Ex-Chief Justice hails judges' decision against strikes

The following interview with former Chief Justice Sarath N. Silva was carried in our sister paper Silumina on October 14.

Q: Ranil Wickremesinghe had said that the country is witnessing the adverse consequences of your judgements which challenged the independence of Parliament and the sovereignty of the people. What have you got to say about it?

A: I too read it in the newspapers. I retired from the Supreme Court three-and-a-half years ago. I was amazed as to why he makes such an allegation now. He knows parliamentary procedure in that outsiders have no forum to answer allegations made in Parliament. If one criticises a Supreme Court decision one should do so on substantive grounds. If the judgement is wrong one ought to point out where it is wrong. Just because Sarath Silva is quoted it does not necessarily mean that everything is wrong. In like vein if Ranil Wickremesinghe is quoted it cannot be construed that it is right.

Q: Ranil Wickremesinghe is making these allegations without rhyme or reason?

A: Yes. Ranil should be specific about what these judgements are. As far as I could recollect there is not a single judgement given by me challenging the supremacy of Parliament. In the Supreme Court there is a challenge for us to interpret the Constitution. None of us regards the Executive, Parliament or Judiciary as supreme, but the Constitution. It is enshrined in the Constitution itself that the Constitution is the basic law of the country and its interpretation is the prerogative of the Supreme Court. We take oath on the Constitution. As judges we give different interpretations to the Constitution. If a wrong interpretation had been given Ranil Wickremesinghe should have raised it at that time or else in Parliament. Why did he wait so long? It is an act of cowardice to make allegations against a person who is not in Parliament.

Q: Ranil Wickremesinghe is also a lawyer?

A: May be, I don't know. I remember those days Ranil going after Harry Jayewardene as his junior lawyer. He had never argued cases. As State attorneys we had prosecuted Harry Jayawardene. I have reached this position having appeared with the most senior lawyers since my young days – not by 'sudden flight.' I have laboured day and night for 41 years. My hands are clean and even today I am free to go anywhere. I have never uttered a word against Ranil Wickremesinghe.

Q: Why does Ranil Wickremesinghe speak against you?

A: I said I was amazed to hear this. He wants to remain as the Leader of Opposition throughout. In the previous presidential election 2009/10 Ranil Wickremesinghe along with us supported Sarath Fonseka. We subscribed to the common view that the Constitution needed reforms and that the Executive Presidency should be abolished. This was discussed by a committee chaired by me which included Ranil Wickremesinghe, the JVP's Somawansa Amarasinghe and Sumanthiran of the TNA. I was invited as one with experience in constitutional matters. Wijedasa Rajapaksa was also present with a draft act which Ranil gave to me to check whether it was in order. As it was not complete, I had prepared a draft afresh and handed it over to Ranil Wickremesinghe. He accepted it and went for elections. How did he accept my draft if I had done so many wrong things. It was a document prepared by me which Ranil had presented to the Tamils when he went with me to Jaffna.

Q: Ranil Wickremesinghe had also said that you had created a crisis situation in the Supreme Court.

A: I do not know what this crisis is all about. We worked in a cordial atmosphere in the Supreme Court and we never had any conflict with the Executive or the Legislature. I think this refers to a ruling given by Speaker Anura Bandaranaike when there was an impeachment motion pending against me. It did not concern me in the least. When I learnt that there was a petition before the Supreme Court, I asked that it be dropped, in that if there was an impeachment, I would face it in Parliament. It was an attempt to sling mud at me. When I asked the Secretary General of Parliament to send me the charge sheet carried by the newspapers to enable me to answer the allegations, Mr. Kitulegoda assured that there was no request by the UNP to appoint a committee. This was sheer mud-slinging then and now.

Q: What made Ranil to resort to mud-slinging?

A: I don't know. He has done it thrice. I support Sarath Fonseka today as I did in the past. It was Ranil who sponsored him as the common Presidential candidate. When he was sentenced Ranil was quiet. But for my part I fought for his release as he was subjected to an injustice. Since Sarath Fonseka has been released from prison, I support him and hence Ranil is targeting me now. Or else, he cannot level baseless allegations against me. Now it is almost 3 ½ years since I have retired.

Q: What Ranil says is that you have even challenged the people's sovereignty?

A: I do not know what Ranil Wickremesinghe says. It was I who had given the highest number of judgements defending the people's sovereignty. My judgements were based on the concept that the executive, legislature and judiciary are the custodians of the people's sovereignty.

Q: Would you like to express your views on Speaker Chamal Rajapaksa's statement to Parliament on petitions to the Supreme Court?

A: The Constitution has explicitly laid down that if a petition is filed in the Supreme Court, a copy of same should be necessarily sent to the Speaker, which the Supreme Court had reiterated in 1991. The Speaker, too, has referred to it. A petition could be filed in the Supreme Court within seven days of tabling a Draft Bill in Parliament as provided for in the Constitution. It is a compulsory requirement that a copy of such petition ought to be sent to the Speaker.

Q: Is it done by the Supreme Court?

A: No. It is the petitioner's responsibility and not that of the Supreme Court. The rationale behind this procedure is that the Speaker will initiate no action on the Act until such time the Supreme Court gives a determination or keeps it in abeyance for eighteen days. The Supreme Court has decided that it would not hear the petition if this procedure is not complied with.

Now there are three petitions – one has been submitted to the Supreme Court within the prescribed time-frame and referred to the Speaker. Another has been submitted to the Supreme Court within the stipulated period but the copy was sent to Secretary General of Parliament and not to the Speaker. The third petition had been sent to the Speaker after the due date. The petition which complied with the procedure has to be considered. Neither Parliament nor the Speaker will decide on the petition. It will be heard by the Supreme Court. The problem arose when the three petitions were taken together for hearing.

If I were the Chief Justice, I would have taken up one petition for hearing and allowed the other petitioners the opportunity to represent matters. The Supreme Court has stated in indirect language that it was not wrong to have sent the petition to the Secretary General but no further reasons had been adduced. The Speaker's statement runs into a number of pages with more emphasis on law. That the Speaker safeguards the dignity of Parliament is correct. However, what the Supreme Court had said should not be construed in the true sense of the word. As provided for in the 1948 Soulbury Constitution, the Judiciary is free to question the constitutionality of any law. There have been instances where the judiciary has acted accordingly and invalidated laws. However, as provided for in the 1972 Constitution the Supreme Court could be petitioned when an Act is in draft form and not when it had been passed by Parliament. The very same provision was incorporated in the 1978 Constitution as well. This is a very important clause because it is the Constitution which is supreme and whenever any law is proposed whether such law is consistent with the constitution or not has to be decided on within the specified period of seven days of tabling the draft law in Parliament. The period of seven days is very much limited. The interpretation of the Constitution is the prerogative of the judiciary. Parliament exercises its judicial powers only with regard to parliamentary privileges – what took place in Parliament. This too has now to be referred to the Supreme Court for adjudication.

Q: There was an instance where the Observer Editor was found guilty and punished by Parliament.

A: It happened only once. That law no longer exists. It was abolished by Ranil Wickremesinghe's 2001-2 government.

Q: What about the attack on the Secretary to the Judicial Services Commission?

A: I think about a week ago, he had actually said that there was a threat on his life. If it was so, it was imprudent on his part to park his vehicle by the roadside and read a newspaper. I never had security. In fact, I was very cautious and looked around to see if there was anyone following me. There was unrest in the country at the time and we ensured to have all our doors locked. I would have also faced a similar plight, had I also read newspapers by the roadside. I also had a security officer. Somebody must have observed the JSC Secretary reading newspapers and then planned the attack. I see an element of carelessness as well.

However, the attack is totally unwarranted and we should never condone violence. Terror exists in society. When there was terrorism in the country hundreds of people were killed due to bomb explosions. It has now transformed into terror. We have to be concerned about the safety of our lives.

Q: J.R. Jayewardene wanted each person to provide his own security.

A: Yes, This country is no paradise. One is safe to read one's newspapers any time even under a street lamp in Singapore or Europe. This country is somewhat dangerous and we have to be cautious of it. It was a tragedy that the judges struck work for two days following this incident. The judges have now taken a very good decision that they will never strike again and also at the same time condemned the incident. I also think they have taken a good decision. It is up to the police to bring the culprits to book after a thorough investigation. This is a serious offence. Under the Penal Code this is not a serious offence – in that it is such acts which pose a threat to life, are regarded as serious offences. Robbing the cellular phone is a grave offence. The best thing is to round up the offenders and produce them before court.

Q: Ranil says if there is a stand-off between the Executive, Legislature and the Judiciary, a committee comprising two Supreme Court judges and a member from the Commonwealth or SAARC could be appointed to recommend ways and means to resolve it.

A: That is not necessary. We should resolve our domestic problems ourselves as we reiterated at the United Nations during the human rights sessions. If we are going to seek the assistance of foreign representatives, we would be going back on what we had asserted earlier. That is not advisable. It is for us to settle our own problems. The Executive President and the Chief Justice could discuss and resolve this problem amicably.

There is the Speaker too. We need not get down experts. When the government resisted any foreign intervention at the United Nations Human Rights sessions, I also supported the government's stand.

We said we would not permit outsiders to investigate what is said to have taken place in the country. When we could investigate our domestic problems ourselves we would not allow outsiders to interfere. We have a judicial system and a 150-year-old police force. Why should we invite foreign intervention? There are enough and more retired Chief Justices to be appointed for such purposes. Please don't nominate me since it is the Opposition Leader who made the proposal. There is no need for a committee.

What the media and ourselves should reiterate is not the appointment of committees but that the President, Chief Justice and Speaker, the top three in the hierarchy could get together and evolve a procedure in regard to the presentation of bills. Also when summoning the Judicial Service Commission for a discussion without simply sending out a letter they should be informed of the items to be taken up so that problems of this nature would not arise.

Q: What do you say about the closure of Courts for two days in a democratic country?

A: I regret to say that today the courts function at a slow pace. Cases are put off very often by courts and even in the Supreme Court. It is not that I am blowing my own trumpet but there were times where I had worked in the Supreme Court till six or seven at night. I have a limit. Cases should not be put off for more than two months. I also told others that a case should not be put off for more than two months. When a case is taken up for hearing it should be concluded somehow or the other. Else, the litigant will suffer. Today cases are put off very often.

Q: Why is it so?

A: One reason is that most of the judges in the higher judiciary are employed abroad. Today two to three of them are abroad. Nobody was allowed to go abroad during the J.R. Jayewardene's regime. Who is there to hear cases when judges go abroad? Nobody will come from abroad.

Even when a subject clerk goes on leave for one or two days difficulties arise. I have handled the work in such offices for almost 41 years, nothing less! It is very difficult. Even if one was ill we did not approve him leave. Even if a family member falls ill the officer is told to report for duty having made a makeshift arrangement with a relative. Today they avail themselves of excessive leave.

Three or four in the Appeal Court and Supreme Court apply for leave to take up foreign employment. I know only too well that no permission was ever given during J.R. Jayewardene's regime. Premadasa too did likewise. I think it was Appeal Court Judge Priyantha Perera who had applied for leave for two or three months. It was refused. I too was appointed by President J.R. Jayewardene. At that time Justice Mark Fernando worked abroad having utilised his leave. It was during President Chandrika Bandaranaike Kumaratunga's time that leave was first granted. Accordingly, former Chief Justice Asoka Silva was the first to be granted leave despite my strong objection.

Chandrika ignored my objection and granted him three months leave. He remained abroad for four years and was appointed Chief Justice on his return.

When judges go abroad cases get postponed. This is a big problem. If the judges won't hear cases who would perform such duties.

We should understand the predicament of those litigants who suffer immensely. Having spent every cent, they come to the court on the day their case is to be taken up even without a sufficient meal. When they hear that their case has been put off, I myself have witnessed how they turn pale. In fact, they invoke curses. I never postponed cases. Even on my last day in the Supreme Court, it was 7.30 p.m. when I had completed all my cases. I had been on the Bench for four hours continuously because I felt that I should complete all outstanding cases on my last day.

I advise other judges to maintain such discipline. Whatever Ranil says let him observe what amount of work we have attended to in Courts. Now he is trying to criticise me.

I set up provincial High Courts which helped the litigants immensely, the backlog of cases being largely cleared. Let criticisms be levelled. I defended the people's sovereignty. Today, even in lower courts cases are being postponed creating a backlog of cases. In this backdrop, people begin to abhor the Courts when judges go on strike. Perhaps this is why the judges have decided never to resort to strike action again. It is a wise decision taken by the judges.

Where an injustice is caused they should issue a statement that they should not be harassed as they dispense justice to the public and call upon the authorities to punish the offenders after an investigation.

Judge Ambepitiya was shot dead during my tenure. It was I who visited the scene of the murder first with the police. His body was still bleeding. I instructed the IGP to round up the suspects within a week and have them produced in Court. All five suspects were convicted and sentenced to death. That is how we should act and face challenges.

Translated by K.D.Michael Kittanpahuwa