Easwaran Rutnam
To say Sarath Nanda Silva was the most controversial Chief Justice ever is an understatement. While most independent institutions in the country were undermined and discredited by successive governments, the Supreme Court managed to maintain its credibility with the people.
This was done by judges who stuck to their task of interpreting the law. However, allegations now raised against Sarath N. Silva has placed the credibility and independence of the entire judiciary at risk. A group of judges who had been victimised by Sarath N. Silva during his tenure as Chief Justice have decided to go before a Parliament Select Committee to testify against their former boss. Former District Judge G. D. Kulathilaka represents the Foundation of Victimised Judges, a group of around 42 judges who had been removed from service by the former Chief Justice for failing to toe his line and manipulate some court rulings.
Kulathilaka told The Sunday Leader that Silva should be held accountable for the injustice he had metered out both to judges and the public.
Excerpts of the interview:
1. Why did your Foundation decide to support the parliament select committee against former Chief Justice Sarath N. Silva instead of going to the Judicial Service Commission (JSC) to seek redress?
We actually did go to the Judicial Service Commission at the time Sarath N. Silva was the Chief Justice. But you should understand that Sarath N. Silva had a hand in the appointments to the JSC at the time. The JSC members were almost like his puppets. That was why two members of the JSC including current Chief Justice Shirani Bandaranayake resigned from the JSC. They just could not work with Sarath N. Silva. The JSC could approve the appointment of a Supreme Court Judge only if he approved it. That was the kind of influence he had on the JSC. He was like the all powerful one who even had the backing of former President Chandrika Kumaratunga.
Some of the judges even went to the international court to seek redress when they were wrongfully removed from service by Sarath N. Silva. Not all could go to the international court because it is expensive. But yet Sarath N. Silva said he is not bound by international laws so he did not take note of rulings by the international court.
2. You mentioned former President Chandrika Kumaratunga. Are you blaming her for all this mess?
There were several allegations against Sarath N. Silva even before he was appointed. Some concerns were raised at the time he was named as the Chief Justice but the President at that time (Chandrika Kumaratunga) did not take notice of the concerns raised. Once Sarath N. Silva took office he got rid of the cases against him. Chandrika Kumaratunga made a mistake and that is what ultimately messed the judicial system.
3. Have you lost faith in the judicial system in Sri Lanka so much so that you are seeking redress from parliament?
Not at all. Sarath N. Silva played hell and messed up the judiciary during his tenure. But that does not mean we have lost faith in the entire judiciary. There were some good Chief justices before him. The judicial system is not bad if it is not abused. But we had even taken up our issues with former Chief Justice Asoka De Silva but he did not address our concerns. So we have put our faith in a Parliament Select Committee.
4. But will this set a bad precedent where you will now have the executive interfering with the judiciary?
Under the Sri Lankan Constitution the Parliament is the supreme body. Plus the JSC is appointed by the President so we are basically going to the appointing authority to seek redress. If we just sit back and wait, nothing will be done. The Parliament Select Committee can decide if he is innocent or not after hearing both sides of the story. For example there is an allegation that he misused funds given by the United Nations Development Fund (UNDP) and if he says he did not do so then he can provide the evidence to the Parliament Select Committee and clear his name. The process will be very transparent because even the opposition will be represented in the Select Committee. If the Select Committee finds him guilty of all the charges raised against him then his civic rights can be removed or the Attorney General can be instructed to file a case against him in court.
5. Some are of the opinion that all these allegations against Sarath N. Silva are merely because he supported Sarath Fonseka at the last Presidential elections.
That is not true. As a matter of fact we (the victimised judges) had submitted a petition in 2002 against Sarath N. Silva’s decision to have a person by the name of Rohana Kumara appointed as the caretaker of the Judges Institute which was functioning as the official residence of the Chief Justice, despite several cases pending against him. So this was before the Presidential elections in which Fonseka contested. I guess you can even say that Fonseka lost because he obtained the support of Sarath N. Silva. The public knew of the several allegations against Sarath N. Silva.
6. So President Mahinda Rajapaksa or the government did not influence you in any way to push for an investigation against Sarath N. Silva since he has been very vocal against the government?
Not at all. See even the press conference we had last week at the Sri Lanka Foundation Institute was funded by us. We did not get anything from the government. A few of us collected the money we needed to book the room to hold the press briefing. We did not receive any concessions. We even had to pay the tax which came with the bill. If we had government backing then we could have got their support to get our message across. Even the State media did not give us enough publicity. So there is absolutely no truth in the claims that we had government support.
PSC on Silva not a foregone conclusion – Hakeem
1.Why did the government decide to go with a Parliament Select Committee against the former Chief Justice?
Well, there were complaints against him and grievances raised by some Judges. So we felt we must look into it and provide some form of relief to them. We need to see if these allegations are true. These victimised judges could not pursue their grievances elsewhere. These kinds of allegations surfacing is not good for the future as well if they are true. The select committee process is the only mechanism available as the allegations are also against the Judicial Service Commission (JSC). The Parliament Select Committee will provide the victimised judges redress and also give them back their lost pride.
2. But will this process throw into question the independence of the judiciary?
Well concerns will be raised that the Judicial Service Commission is being looked into by the legislators. Yes, people will say that you now have one arm of the government interfering with another arm. But we are only looking at a bygone era. We want to see if these allegations of the past are true. In my opinion it is important that we restore some sanity to set a benchmark for the future.
3. But what guarantee is there that Sarath N. Silva will be able to face a fair hearing?
This should not be seen as a personal vendetta against him. It should not be so. All sides will be heard. Sarath N. Silva can state his side. He will be given a chance to be heard. Even now there are some who are speaking out in support of him. The aggrieved judges must convince the Parliament Select Committee. He has nothing to fear.
4. So this has nothing to do with the fact that he supported Sarath Fonseka at the last Presidential elections?
No not at all. Even I supported Sarath Fonseka
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The Motion against Sarath N Silva calls for a PSC to inquire and report on:
(a) the circumstances relating to termination of the services of Mr. Janaka Bandara, former Magistrate, Wella waya and whether he was compelled and pressurized to tender his resignation,
(b) the circumstances relating to the termination of the services of Mr. Hiran Ekanayake, former Additional Magistrate, Colombo and whether his services were terminated maliciously.
(c) the circumstances relating to termination of the services of Mr. Sunil Lawrence de Costa, former Magis trate,
(d) the circumstances relating to termination of the services of Mr. Anura Bandara, former Additional District Judge, Matara,
(e) the circumstances relating to termination of the services of Mr. D M Siriwardena, former Magistrate, Ma ligakanda
(f) the circumstances relating to termination of the services of Mr. Palitha Bandaranayake, former District Judge, Negombo,
(g) the circumstances relating to termination of the services of Mr. Prabhath de Silva, former District Judge, Nuwara Eliya,
(h) the circumstances relating to termination of the services of Mr. D. M. T. B. Dissanayake, former Magis trate, Kebithigollawa,
(i) the circumstances relating to termination of the services of Mr. Harold Wijesiri Liyanage, former Addi tional Magistrate, Colombo,
(j) the circumstances relating to termination of the services of Mr. K. D. D. K. de Abrew, former Magistrate, Morawaka,
(k) the circumstances relating to termination of the services of Mr. Y. L. Dharmasena, former Magistrate, Balapitiya,
(l) the circumstances relating to termination of the services of Mr. Nandana Weerasinghe, former Additional Magistrate, Kandy,
(m) the circumstances relating to termination of the services of Mr. A. M. D. S. Dikkapitiya, former
Magistrate, Kantale,
(n) the circumstances relating to termination of the services of Mr. G. D. Kulatilake, former District Judge, Elpitiya,
(o) in addition to the aforementioned, instances where the services of judicial officers have been terminated maliciously,
(p) whether Hon. Sarath N. Silva caused the appointment as caretaker of the Judges Institute which was func tioning at the official residence of the Chief Justice at 129, Wijerama Mawatha, Colombo 7, of a person by the name of Rohana Kumara, against whom several cases were pending,
(q) the circumstances relating to the formation of The Buddhist Broadcasting Services of which Hon. Sarath N. Silva is an honorary Director and the decision in CBN Sat case, where the Petitioner Muhunthan Canagey had given a donation of Rs. 65 million to start The Buddhist TV channel,
(r) matters connected with the role of Hon. Sarath N. Silva in the World Bank/UNDP funded project on mod ernization of Parliament, democracy and development,
(s) whether any other persons are aggrieved as a result of malicious action on the part of Hon. Sarath N. Silva during his tenure of office as Chief Justice.
2. (a) That the Committee and its Chairman shall be nominated by Mr. Speaker.
(b) That notwithstanding the provisions of Standing Order 95, the Committee shall consist of not more than thirty one (31) Members,
3. That the Committee shall have the power to, —
(a) fix its quorum;
(b) send for persons, papers and records, may order any person to attend before Parliament or before such Committee, and to produce any paper, book record or document in the possession or under the control of such person;
(c) verify or otherwise ascertain by the oral examination of witnesses and examine witnesses upon oath or af firmation which the Chairman of the Committee or a person specially authorised for that purpose may ad minister;
(d) obtain the services of Specialists and Experts in the relevant fields to assist the Committee; and
(e) make interim reports from time to time and to sit notwithstanding any adjournment of Parliament.