Rajpal's Column

25th April 1999

President faces her task: Which wise man for big judge?

By Rajpal Abeynayake

This nation has been used to premier stakes but the coming Chief Justice stakes is a bit too nail biting for a nation which has got used to regarding its judges as some kind of elder statesmen. But there we are. The CJ stakes are here. The judges concerned themselves may not be a participating party in the CJ stakes, but there is intense speculation whether it will be Justice Mark Fernando who will be appointed the new CJ, or whether it will be some sort of other dark horse candidate. A wag meanwhile, hearing this dark horse rumour said that a white horse is more likely than a dark horse, and slunk off without explaining himself..

White horse? The closest I have heard to that description, is a pub in Colombo down Chatham Street, that no Justice would be seen dead in. I was wondering whether the white horse my friend talked about had blue eyes too? But this cryptic - ness is killing us.

So, Justice Mark Fernando who was recently appointed the Acting Chief Justice is the seniormost Supreme Court judge who nevertheless has given, recently, decisions that palpably went against the agenda of the government.

But, is the government poised to exclude Mark Fernando due to some notion that he has a propensity to award decisions that are not very favourable to the government?

If that's a valid question, then the question might as well be raised whether a Supreme Court bench has a pro -active policy masking character that an incumbent government should make note of? The United States of America for instance is one country that has openly acknowledged that Supreme Court judges make political policy due to the fact that they have a ratifying power over legislative enactments. President Reagan for instance, since his appointment, was keen to pack the judiciary, and particularly the Supreme Court with judges who were conservatives.

This was as opposed to the liberals who were appointed to the bench by Jimmy Carter before him. By doing this, Reagan was ensuring a conservative agenda of sorts even after he left office, because US Supreme Court appointments are for life.

But how does all this square with the public opinion that judges interpret the law, and decide if certain pieces of legislation are within the constitutional provisions? To look the facts squarely in the face, there is a palpable feeling in the corridors of power that Justice Mark Fernando is more of an ideological rightist than some other hot favourites for the post of CJ, such as incumbent Attorney General Sarath Silva, with a more centrist agenda at heart.

Some would simply cut the cacophony of the academic analysis, and say that one is pro-government while the other is not.

President JR Jayewardene for instance used the power vested him to appoint the Chief Justice he wished, by appointing Justice Neville Samarakoon whom he picked from the private bar. But Justice Samarakoon, once he was in the post, was seen to be one of the most fiercely independent judges ever seen in the country's judicial annals.

But, that apart, JR Jayewardene's appointment of Neville Samarakoon was not considered by the Bar or the concerned polity at that time as severely out of line. JR Jayewardene may have earned the dubious reputation as the first subversive who assailed the independence of the judiciary in this land. But as far as his appointment of CJ was concerned, it was not considered part of that scandalous record. Why was this?

One reason was that Neville Samarakoon was not politically tainted, therefore his appointment could not have been seen as a politically motivated appointment. J. R. Jayewardene may have on the other hand lived to regret the day he appointed Samarakoon, as he might have expected Samarakoon to be more disposed towards his agenda. This may have been for the simple reason that he might have thought Samarakoon owed him a "quid pro quo."

But Chief Justice Samarakoon went on to act as if he didn't care who appointed him, as long he had a task at hand, which was to dispense Justice.

Since that time, much water has flowed under the bridge, and the water has almost at times threatened to take the bridge the bench, and the whole Supreme Court with it. For example, the case of the appointment of Justice Parinda Ranasinghe as the Chief Justice, was controversial, as there was a perfectly qualified judge Justice Wanasundera who was for some reason not the incumbent President's obvious choice.

This time around, the President can appoint Justice Mark Fernando, or the current Attorney General, as there is precedent for the appointment of the incumbent Attorney General as Chief Justice. But, the President can also shove precedent aside. The constitution allows her to do that, and she can bring in a member of the private bar for instance, or appoint another member of the incumbent Supreme Court bench as the Chief Justice.

But of course, if the President does that, she might run the risk of alienating the bar, that institution of worthies. The Bar, has always been temporarily vociferous against instances which have been seen as the President's interference with precedence and convention in the making of judicial appointments. But this President for her part has played a pro-active role in painting the judiciary as a policy making body that has subverted the agenda of the government. She has on more than one occasion gone on record saying that the judges of this country have spoiled and sundered some of her best laid plans.

By so doing, she has placed the judiciary and the executive as visible antagonists.

Constitutional experts could always argue. Why not? If the President appoints the Chief Justice, she is being given a fiat of sorts. That is to model the judicial establishment in a way that serves her agenda best. If that is the case, can't she go the whole hog, and argue that the judicial establishment of the country is beholden to promote the political cause of the President?

Of course in that kind of judicial arena, there will be no room for niceties and conventions. The judiciary and the executive will be poised against each other, if not placed in the trajectory of a collusion course.

But the President can say to heck with it, if she wants to, guessing that the bar and the judiciary too have short memories. Besides, certain acts, once they are done, present fait accomplis, which create precedents of their own. But , its worth asking then, why conventions should be honoured in the first place? If the President, as is the case in the US, makes the judiciary one plank for furthering a political agenda in government, where exactly do conventions regarding judicial appointments find a place in this scheme of things?

Conventions would count, because there is another dimension that goes in tandem with the political dimension that needs be considered in deciding how the judiciary takes shape. The judiciary has to be reliable, but it also has to be competent and independent. Simply said, where political considerations become paramount in the matter of making the Chief Justices appointment, the Supreme Court would run the risk of degenerating into another Attorney General's department. The Supreme Court as a pork - barrel for political patronage? Well, the President can make her choice.

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