contention that permission for a judge to go overseas should rest with the Chief Justice.
Another important proposal that was suggested by Dr. Amerasinghe was the appointment of a Judicial Committee of Parliament comprising members of the Government and the opposition to look into the grievances of Judges. This would be in the lines of the Judicial Committee of the American Senate, which looks into the grievances of Judges, and appointment of Judges. These proceedings concerning the appointments of judges to the Supreme Court are nationally televised so that the entire nation knows who their Judges are.
Although some members of the profession are severely criticizing the Judges for attending a conference and dinner party as guests of the President, who is a politician, as opposed to the earlier Heads of State, these members did not raise a murmur of concern when the President and members of her Government criticised the Supreme Court and the Judiciary. Their reply was that the Supreme Court could look after themselves. When Mr. Mervyn Wijetunga, a respected Senior Judge who had been serving as a Magistrate but should be serving as a High Court Judge was castigated by the Minister of Justice, no one brought this matter even to the notice of the Bar Council. The present Executive Committee of the Bar Association and the previous Executive Committee of the Bar Association did not react.Though the Supreme Court has so far refused to yield to Executive pressure and looked after our grievances the Bar did not even form a Judicial Committee like the American Bar Association to become one of the spokesman of the grievances of judiciary which were known to them. Some Magistrates functioned without basic facilities like toilets. Judges cannot go on strike, they cannot confront the Executive, but they have to go on with such subhuman conditions at the pleasure of the Executive.
Though there is criticism all over about the judges attending the party, the question is whether they were driven to desperation due to the insensitivity of the organisation which handle request to obtain certain benefits of which they had been deprived of by the Executive. Some may disagree with me. They would ask many questions about the propriety of an Executive President and Judges of the Highest Court. of the land supping together and like to know how the Judges would react when some important political matters like the package goes before the Supreme Court.
The principle of justice nust not only be done, but manifestly, appear to be done. What will be the public perception of this?
I would tell them to look at the recent history of the Supreme Court. The Supreme Court in the recent past has been the only bright spark for people faced with political and executive terrorism. Even after the party, in a rights petition the Supreme Court made an order suspending those who have entered the SLAS through illegal means and by political patronage.
After the initial discussions with the President, at which a vote of thanks was also proposed to the President the Judges were joined by their spouses and the wife of the Justice Minister for dinner. One of the notable things that happened at the discussions was that the Chief Justice Mr. G.P.S. De Silva did not involve himself in the deliberations.
In conclusion may I refer to Justice Amerasinghe's book The Supreme Court of Sri Lanka once again; 'The spirit of justice in our Supreme Court is invincible and the independence of the Court is inviolable. And there is little doubt that it will always be so, for that has been the desire of those who have served it from the Bench and the Bar and that has been and, above all else, is the will of the Sri Lankan people.'
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