Independence of the judiciary

Justice J. Asoka N. De Silva took oaths last week as Sri Lanka's 32nd Chief Justice, following the retirement of Chief Justice Sarath N. Silva.

Justice De Silva, the senior most judge in the Supreme Court, richly deserves to be elevated to the pinnacle in the country's judiciary.

A product of St. Anthony's College, Katugastota, Justice De Silva has held high posts in the legal profession for nearly 37 years. A graduate of the University of Colombo and the Sri Lanka Law College, Justice De Silva has an exemplary track record and has also followed post-graduate studies at the London University, Rome Institute of Law on development and in the US. His elevation to the topmost post has been through the right channels, having started his legal career way back in 1974, joining the Attorney General's Department.

He was appointed Senior State Counsel in 1981. Justice De Silva was appointed Deputy Solicitor General in 1988 and functioned as Senior Deputy Solicitor General in 1995. A former President of the Court of Appeal, he has served as a Supreme Court Judge since 2001.

When the retirement of former Chief Justice Sarath N. Silva was round the corner, many in the legal fraternity and others speculated several names. However, most of the speculation was based on the earlier experiences we had with the then Executive who took decisions to suit their political agendas.

President Mahinda Rajapaksa took a commendable decision when he decided to appoint the senior most Supreme Court judge as the new Chief Justice. It was a fearless decision based purely on merit and ability.

We have had chilling experiences on how former Heads of State `picked' their favourites to the top post, setting a bad precedent for those in the legal profession.

President Rajapaksa, being a veteran lawyer, is deeply conscious of the repercussions of those previous decisions which posed a threat to the independence of the judiciary.

The judicial appointments made by President Rajapaksa since November, 2005 to say the least, are excellent and exemplary. All appointments to the Court of Appeal and the Supreme Court have been made after a careful scrutiny of credentials and moreover on merit, seniority, experience, ability, character and conduct. President Rajapaksa has left no room for any individual to be above the law and has always respected the independence of the judiciary.

During the infamous Jayewardene era, the independence of the judiciary went from rack to ruin and politicians even ordered their goons to pelt stones at the residences of judges. Merit apparently did not matter in appointing the Chief Justice during that era and the UNP regime which followed. Quite rightly, President Rajapaksa has put a permanent end to all those practices and safeguarded the freedom and dignity of the judiciary.

Memories are still fresh in our minds of the manner in which President Jayewardene indirectly dismissed the entire higher judiciary and appointed Neville Samarakoon QC from the unofficial bar as the Chief Justice. There were many other unfair decisions and several judges lost their seniority and tenure of office.

The judiciary at the time was helpless as the Jayewardene Government commanded a 5/6 majority in Parliament. Hence, there were no protests or resistance from the legal fraternity. In appointing Samarakoon as Chief Justice in 1977, the then President Jayewardene completely ignored the seniority of Justice Wanasundara - a competent and most senior Supreme Court Judge at the time.

President Chandrika Kumaratunga took the cue and made a similar blunder. She overlooked the late Mark Fernando - the senior most Supreme Court judge at the time.

The Chief Justice is the head of the Judiciary and under the Constitution, legislature and conventions entrusted with enormous powers in legal education, disciplinary matters of judges and lawyers and as the head of the final court of appellate with ultimate and final powers of adjudication and administration of justice.

Judges always command respect - they need not demand respect. The new culture that President Rajapaksa wants to introduce, enables the judiciary to take the right decisions, fearlessly, safeguarding the interests of the land.

The appointment of Justice J. Asoka N. De Silva has fortified the sovereignty and independence of the judiciary. Unlike his predecessors, President Rajapaksa has upheld the judiciary with a broader vision. He has thrust aside petty political differences and set the path towards a nation which respects the judiciary at all times.

The far-sighted decision of the highest in the land will be an eye-opener for one and all - so that future Heads of the country would not go back to the gloomy era which threatened the judiciary.

Judicial independence or independence of the judiciary is the principle that the Judiciary should be politically insulated from the legislature and executive authority. Courts should not be influenced by any external power, as we experienced during the UNP regime.

There are several constitutional safeguards provided to ensure the independence of the judiciary, apart from the traditional and conventional safeguards. However, some of our earlier leaders cared tuppence for any of those ideals.

In this context, the exemplary and bold decision of the President should pave the way for a new political culture which would assure smooth links amongst the Executive, Legislature and Judiciary. Each of them has defined and intended roles to play.

We are confident that the decision to appoint Justice J. Asoka N. De Silva would promote a better understanding and confidence amongst the Executive, Legislature and the Judiciary.