American President Dwight David Eisenhower when once asked what the biggest mistake of his Presidency is said to have replied “I have made two mistakes and they are sitting on the Supreme Court,” referring to Justice William Brennan and Chief Justice Earl Warren - two Justices appointed by him to the Supreme Court who went on to deliver key decisions contrary to his liking and ideology.
Chief Justice Nalin Perera retires at the end of the month after a short but decisive stint in the fourth highest office of the land. The landmark decision of seven judges of the Supreme Court headed by him in the dissolution case holding that the proclamation dissolving Parliament in November was a violation of Fundamental Rights, will be long remembered as a judgment which acted as a check on the exercise of Executive power.
One cannot help but think of the thoughts going through President Maithripala Sirisena’s mind as he contemplates his nomination to the Constitutional Council to appoint the next Chief Justice.
When the President nominated him as the Chief Justice, Justice Nalin Perera was the 6th most senior judge on the Supreme Court. A non-controversial figure who had risen in the ranks of the career judiciary from the Magistrate’s Court to the High Court and the Court of Appeal, prior to his elevation as a Judge of the Supreme Court, he was the senior most career judge on the Supreme Court bench.
In legal circles, the nomination was a surprise out of the blue since most believed that the two contenders to the post were the senior most, Supreme Court Judge Justice Eva Wanasundera PC a former Attorney General, and the present Attorney General Jayantha Jayasuriya PC. In all probability the President selected Chief Justice Perera because of his non-controversial nature, the relative short term he had prior to retirement, his seniority in the career judiciary and the likelihood of at least one of the main contenders being opposed to by the Constitutional Council.
As the President contemplates his nomination which after the 19th Amendment to the Constitution must receive the approval of the Constitutional Council, a look at the past appointments of Chief Justices would show the unpredictable nature of the appointment. One wonders how the course of history and politics in Sri Lanka may have changed - for better or worse - if some of those overlooked or bypassed had been appointed to that office.
In 1977 when Chief Justice Victor Tennekoon retired President J.R. Jayewardene overlooked the senior most Supreme Court Judge, Justice G.T. Samarawickreme and appointed from the private bar Neville Samarakoon QC as Chief Justice. Neville Samarakoon was an outstanding Chief Justice although there was no good reason to deprive Justice Samarawickreme, a judge of high integrity and stature, of that office. Chief Justice Samarakoon went on to be a thorn in the side of President Jayewardene delivering critical decisions against the government of the day.
Chief Justice Samarakoon attempted to thwart the excesses of the Jayewardene Presidency such as the move to seat in Parliament, the Member of Parliament for Kalawana unseated by the Courts in an election petition. The last straw was when Chief Justice Samarakoon made a speech critical of the regime as Chief Guest at the Prize-Giving of the Sinnathurai tutory. The regime commenced impeachment proceedings but before the Select Committee of Parliament headed by the late Lalith Athulathmudali concluded its proceedings the Chief Justice had retired and eventually the Committee found him not guilty of impeachable offences although holding his speech not appropriate to the high office.
When Chief Justice Samarakoon retired in 1984 it is said that the President was about to appoint the Attorney General Shiva Pasupathi, when those close to the President prevailed on him to appoint the senior most Supreme Court Judge, Justice S. Sharvananda. Chief Justice Sharvananda was appointed to the Supreme Court from the private bar during Mrs. Bandaranaike’s premiership. He was subsequently one of the members of the Special Presidential Commission which recommended that she be stripped of her civic rights.
During the 13th amendment bill determination on the Provincial Councils Chief Justice Sharvananda presided over the 9-judge bench which examined the Constitutionality of the Bill. The bench split 4-4 on whether the entirety of the Bill required passage at a referendum. One judge, Justice Parinda Ranasinghe held certain clauses required a referendum but if they were removed, that no referendum was required.
Less than one year after the 13th Amendment determination, in 1988 when the post fell vacant, President Jayewardene appointed his third Chief Justice. He bypassed the senior most Supreme Court Judge, Justice Raja Wanasundera and appointed the next most senior Judge, Justice Parinda Ranasinghe to the post. Immediately prior to the appointment, President Jayewardene was openly critical of Justice Wanasundera who had delivered several judgments against the regime of the day. Justice Ranasinghe was a career judge. After President Premadasa succeeded to the Presidency Chief Justice Ranasinghe presided over the first part of the Presidential Election Petition.
The next two appointments Justice H.D. Thambiah (Chief Justice for six weeks in 1992) and Justice G.P.S. de Silva (1992 to 1999) were by President Premadasa and were without controversy. Although there was speculation that the President may make an appointment from the private bar he did not do so and instead on both occasions appointed the senior most Supreme Court judges on the bench.
Undoubtedly the most controversial appointment to the Office of Chief Justice was in September 1999 when President Chandrika Kumaratunga overlooked Justice Mark Fernando PC who had been on the SC bench for 11 years and appointed the Attorney General Sarath N. Silva PC as Chief Justice. Justice Fernando was a direct appointee by President Jayewardene to the Supreme Court from the private bar. Prior to his elevation on to the bench he had been one of the key figures involved in the drafting of the 1978 Constitution. The son of Chief Justice H.N.G. Fernando, Justice Mark Fernando was known for his intellect and during his tenure greatly advanced the fundamental rights jurisdiction of the Supreme Court.
On the other hand Sarath N. Silva was the Attorney General and prior to that appointment was the junior most judge on the Supreme Court and prior to that the President and a Judge of the Court of Appeal. Before being appointed to the judiciary he was a senior officer in the Department of the Attorney General. In 1996 it was Attorney General Sarath N. Silva PC who brilliantly defended the appointment of Justice Dr. Shirani Bandaranayake to the Supreme Court, which was challenged by way of four Fundamental Rights Applications heard before a seven judge bench presided over by Justice Mark Fernando.
One could say both Justice Fernando and Chief Justice Sarath N. Silva were equally brilliant and learned in the law, although in many other aspects being poles apart.
Sarath N. Silva CJ was in office for nearly 10 years and his tenure shaped not only the judiciary but also the political landscape of our country. Once the senior judges such as Justices Mark Fernando, Ranjth Amerasinghe and Justice Ranjith Dheeraratne retired from office in a few years, he held sway in the Supreme Court and dominated the Judicial Service Commission. At one time two of the members of the Commission Justice Bandaranayake and Justice T.B.Weerasooriya resigned from the Commission. During this same period the number of dissenting judgments in the Supreme Court dwindled and very rarely would a judge dissent with the Chief Justice. In private several judges expressed their reservation about the Chief Justice.
Had President CBK appointed Justice Fernando how would the judiciary have been fashioned? We do not know whether her own fate would have been different if she had done so.
When Chief Justice Silva retired in 2009 the names of three possible candidates were discussed. Justice Asoka de Silva, the second most senior judge of the Supreme Court (next to Justice Dr. Shirani Bandaranayake), C.R. de Silva PC the former Attorney General and Mohan Peiris PC the Attorney General.
President Rajapaksa decided not appoint his good friend Mr. C. R. de Silva to the office and instead appointed Justice Asoka de Silva to head the judiciary. Again in 2011 President Rajapakse chose Justice Dr. Shirani Bandaranayake by then the senior most Supreme Court Judge instead of the Attorney General Mr. Peiris. By 2011 the earlier opposition to Dr. Bandaranayake from the Bar had faded away and by then she had served on the Supreme Court bench for 15 years, not least due to the courtesy which she demonstrated to the Bar from the bench.
Dr. Bandaranayke’s most criticised decision was when in 2010 she presided over a five-judge bench on the Supreme Court in the determination of the 18th Amendment to the Constitution which did away with the few checks and balances that were there to the executive presidency.
In 2013 following the impeachment of Dr. Bandaranayake, Mr. Mohan Peiris PC, who had by then retired from office as AG was appointed from the private bar. Another possible contender would have been Justice Shiranee Thilakawardena by then the most senior judge on the Supreme Court.
Following Mr. Peiris’ appointment being declared invalid by President Sirisena, Chief Justice Bandaranayake was restored and immediately retired from office. Following this the appointments of Sripavan CJ and Dep CJ were once again without any controversy them being the senior most Supreme Court Judges.
Justice Dep was the first Chief Justice who was appointed with the approval of the Constitutional Council.
In this backdrop of history, the selection of the Chief Justice in April 2019 is crucial to many aspects of the country, given the new assertiveness demonstrated by the judiciary, the fragile nature of independent institutions in Sri Lanka and the challenges they face.
The Chief Justice not only heads the Supreme Court but he also wears several other hats, the most important being as the head of the Judicial Services Commission (JSC). The JSC regulates the minor judiciary including their appointments, transfers and disciplinary control. In that capacity the Chief Justice has the ability to protect and insulate the minor judiciary from outside interference and pressures. Recruitment of judicial officers can impact on the judiciary for decades. To the credit of Chief Justice Sarath N. Silva his recruitments to the minor judiciary have been commended and many of these judges now hold office in the High Courts.
On the Supreme Court bench, the Chief Justice is technically first among equals, since every judge has a right to hold a different view. However it is no secret that often presiding judges on a bench do have a decisive impact on decisions.
It is the Chief Justice who constitutes benches of the Court. It is reality that judges have different perceptions of the law and how it should be applied and when it comes to many cases the constitution of the bench has an impact on the outcome of the case.
In the famous case where Victor Ivan and two others challenged the appointment of Chief Justice Sarath Silva, when the Petitioners asked for a bench to be constituted according to the seniority of the judges (i.e. Justice Mark Fernando downwards), Chief Justice Silva constituted a bench comprising the five most junior judges of the Supreme Court.
It is also the Supreme Court which regulates the legal profession. Attorneys-at-Law are admitted to the Bar, disciplined and even removed by the Supreme Court. The Chief Justice will play an important role in deciding on the manner in which complaints against lawyers are dealt with and the issues relating to professional standards.
The Chief Justice’s role is also vital to address the myriad of issues which confront the legal system. Law’s delays (which now affects the Supreme Court itself), legal education reform, lack of infrastructure, modernisation of the courts are among issues which a new Chief Justice will have to address, if people are to have confidence in the legal system which has eroded over time.
For these issues to be seriously looked at it is necessary that the new Chief Justice be one who has a vision for the judiciary, the legal profession and the legal system.
Without such a vision and the ability to think outwards the system will just plod on without use to the public for whose benefit the courts should exist.
The Laws delays cannot be addressed by the mere summary disposal of cases. As often as justice delayed is justice denied, it is said that justice hurried is justice buried.
It must not be forgotten that the vast majority of cases, even before the Supreme Court are not the much publicised public law and constitutional cases, but the cases of the ordinary men and women in the country who seek recourse of the courts. Ultimately the reasonable resolution of these run of the mill cases matter as much as the important and high profile cases.
While addressing all these issues, the Chief Justice is also required to be reasonable, even-handed and be able to foster the relationship between the bench and the bar which is necessary for the administration of justice.
All this is a tall order. The names of four contenders are being discussed in the media and in legal circles although one can never rule out the President springing another surprise as in 2018.
One can only hope that the President and the Constitutional Council will act with foresight and wisdom in selecting the 47th Chief Justice of Sri Lanka.