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Why did ex-CJ Sarath Silva ask the President and not the Judiciary to Protect the rights of Sara...

Oct 31, 2010 6:49:25 PM- transcurrents.com

by Kalana Senaratne

There are speeches which remind us of the past: the distant, as well as the recent past; the forgotten, as well as the unforgettable past. Such a speech was delivered by Mr. Sarath N. Silva recently, in defence of Mr. Sarath Fonseka (at a petition-signing ceremony on 25 October, 2010).


Mr. Sarath N. Silva & Mr. Sarath Fonseka ~ pic courtesy: the sunday leader.lk

Protection of human rights campaigners

There was a topical issue raised by Mr. Silva, unintentionally, when he began to recount the numerous allegations which had been levelled against Mr. Rajapaksa years and decades ago (including allegations of murder). Mr. Silva, in the process, refers to the case of Mahinda Rajapaksa v. Kudahetti and others (judgment of the Supreme Court, of July 1992), to remind his audience how the Supreme Court protected Mr. Rajapaksa’s fundamental rights. But there is a more important issue here.

The case was about the alleged violation of fundamental rights of the then MP Mahinda Rajapaksa. MP Rajapaksa (in 1990) was to board an aircraft bound to Geneva, to participate in the 31st session of the working group on Enforced Disappearances. At the airport, his bag had been examined by an Assistant Superintendant of Police named Kudahetti.

Interestingly, inside the bag were some 533 documents containing information on missing persons, and 19 pages of photographs. Since ASP Kudahetti took charge of these documents and photographs (under Emergency Regulations), MP Rajapaksa later alleged that he had been "prevented from presenting, distributing and or publishing them at the Conference in Geneva" and hence, a violation of the freedom of speech and expression.

What is topical about the above is that the very same practices adopted by MP Rajapaksa continue, and those engaged in such acts (i.e. highlighting human rights problems and protecting the rights of persons) are not necessarily ‘enemies of the state’. MP Rajapaksa was known then as an "active campaigner for the protection of human rights" (as per his affidavit), and he was in the Opposition. And if MP Rajapaksa wasn’t an enemy of the state, others who resort to similar practices are not either.

This may be certainly different as regards the elements which directly advocate separatism; but not so, as regards those who only advocate the importance of human rights protection. The government should remember that an ‘active campaigner for the protection of human rights’ is not necessarily an active campaigner against the state (otherwise, President Rajapaksa, one would need to conclude, was one of the most prominent campaigners against the state!); especially at a time when sweeping generalizations are made and all individuals and groups advocating the protection of human rights are lumped together and conveniently labelled ‘enemies of the state’. The fundamental task here is the protection of rights of citizens as well as the rights of those campaigning for the protection of human rights.

Independence of the judiciary

Another important issue that was perhaps indirectly raised by Mr. Silva was the issue concerning judicial independence.

Mr. Silva refers to the instances when the judiciary protected President Rajapaksa’s fundamental rights. But having done that, he then goes on to ask President Rajapaksa – and not the judiciary - to do the same with regard to the rights of Sarath Fonseka. The more logical appeal would have been for Mr. Silva to request the judiciary to protect the rights of Sarath Fonseka. To ask President Rajapaksa to protect Mr. Fonseka’s rights because the judiciary protected the rights of President Rajapaksa is, as many would note, illogical. And if the intention was to ask for a Presidential pardon, then Mr. Silva need not have reminded the public of how the judiciary protected President Rajapaksa’s rights!

But is there some hidden logic to all this, that Mr. Silva does not want to reveal in public?

Without asking the judiciary to protect the rights of Mr. Fonseka, why did Mr. Silva ask President Rajapaksa to do so? This appeal seems to imply, rather seriously, that the judiciary is under the absolute control of the President. What Mr. Silva seems to be saying is that he has no faith in the judiciary. This raises a lot of questions, and the judiciary would do well to take serious note of the perception that has been created in the minds of the people, of a deeply politicized judiciary (a problem which is not resolved, but rather exacerbated, by the 18th Amendment).

This also reminds us further that the former CJ’s was an accusation which was so tellingly leveled against the judiciary for many years, especially during the time that Mr. Silva was a dominant or even domineering figure of that important branch of the state. One cannot forget the unfortunate way in which the erosion of judicial independence took place, due to certain actions and decisions of the former CJ Silva. It is unnecessary, and even difficult, to enumerate here the number of accusations that have been leveled against him in this regard. These accusations have been well documented by his critics elsewhere, and even referred to by certain international organizations in numerous reports.

Mr. Silva, having left the judiciary, talks today with a sense of deep conviction about justice and why President Rajapaksa needs to show greater compassion in the handling of the Fonseka issue. But then, one only needs to ask one Anthony Emmanuel Fernando about how his fundamental rights were protected, about how justice was meted out, and the sheer compassion (!) with which he was treated in the Supreme Court and imprisoned, when he appeared before the former CJ some years ago; a case which even shocked the former UN Rapporteur Param Cumaraswamy since one noticed that former CJ was hearing a case in which he was a party!

Mr. Silva, during the course of his recent speech, also refers in a mocking and sarcastic tone to the absolute powers of the President: the power he has to establish a military tribunal and ratify its decisions, apart from the fact of the President also being the Commander-in-Chief. But of course, while appreciating the point made by Mr. Silva, one also should remember that it is this same kind of absolute power which the President had under the Constitution, in the form of Article 107(1) that enabled former President Chandrika Kumaratunga to appoint Mr. Silva to the post of Chief Justice (reportedly acting contrary to the serious concerns raised by eminent lawyers such as the late Mr. H. L. De Silva PC and Mr. R. K.W. Goonesekara).

Mr. Silva in particular should have been a bit more mindful when accusing the office of the President or the powers of the President because it was that very office and its powers which elevated him to that high post of ‘Chief Justice’; the image of which he, quite sadly, tarnished due to some of the decisions he made during the course of his tenure.


Revisiting the past is a necessary and useful exercise, but it is not always an enjoyable one. There are lessons to be learned, and one hopes that the present government, as well as the distinguished members of the judiciary would do so, sooner rather than later. In short, be mindful of what Mr. Silva tells us today, for there are many things to learn. But be mindful of what he did, too. For reminding us of all that, of things which some may have forgotten and things which remain unforgettable, we ought to thank Mr. Silva.

(Kalana Senaratne is a postgraduate research student at the Law Faculty, University of Hong Kong)