Lanka’s blessed judiciary: The sole deity of people’s rights and liberties
Ever since the grant of Independence 71 years ago, a blindfolded little old lady has taken residence atop Hulftsdorp Hill on a 24/7 basis. No one has seen her in the flesh but all who do the trek up this Mount of Justice know that she is there with her right arm holding a sword, raised in imperious countenance to keep inviolate the sacred domain she rules over; and her left carrying the Scales of Justice which weighs the merits and demerits of legal supplication heard before it.
True, there were some bad patches when the other side of the moon shone on it, which garish light she could well see even with her blinds on, even with the ghastly dark clouds that hovered over the Hill and stood poised to rain on it, like the flood of tears she found difficult to keep contained from breaking through the sluice gates.
The dark period when she thought of moving out occurred during the latter years of the previous regime when a bad spell seemed to have broken upon Justitia’s Temple. The first evil winds blew through its halls when the Chief Justice, G.L. Peiris’ protégé, Shirani Bandaranayake, whom Mahinda Rajapaksa had appointed two years into his second term in 2011, turned turtle in the Divinaguma Case and went out of favour and a politically motivated impeachment was brought against her and she was forced out of office.
This sordid episode of the all-powerful Executive casting its ominous shadow over the third pillar, namely, the Judiciary, upon which together with the Legislature the entire Constitution rests, smacked of political interference into the affairs of the Judiciary and in the eyes of the people seemed to pose a threat to its independence. Especially when it was followed up with the appointment of Rajapaksa’s personal legal adviser, the tame and ever ready to give echo to his master’s voice, Mohan Peiris as the Chief Justice of the realm: the fount from which Justice springs and the fount at which the ‘ justice denied’ bathe and pray for final succour.
As the maxim holds: Justice must not only be done but also be seen to be done. And the impeachment of Shirani Bandaranayake as the Chief Justice and the appointment of Mohan Peiris in her stead all stood in the public eye as evidence of political tampering with the dispensation of justice.
Once the Temple walls have been tarred with so black a brush as this, only an exorcism conducted by a mass congregation can restore the pristine white it once was painted with.
And it took exactly that to do so -- a Presidential Election.
It’s not often fortune falls upon Lankan Presidents to bless them with the opportunity to appoint a Chief Justice to the Supreme Bench not once, not twice, not even thrice but four times during his first tenure in office. And all within not even four years at the helm. One Chief Justice per year, so to speak, being the average. What a score card Sirisena holds in his hands. And one that’s unsullied.
The first President under the present Constitution, J. R. Jayewardene could only score two and that is during ten years in office as President. Neville Samarakoon was appointed by JR when he was Prime Minister in 1977 and thus that doesn’t count for the present record . Premadasa scored t wo. Wijetunga ended with a nil. Even Chandrika managed only one with the appointment of the disastrous Sarath Silva, whose controversial appointment led to an impeachment resolution being brought against him, which lapsed only due to Parliament being dissolved before the general elections.
Mahinda Rajapaksa had only one to talk of during his first term of office and had to wait till two years had passed in his second term to appoint G. L. Peiris’ protégé the legal academic Shirani Bandaranayke in 2011. Thereafter, he appointed Mohan Peiris on January 15, 2013 and ended on January 28, 2015 when the new regime declared the appointment void ab initio and this period remains a blank page in the annals of the Court. No wonder he is referred to as the ‘ Phantom of the Hulftsdorp Courts’.
That leaves Sirisena far ahead of the field with four, nay five, with his out of the box, more recent appointment to his credit. And as the SUNDAY PUNCH commented almost one year ago on October 28, 2018 in the column titled ‘ Yahapalanaya’s four times blessed Supreme Court’, “if there’s one blessed thing that he has done during these past four years, it is to have used all the four chances that presented before him to appoint the nation’s Chief Justice with great sagacity. To have chosen the best for the task, irrespective of his own political agenda. To have restored the independence of the judiciary and salvaged the respect from the depths which, in the public eye, it seemed to have fallen during Rajapaksa times.”
In Sirisena’s quest to dawn ‘just governance’, one of which was to restore independence to the Judiciary, he was fortunate that the nation was blessed having justices possessed of moral fiber and beyond reproach occupying the seats of the highest courts.
After one day over night appointment of Shirani Bandaranayake to set the record straight on January 30, Kanagasabapathy J. Sripavan, an old boy of Jaffna Hindu College, was sworn in as the 44th Chief Justice of Lanka. After a lapse of twenty five years, he was the first chief justice to be appointed from the minority Tamil community. But Sirisena did not let race stand in his choice, in the same way religion had stood in Chandrika’s way when she bowed to Buddhist pressure and chose Sarath Silva over the catholic Mark Fernando, a choice which must still haunt her and stalk her dreams and be a source of endless regret.
After an unblemished record as the supreme holder of the nation’s scales of justice, Chief Justice Sripavan retired from office on February 28, 2017, the day before his 65th birthday. His period in office: two years and a month.
If, at the time of assuming office as Chief Justice, he had found the Judiciary’s repute in a somewhat tatty state then, when he left its threshold for good two years and a month later on February 28, 2015, he left it adorned in shining armour with its integrity and independence duly affirmed by all.
When Supreme Court Justice, Priyasath Dep was chosen by President Sirisena to succeed Justice Sripavan, he became the first Chief Justice to face the gauntlet of the Constitutional Council and received its approval which was mandatory under the newly enacted 19th Amendment. No more did the Executive President of the land hold in his hand the unfettered right to appoint justices to the Appeal and Supreme Courts, as other Presidents before him had long enjoyed.
Sirisena, in his worthy bid to usher in ‘good governance’ had made sure that the 19th Amendment he had engineered deprived him of this absolute right. Instead, he had only the right to make an introduction to the Constitutional Council. They would vet the nominated party and decide as to his or her fitness to sit on the Bench. Justice Priyasath Dep passed the test effortlessly. The Council needed no time to rubber stamp the President’s chosen one. It was given their seal of approval. For Justice Dep’s credentials were impeccable, beyond question.
Alas, his tenure was brief. And having reached the age of 65 last October, he bowed out of his office with both respect and honour for his moral rectitude after having served one and a half years as Chief Justice but not before hearing the eulogy read out by the Judicial Services Commission which must rank as one of the greatest tributes paid to a justice in these trying times of corruption we live in.
It read, “the retiring Chief Justice Dep was one who had never ever accepted a duty free vehicle as he was entitled to as a judge, never accepted a land gifted by the government in recognition of his services as a judge; and whenever he went abroad on official business, returned the money given as an advance for his personal expenses to the last cent.”
That’s how the Former Chief Justice Priyasath Dep maintained his independence and became an unsung pride and hero of the nation. And more. The example he set by his actions ought to be followed by all justices in the Judiciary.
With Dep retiring, the President nominated Supreme Court Judge, Nalin Perera to occupy the vacant seat. Like Justice Dep before him, Justice Perera’s credentials were more than in order and it took not even half a day for the Constitutional Council to meet and unanimously approve the nomination and on October 12 last year, he took his oaths before the President and became the 46th Chief Justice. At the ceremonial sittings, held on Monday the 22nd of October, his speech served to inspire faith and hope in the independence of the Judiciary under his watch.
He declared: “We live in a world where people almost by default expect those in power to misuse the same. We are taken by surprise if those in power actually make true their promises. Public often assume that speeches such as this are merely sugar coated and loaded with empty words outside of real commitment. In a society like this we are almost programmed to look at each other with mistrust and much more at those who hold power in positions. As such I am aware that all of this makes it difficult for the general public to look to the judiciary in trust, expecting an independent and just solution.”
He went on to emphasise the need to keep one’s “arm’s length in such a way that personal favours are not encouraged or accommodated” in one’s office as a Judge.
He further gave some strong advice to other Judges. He said, “While this peculiar tension is not always pleasant, I believe it is something that all judges should learn to handle well with wisdom, humility and non-compromise in the normal course of life.”
A strong Christian, the newly appointed Chief Justice, Nalin Perera also quoted 2 Chronicles 19:6-7 of the Bible and then stated, “Judges therefore may do well to realise and remember the seriousness of their vocation even before God. For if their office was meant to serve such a high cause, then the failure to rightfully do so on their part constitutes a grave offence.”
Little did he realise that Monday when he delivered his ceremonial speech that he will be tested to the utmost and he will have to undergo a furnace of fire to prove the quality of his mettle before the week was up.
For that Friday evening, all hell broke loose.
The nation was stunned to the core to hear on October 26 the breaking news that President Sirisena had sacked Constitutionally appointed and thus Constitutionally protected, Prime Minister, Ra nil Wickremesinghe, and instead appointed the very man he had deplored and contested against in 2015, Mahinda Rajapaksa as the new Prime Minister.
If that was not enough for one week, in what appeared to be a gross violation of the Constitution, Sirisena went ahead and violated it again by dissolving Parliament when he had no right to do so before four and a half years of Parliament’s life had lapsed.
Emboldened by Sirisena’s move and believing the Constitutional coup Coup d'état was now complete and successful beyond measure, Rajapaksa in the second week of November began to embrace membership of the SLPP and hoisting it on other SLFP members of Parliament as well without realising that being a member of another political party would automatically make him forfeit his SLFP seat in Parliament. As a result, he immediately began back peddling and tried to convince the nation who had watched the membership ceremony live in action on television that it was all an exercise to promote SLFP membership amongst the SLFP members and not anointing them with the SLPP oil.
On Monday November 12, 2018 a group of civilians petitioned the Supreme Court claiming that their fundamental rights as enshrined in Article 12 (1) of the Constitution had been violated by the issuance of a Presidential proclamation dissolving Parliament and prayed for this proclamation to be quashed and declared null, void ab initio and of no force or effect in Law and it further prayed that interim relief be granted by suspending the operation of the proclamation which, in practical terms meant that Parliament would be open for business as usual.
This was duly granted by the Supreme Court whilst the arguments for and against the validity of the proclamation continued in earnest before the Supreme Court.
Chief Justice Nalin Perera led the Supreme Court Bench with seven Supreme Court Judges, himself included, sitting on it to hear and pass judgment on this controversial case. While the case proceeded in Court, so did public interest rise to fever pitch; and on every lip was found the question what the Supreme Court would decide come judgment day.
For Chief Justice Nalin Perera this was also a personal judgment day and the question resting on many a tongue was whether His Lordship would be true to the homily he had delivered as his ceremonial speech on October 22 regarding the importance of maintaining the impartiality, the integrity and the independence of the decision at whatever personal cost or, for personal gain cave in to the interest of the powerful.
Glad to say the new Chief Justice acquitted himself with honour when he delivered the judgment – first the compelling reasons for Their Lordship’s decision and then the decision itself which the seven judge Bench, led by Chief Justice Nalin Perera, unanimously decreed that it was a violation of the Constitution to dissolve Parliament before its four-and-a-half-year life span had expired.
It was a great day for democracy in the country and a great day for the Courts. For the decision had shown its impartiality, its integrity and its independence in no uncertain terms. If the Judiciary had appeared to be in the nadir of its existence five years ago under the former Rajapaksa regime, then nearly five years of a Just Governance environment had made it come full circle and showed the public that the Supreme Court would not bow before threats and the feared or that it could be bought and kept in the pockets of the rich and powerful.
All this had been made possible by the leadership that had been given to it by three Chief Justices who had been appointed during the Yahapalanaya years. They were Chief Justice Sripavan, Chief Justice Dep, and Chief Justice Perera who were chosen according to seniority.
When Chief Justice Nalin Perera arrived at retiring age and stepped down only did the President search out of the box and found in the Attorney General, Jayantha Jayasuriya, the next Chief Justice who took his oaths on April 29, 2019 and follows in the footsteps of his eminent predecessors.
The Judiciary, the Supreme Court at its apex has now established its impartiality, its integrity and its independence. It behooves all judges to maintain the highest standards expected of the Judiciary and remember, in order to prevent it from becoming a plaything of powerful vested interests, that eternal vigilance is the price of our people’s rights and liberties.