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by Basil Fernando
(
November 15, 2012, Hong Kong, Sri Lanka Guardian) Mr. Sarath N. Silva has taken
three different positions in regard to the impeachment of the Chief Justice
within a quite a short time.
Initially,
he said that, under the provisions of the 1978 constitution, even a Chief
Justice who gives justice to others has no way to get justice.
Then,
while attending a funeral he met his old friend and master, the President. Soon
he declared that the charges against Chief Justice were very serious and that
she should think of resigning.
Then,
after the Chief Justice's letter was published, in which she clearly and firmly
denied the charges, Silva's reflections on the seriousness of the charges lost
ground. His new argument was that the President has the power to appoint an
Acting Chief Justice and the Chief Justice should take that seriously. He did
not ask any questions as to whether any action by the president to that effect
would be right and just, and what impact it might have on independence of the
judiciary.
The
Lord of the Flies is a great novel by William Golding. It is about a group of
young British boys who land on an isolated island due to an accident. Hoping
that some ship may notice them and come to their rescue, they initially
organize themselves and abide by rules. As the days pass by and there seems to
be no hope of rescue their discipline wanes and they forget about those rules.
Gradually, once well behaved boys become savages.
The
British are a rule abiding people and their idea of being civilized is abiding
by well tested rules. Their legal system is based on that premise. That is the
legal system they introduced to Sri Lanka. It can survive only while the
principles on which the rules are based are respected.
Early
generations of judges and lawyers understood this and they were quite capable
of being good guardians of the legal system. That is no longer the case. This
is told quite eloquently by S.L. Gunsekara, himself a well tested lawyer, in
his book titled Lore of the Law and other Memories. He talks of the "good
old days" when good judges and lawyers, some of whom he speaks of as
giants, ran the system; where good cases almost always succeeded and bad ones
were lost. He describes the present situation through a quote from a senior
lawyer, D.S. Wijesinghe, President's Council, "We now have a new Parliament
and with it democracy vanished. We are now about to get a new Superior Courts
Complex and with that justice will vanish".
It
is in that bad period that S.L. Gunsekara places Sarath N. Silva: He writes:
"...our former Chief Justice Sarath Nanda Silva PC (whom to my mind did
more to undermine the independence and quality of judiciary and hence the
administration of justice, and to destroy the confidence the people had in the
judiciary, than any other person or persons both living and dead)…"
ADO
Chief Justice Hoooo---
S.L.
Gunsekara devotes one small chapter about an incident that happened when his
father, who had been appointed as Acting CJ, visiting him at his school, St.
Thomas College. One boy, having noticed him shouted, ADO Chief Justice Hoooo.
This is of course quite a boyish prank.
But,
on hearing about former CJ, there are many who would want quite earnestly to
say, Sarath N. Silva, Hoooo, Hoooo, Hoooo. I believe that is quite an
appropriate salutation to him.
I
have that feeling every time I remember the case of Tony Fernando (Anthony
Emmanual Fernando). I did not know Tony at the time of the case but had lot to
do with him later. Tony had an idea of justice for himself as well as for
others. He belongs to that category of citizens to whom the justice system owes
a lot. I have met and worked with many of them who fought cases knowing quite
well that at the end nothing will really happen. Fighting for justice is itself
the cause and the outcome was of little concern to them.
Tony
went before Sarath N. Siva and two other judges to request the relisting of a
case which had been dismissed twice already. He appeared for himself and made a
simple request to refix the case before some other judge and not Chief Justice
Silva. However, the case was called before the same three judges and Chief
Justice Silva asked Tony on which basis he came to court. Tony replied that he
appeared under article 12(1), equality before law. Chief Justice Silva may not
have expected that reply from a mere layman. His reply was to ask him to shut
up or face the consequence of having one month each added to each word Tony
would speak. Tony was sentenced to one year's imprisonment and taken from the
court to jail immediately. That was the type of justice prevailing then. When I
heard this, as I could not say, Ado Chief Justice Hoooo, Hooo, Hooo, I
nominated Tony to a Human Rights Defenders Award, the first ever award by the
Asian Human Rights Commission. Tony did not consider offering an apology to the
Chief Justice in order to get his sentence reduced. He appealed and the same
three judges, with Chief Justice Silva, presiding refused the appeal. Undaunted,
Tony then filed papers with UN Human Rights Commission, which held that the
imprisonment amounted to illegal detention committed by the Supreme Court of
Sri Lanka.
Tony
now lives with his family in Canada, still a very just man working for justice
for others.
Whenever
I think of him, in my mind I salute him the same way I do to hundreds of
others, who I know have spent years in courts knowing well that they will not
get justice. But they continue to do so to make a point. Such great litigants
are still there and they deserve a better system and better judges.
When
I think of former Chief Justice Silva, what comes to my mind is the other
salutation.
Legal
reasoning is about applying the mind to legal principles and rules in terms of
particular facts and circumstances. Perhaps the greatest example of such
juridical thinking was exhibited by Sir Sydney Abraham when he gave his
judgement in the famous Bracegirdle case. The Supreme Court quashed a decision
made by the governor ordering the deportation of Bracegirdle within 48
hours. The Chief Justice said,
"There can be no doubt that in British territory there is the fundamental
principle of law enshrined in the Magna Carta that person can be deprived of
his liberty except by judicial process".
It
is the total opposite of cunningness, of unscrupulously bending the reasoning
to suit one's own preconceived ideas and schemes. Chief Justice Silva failed to
grasp the distinction between just reasoning and cunningness.
The
legal edifice that existed in the ‘good old days' that S.L. Gunsekara speaks
about has now been pulled down. The cunning of politicians like Junius
Jayewardene, who pulled down the very foundation of the legal edifice founded
on rule of law through his "constitution", combined with the cunning
application of law to serve his political bosses by Chief Justice Silva, has
brought the nation down to the situation of those boys who turned savage in the
novel, The Lord of the Flies.
How
we can rise out of that savage state is hard to predict. However, one can
predict that so long as the cunningness of politicians and judges who serve
savagery remain, we are doomed to stay where we are.
 Mr. Sarath N. Silva has taken three different positions in ...){kind=link}