People need justice and fair play and - Chief Justice

by a Spcial Correspondent

Justice Asoka de Silva was appointed as the 32nd Chief Justice of Sri Lanka when the Nation was going through the most turbulent period of its history, where the Horror of Terror of three decades was eliminated in three years ending unnecessary blood bath which bled the Nation and the people with destruction to the public property, reputation and thousands and thousands of lives. Today the Nation cries for Peace, Prosperity, Rule of Law Due Process and all kinds of freedom denied to the people as a result of the Horrific War and issues on the Judicial System and Administration. Chief Justice Silva’s appointment is timely and brings relief to the Judiciary, Legal Profession, Litigants, legislature and the Executive. There is a sigh of relief today at Hulftsdorp in a pleasant, cordial and judicious atmosphere among the Lawyers and litigants.

New Chief Justice’s love for the Nation, passion for the system, personal and professional kindness, conduct, simple and unassuming ways of living and impartiality makes him an ideal candidate to Head the judiciary when the Nation is in need of a non-confrontative Government of “Harmony and Reconciliation Unity and Impartiality” to reach the targets of the State amidst the current world crisis and the fierce competition among Nations. He is a Traditionalist who believes in serving the Nation within the parameters of law without being explorative and controversial and not as an activist on religious, political and social fabrics in the society. He believes that the judge is an umpire and an adjudicator and not a social reformer investigator or the guardian of state property. He loves the people and is loved by the people, litigants and the legal profession. He has no political or personal agenda as an activist nor has any affiliation to any group or a religion other than leading a pious religious life and a successful family life with a loving wife and two children. He rose up purely on merits and never dreamt of political or religious patronage to achieve his ambitions.

He believes the Buddhist way of thinking that nothing is permanent and “what is permanent is only impermanence” and his approach in the resolution of disputes is a mechanism unique to him based on love impartiality and applicability of the principles of justice based on legal principles and “Home Grown” thinking and solutions traditionally evolved on us on the basis of dispute resolutions. His views on the “Doctrine of Public Trust” and “Declaration of Interests before Adjudication” are far reaching and judicious. He is aware that injustices have been done to many and the Nation can expect Justice for those who suffered awaiting justice and fair play. His mission and vision for a just and peaceful society is his ultimate ambition in life and we salute and encourage him in achieving his life long ambition during the tenure of the office. It is happy to note that the Nation, litigant and the state is in safe in his hands today.

The following are excerpts from an interview with Chief Justice Asoka de Silva.

Q: What is your vision and targets for the judiciary and judicial system?

A: My vision on this area is simple. People are not clamouring for the Sun and the Moon. They simply need justice and fair play. Justice should not only be done- It must seem to be done which means people must have confidence in the judiciary, that it is fair, impartial, competent and above board. It is a moot issue where and whether people are satisfied and contended. No system is ideal. Our system is full of pitfalls and gray areas which I, as the new Head of the Judiciary will attempt to put right. Justice delayed is justice denied. I have been in other jurisdictions and aware that “Laws Delays” is a common problem in any jurisdiction. But in my country still there are cases running to decades, which are a worrying concern, which I intend to address seriously. I may make use of modern technology such as email, E-com. fax, (like in UK, USA, and many other jurisdictions) and other facilities in place of traditional methods. Bribery and Corruption is rampant even in the court administration and I will be paying attention to this area soon. I need the help of the Legal Profession, people and the Executive to meet these targets.

It is difficult to give a target as the success depends on many external and internal factors. But I will be trying to lay the foundation to my successor to take the mantle of my vision and plan of action for the future. During the short period left for me I shall do my best to put things organised and correct.

Q: People are concerned about the wave of crimes and the general lawlessness in the country. What is your contribution and the part played to curb this menace which is threatening the life and property and Liberty of the nation?

A: People must have access to justice to be confident on the system. Otherwise they tend to take the law into their hands. We must have a strong and effective Legal Aid System and a simple legal and administrative process in courts.

The most successful legal aid scheme is found in the United Kingdom where the litigants in need of legal assistance are provided by the Legal Services Commission where the litigants are assisted through solicitors in an organised way. It is the duty of the legal profession and the BASL to take charge of this service with the LAC and the activists and possibly NGOs. I will try to improve our system with the help of the legal profession which is an immediate need in order to gain confidence of the people on the system of justice to prevent the applicability of the law of the jungle and survival of the fittest in society where money and power has prioritized the values and justice as a result of fierce competition and free economy from which we are unable to get away with. Honestly our legal system is somewhat complicated and it is time the Law Reforms Commission and Law College takes this matter seriously. I am trying to achieve this with the help of the Ministry of Justice, the Legal Profession activists and the academics. It is not an easy task as the same process has gone through in many other jurisdictions such as UK and many commonwealth countries.

The Attorney General and the IGP too will have to play a major role in this process and if time permits I will try to lay the foundation to a Home Grown system to suit our country based on “Good Practices” of other jurisdictions.

The judiciary must be strictly impartial and above board. There will be no room for “Gossip” and “Telephone” justice during my tenure. I will not allow influencing any member of the judiciary directly or indirectly and they will be severely protected from undue influence from political or any other influence or incentives. Judges must be of “Good Character” and standing before the people to be respected and believed by the public.

A Judge should be careful in making public statements on the Bench and in public as it affects the people who are helpless to resist which will affect their life personally and professionally. I will treat the members of the judiciary impartially in promotions and appointments and offering scholarships and benefits. I will take collective decisions with my colleagues and the Judicial Service Commission and management of “Funds Local and Foreign” will be handled by professionals and there will be ‘Transparency’ in all the dealings.

I may not be able to achieve all the targets overnight or during my tenure of office. But on the day I retire I need to be happy as one who has been caring his fellow citizens as a fair, impartial and kind judge which feeling I will take with me during the rest of my life. I need the pleasure of serving my people who appointed me with their power and it is my “Historical Duty” to live up to the expectations and the aspirations of my brethren who are depending on the judiciary for their future and the property rights and life.

Q: What are your views on Public Interest Litigation and the activism which has led to controversial litigation outside law?

A: I am a traditionalist who will strictly act within the parameters of the law, and make changes swiftly and carefully. Public Interest Litigation that Justice Bagawathie and his contemporaries mooted is no longer the fashion in India. The expansion of the Fundamental Rights Jurisdiction is a “Double Edged Sword” where the system can be misused and uncontrollable often by interested parties and politically motivated elements.

The judiciary should know their limits and be self-regulatory when it is enormously powerful as in Sri Lanka with concentrated power within an individual and an institution. In the United Kingdom in the absence of a written Constitution the judiciary is powerful-yet they apply the power extremely carefully with self-regulatory mechanism. India too has followed the British model.

I am trying to intuitionalise the Supreme Court by sharing power with brother judges as I am only a judge among others being the leader with leadership requirements.

The Supreme Court is not the private property and monopoly of the Chief Justice who is one among many other judges. It is an institution like the Executive and others too are a part of the institution. I am worried about the lack of dissenting judgements and lack of participation of other judges in the decision-making and administration of judicial power and administrative mechanism. I am trying to give freedom, broadbase the area and make the other judges free and committed to the process of adjudication.

Q: What is your approach in the resolution of disputes?

A: My approach is simple and practical. Decisions should be impartial and based on accepted principles and norms and the litigant should know what they are getting from the judges. They should not be ambushed but be given a fair hearing as I have mooted in my first speech where I have quoted “Dhammapada” that “He who does not judge others arbitrarily according to the truth is a Guardian of Law and is called Just”. I am fascinated with “Buddhist Jathaka Stories” - especially “Ummagga Jathaka” how “Mahoshadha” Panditha resolved complicated disputes with basic methods and the principles underlined in Buddhist Literature, from Hindu Vedas and Western stories such as “Chalk Circle” our judges too can learn a lot in the applicability of our principles fairly and impartially for the making of a Just Society by fair and impartial resolution of disputes.

I practise and apply these principles to myself and take precautions to be a non-controversial public figure as judges are exhibits in “Glass Boxes” scrutinized by the world on their conduct. Lawyers and litigants know that only one party will win unless settled.

All that they need is a fair hearing and the confidence that the judges are impartial, competent and unbiased. In that spirit delivery of Justice is an easy task. We are protected by the unregulated “Thick Iron Wall of Contempt of Court” ( which needs to be regularized) where the litigant is not in a position to criticize the judge unlike in the case of the Executive eternally pounded and criticized by the public.

Q: According to media and the “Internet” your predecessor is the most “Controversial Chief Justice” since Independence. Do you wish to make any comments on him?

A: No I shall not and I should not. Let people decide and comment on me too after my services to the Nation and I wish to speak of me and on my behalf alone. I am aware of the feelings of the commoners and professionals as a person from the common man and come to know of what happens “around” and try to learn from the mistakes and achievements of others.

I was appointed on my own merits and seniority with the blessings of the appointing authority my colleagues and the legal profession and I am not in politics or belongs to any activist group other than the legal profession for which I am proud of. I believe the Judiciary should act in harmony with the Executive especially when we are in a main crossroad in our history, where we have achieved a historic victory over terror and it is our duty to help the State/citizen to maintain law and order and applicability of Due Process and Rule of Law.

We now need prosperity, peace and law and order! It is our duty as judges to promote, preserve and protect the individual and collective human rights and I believe we must respect international norms and accepted standards in the resolution of our international disputes.

Q: What is your view on Contempt of Court? What is the legal and moral basis of the current law and practice?

A: I am fortunate to be a judge in other jurisdictions some time ago in my services and wish to state our legislation on this area is “primitive, inadequate and barbaric”. But our duty as a judge is to apply the existing legislation though inadequate. It is a sorry state that there is no legislation on contempt of court law in Sri Lank as in the United Kingdom, India, USA or any other commonwealth and other jurisdictions.

It is time the Ministry of Justice and the Bar Association take steps to bring legislation in line with international standards and accepted principles. I understand the BASL and some international institutions have taken steps previously to regularize the procedure and I believe this has to be done as soon as it affects the cradle of the social fabric, freedom of expression and the independence of the legal profession. We must act according to law and principles of equality with no fear or favour.

Q: What are your views on Legal and English Education and the discipline of Judges and Lawyers?

A:Lawyers especially the younger generation is conducting themselves well. But the problem is that the profession is overcrowded and it is our duty to train them for other avenues other than practising in courts which are already oversaturated.

They need to keep pace with modern developments and English and IT of course.

It has been brought to my notice of an injustice caused to Law students by compelling them to answer the final papers only in English to which I will be giving serious consideration provided the matter is brought to my notice.

Indiscipline of the judges too is a matter to be concerned about to which my serious attention is drawn.

Disciplinary procedure of the lawyers too should be regularised.

Q: What is your message to the Nation?

A: We are going through the most difficult and challenging era in the annals of our history, and if we do not succeed today it is a great loss of opportunity and of course a tragedy.

Citizens must respect the law and live within the framework of the Law and live within means and the available resources, based on a “simple and contended lifestyle”, engaging in just trades employment and livelihoods with no hindrance to others and the Nation.

Litigation may be the last resort to settle disputes in an amicable way based on our great religious principles inherited by us and practised for generations.