The forty fifth Chief Justice of Sri Lanka, Justice Priyashath Dep was sworn in before President Maithripala Sirisena, last Thursday. It was the first time since the establishment of the 19th Amendment and the Constitutional Council, that a nominee of such prominence and power was selected through an independent body, after considering many aspects.
The Judiciary is considered an arm of the governance of a country, that is in place most importantly, for checks and balances. Therefore, it helps the independence of the Judiciary that its head is not a political appointee.
Justice ARB Amarasinghe in his book, The Supreme Court of Sri Lanka, aptly illustrates this sentiment in a speech made by Sir Sidney Abrahams KC upon being sworn in as the 26th Chief Justice of Ceylon in 1936, thus:-
“The surest foundation of civilization is a firm, impartial and speedy administration of justice, and it is quite impossible that that ideal can be obtained unless you have judges who are strong, courageous and impartial and a Bar equally strong and courageous….”
Sri Lanka has witnessed many instances of such political appointees to the Judiciary which have consequently resulted in disaster.
The most recent instances can be traced back to the unconventional way in which Justice Shirani Bandaranayake was removed from her post, and the appointment of Justice Mohan Peiris who was elevated to the position of Chief Justice by former President Mahinda Rajapaksa, which drew heavy criticism. Peiris’ appointment was by the President with the approval of the Parliamentary Council. This, unlike the Constitutional Council only recommends, whereas the sole authority of appointment lies with the President. Although the President should ideally seek the observations of the Council on such appointments, it is not however, binding.
Mohan Peiris’ appointment was later declared as a de facto appointment and was not counted as a Chief Justice.
A more interesting turn of events took place, pertaining to the appointment of Hugh Norman Gregory Fernando, more famously known as H.N.G Fernando, father of the late Justice Mark Fernando.
Justice H.N.G Fernando prior to his elevation as Chief Justice or Justice of the Supreme Court was stationed at the Legal Draftsman’s Department.
When one looks into the tradition of appointing judges to the Supreme Court, it is clear that the names had been considered from the Attorney General’s Department and never had any been considered from the Legal Draftsman’s Department.
Historical records indicate that H.N.G Fernando who at that time was the Legal Draftsman, met T. S Fernando, the Solicitor General, who was his neighbour. HNG walked the few yards that separated his house from that of T.S’s to make a request, from a ‘friend to a friend’.
His request can be signified as preposterous and uncanny. H.N.G’s simple request to T.S was to consider taking leave from his post making way for H.N.G to be appointed as acting Solicitor General, which in turn would make him eligible to be considered to be appointed to the Supreme Court.
Giving many reasons for this request, both personal and political, he continued his pursuit after speaking to the American Ambassador to invite T. S Fernando to “to study the American legal and judicial systems.”
Propositions were made and accepted, and ultimately Justice H.N.G Fernando was elevated as the 33rd Chief Justice of Sri Lanka.
In a fateful turn of events, when it was time to appoint a Chief Justice during the former President Chandrika Bandaranaike’s tenure, due to political reasons, Sarath N. Silva was appointed over Justice Mark Fernando who was thought to be more prudent and deserving of the post.
As late as in 2013, during a meeting at the Opposition Leader’s office, with a team of lawyers and core UNP members, Mangala Samaraweera MP and a participant at the discussion, speaking to young Suren Fernando, son of Justice Mark Fernando and grandson of Justice H.N.G Fernando, holding his hand, publicly apologized to the young lawyer. “I regret very much what the then government did to your father. The treatment he received from us was absolutely wrong, he should have been the Chief Justice and I am apologizing to you today, for being a party to that decision,”
The appointment of Justice Sarath N. Silva was widely criticized as being politically partial, which heavily reflected in his decisions. His appointment was heavily criticized by the local media as well.
In 2001, the International Bar Association (IBA) concluded that there was “an overwhelming need for an independent, credible judicial system”. The above instances are sufficient illustrations as to why a country needs an independent procedure to appoint to higher positions within governance.
Speaking to the Sunday Observer, former Attorney General, President’s Counsel and a member of the Constitutional Council Shibly Aziz said, there seems to be sufficient mechanism in place with a versatile input consisting of the government, opposition and the civil society to represent a mix of interests.
“The Constitutional Council itself is set up to ensure independence consisting of Parliament and Civil Society representatives. Therefore, the mechanism that we have in place under the 19th Amendment seems satisfactory,” he said
Also, commenting on the importance of an independent body to make judicial appointments, former Legal Draftsman, Aruna Shantha de Silva speaking to the Sunday Observer echoed similar sentiments. Drawing parallels to similar incidents that occurred, of not elevating Nalin Abeysekara, a former Legal Draftsman to the Supreme Court, which he described as “bad luck for Sri Lanka.”
Other countries such as the US has placed a fine mesh to funnel the most appropriate person as Chief Justice, whereupon the nomination by the President, would be confirmed by the Senate.
Although Parliament makes and passes laws it is the Courts that set the wheels in motion and apply it practically and somewhat refine it for general application and most importantly, interpret the intentions of Parliament. Therefore, it is important that independence is upheld within the judicial mechanism.
The 19th Amendment to the Constitution granted Sri Lanka some independence in appointing Chief Justices and Judges of the Supreme Court among other appointments.
Section 41C (1) of the 19th Amendment to the Constitution specifically provides that “No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.”
Thus, making it the ultimate body of appointing an independent body, and not vesting it with one person.