Do we, as a nation, have any hope when our elected leaders act in this stupid manner?

CJ affair: spotlight shifts to parliament

By Frederica Jansz

The case involving Chief Justice Sarath Nanda Silva is certainly another first for Sri Lanka's claim to yet more ill fame. Never before has a chief justice of this country been at the receiving end of such strident lobbying to ensure his removal. Never before has the conduct and track record of a chief justice of this nation ever been under such scrutiny, charges and allegations. And never before has the very portal on which Sri Lanka's judiciary stands, been shaken to its core as a result of the conduct of its chief judicial officer.

Hardly had the dust settled on a second impeachment motion attempted against the Chief Justice a mere nine months ago, before another controversy followed.

This time, hot on the heels of an alleged affair with a young lady lawyer, the joint opposition last week called for a parliamentary probe into the case involving Chief Justice Sarath Nanda Silva.

What is apparently of issue here is not just that the 63-year-old Chief Justice may or may not have indulged in a liaison with a young lady. Moral judgment aside, what transcends the alleged incident, is the subsequent scenario that has unfolded.

Diabolical lies

One undeniable fact is crystal clear. That is, that lies and diabolical ones at that have been uttered with nary a thought for the consequences.

This is an undisputable fact in this case. The issue now at hand is to determine if these lies have been uttered by the police officers involved or the Chief Justice himself.

On the one hand we have an alleged conspiracy - a charge made by none other than the CJ himself against five police officers out of which, four are mere constables while one is a chief inspector.

On the other hand, we have an alleged scenario which seriously implicates the Chief Justice, not just in having allegedly been seen in the company of a woman. More seriously that the Chief Justice was lying when he denied any involvement and accused the police officers of being part of a conspiracy.

It is this latter possibility that bears disastrous consequences for all Sri Lankans. After all, how can Sri Lanka have as head of its judiciary an individual capable of lying, doctoring evidence and intimidating witnesses? And it is in this context that this case should be carefully and thoroughly investigated.

Conflicting versions

In view of the conflicting versions it is important to get at the truth. If the police are at fault then they have to be punished without delay.

After all if indeed they have fabricated charges against the Chief Justice it is a matter of the utmost seriousness and they must be interdicted forthwith. However, if it is the Chief Justice who is found to be at fault then he cannot be tolerated to hold this high office a day more.

There is one point that needs to be stressed. Had this happened to Sarath Nanda Silva's distinguished predecessors whereby no apparent value has been attached to what he has charged, accusing the police officers involved of a conspiracy to tarnish his image, they would not have continued in office for even a day.

Chief Justice Neville Samarakoon and Chief Justices Parinda Ranasingha, S. Sharvananda and G.P.S de Silva would not have sacrificed their self-respect and integrity in a situation of this nature.

In similar vein when a similar controversy erupted involving former Air Force Commander, Jayalath Weerakkody he tendered his resignation and left.

It goes without saying that to expect an impartial and thorough investigation into this case by the police force is a pipe dream.

When questioned last week on the status of the ongoing police investigation, Police Chief, Indra de Silva said, 'I have no idea. I have not been able to look into this so far since I have been busy with the controversy surrounding police promotions.'

This is despite the fact that this investigation revolves around police officers. And that too, four of whom are minor officers.

Surely, they are easily summoned by superiors, thus hastening the conclusion of any inquiry? De Silva claims he expects this inquiry to 'finish soon.' Beyond that rather vague statement he cannot be more specific.

The Police Chief was more or less noncommittal when asked for his opinion on the call by the joint opposition for a parliamentary select committee to take over this investigation having stated a case of no confidence against the Police Chief and his inquiring officers.

The IGP replied, asserting rather lamely, that his investigation would also continue. Towards what end he cannot say.

The Inspector General of Police has already contradicted himself on at least two occasions. He was initially quoted by one newspaper saying a full inquiry is underway after the Chief Justice himself had called for one. The IGP then told another newspaper less than 24 hours after a police probe had begun, that the police officers involved in this case would be severely dealt with.

For the Police Chief to make this comment even before a full investigation had been conducted and concluded proves the IGP is incapable of acting with independence.

In addition, the dubious conduct of senior police officers appointed to probe this matter has already been brought into question by President's Counsel, Desmond Fernando. Fernando, who represented the chief inspector when the latter was summoned for a statement by the police Special Investigations Unit (SIU) has complained to the National Police Commission against the officers conducting the inquiry and the manner in which the inquiry was conducted.

Police investigation

In this context, to expect a full and impartial investigation into this matter by police officers serving under the IGP is indeed a matter that is already a foregone conclusion. Inquiring police officers have so far proved they lack the courage to stand tall where this case is concerned.

For the cops, an impartial probe in the interests of the public, justice and democracy is a matter well beyond them.

A full scale cover up appears to be in operation hoping media attention would wane and the issue will die a natural death, like many such issues in the past.

As we examine the facts pertaining to this case and others involving Chief Justice Sarath Nanda Silva, it is imperative to bear in mind one extremely important aspect. And that is that this particular case involves none other than the Chief Justice. An individual second only to Sri Lanka's Head of State. (See box for case against the Chief Justice)

This is not the first time charges of this nature have been brought against Chief Justice Sarath Nanda Silva.

He was appointed on September 16, 1999 as Chief Justice by President Chandrika Kumara-tunga. In making the appointment, Kumaratunga disregarded petitions of appeal delivered to her by concerned citizens of the country to appoint an individual of high repute to the post of chief justice, in whom public confidence is reposed and whose integrity is not only above suspicion but is demonstrably seen to be above suspicion as well.

CJ's appointment

When Sarath N. Silva was appointed as CJ, he automatically took over as head of the Judicial Services Commission (JSC). Ironically, the controlling body which was at the time inquiring into his conduct.

The appointment of Attorney General Sarath Nanda Silva as Chief Justice effectively superseded Justice Mark Fernando, the senior most judge of the Supreme Court at the time and a judge responsible for many landmark judgments that brought him international fame but angered both the UNP and PA governments.

The charges against Sarath Nanda Silva began during his tenure as Attorney General. He had, while he was a judge of the court of appeal, got his name deleted from the position of an accused in an adultery case instituted against him by W. B. A. Jayasekera, who is a chartered engineer by profession.

It is charged that Sarath Nanda Silva followed a policy of using his powers to the maximum in order to get a verdict to the advantage of Damayanthi Jayasekera, the woman who lived with him in adultery.

It is alleged that a former Colombo Additional District Judge, Upali Abeyratne who helped the Chief Justice in the divorce case filed by Jayasekera against his wife Damayanthi, who at the time the case was filed was already living with the Chief Justice, was subsequently on the recommendation of Chief Justice Sarath N. Silva, appointed a High Court judge.

Damayanthi's husband W. B. A. Jayasekera subsequently complained to the JSC against District Judge, Upali Abeyratne who he said had handled his divorce case partially and in favour of Sarath N. Silva who had been named as a respondent in the divorce case. But following Sarath N. Silva's appointment as Chief Justice and thereby head of the JSC too, this complaint could no longer stand.

Two impeachment motions

There have been two impeachment motions presented against the Chief Justice. The first, was presented to parliament in 2001. This was later invalidated by an injunction of the Supreme Court.

The inaction of parliament on this motion was another contributory factor to why it went under, and remained so until the house was dissolved in August that year.

The new United National Front (UNF) government elected in December 2001, for reasons known only to themselves, failed to pursue this motion further. This was despite the fact that 77 members of the main opposition UNP had signed the impeachment motion and presented it to parliament in June 2001.

When parliament was abruptly prorogued until October 7, 2001 this motion was stalled. When the House resumed its sittings the Speaker said that the impeachment motion had lapsed.

This was technically not correct because Article 70(4) of the Constitution provides that matters pending in parliament may be proceeded with at the next sessions.

After the UNF was elected to office, no fresh impeachment motion against the Chief Justice was presented. That is until late October 2003, when the UNF attempted once more to bring an impeachment motion against the Chief Justice.

Then Prime Minister Ranil Wickremesinghe apparently gave the green-light to his cabinet of ministers to proceed with a second impeachment motion only after President Kumaratunga took over three ministries sparking off a political crisis which eventually led to the dissolution of parliament.

What is important here is to focus on the charges contained in this second impeachment document, all of which are backed with evidence. Of course, no sooner the United People's Freedom Alliance (UPFA) took office in April this year, this impeachment motion like the complaint to the JSC against Sarath N. Silva, became null and void.

For the UNF, their timing to present a second impeachment charge against the CJ could not have been worse. And they paid the ultimate price. (See box for impeachment charges against the CJ)

CJ's conduct

And now for the third time, the UNF gas set in motion yet another process questioning the conduct of Chief Justice Sarath Nanda Silva.

But a more important factor, than the joint opposition effort, where the case involving the Chief Justice is concerned is the fallout for civil society.

In the interest of the public, the justice system, judiciary, democracy and in the interest of the rule of law it is vital that the true facts relating to the Chief Justice be probed and reported upon by persons who are completely impartial and unbiased. And above all who will not bow to political or judicial pressure. If not, this case will certainly be civil society's calling card.

BASL President shies from taking a stand.

President's Counsel and President, Bar Association of Sri Lanka, Ikram Mohammed said the BASL does not intend to issue any statement on the present controversy involving the Chief Justice 'because there is still a police investigation pending.'

'The BASL has not considered this matter at all,' he asserted. When asked why, he replied, 'I really do not know.'

S.Lanka's Supreme Court Issues Order to Prevent Impeachment Against Chief Justice
Sri Lanka's Supreme Court issued an order on Wednesday to block impeachment proceedings in parliament against Chief Justice Sarath Silva proposed by the main opposition United National Party (UNP).

The Supreme Court was trying to prevent Parliamentary Speaker Anura Bandaranaike, President Kumaratunga's brother, from appointing a panel of legislators to investigate allegations of chief justice's misconducts.

The UNP leader Ranil Wickramasinghe said the Supreme Court had no right to issue orders on the rights and powers of parliament and it should only act within its limitation.

'Supreme Court was responsible for protecting fundamental rights but should not intervene unnecessarily in the activities of other constitutional institutions,' he said.

'Supreme Court had no authority to issue an order over an impeachment of which it knew nothing and therefore it was not necessary to debate the Supreme Court ruling,' he added.

Meanwhile, Anura said the Supreme Court's order was unprecedented. 'This is the first time this happened in Sri Lanka' s constitutional history,' he said.

However, he said he had received the impeachment and after taking into consideration the views of all members, he would issue a statement.

The UNP handed over proposals with 77 signatures to the Parliament earlier on Wednesday to impeach the chief justice on allegations of misconducts.

The UNP leader Ranil Wickramasinghe said the Supreme Court had no right to issue orders on the rights and powers of parliament and it should only act within its limitation.

SRI LANKA: On the misconduct of the Chief Justice of Sri Lanka, Sarath Silva
1 April 2003
AS-06-2003

A Statement by the Asian Human Rights Commission - AHRC

On the misconduct of the Chief Justice of Sri Lanka, Sarath Silva

In the addendum to his 2003 report to the UN Commission on Human Rights, the Special Rapporteur on the independence of judges and lawyers Mr. Dato' Param Cumaraswamy stated that he continues

to be concerned over the allegations of misconduct on the part of the Chief Justice of Sri Lanka Sarah Silva, the latest being the proceedings filed against him and the Judicial Service Commission in the Supreme Court by two district judges which is set for hearing on 27 February
2003 (E/CN.4/2003/65/Add.1, para. 178).

At a press conference held in Colombo on February 27 Mr. Cumaraswamy spoke on the case of Michael Anthony Fernando, who after being imprisoned for one year by the Chief Justice and two other judges was mercilessly beaten by prison guards and is now an invalid. He remarked, 'The Supreme Court of Sri Lanka has done an act of injustice. A man who came to seek justice was served with injustice.' He continued, 'I want the bar association of Sri Lanka to wake up and have the courage to take up the cause of this man without demanding guarantees that they will be not be hauled up for contempt,'

Regrettably, despite the Special Rapporteur's protest, and those of many international organizations, nothing has been done to correct this injustice, and Mr. Fernando is still in prison. Neither the Bar Association of Sri Lanka nor its members have responded. The reason for their failure is summed up in a statement by a lawyer over 30 years experience, who remarked recently to the Asian Human Rights Commission that, 'It is not only the people that have lost confidence in justice but also the lawyers.'

Many people in Sri Lanka are saying that it is quite simply a country without justice. It may be unreasonable to attribute this entire condition to the Chief Justice, but it is reasonable to say that he has contributed to this situation greatly. Lawyers typically claim he intimidates them when in court, and threatens to debar them from practice, especially in human rights cases. Others tell of his manipulating panels and dates of hearings in a manner that casts doubt on the objectivity of proceedings. In a lengthy book entitled The Unfinished Struggle for the Independence of the Judiciary (2002), prominent journalist Victor Ivan has exposed extensive misconduct and abuse of authority by the Sarath Silva both as Attorney General and Chief Justice. There had been no official denial of the allegations made in this book, nor has the author been subjected to any legal action, despite inviting it. In fact, most of the material in the book was previously published in newspapers and!
is widely known to the public in Sri Lanka.

There is a common feeling that it is futile to challenge the abuse of power by the Chief Justice. This explains why the call of the Special Rapporteur went unheeded. Indeed, it was not the first of its kind. The 2001 report of the International Bar Association entitled Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary noted that

Any proceedings or inquiries concerning the position of the Chief Justice when Attorney-General,
and in connection with his appointment as Chief Justice, should be resolved by decision or
appropriate judicial action and not left in abeyance. Further, any continuation of the
present, or future impeachment proceedings of the Chief Justice should be dealt with rapidly and
with due process of law.

Sadly, the attempt to impeach the Chief Justice-the only avenue by which he may be investigated-has been derailed by political manoeuvring, despite the initial motion succeeding, with one-third of the Parliament voting in favour.

Most recently Nuwara Eliya District Judge Prabath de Silva resigned in protest against the Chief Justice. In saying that it was impossible for him to continue his work effectively under Sarath Silva, Judge de Silva cited the case of Mr Michael Fernando as evidence of how were he to present a fundamental rights case to the Supreme Court it would not yield any good result.

Judge de Silva's remarks echo those of everyone concerned by this case, and the independence of the judiciary in Sri Lanka. The questions these people are asking can be summed up as follows: What can the people do when the judiciary itself arbitrarily abuses human rights and when it acts in violation of a citizen's fundamental rights? What can they do when the judiciary abuses its power to imprison and intimidate persons arbitrarily and when it bullies those who come seeking justice?

These are worrying questions for people who care about human rights. Judicial support is critical if the fight against violations of human rights by the executive is to succeed. When confidence in the judiciary is undermined, it signals a crisis.

The concerns expressed by Mr. Cumaraswamy with regards to the Chief Justice and the case of Mr. Michael Fernando are most welcome. However, while he has identified the problem, there is at present no means to resolve it. To change this situation, the Asian Human Rights Commission suggests that the UN High Commission for Human Rights

1. Undertake a joint intervention in Sri Lanka involving Special Rapporteurs, UN Committees and Working Groups whose mandates permit their involvement.
2. Draw the attention of the UN General Assembly to the situation in Sri Lanka.
3. Initiate a high level fact-finding mission on the independence of the judiciary in Sri Lanka.
4. Draw up a set of principles for dealing with abuse of judicial authority, both nationally and internationally, when local remedies fail.
5. Consider establishing a programme with the Bar Association of Sri Lanka to motivate them towards action.

Whatever steps are taken, the ultimate objective is to open space for people to play a more active role in resolving the crisis facing the judiciary in Sri Lanka. Both Sri Lankan lawyers and the public are demoralized and paralyzed. They need a way out of this situation.

It is above all a duty of the lawyers to rise above their petty interests and fears. Their relevance to Sri Lankan society is now very much being questioned. Without a strong move by the lawyers to stand on the best traditions of their profession, the situation for civil liberties in the country looks very bleak indeed. The Asian Human Rights Commission therefore echoes the call of the Special Rapporteur for all Sri Lankan lawyers to wake up.

Some in the media have kept up the struggle against the degeneration of judiciary. They are to be congratulated. There is a general realization in the media of the great threat hanging over Sri Lanka's justice system. The efforts taken so far need to be expanded. Ultimately, press freedom itself depends on the strength of the justice system.

Meanwhile, Mr Michael Fernando remains in jail. His situation is a grim reminder of the urgency of the task. There are many like him who will benefit tangibly and immediately if the Sri Lankan judiciary can be brought back on track, its independence established in terms of the norms and standards that the UN rightly defends.

Chief Justice to be impeached

by Chatura Vidyaratne

Ending months of procrastination and misgivings, the Government has finally decided to impeach Chief Justice Sarath N. Silva.

It had by yesterday secured the necessary number of MPs' signatures required to validate its presentation to Parliament. The impeachment document will be presented to the House on Thursday.


Chief Justice Sarath N. Silva

According to Government sources, the Impeachment Motion will include various charges and allegations of misconduct made against the Chief Justice in various quarters. This is the first time that an Impeachment Motion against a Chief Justice had gone before Parliament.

Meanwhile the Government has decided to raise a privilege issue in Parliament against the impending determination by the Supreme Court whereby the President had sought its opinion on the validity of a Gazette Notice issued by Defence Minister Tilak Marapana two years ago.

The Government has called for a ruling by the Speaker on such a determination by the Supreme Court.

The Government has also decided to quote from the ruling made to Parliament by former Speaker Anura Bandaranaike challenging the powers of the Supreme Court vis-a- vis Parliament, when the Privilege Issue is raised concerning the Supreme Court's opinion regarding the Gazette notification issued by Minister Marapana.

The Government has decided to accord priority to the matter of the Impeachment and the opinion of the Supreme Court pertaining to the Gazette notification. In addition, it has been decided to include in the Impeachment Motion certain comments made by Chief Justice Silva during the court proceedings that sought to determine on the President's request in respect of the Gazette notification issued by Minister Marapana.

Sources claim that the Chief Justice while hearing submissions on the matter, had gone on to criticise the Government's conduct and indirectly tried to cast aspersions on the Government-LTTE ceasefire agreement.

The Government is of the view that it could not permit a situation where the country would once again be dragged into a war, the sources said adding that the Impeachment Motion was meant to protect the independence of the Judiciary and that of Parliament.

Some political analysts see the fuel controversy as a plot by the Sri Lanka main opposition party, UNP to deprive the government of its revenues and topple the government. They say there is a hand of the LTTE behind the recent UNP moves to stop the on-going war effort against LTTE.