It will be no exaggeration to say that, Sarath N. Silva was one of the most controversial figures to have sat in the highest court of law in this country. Considering the prevailing state of affairs, being controversial alone may not be such a bad thing.
Today’s controversy could be tomorrow’s standard. But there will very few brave or naive enough to argue that whatever controversy Sarath Silva created was standard setting, strengthening the idea of justice or for the sake of the institution that he led for a quite awhile. The motives and the inspiration seem to have come from something deeper, dark and perhaps even sinister.
The record speaks for itself. There seems to be unanimity that he was a ‘political’ Attorney General, the kind which now seems to have more or less been regularised. From an objective legal adviser, there are efforts to make the Attorney General’s role in the legal world into that of an enthusiastic executor of the government’s political whims. During his tenure there was a huge controversy over the attempt to arrest a sitting judge, who appears to have fallen foul of the prosecution. In the ensuing inquiry the word of the Attorney General was questioned.
When it came to the appointment of the Chief Justice the then President Chandrika Bandaranaike Kumaratunga, who had the unfortunate effect of diminishing everything she touched, over-looked Mark Fernando a judge to the manor-born, preferring Sarath N. Silva. As they say the rest is history. Suffice it to say the United National Party which managed to wrestle the parliamentary majority from Mrs. Kumaratunge in 2001 contemplated several motions of no confidence against the Chief Justice. Only the habitual vacillation on the part of that party saved him from an embarrassing inquiry by the legislature.
Naturally, the even-handedness expected from those who judge, gradually eroded with some openly taking an attitude that seems to say that the State, in reality those who control its machinery, are more equal than the rest. In those times hearing of cases concerning persons and particularly politicians personally known to the judge seems to have become acceptable on the spurious grounds that in a small country (of 20 Million) people are known to each other, but I the judge can rise above it !
As if all this was not bad enough even his private life became a matter of controversy due to various incidents and allegations which are all too well known and do not bear repetition here.Until Sarath Nanda Silva there had not been a judge with such a large public profile.You always got the impression that he was campaigning for something although one was never sure what it was. But there was no room for doubting his zeal for Buddhism, the majority religion in this multi-religious but secular country. He was a very public practitioner of a religion which is the least institutionalised and at a philosophical level the most private of quests among religions. Even after retirement Sarath Silva conducts in English a supposedly religious discussion with an obliging foil as a prompter with an air of vanity and cockiness which is rarely seen at religious discussions. At these regular sessions he rattles off the ingredients, the rules and the exceptions applicable to the workings of material phenomenon as well as the postulates on the non-material with an aplomb and simplicity which is breathtaking. Buddhism is considered by most as a rational and open philosophy free from blow- dried theories and dogma. We can only be thankful that unlike for politicians, judges do have a retirement age.
Now the tables have turned and it is the People’s Alliance that is initiating a parliamentary inquiry into the tenure of Sarath Silva. Apparently there are many willing witnesses, including several former judges who were disciplined by him or by institutions dominated by him.
We are not certain whether the conduct of former judges could become the subject matter of such an inquiry or even if they could whether they should. Had such a matter arisen during his stewardship of the judiciary and if the political configuration demanded such, most would think his orders would be predictable. But in doing justice one must rise above the personality of the alleged offender.
For one arm of the government to conduct such an inquiry into another, particularly when the person inquired into has long relinquished that office, could turn into a mere academic exercise with the attended risk of causing unnecessary friction between the two arms of the government. In the long run the independence and prestige of the judiciary is far more important than the not so distinguished if not downright disgraceful conduct of a retired judge. And after all when all these alleged things were happening, many, including other judges acquiesced.
It is also clear that at the present Sarath Nanda Silva has fallen foul of the regime. This is not because of any actions taken by him as a judge but mostly due to his conduct thereafter, which can be considered political actions. Therefore any action against him now could smack of a political vendetta. In the eyes of the world this cannot enhance the prestige or reputation of the country, which is not much to speak of as it is.
If there is a lesson to be learnt from this it is perhaps that those in high positions should not easily surrender their independence and integrity to whoever is in ascendency at the time for baubles of office. Had they played their role it would not be possible for the Sarath Silvas of the world to do what they wish. As to the individual, it is always good to remember that however high the office one holds for a while, you are also mortal.