Judging The Chief Of The Judiciary
C. A. Chandraprema
As one newspaper editor said, we get budgets once every year, but an impeachment (especially one that goes the whole hog) will be seen only once in a lifetime. Throughout the past week, the media has been on a feeding frenzy over the impeachment motion against the chief justice. The budget has been all but forgotten in the excitement. What enhances the heat and controversy is the fact that the same individual may be in two minds about the judiciary and its decisions. There is no doubt about the fact that former Chief Justice Sarath Nanda Silva was a tyrant whose attitude towards power was in many respects similar to that of R.Premadasaand Chandrika Kumaratunga. We journalists were more scared of him than we were of Chandrika Kumaratunga. If you got jailed by president, at least you could raise a hue and cry about it. But if you got jailed by the CJ, even that would not be possible. Yet, the same S.N. Silva is also a hero to many including the present writer. The entire history of this country would have been different if not for S.N. Silva.
If not for his decision in the fundamental rights application made by Ven Omalpe Sobitha Thero against the Elections Commissioner (S.C.(FR)278/2005) a presidential election would not have been held in 2005, Mahinda may not have been elected to power and the war would never have ended. This was clearly an instance where tyrannical power and diabolical brilliance has been used for the ultimate benefit of the nation. Chief Justice Silva made use of a comma in Article 31 (3A) d (i) and the definition of the word ‘date’ to include not just the day and month but the year as well, to send Chandrika home in 2005 instead of 2006. Though we may like that decision, certain other rulings given by S.N. Silva like the prohibition on permanent checkpoints issued in 2007 may seem daft. This brings us to the question whether everything is subjective and whether there are no objective criteria by which judges could be judged?
Last Thursday, Batty Weerakoon the former LSSP heavyweight gave an interview to the Lakbima where he had argued that nobody has said anything about the chief justice and that anything that has been said, has been about her husband and that one cannot blame the wife for something that the husband has done. He further said that if the husband has done something wrong, action should be taken against him, not the wife. What Weerakoon said as a former Minister of Justice and as a former political party leader, carries weight. Weerakoon has in fact focussed on what the present writer also considers to be the most damning charge in the impeachment motion – Charge No: 5 which says that Pradeep Kariyawasam, the husband of the CJ is a suspect in a case filed at the Magistrate’s Court of Colombo by the Commission to Investigate into Allegations of Bribery or Corruption, and that as the ex-officio chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the said court which is due to hear this case, and also to examine the judicial records, registers and other documents maintained by the magistrate’s court and therefore there is a conflict of interest.
It should be noted in this regard that the Sri Lanka Establishments Code lays down very stringent standards of conduct even for ordinary public servants. According to Appendix I of Volume II of the Establishments Code which provides a ‘Definition of Offences Caused or Committed by Public Officers’ an ordinary policeman or government clerk ”who fraternises with a law breaker or reputed law breaker would be guilty of improper conduct”. The CJ’s husband, by Batty Weerakoon’s reckoning, is a ‘reputed law breaker’. So what happens if ‘a reputed law breaker’ is living in the same house as the chief justice of the country? If the wrong precedent is created in this case, no action can be taken against police officers and judges who keep company with criminals.
Y. K. Sabharwal, a former chief justice of India said that while every public servant is governed by a certain basic code of conduct which includes the expectation that he shall maintain absolute integrity, the office of a Judge requires much more. The code of ethics expected of those in the judiciary goes beyond the call of duty of an ordinary public servant. He said that there are three cardinal principles of judicial ethics that apply to any person holding a judicial office: 1) concerning the acts attributable to his official functions as a Judge; 2) concerning his conduct while in public glare; 3) the expectations of him in his private life.
