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Tuesday, April 16, 2024

It is not Ethical to Speak of Difficulties I Faced During the White Flag case as an Appeal is Still Proceeding – Judge.T.M.P.B. Warawewa

”At the time I joined the judiciary, prominence was given to career judges and there were chief justices who had started as magistrates and those days it took only about nine years for a career judge to be promoted as a High Court Judge.  In my case it took me 18 years and when I was appointed as a High Court Judge, there were only 22 other High Court Judges.

Former High Court Judge.T.M.P.B.Warawewa Interviewed by Ayesha Zuhair


Could you narrate your experience as a judge; how you started, where you have served, and why you picked the judicial profession?


I must say that I became a judge unexpectedly. I was called to the Bar in February 1979 and since then I was in practice until one day in 1984 I came to know through a friend that applications have been called for the Judicial Service. I too submitted my application without much hope and desire. I was away from Colombo when interviews were called in December as it was the Court vacation.

The letter informing me of the date of the interview had been delivered to my Colombo office address.

However on the very last day before the date on which the interviews were to be held I suddenly decided to come to Colombo to meet some friends. As I opened the letter, I found that the interview was to be held the following day, but I had not come prepared to face an interview nor had I brought my lawyer outfit. Therefore I immediately returned home and came back the very next morning for the interview.

It was the first Judicial Services Commission (JSC) meeting presided by the then Chief Justice, Hon. Sharvananda and the other two members of the panel were Justice Raja Wanasundara and Justice Wimalaratne. The then Secretary of the JSC was Mr. Asoka Wijetunga who later became a Supreme Court Judge.

During the interview I was only questioned about my professional experience and academic qualifications. After I came out of the interview room I was talking to few other candidates at the corridor and the Secretary of the JSC came looking for me and holding my hand he walked me into the Chief Justice’s chambers. The Chief Justice informed me that they have unanimously chosen me and immediately handed over the appointment in writing to assume duties as the Additional Magistrate of Kandy from the very next day.

This shows how transparent the judicial appointment process was then. There was no room for political influence and persons of suitable calibre were judged only by their academic and professional qualifications. These circumstances are no longer prevalent today and as all of you are aware political factors have a major influence on judicial appointments and promotions.

It is because I was called to the judicial service in the right manner that I have been able to maintain independence, integrity and impartiality throughout my career and even today. I have always worked according to my conscience delivering justice to all persons equally.

 I have worked in the most remote areas of the country and in Colombo as well. Wherever I have worked, I have been able to increase public confidence in the judiciary, most of the time even in the civil courts my decisions have been acceptable to both parties at suit.


Your services as High Court Judge ended on 31 January, after it was extended for a one-year period last year. Some have pointed out that although other serving judges have received more than two extensions, you did not because of the verdict you delivered in the ‘White Flag’ case. Others have argued that your age was the actual determining factor. However, the real reason still remains unclear to the general public. Can you explain?


At the time I joined the judiciary, prominence was given to career judges and there were chief justices who had started as magistrates and those days it took only about nine years for a career judge to be promoted as a High Court Judge.

In my case it took me 18 years and when I was appointed as a High Court Judge, there were only 22 other High Court Judges. However with the politicisation and appointment of outsiders to the Bench, the career judges have no progress in their career path. While working in Colombo, I have been handling several controversial matters such as the Dehiwela triple murder case, the Town Hall bomb case, Colombo High Court fraud case and Director General Customs case and I was also sitting in three Trial-at-Bar cases namely Angulana, the White Flag case and the Mirisoville case

When my retirement was near, there were many partly heard matters pending before me and on a request made by the Attorney General’s Department my services were extended for a period of one year.

During this period I was able to conclude the Angulana and white flag trial at bars, the Dehiwala triple murder case and about 300- 400 other matters.

Once again the Attorney General’s Department requested that I be reappointed to hear and conclude several important cases including the Town Hall bomb case and High Court fraud case which reached their tail end and also the Mirisoville trial at bar.

However that request was not accepted. I am aware that the High Court Commissioners of Jaffna, Trincomalee and Badulla have been granted further extensions and I do not know why my service was not taken


Can you shed some light into the circumstances under which judges such as yourself have worked? To what extent have you been able to carry out your duties without undue pressure or influence from outside forces? Have you been harassed?


I was working in Dambulla during the 1989 insurrection, and even then the public trust in the judiciary remained unshaken and the judiciary was not interfered with and my court functioned regularly. I have worked in many areas of the country and most of the time I have not even been entitled to an official residence. I have served in Colombo twice and on each term I had to rent a fifth floor apartment paying a rent higher than the allowance paid to me.

Although sometimes I have been subjected to discrimination and harassment within my own Judiciary, I have not faced outside political interferences. I do not consider it ethical for me to speak of the difficulties I had to face during the White Flag case as there is an appeal which is still proceeding


Could you comment on your relationship with the other two judges who sat with you on the Trial-at-Bar in the White Flag case? There is a perception of mutual hostility?.


There is nothing like that. However I must clarify one thing, that all High Court Judges are equals. Although the most senior High Court judge may be the administrator of the court staff, and the Colombo High courts are numbered 1-7, with regard to powers and privileges all judges are equal and no one can exercise any control over the others.

But the police and army officials seem to have no knowledge of this fact and they tend to believe that judges who keep many security personnel are superior and that the judges who do not take armed escorts are inferior and thus completely ignore them.


Some time ago you virtually let off Mervyn Silva although he pleaded guilty for fraud with regard to dishonouring a cheque. What are your comments on that? Couldn’t you have given him a more severe sentence?


Mervyn Silva was indicted on three counts and the background incident was that he as the sub lessee of house situated in Park Place had paid part of the consideration by a cheque of Rs. 70,000 and the same was dishonoured upon being presented to the bank

According to the indictment he was charged under s.403, 456 and 386 of the Penal Code. However at the end of the prosecution’s case, the Counsel for the Accused informed Court that the Attorney General had agreed to withdraw the first two charges and thereby to amend the indictment.

The State Counsel who appeared for the state also stated that the first and second charges are being withdrawn. The accused pleaded guilty only for the remaining third charge. The complainant and his secretary both admitted in their evidence that although the cheque was dishonoured the accused had subsequently brought the said amount in cash and given it to the secretary of the complainant while the complainant was abroad.

The evidence of the manager of the bank also stated that there was an overdraft of one million rupees assigned to this account and had there not been a discrepancy in the signatures the bank would have honoured the said cheque.

The Counsel for the accused stated that the incident occurred during the 1994 elections and that the accused had no previous convictions and therefore moved court to act under s.306 of the criminal procedure code. I convicted him for the third charge and ordered the accused to pay a crown cost of Rs. 2,500.

It maybe that there is displeasure regarding him and disapproval of his conduct among the public, but as a judge when I sit on the bench with a clean and open mind I must presume every person to be innocent until proven guilty. Every person is equal before law and justice should be delivered equally to all. I have given him same treatment that I would have given to any ordinary person convicted of a similar offence.

It is indeed regrettable to observe that even a prominent academic in Civil and Constitutional Law and an editor of an English-language newspaper had not read this judgment but had unfairly criticised me thus presenting a wrong picture of the story and conveying a wrong message to the people.

Thereafter this judgment was the judgment of which the highest number of certified copies were obtained by the public from the Colombo High Courts. Even the public cannot seek revenge through courts. A court would only look at the case before it and give a person his just deserts after satisfying its conscience. The number of the case is 1645/04, anyone can read it and understand the truth.


Do you think that the proper type of people are being attracted to the judiciary, and do you think that the judiciary has lost some of its prestige?


Only the judges can restore the judiciary to its old prestige. I am reminded of a saying by the former US president and Chief Justice, William Howard Taft. He had once stated that “The judge is the high priest in the temple of justice and is surrounded with obligations of a sacred character that he cannot escape, and that requires his utmost care and self suppression”


Do judges have adequate facilities to carry out their functions effectively?


Judges have never been given adequate facilities. In most places of the country there is a shortage of official residences. Sometimes millions are spent for building a courts complex but an official residence for the judge is forgotten altogether.

Although a huge budget is allocated to the Ministry of Justice every year, instead of spending for developing infrastructure and court room facilities and improving facilities for the court staff and the litigants it is spent thriftily to show a balance at the end of the financial year.

There have been instances where I have been asked to produce a certificate from the grama sevaka when I claimed reimbursement for the transportation expenses incurred by me in moving houses when I was transferred from one station to another. Is there any necessity for a judge to put false claims? Unpleasant occurrences such as these affect the dignity of judges.

Sometimes old buildings which are considered unsuitable for any purpose are converted into courts. For example the Kegalle Courts function in an abandoned hospital. The amount paid as subsistence expenses to a judge when he has to travel to another station to hear a part heard matter is only Rs. 500 a day and if travelling expenses are to be claimed the judges are required to obtain prior approval from the ministry.

Recently the salaries of High Court judges have been taxed. Due to the shortage of official bungalows, sometimes judges are required to find a place on their own and the amount paid to a judge to rent a house in Colombo is only Rs. 18,000. It is my view that if the Ministry of Justice is really interested in providing these pressing needs, even a period of three months would be adequate time. If official residences are built for judges the expenditure incurred can be recovered within 10-15 years from the amount deducted as rent from the salaries of the judges.

But it is regrettable that even after 64 years of independence none of the governments that came in to power have looked into the plight of judges and court staff


What can be done to promote the independence of the judiciary and restore public confidence in the judicial process?


The judiciary must be independent of all external pressures and then only the public can have confidence that cases will be decided fairly and in accordance with the law. The minor judiciary must be strengthened and protected from improper pressure and influences. They should be given promotions according to their seniority. When the JSC comes to a finding that an allegation made against a judge has been proved, the judge should be afforded a right of appeal against such a finding and it should be heard by a panel of retired Supreme Court Judges


What are your plans for the future?


I have not decided yet. But I will continue to serve society in whatever way I can, and contribute something meaningful to Buddhism. courtesy: Daily Mirror.lk


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