| 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.