From Neville Samarakoon CJ to Sarath N. Silva CJ … what next?

By Our Political Editor

(March 06, Colombo, Sri Lanka Guardian) Conceptually speaking, Neville Samarakoon remained to the end a disciple of Ivor Jennings. J.R. Jayewardene’s real disciple was Sarath Silva. President Rajapakse has clear continuity with the former president Jayewardene’s legacy. In the area of the judiciary, no options are left for any real continuity of being a disciple of Ivor Jennings or the Soulsbury Constitution. What then are the implications of this for the rule of law system in general, and the judiciary in particular? Thinking about this problem requires some understanding of what happened to Neville Samarakoon and Sarath Silva .

Neville Samarakoon as a disciple of the Soulbury Constitution

When Neville Samarakoon accepted the post of chief justice under the request J.R. Jayewardene, he, as well as the rest of the country, was not aware of Jayewardene's authoritarian political scheme. It has taken quite a long time for the elite and the intelligentsia of Sri Lanka to awaken to an understanding of his project. Neville Samarakoon like most of the lawyers who lived at that time was more in favour of the scheme of the Soulbury Constitution than that of the coalition constitution of 1972. Their opposition to the 1972 Constitution was the removal some of the basic aspects of what was then called the Westminster System. It was not with the idea of abandoning the scheme of the Soulbury Constitution that the lawyers and other intellectuals supported Jayewardene's scheme. In fact, they thought they were rejecting the more arbitrary and authoritarian tendencies of the 1972 Constitution and many thought that there would be a return to the concept of the separation of powers under Jayewardene.

From everything that happened later, it was very clear that Neville Samarakoon was to awaken to a rude reality that he had been manipulated to support a scheme which went against his lifelong successful practice of and attachment to the basics of the legal profession. He was a top civil lawyer of the time and had won the respect of the judiciary as well as the legal profession. It would have been far from his imagination to take up this post with the scheme of supporting a political system which would completely undermine the basics of the legal profession and the norms on which that profession was based.

Many saw the battle between Neville Samarakoon and Jayewardene as a personal affair. Some still speak about it on such personal terms. There are many instances that could be cited as anecdotal evidence of personal conflicts between the two. However, time has clearly shown that the issues involved were much more fundamental.

Whether Samarakoon fully grasped the issues involved is hard to tell. However, given the capacity of one of the leading civil lawyers of the time it would be a slur on his legal intelligence it one were to say that he was naive and that he did not begin to grasp the implication of the conflict between himself and Jayewardene, who he initially supported. It is well known that he died a thoroughly disappointed man. That disappointment was not about personal achievements but the realisation that he, too, had contributed unknowingly to a scheme that would ultimately destroy the very system on which his entire being was rooted as a lawyer. People who have to face that kind of disappointment in their lives are few and Neville Samarakoon was one.

After Neville Samarakoon there was no more fight to undo what Jayewardene was doing. While it cannot be said that the chief justices and the Supreme Court judges, who were to come later, knowingly cooperated with Jayewardene's scheme, it can be said without exaggeration that there was no serious battle against the destruction of the basic normative framework on which Jayewardene based his scheme. His politics required a different kind of jurisprudence and courts, though they may not have been willing to make that change, were unable to fight back to destroy his scheme.

Sarath Silva as a disciple of 1978 constitution

Perhaps a person who saw through the entire scheme was somebody who allied himself with the opposition. Sarath Silva, as a judge of the appeals court, gave some judgements which to some extent went against the normative framework that Jayewardene was trying to force. Once he was himself appointed by another executive president, Chandrika Bandaranayake, he was able to do with far greater cooperation and efficiency what that executive president wanted than what any other judge did on behalf of J.R. Jayewardene or his successor, R. Premadasa. With chief justice Sarath Silva, it was a matter of cooperation with the executive president and assisting them to achieve a type of judicial cooperation that was compatible with the absolute power concept involved in the executive presidential system. The fact that at the end of that term he fell out with the president and changed his loyalties to someone else does not contradict the overall approach he had to the judiciary throughout his time. His allegiance was no longer to the conceptual framework of the Soulbury Constitution but to the very abandonment of that conceptual framework for the terms of the 1978 Constitution.

Again, like in the case of Neville Samarakoon, the criticism against Sarath Silva had been on the basis of his more personal idiosyncrasies and a reaction to some of the hurt he caused some individuals, though the criticism was much more hostile and intense in many quarters than against Neville Samarakoon. There is unwillingness to admit that what happened was the abandonment of the very conceptual framework within which most lawyers still think they are functioning. To admit that the scheme of jurisprudence that was developed to suit the executive presidential system goes against the very fundamentals of liberal democracy on which the legal profession itself is based on, is for many an unacceptable proposition.

Many still dream of practicing the legal profession in a way it was practiced prior to the 1970s. They still like to think of themselves as similar to lawyers in other liberal democracies. Perhaps the legal training still creates this illusion of the possibility of practicing law as it could be practiced within countries which follow the common law or civil law systems, where the basic rules of the rule of law are fundamentally accepted. That there is a rejection of those fundamentals within the 1978 Constitution politically, and that a jurisprudential adjustment has been made to that scheme, is a proposition that many cannot accept conceptually.

On the one hand, there is agonizing and lamentation about what is going on. There is external rejection of the type of system that has come to be. However, this is attributed to personalities and this helps to sustain the illusion that still the old scheme of the Soulbury exists despite the political scheme of 1978. That the incompatibility of the 1978 Constitution and the judicial framework that prevailed before 1978 is rejected and a belief is sustained that while the legal scheme of 1978 remains, the overall legal scheme of the Soulbury system can continue.

This is the basic conceptual problem faced by all concerned with the law in Sri Lanka and they will continue to face this obstacle in the times to come. Protests which are based on limited approaches have produced things like the 17th Amendment, in the hope that while the framework of the 1978 Constitution remains, there could be a return to the normative framework of the earlier times. After a few years of experimentation that scheme was rejected. However, the rejection is often explained away with the hope that we could once again come back to that situation.

The political and legal thought in the country is caught up in this contradiction. Within addressing this problem, to think that fundamentally there could be things that might alter the course entered into by chief justice Sarath Silva in his time may be an illusion that he himself entertains now that he is facing the contradictions of this problem as a citizen. As a citizen he might like to have the Soulbury constitution back, at least on matters relating to political freedoms.

However, the jurisprudential adjustment that has been made in the country during this long period since 1978 cannot be altered in that manner. It has to be altered by more consistent work of rejecting the 1978 scheme altogether and effort in that direction is not taking place at all. It is only through the efforts in this direction that other problems can be addressed, and to even to think of ways to rebuild a basic rule of law system without first attempting to alter what has happened to totality of the system, both in the area of politics as well as in the area of the law, would be to continue with the same illusion.