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Government. That attempt was aborted and the alleged conspirators were arrested. A
traumatized Government secured the enactment of a retroactive law that introduced special
provisions for the trial of the accused persons. Among these was one which conferred on the
Minister of Justice the power to nominate three Judges of the Supreme Court to try the accused
persons without a jury. When the Trial-at-Bar commenced before the three Judges handpicked
by the Minister of Justice, the defendants refused to plead, arguing that the power of
nomination of Judges conferred on the Minister was ultra vires the Constitution.
The Constitution did not contain a chapter on fundamental rights; nor did it specifically
provide for the separation of powers. However, after several days of argument, the Court
unanimously held that the power to nominate judges, although it might have had the
appearance of an administrative power, was so inextricably bound up with the exercise of
strictly judicial power or the essence of judicial power that it was itself part of the judicial
power. Accordingly, the three Judges nominated by the Minister held that they had no
jurisdiction to proceed with the trial for the very reason that they had been so nominated. They
further held that even if the view were taken that the power of nomination was intra vires the
Constitution, the nomination would have offended against the cardinal principle that justice
must not only be done but must appear to have been done, and they would have been
compelled to give way to that principle which had become ingrained in the administration of
common justice in the country.
The Government did not appeal the judgment. Instead, it restored the power of the Chief
Justice to nominate the Court. All three Judges continued to serve until they reached the age of
retirement. Nine years later, one of them was recalled from retirement, on the recommendation
of the same Prime Minister, to be appointed to the office of President of the Court of Final
Appeal which replaced the Judicial Committee of the Privy Council.
Fast forward 50 years to 2012. A controversial Bill was presented in Parliament by the
Presidents younger brother, the Minister of Economic Development. Its constitutionality was
challenged in the Supreme Court before a three-judge Bench chaired by the Chief Justice. The
Court determined that the Bill could not be passed by Parliament until it had been approved by
the nine Provincial Councils. When one Provincial Council failed to approve it since it had not
yet been constituted by election, the same Bench determined that the Bill required not only a
two-third majority in Parliament, but also approval at a referendum. On the same day, the
government parliamentary group submitted a resolution to the Speaker for the removal from
office of the Chief Justice. The Speaker, the elder brother of the President, appointed a select
committee of seven cabinet ministers and four opposition members to investigate and report to
Parliament on the allegations set out in the resolution.
When the Chief Justice appeared before the select committee, she was denied time to respond
to the charges, denied further information on the charges, and denied a list of witnesses or of
documents. Two members hurled abuse and obscene remarks at the Chief Justice and her
lawyers. The Chief Justice thereupon withdrew from the proceedings. The four opposition
members also withdrew, citing callous disregard for the rules of natural justice. On the next
day, the seven government members summoned witnesses, recorded their evidence, and, 12
hours later, adopted a 25-page report in which they found the Chief Justice guilty of
misbehaviour. The resolution for her removal was passed by Parliament; the order for her
removal was made by the President; and the legal adviser to the Cabinet was appointed Chief
Justice despite a determination of the Supreme Court that the proceedings held before the
select committee were void ab initio, and a writ of certiorari issued by the Court of Appeal
quashing the decision of the select committee.
In my view, the events that I have just described marked the lowest depth in the downward
spiral of the Sri Lankan judiciary. The process began on the day on which the presidential
executive was established, and it gathered momentum as successive Presidents made their own
contribution towards creating a docile, deferential and subservient judiciary. I will refer briefly
to the areas in which the most critical and debilitating impact of presidential power were
experienced.
Court who was serving as her Attorney General. The present President has indulged in a game
of snakes and ladders. He bypassed the most senior Judge, and then compensated her by
appointing her husband as head of a major government institution, the Sri Lanka Insurance
Corporation. Never before had the spouse of a Supreme Court Judge been the recipient of
political largesse. Two years later, he appointed the previously superseded Judge as Chief
Justice, having again appointed her husband to head another state institution, the National
Savings Bank. Both these institutions functioned directly under the President in his capacity as
Minister of Finance.
taken by the Judges had to be administered by the President. The Court immediately
adjourned, and the Judges wrote to the President that in their opinion the period of one month
would expire at midnight on that day, and that they wished to take their oaths before him that
afternoon. The President refused, having been advised that the period of one month had
already expired. The Judges were informed that they had ceased to hold office. Their chambers
were locked and barred and armed police guards placed on the premises to prevent access. It
was widely speculated in government-controlled newspapers that the Court might be
"reconstituted", with some Judges being replaced. Finally, a traumatic week came to an end
when all the Judges were issued with fresh letters of appointment and duly sworn in by the
President.
play prominent roles at family events such as the marriage of a son or daughter. Photographs
of such events are published in newspapers and on the internet. When the Presidents son took
his oaths as an attorney-at-law before the Chief Justice and two other Judges, the three Judges
stepped down from the Bench and posed in their judicial attire for several photographs with
the new attorney and his parents and with Ministers who were also present. That privilege was
not accorded to the hundreds of others who also took their oaths on that day in the same
ceremony.
More recently, the present Chief Justice travelled from the capital city to the deep south to join
the President and his immediate family in celebrating the Sinhala New Year rituals at the
Presidents private home. Several pictures that were published showed the participants,
including the Chief Justice, "attired in white and facing south" feeding milk rice to each other
and engaging in other traditional transactions in what was essentially a family occasion. Two
months ago, the Chief Justice was a member of the Presidents entourage (which included
several Ministers, Members of Parliament and officials) on an official visit to Italy. It was the
first occasion when a Chief Justice accompanied a political leader on a visit abroad.
employment took place while the Chief Justice was still in office presiding over politically
sensitive cases. It gave rise to serious questions not only in regard to his judgment, but also to
the probity of his recent judicial decisions. It also raised the spectre of judicial corruption.
When a Judge, and a Chief Justice at that, decides to take a great leap from the Supreme Court
to the Presidential Secretariat to serve the executive branch of government at its core, the
alarm bells must surely begin to ring.
Presidential patronage was spectacularly reciprocated by a succession of Chief Justices and
Judges who provided their patrons, or potential patrons, with several judgments and advisory
opinions they desired. For example, a criminal investigation into an allegation of fraud against
a presidential candidate was suspended to enable him to contest and secure election. Another
Chief Justice provided an advisory opinion that enabled a re-elected President to defer the
commencement of his second term and thereby acquire a "bonus" term of ten additional
months. A Judge wrote a determination, within the space of 24 hours, on the constitutional
validity of some 93 paragraphs of a Bill which made profound changes in the governance of
Sri Lanka, enabling a President to seek re-election to office for as many terms as he wished
and abolishing a host of independent commissions.
Conclusion
What lessons would I draw from the Sri Lankan experience? The Sri Lankan judiciary has not
adopted a code of judicial conduct based on the Bangalore Principles. Would it have made a
difference if it had? Prior to the advent of the Executive President, Sri Lanka possessed a
judiciary that was rarely, if ever, inhibited by the pomp and splendour, or the power and
authority, of the State or its agents. The UN had not yet formulated the Basic Principles on the
Independence of the Judiciary, and an international code of judicial conduct had not yet been
conceived. Yet, Judges of that time remained true to their only guide: the judicial oath. The
fact that the government of the day, even when backed by a two-third majority, might have had
a very strong interest in particular litigation, often left the judiciary unmoved. But in the 37
years of presidential rule that followed, the independence and integrity of the judiciary, and
especially of the Supreme Court, reached incredibly low depths. The judicial culture that has
grown, and developed during this period, is one of extreme deference to the presidential
executive. The judiciary capitulates to practically every executive assertion.
The Bangalore Principles will not, by itself, enable a judiciary accustomed to, and apparently
comfortable within, an antithetical political environment to assert its independence and
integrity. A few years ago, the then Chief Justice of Kenya introduced himself to a judicial
conference as "the head of the court with the finest judges that money can buy". When a
democratic constitution was introduced in that country shortly thereafter, the Chief Justices
tenure was curtailed, and each judge, from the highest to the lowest court, was subjected to a
vetting process by a commission that included distinguished international jurists, before his or
her re-appointment to the judiciary was confirmed. Sri Lanka may well need to adopt that
process if it is to ensure that its judiciary, especially at its highest levels, is to regain the trust
and confidence of the people whom the judiciary is primarily intended to serve.