Reflections on moves against ex CJ

by Malinda Seneviratne

(September 04, Colombo, Sri Lanka Guardian) When he was Chief Justice, Sarath N Silva, said in a public meeting that no one has accused him of being a thief. Around the time I noted that not being a thief does not necessarily mean not being out of order.

A few days ago, the ex CJ stated that moves to set up a by a Parliamentary Select Committee (PSC) to investigate allegations of wrong doing during the time he was Chief Justice ‘amounts to victimization since he was now speaking of human rights violations, corruption and the lack of good governance in the country’. Now speaking on such things is good and all power to Silva. This, however, does not mean that he was ‘in order’ while in office and that if he was out of order, that he should go scot-free, not least of all because transgressions from an office as prestigious and powerful as that of the Chief Justice amounts to precedence that can be quoted to justify subsequent wrongdoing. We live, we learn and we need to find ways of becoming better as a nation.

He is as guilty as anyone else for letting favouritism come into play in appointments and the meting out of punishment in the judicial service. He has been accused of abusing his authority and violating the principle of ‘conflict of interest’ in the matter of salary hikes for judges.

Some years ago, while he was still Chief Justice, I wrote a piece for the now defunct magazine ‘Montage’ titled ‘Justice on trial in a season of transgression’, where I observed that Sarath N Silva, more than anyone else, brought the entire justice system to disrepute on account of pandering to politicians, crass self-seeking, a scandalous appetite to exact revenge for perceived slighting, being selective in the dispensing of justice, interfering in the judicial process to further self-interest and even lying. In subsequent articles I’ve noted that for all his high flown posturing on good governance, it was he who made a mockery of the 17th Amendment by determining that the then Elections Commissioner, Dayananda Dissanayake could not retire (and, by logic, could not die!), just to satisfy the then Executive who wanted the man to be un-‘retirable’. I remember his commenting by way of justification, again in a public meeting, that the judiciary has to act with responsibility in such matters, implying that Dissanayake was irreplaceable.

In his recent allegation of being victimized, Sarath N Silva has taken issue with the complainant, Janaka Bandara (former Magistrate and now National List MP for the ruling party), painting him as villain. A Silva-Bandara debate would be lovely to watch, I am sure, but I doubt Silva will bite, for he has a long vengeful history and probably would not want it all out in public. It would be tough and immoral for him to say he was being victimized, therefore.

While delivering the keynote address at the launch of Mangala Samaraweera’s website, Silva detailed the flaws of the president and transgressions that violate and compromise the principle of separating powers, arguing that the faults are not automatic products of the constitution. He referred extensively to the Dasa Raja Dharma (the ten norms of virtuous conduct that Lord Buddha prescribed for the monarch). And yet, he defends his own transgressions, when he played Executive for instance, brashly saying he ‘had to do it’. We also had him as Defence Secretary and the again as IGP; he was Bribery Commissioner one day and Education Minister the next; he was Labour Minister as well as a trade union leader. He was at times even the Mahanayake.

He is as guilty as anyone else for letting favouritism come into play in appointments and the meting out of punishment in the judicial service. He has been accused of abusing his authority and violating the principle of ‘conflict of interest’ in the matter of salary hikes for judges. He stands accused of being a self-seeking, self-absorbed individual with a vindictive and mean streak and being selective in dispensing justice.

His determinations regarding P.B. Jayasundera was not a mere matter of upholding the public interest against a corrupt official (who by the way gained very little and in fact nothing compared to the crooks that got away and keep getting away pilfering the Treasury, many of whom were seen cheering on Silva when he delivered this keynote address); it was a merciless and distasteful attack that smacked of vendetta and was clearly malicious in intent and appearance; singling out PB for punishment.

It is alleged that Sarath Silva has deliberated obstructed the course of justice, determining not only in favour of friends and benefactors but actually taking revenge on those who crossed his path. Years ago when there was talk of impeaching him, Sarath Silva had called a meeting of judges to ascertain support. One judge had taken the position that judges are not required to support or oppose but let the procedure determine the outcome. He was promptly transferred, first to Ampara and then to Embilipitiya.

The Magistrate of Thambuttegama had fallen foul with Sarath Silva, apparently after it was found that a suspect in a bomb attack was a close associate of a politician from the ruling party. He was forced, unhappily but due to survival requirements, to take a lenient attitude to the bombing incident. Subsequently, the CJ had interceded on behalf of a hithawatha, a lady doctor who had been charged on several counts of fraud pertaining to sending people abroad for employment. "Leave the final judgment in his lordship’s hands; do the needful and he will look after the rest," he was told. He didn’t do the ‘needful’. He paid.

Pressure has been brought upon other judges to determine in favour or against persons as per the whims and fancies of the CJ upon pain of punishment. Threats and intimidation have typically followed those who for whatever reason refused or were slow to comply. This was at a time when the Chief Justice enjoyed unprecedented political patronage. The then President needed him. He was a political appointee, regardless of his qualifications and intellectual brilliance. It is alleged that he looked after those who looked after him.

Then of course there is the horrendous issue of a divorce case where Sarath Silva is accused of obstructing the petition; he was named a co-respondent and accused of adultery. Sarath N Silva back then determined that no one, not even the President, was above the law. Did he believe that that ruling does not apply to him? What was just in justice denied, justice delayed?

There was a case of an illegal sand-miner and about those who petitioned against him being put in jail. There was talk of ‘closeness’ between this man and people high up in the judiciary. If noise pollution is an environment hazard so too is illegal sand mining. If no one is above the law, and if the Chief Justice was happy to play Policeman, Defence Secretary, Educationist, Labour Minister, Trade Union Leader etc., he ought to have done so across the board. He did not.

Sarath N Silva claims ‘I am a free citizen and a PSC cannot probe me!’ QC Nadesan, lucidly argued once in defence of the Chief Justice that the use of a Select Committee would be unconstitutional as the parliament would be exercising judicial power, which can only be exercised through the courts. Nihal Jayawickrema, Coordinator of the UN sponsored Judicial Integrity Programme, reflecting on the impasse regarding the allegations surrounding the Chief Justice during the time when there was talk of impeachment, said that a tribunal of tree or five chief justices from outside Sri Lanka should be invited to probe the allegations. Silva is no longer CJ, though.

I am not sure of the legality of the kind of PSC that Janaka Bandara has proposed. On the other hand, if someone has wronged someone, then the wronged must get compensated one way or another and the wrongdoer shown up. We could all say ‘water under the bridge’ and let Silva enjoy his retirement. The worth of saying ‘no’ is that it would serve as a warning to those currently being Silva-like and stop judges from doing Silva-things. More importantly, this kind of exercise opens the floodgates to other investigations.

Sarath N Silva is not the only man with a cloud hanging over him. Janaka Bandara cannot have eyes that only see the man who did him (and others wrong). Silva is no longer CJ and therefore can do little harm. Investigating him could help make the system better. On the other hand, going after Silva the way Silva went after P.B. Jayasundera and all these judges who claim they were wronged by Silva, amount to Silva-like vindictiveness. I am not in favour.