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The Politicisation Of The Sri Lankan Judiciary

Jul 23, 2011 5:56:08 PM - thesundayleader.lk

By Dr. Nihal Jayawickrama

In a very perceptive article in “The Sunday Leader” of 17 July 2011, Uvindu Kurukulasuriya has exposed the cosy and mutually profitable relationship that exists today between the highest levels of the executive and the judiciary.

However, he has prefaced his excellent analysis with an allegation that the politicisation of the judiciary in post-colonial Sri Lanka commenced under Justice Minister Felix Dias Bandaranaike “who invited judges to political parties and offered drinks”.  It was also alleged that “that was only one method among many that Felix used to politicise the judiciary”.  The author of the article attributed both these allegations to Mr.Walter Jayawardene Q.C.

Both Mr. Bandaranaike and Mr. Jayawardene are no longer with us.  Therefore, the former cannot defend himself and the latter can neither admit nor deny having made these allegations.  I have lived through those times.  Moreover, I served as Permanent Secretary to the Ministry of Justice from 1970 to 1977, through three Ministers of Justice including Mr. Bandaranaike, and I believe I am qualified to join issue on all three matters.

An unkind attribution

I believe Mr.Kurukulasuriya is seriously mistaken when he attributes to Mr. Walter Jayawardene the spurious allegations that Mr. A.C. de Zoysa made in his ex parte opening address before the infamous Special Presidential Commission of Inquiry in 1978.  Mr. Jayawardene was an eminent lawyer, diplomat and international civil servant who was appointed Permanent Secretary to the Ministry of Constitutional Affairs in July 1970.  However, he left that office to serve as the Sri Lankan Ambassador to Yugoslavia before Mr. Bandaranaike was appointed Minister of Justice in 1972.  Mr. Jayawardene then served as Ambassador to the Soviet Union until the general election of 1977.  Apart from the fact that he was not in the country during Mr.Bandaranaike’s tenure of office in the Ministry of Justice, Mr.Jayawardene, whom I knew from my childhood as a friend of the family, was a professional who would never have made the kind of statements attributed to him.

Judges’ Conferences

Did Mr.Bandaranaike invite judges to “political parties” and “offer them drinks”?  Yes, he did offer them hospitality, but not at “political parties”.  In 1972, we introduced the concept of the Judges’ Conference.  The conferences were open to the media and the proceedings were extensively reported in the press.  The first was held in July of that year at the Central Bank Auditorium.  It was a one-day conference attended by all the District Judges and Magistrates.  It was addressed, among others, by the President of the Court of Final Appeal T. S. Fernando Q.C., and the Chief Justice of the Supreme Court H. N. G. Fernando.  The purpose of that conference was to discuss the implementation of the language of courts provisions in the new Constitution.  Lunch was served, but not drinks.

Three other conferences were held at the BMICH in 1974, 1975 and 1976 to discuss matters of mutual concern such as the application of the new administration of justice laws.  Inaugurating the first of these conferences, (according to a newspaper report at the time), Chief Justice Tennekoon “welcomed the dialogue between the executive and the judiciary in order to achieve the ideal of efficient and effective administration of justice”.  On each occasion, at the conclusion of the three-day conference, the Minister hosted the judges to dinner at a Colombo hotel.  In addition, in January 1974, a dinner was hosted by the Minister in the banquet hall of the BMICH “to mark the inauguration of the Administration of Justice Law”.  It was attended by President Gopallawa, the Prime Minister and the Leader of the Opposition, Judges of the Supreme Court and High Court, Ministers and Ambassadors.  To my knowledge, these were the only occasions when judges were hosted by the Minister.  They were official events, held in public places.

Special Presidential Commission of Inquiry

It has been claimed by the author that there were other methods employed by Mr. Bandaranaike to “politicise the judiciary”.  He does not say what these were.  Had there been any such attempts, would they not have been the subject of charges before the Special Presidential Commission before which the Minister and I and the former Prime Minister were summoned?  In fact, Mr. Bandaranaike was charged with, and found guilty, of “corruption”, in that he had sold milk and eggs from his farm to the Milk Board and the Marketing Department respectively.  His response to this charge had been to ask whether it would have been more appropriate if the eggs had been hawked around the city as being “the minister’s eggs!”  Would they not have fetched an astronomically higher price?  No charge was laid against him that he had sought to “politicise” the judiciary in any manner or form.

In the pre-presidential period of Sri Lankan history, the separation of powers doctrine prevailed and was respected.  The question of “politicising” the judiciary did not arise because the judiciary was fiercely independent.  While there were, to my knowledge, isolated instances of “canvassing” for high judicial office, these efforts rarely succeeded, and the chosen few were generally the best available judicial talent.  I recall attempting to persuade senior lawyers such as Neville Samarakone,  H. L. de Silva, G. F. Setukavalar, and Eric Amarasinghe to accept judicial office, but without success.   Moreover, since governments were known to change at every general election (and, in fact, did), it would have been a very foolish and short-sighted judge who attempted to tie his mast to that of a politician or a party in power.

Every institution politicised

It is under presidential rule – Sri Lanka style, where the presidency is the source of all patronage, that every institution of government, including the judiciary, is necessarily politicised. There is no space for a separation of powers or functions, since all power flows from only one source – the presidency.  This is especially so if the President, as the leader of the largest political party, commands an absolute majority in parliament.  Every judge is chosen by the President; is appointed by the President; makes his oath before the President; with head bowed deep, receives the letter of appointment from the President; holds office in as much time as the President deems, the judge may be impeached at any time by parliament if the President so chooses; and during the judge’s tenure, he or she is called upon to decide the legality of acts of the President’s Government.  Is it any wonder then, that a judge who is overwhelmed by the munificence of the presidency should, as Uvindu Kurukulasuriya  reports, seek to immediately reciprocate with an invitation to his patron to partake of his hospitality in his humble abode?  Does it defy belief that a recently retired Chief Justice should be immediately provided new employment in the presidential secretariat?

It was President Jayewardene who demonstrated the power of the presidency when, on the day on which the 1978 Constitution came into force, he summarily dismissed eight judges of the Supreme Court and High Court whose security of tenure had been constitutionally guaranteed.  He then demonstrated the riches that lay in the path of judges who co-operated with him when he handpicked three of them to serve on the commission that would remove his principal political opponent from the political scene.  One commissioner was elevated to the office of Chief Justice; another was given a double promotion from the District Court to the Court of Appeal, while the third unfortunately disgraced himself by allegedly moving to his home, property belonging to the commission.

If, on occasion, a spark of independence flew out of Hulftsdorp, President Jayewardene was quick to extinguish it.  In 1982, the Supreme Court prohibited one of the members of the commission, the recently promoted Justice K. C. E. de Alwis, from continuing to serve on it because, by engaging in financial transactions with a person whose conduct was the subject of inquiry by the commission, he was guilty of misconduct.  Within weeks, the two judges who had issued the writ of prohibition on Alwis were summoned before a government dominated parliamentary select committee chaired by the minister of justice, and required to prove that their judgment had not been influenced by improper considerations.  It was apparent that an adverse finding by the select committee would almost certainly result in their removal.  Consequently, one judge felt it necessary to impress upon the select committee in a most abject and humiliating manner, where his political loyalties lay.  The other, whose record of independence and integrity was impeccable, also found it necessary to dispel any suspicion that he was anti-government by citing a number of judgments in which he had held in favour of the state.

Some years later, I had occasion to discuss with President Jayewardene some of his actions in relation to the judiciary.  He explained that they were politically necessary.  Today, two major streams of judicial reform are in progress throughout the world.  In developing countries and in the newly independent states of central and eastern Europe, integrity based judicial reform programmes are in progress.  Responding to a call made by the United Nations in 2006, nearly every country on every continent is in the process of requiring their judges to establish their accountability to certain core judicial values, now articulated in the Bangalore Principles of Judicial Conduct.  However, in Sri Lanka, regardless of what is happening elsewhere, the  Government is galloping on the back of the Eighteenth Amendment towards the attainment of a truly politicised court that would serve the greater interests of the presidency.

Different times, different values

Both Mr.Bandaranaike and I grew up in the homes of two respected senior judges of the Supreme Court at a time when the regime imposed on a judge was an extremely rigorous one, described  as  “monastic in many of its qualities”.  It was a time when a judge was required to retreat from public life into a wholly private life centred round home, family and friends.  We were conscious of the values that sustained public confidence in the judicial system and the standards of personal and professional conduct that contributed to the making of a good judge.  We were both members of the legal profession at a time when standards of conduct at the Bar were very high.  While we asserted and defended our legitimate functions in respect of the administration of justice, jealously and spiritedly, neither of us ever trespassed into judicial territory.