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Editorial19th September 1999 |
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47, W. A. D. Ramanayake Mawatha Colombo 2. P.O. Box: 1136, Colombo 2.
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A CJ is appointedA Daniel has come to judgment? We do not know about that, but, certainly one Sarath Silva will soon come to judgment in the Supreme Court of Sri Lanka. The President in all her wisdom, has exercised the powers given to her, under a Constitution which she has repeatedly said is flawed, to appoint her choice of Chief Justice amidst unprecedented controversy and opposition. By any yardstick, it will be very legitimate to ask why her appointment of Chief Justice is not flawed. There is no going behind the fact, even for the best of supporters of the President, that she appointed as Chief Justice a person who is being currently investigated for disenrolment as Attorney at Law by the Supreme Court,. Those who endorse the President's appointment will say it's legitimate because a man is presumed innocent, until he is proven guilty. But detractors will be left with some very formidable arguments to the contrary. This is an appointment for Chief Justice of the country – not an appointment for a Police Constable of Kebbilithigollewa. Detractors could put it bluntly that if the President disregarded formidable public opinion to appoint a Chief Justice who has not been cleared of charges of professional malpractice, that she may have cooked her own goose. They would say that a government that seeks to destabilise the judiciary so fundamentally deserves, at a future date, to stew in its own juice. To put it mildly, nobody can afford to ignore the detractors. Only a fool or knave will say that the Chief Justice of this country should not be a man of exceptional integrity. Those are verities so accepted in any civilized political system that they are generally not written into Constitutions. If the President was so convinced that the new appointee is so eminently suited for the post of Chief Justice and that no replacement candidate would have sufficed, she could have found some way to appoint her choice, after his name had been cleared of any taint of misconduct. But the choice of Sarath Nanda Silva is her choice. It's a reality that the government and the people will have to live with, a reality that recognizes that there is some precedent for not appointing the most suitable candidate for the office of Chief Justice. J R Jayewardene, the author of the monstrosity of the Executive Presidency, appointed Neville Samarakoon as Chief Justice from among the private Bar, creating a precedent for appointments that are seen to be politically motivated. But, Neville Samarakoon, a man against whom there has been no allegations of impropriety whatsoever, was a chilling counterpoint to the machinations of the executive and he was able to acquit himself quite brilliantly as a fiercely independent Chief Justice who did not give a tuppence for the power of the appointing authority that bestowed him with office. JRJ was soon seen to be bristling. Eventually, Neville Samarakoon left office, a martyr to the cause of the independence of the judiciary, and his name written in gold in the annals of this country's legal history, after President Jayewardene contrived to bring him before a parliamentary Select Committee in order to more or less force Neville Samarakoon out of office. Sarath Silva is quite a different kettle of fish from Neville Samarakoon, as things stand of course. He has allegations of impropriety made against him, which casts his appointment in an altogether new different dimension in the practice of Executive use of power to mould the judiciary. The future will tell what ramifications such an appointment will have on the judiciary, and by extension, the polity. But, for the moment, Sarath N. Silva is Chief Justice and to say it without any flippancy or sarcasm intended – whether he can stand tall, independent and fair – the people can only wait and see, and hope for the very best.
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