Asoka de Silva, Sri Lanka’s 32nd Chief Justice

by Sarath WIJESINGHE

The appointment of Justice Asoka de Silva (P.C.) to the highest position in the judiciary is carefully thought of and well timed appointment by President Mahinda Rajapaksa when the country is going through the most turbulent and decisive era in the annals of history. The appointment is compatible with the 17th amendment, the seniority and all other requirements demanded for this highest and powerful position which decides the future and destiny of the citizens and the nation.

New Chief Justice Asoka de Silva taking his oaths before President Mahinda Rajapaksa.

The coorperation and coexistence of the three main compartments of the Government, namely the executive, judiciary and the legislature is a pre-requisite for a successful system of governance.

We have no doubt Justice Asoka de Silva will live up to the expectations of the people of Sri Lanka, who have authorised His Excellency to make this important appointment at this crucial stage in our nation.

Most Powerful Position

Chief Justice in Sri Lanka is a most powerful position where all the powers in the administration of justice are concentrated in. Mighty powers vested in the judiciary during the colonial rulers are still in force with less or no changes including administration of justice, legal education and disciplinary procedures of the judges and the legal professionals. It is dangerous when this goes to wrong hands.

We are pleased it is in safe hands today. Supreme Court and courts were established by article 17 of the charter of 1833, and the Council of Legal Education was established in 1873. There are hardly any changes since then on the legal education, administration of justice and court procedure except for minor adjustments when the commonwealth including UK and India are developing fast keeping pace with the modern developments. It is no exaggeration that the President had to state that his executive powers are less powerful than a Magistrate in response to statements made on the bench and in public functions by the former chief justice. In theory and practice the Supreme Court could notice any citizen and deal with on contempt or any other issue, but not the President. Actions or statements on the “Bench” in the Supreme Court are not questionable by any forum, but the President’s acts are supervised and dealt with by the people, media and the other limbs of the State.

Judges to be politically insulated

Judges should be politically insulated and free to make decisions. Judges are charged with the ultimate decision over life future properties rights and duties of the citizen. Judge should be balanced, kind considerate and a person leading a happy family life with highest family values that has no vengeance on the rest of the world.

He should not be a politically motivated or a person highly involved in any religious, cultural, business or has close dealings with business.

For our luck Justice Asoka de Silva has all these “golden qualities” to be a fine judge with judicial temperament and a person leading a simple and contended family life.

Judiciary and the fate of the citizen are in safe hands during his tenure of office and the appointment by President Mahinda Rajapaksa is par excellence in any standard.

Former Chief Justice

Chief Justice Asoka de Silva’s predecessor was appointed Chief Justice in September 1999 amidst lot of uproar and controversies from the opposition and the media. He has been the most controversial leader of the judiciary since the independence.

His appointment itself was controversial and the period of service has been full of media coverage on statements made on the Bench and statements made at public functions and religious ceremonies.

Chandrika Kumaranatunga overlooked the most senior and brilliant judge Mark Fernando in order to accommodate Sarath Silva who escaped attempts to impeach him and take him to task in various ways. He has been a preacher on TNL and Buddhist channels with constant media attention and it is public knowledge that his relationship with the Executive has not been very cordial.

Now that he is retired from the judiciary he can no longer take the cover of Contempt of Court which is not proceduralized in Sri Lanka as in UK, India and the commonwealth countries. Human Rights Organisations, Law and Society Trust and the Bar Association have proposed legislation to regularise the contempt of court law procedure which is in the primitive stages in Sri Lanka.

Legal Education

Legal education is controlled by the Council of Legal Education established in 1878 and Sri Lanka Law College, and the legal education is controlled by the body headed by the Chief Justice in which the syllabus and the setup is hardly changed since the inception. There is a grave need to change the Legal Education to cater to the modern challenges and the new Chief Justice has to give precedence for the educational reforms compatible with the modern world. Sudden change of the medium of instructions has put the students at Law College in grave danger and difficulties. It is time for the new Chief Justice to look into these genuine grievances of law students.

Legal Profession

Legal profession is over flooded and needs reforms in order to cater to the modern challenges. It is incorrect for newcomers to the profession to depend on private practice alone when all the court houses are fully saturated. Lawyers should be trained to cater to the other areas, and avenues are to be explored to find opportunities in other parts of the world and organisations.

Court System

Court System is an important factor in any system of Government. The Sri Lanka legal system is a mixture of Roman /Dutch Law, English Law, Traditional and Personal Laws, commercial, industrial and other laws in practice in various courts. Courts are set up under the courts ordinance based on British Model and the administration of justice is managed jointly by the Ministry of Justice and the Supreme Court.

Court is the ultimate saviour of a citizen and the judges, courts and the system of legal administration and legal systems are expected to decide the future of the property, human and all other rights enjoyed by the citizen.

Citizens exercise their legal rights via courts established by the Parliament exercising the sovereignty of the people.

Executive appoints the highest judiciary including the Supreme and Appeal Court judges, other appointments such as the Attorney General, Secretary, Ministry of Justice and high appointments connected to the judiciary subject to the 17th amendment currently ineffective. Highest judiciary is given enormous powers, facilities and security of tenure and all other forms in order to maintain the independence of judiciary, which is an important feature in any democracy. Highest judiciary cannot be removed and also be supervised easily due to constitutional safeguards. Attempts to deal with former Chief Justice Neville Samarakoon and Sarath Silva by two successive governments have failed.

But to his credit, His Excellency Mahinda Rajapaksa, the President, the judges are highly paid, secured and looked after unlike in the past. Appointments made by the President after he assumed the responsibility to be the trustee of the nation have been excellent and fair.

Appointments of the Attorney General, Court of Appeal, Supreme Court and now the new Chief Justice are unquestionable and compatible with the 17th amendment though it is debunk due to inherent defects.

Laws Delays

This is a worldwide problem which has been successfully addressed in many other countries. In Sri Lanka still there are instances where cases drag on for decades. It is time the new Chief Justice addresses this area which is a burning issue faced by the ordinary citizens.

Due process and Law and Order

Unless the rule of law is fully implemented there cannot be law and order and the citizens will tend to take law into their own hands. New CJ will have to draw up a rapid and crash programme with the help of the Executive and the professionals to meet the target and challenges in this area.

Way forward

New Chief Justice has to face the challenge to maintain the dignity of the judiciary and regain the confidence on the judiciary and the legal process. He has to be extremely careful in making public statements and on the bench to which the media has given disproportionate publicity in the past which are controversial and improper.

Unfortunately, we have an ineffective Bar Association and a weak Bar due to obvious reasons and the emergence of the new Chief Justice will give independence, vigour, confidence and strength to the legal profession to go hand in hand as a partner in the emergence of a new era.

Now it is the duty of the legal profession and the public to give full co-operation to the Chief Justice to meet the challenges, and in the creation of a peaceful and just society, a happy and prosperous nation.

(The writer is a Senior Solicitor and Attorney-at-Law - A former Secretary of the Bar Association and chairperson SAARC Centre in the United Kingdom.)