Challenges before the new Chief Justice
Dr. Shirani Bandaranayake’s appointment as the Chief Justice is significant not only because she is the first woman to be in the list of 33 male Chief Justices who had preceded her but also because her appointment comes at a crucial time when the breakdown of law and order in the country has reached a critical point and Sri Lankan democracy itself is being threatened.
No better example can be cited than reports of an alleged assault on a District Judge by a soldier last week— an event considered as being unprecedented in the history of the country. We will refrain from commenting on the incident because the case is sub-judice but no more elucidation of recent events are called for, to illustrate the breakdown of law, disorder and the deterioration of behaviour of the general public.
The breakdown of law and order is indeed a mammoth problem that has been gathering strength and muscle over the years and Chief Justice Bandaranayake will need all assistance and cooperation particularly from the all powerful executive branch of the government. Judges of the Supreme Court as well as those of lower courts can only deliver sagacious judgments to remedy the situation but the executive arm must be deployed to implement those decisions. If by chance politicians who now comprise the legislature and the executive as well refuse to co-operate and challenge judicial pronouncements while obstructing the police, the courts will be rendered impotent.
Justice Bandaranayake though not from the ranks of the judiciary was an Associate Professor of Law and the Dean of the Faculty of Law of the Colombo University. She’s an attorney- at- law and holds a PhD from the University of London. In 1996 she was appointed as a Justice of the Supreme Court. The most remarkable feature about her is that she is not a sophisticated product of Hultsdorp but is from a rural background having had all her primary education in Central Schools. Her parents were school teachers who later became principals. She is a rare rural product of whom the country can be proud of. She has been appointed as Chief Justice at a comparatively young age and has many years ahead of her. It will be the hope of many people that she will be able to deliver justice to the poor—a promise invariably made by many a judicial luminary on their appointments but not kept.
As mentioned earlier in these comments, for her to meet the tremendous challenges ahead of her she needs the active assistance of the all powerful executive president in the performance of her duties.
Sri Lanka’s judiciary maintained its independence and dignity even through social revolutions such as in 1956, but the rot set in with the constitution of 1972 where the independence of the judiciary was crudely shattered in many ways under the name of ‘people’s power’. The United Front government of Mrs. Sirima Bandaranaike won a two thirds majority in parliament which gave them the power ‘to even make a man into a woman’. What happened was that many a man was made not into women but into devils.
Powerful politicians took upon themselves to appoint judges not from the ranks of the judiciary but their own friends and relations who were lawyers. Judgments made by these political appointees became so biased that these judges were treated as comedians. For example the name of a judge who was well known for his politically biased judgments, was shouted out at cricket matches when umpires gave biased decisions.
A well known British judge Lord Denning commenting on the public confidence required of a judge has said: ‘Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking, the judge was biased’.
The inroads made into the independence of the judiciary in the 1972 Constitution were the beginning of the Gadrene Slope and the slide is still continuing. The 1977 election resulted in the J.R.Jayewardene government winning a 5/6th majority which conferred them absolute power to destroy any semblance of an independent judiciary. The houses of some judges were stoned by party thugs for delivering a judgment unfavourable to the government. Yet it has to be said that there was a judge who without any fear did not compromise his independence or professional standards. He was Chief Justice Neville Samarakoon. The irony of it was that his was an appointment not from the ranks of the judiciary.
Chief Justice Bandaranayake is unfortunate three times over in that she takes office at a time when an all powerful executive president has done away with all vestiges of checks and balances of power of the executive presidency with an 18th Amendment and has cobbled together more than a two third majority in parliament. How the new Chief Justice will exercise judicial independence in this political strait jacket will depend very much on the co-operation extended to her by the executive president.
Judicial independence, however, is today not simply a home vs home match. Judicial independence is fast becoming internationalised. UN General Secretary Ban Ki-moon’s main complaint is the lack of ‘judicial accountability’ in Sri Lanka vis-à-vis alleged war crimes of our forces. Sri Lanka’s judicial accountability may be a challenge ahead for the new Chief Justice.
Ban Ki-Moon’s main complaint is the lack of “judicial accountablity” in Sri Lanka, what about United Nation’s one sided and bias against 3rd world countries? Sunday Leader motto is UNBOWED AND UNAFRAID, why cant you point out what UN doing Americans killing innocent people of Afghanistan and Iraq. Not only that Israel army killing innocent palestinians also. Unarmed Osama Bin Ladin killed by American forces, is it not against International Law? Is United Nation given licence to USA and UK to killed innocent humanbeings in this world?
hahaha…..is it wrong to kill unarmed osama? lol
thats funny, the islamic terrorist who brought down 2 towers and killed 3000 people in one single attack. the largest after the world war.
PLZ EXPLAIN Y IS IT WRONG TO KILL OSAMA BIN LADEN?
n mr nobee, tamils killed in sri lanka not equal to afgan killed by american. most r different magnitude
The article goes on and on about 1972 and very lightly criticises the 1978 constitutional mayhem. Neville Samarakoon was appointed from nowhere by JR and there were very controversial judgements during his tenure, Sirimavo’s civic rights case was one.He retired by making a satirical statement against the government that in the eyes of the media personal, made him a very fair judge. After Neville, the next Trinitian to hold the post Sarath Silva did exactly the same. when the tide was not in their favour they turned against the tide. Even in 1950s when the famous cricketer was accused of murdering his wife, while the cricketer was found innocent, the pestle was found guilty of killing the woman.What it shows is, the judiciary is independent enough, just individuals are not free enough in their minds to make indepedent decisions, unlike in the Western countries. There have been fair judgements and their have been very controversial judgements regardless of under what constitution they serve, and this will always be the case in our country.It’s not a new situtation at all but it is fair to say, there has been no improvement in judicial setup since the independence. However to his credit, Asoka Silva must be regarded as a very professional CJ. The newspapers and the interested parties only criticise him for justifying military courts and not releasing Fonseka. But he did them in thorough professional manner. He could not simply declare military courts illegal, because Fonseka himself had conducted some thousands of them. The unfair criticism on Asoka would not happen on another day. Banki Moon’s report is a pile of garbage, or may I say just a source of material for bankrupt journalists.
Ruwan/s comments are unfortunately politically biased as are most comments made today in Sri Lanka. He does not like the fact that the article criticizes the 1972 constitution. It was the 1972 constitution that brought about the beginning of the end of Democracy as we knew it in Sri Lanka where the freedom of speech and expression , with that came the Freedom of the Presst and of course the freedom of movement. The 1978 out did the the 1972 constitution in manipulating the democratic rights of the people. While I do not think that two wrongs make a right, I think that Sirimavo provided a good excuse for the master manipulator to do one better!
I do not think that removing Sirimavo’s civic rights was an unjust move. After all she did abuse power. Unfortunately for her she was not protected by the constitution and she was completely oblivious the fact that she was vulnerable to a political debacle in 1977.
If not for the fact that the current constitution protects the President from prosecution, all Presidents including JR would have ended up behind bars with their civic rights stripped from them. The absolute arrogance and hubristic pride that led to the abuse of power by all Presidents under the 1978 constitution, cries out loud that this country badly needs constitutional reforms.
I do not blame the man or woman who holds office for the abuse of power, I blame the system that allows them to do so.
Rayban, My comments were not politically biased, infact I can’t give two hoots to politics. Not sure why you chose your words that way, I only showed the difference between 72 and 78. The 1972 constitution was not perfect by any means but needed a good touch to eliminate defects. Instead 1978 was made by a group with vested interests and made democracy a true mockery. The 20th amendement, whenever it comes will seal the fate of the country.
Well, Sirimavo’s civic rights case may be debatable, but there was an unheard voice even among JR appointed judiciary that it wasn’t fair. The five member bench approved the judgement only by a 3-2 margin. Ok, you also agree, all the presidents including JR , CBK and Premadasa, all abused power. In fact there was a supreme court judgement against CBK. JR should have been tried for 1983 debacle. The constitution doesn’t protect the retired president but going back suspending civic rights will not move country forward. Because the system is corrupt and it will be a never ending process. OK we agree again.
We never had a smart, intelligent Chief Justice for long time, I think since Neville Samarakoon. This one, Shirani, is also a political appointee by the disgraced former leader Chandrika. Shriani has never practised as a lawyer and has never stepped into a court room as an attorney. What can we expect from her?
the president wanted to appoint a weak chief justice coz both former chief justice gave a hard time for government n they have found a chief justice.
this chief justice will not talk about the human rights violations done by the government unlike the other 2 chief justice
As a junior lecturer first, then a professor, dean and an acting VC, all the attprneys in a generation were taught by this lady. She may not have brow-beat in a court room to earn a buck but has delivered a graceful service that almost all the judges in the country knows about. What nonsense are you talking about? She perhaps is the most qualified to hold the office ever.She was the senior most judge in the supreme court by the time the position fell vacant and she deserves her position.
If the new CJ exercises judicial independence, in the strict sense of the law, it will be welcmed by all. But if the all powerful executive president insists on politically favourable decisions, it will be a disaster to the nation.
The recent “judgement” of the supreme court, pleading with the exeutive through the attorney general to postpone the “leadership training” of new university entrants for one week, without saying whether this ‘training’ is essential or not, points to the fear of the court against antogonising the executive.
This may show the future trend of such indecisive “verdicts” to please the political leadership.
The CJ needs to instruct the lower judiciary in assessing the facts of the case fully,when accused persons are produced by police before courts, before a decision to remand them, solely accepting the versions of the police.
It is well known that police are not always truthful.
Also, that the postmortem report should firstly be read out in court in murder trials, before further evidence is led. This was the practice in the old days.
Also, that justice should be tempered with mercy in first time offenders unlike a so called “fearless judge” who sentenced a woman,mother of two children and a widow, to life imprisonment for the mere posession of 30 mg of heroin.
A judge needs to know the difference between ‘justice’ and ‘what is just’.
When a person is appointed to the suprime post no body look how she/he got thta post. In my view if it was a senior person from Attorny Generals departmnet like Sharani Tilakawardena who show very clearly he un bias atttidute on the suprime bench.
Sirani Bandaranayaka came to the system by polital migration through so called Prof G. L peris as a matter of fcat that she was an acadamic nder him.I do not know whether she has the professional experince like others who come through the way like Magiatrate, District Judge etc.
I hope Siranai will not make statement after retiring that if she was not bias on her judgemnet some politicians would have been in the jail rather than becoming a leader of the country as stated by Sarath Nanada De silva.
Cheers Siriyani, it is regret very much to see that you have not refuse the post as you are not the correct person to be appinted to this position. I hope you will give sveral judgemnets when time to come to pleade your appointer.
will she be able to do the justice. no…no. Political powers are more power then justice .
she will have to take orders from MR and Gota.we cannot expect wonders from her.
any way good luck for her new assingment.
Justice or Just Us
The biggest and the only challange for the CJ is to ‘do what is right’ for Sri Lanka and for the people and not to bend down to the political masters!
Today we know even the Attorny General as dismissed cases against political criiminals against all norms of civilised legal practice. We also know the the Law Collage has allowed the first born to have computers, air conditioned room etc against all norms of exam ethics.
Political criminals as the previous president CBK has said that 80% are corrupt but the history of Lanka has seen only 2 MPs found guiltyover last 50 yrs.
Our judiciary and the law enforcement have given a ‘blank cheque’ to political masters to plunder and ruin every basic fabric of society. International analysists have said the Lanka judiciary is one of the most corrupt.
So, dear CJ, are you continue to bow down to the political mafia or do you have courage and guts to do ‘what is right’ for over 20million citizens of Lanka?
Nobles dreams or nightmares
No matter who comes and what decisions were given, as long as we have Mahinda mama forget about balance judiciary.
I got sick & tired, not to mention almost vomited, when Mahinda mama released, Milroy Dernandos wife who proudly slaughtered her husbands mistress & helper, just 2 years into her sentence.
I think Mahinda mama gave a clear message, as long as you bend ur back to me I will save you even if you slaughter anyone!
And dudes like Nobee crying over the death of Osama.
The CJ’s impartiality can be seen in the recent judgment with regard to SB’s “Leadership Training” for new undergraduates.
1. When this case was heard for the 1st day the CJ was not part of the bench. But she suddenly appeared on the bench when it was taken up for the second time. She decided to dismiss the case straight away after hearing the attorney generals submission. If she was not present when the petitioners made their submissions on the 1st day how can she make an impartial decision to dismiss the petition ?
2. The panel of judges on the 1st day instructed the government that the leadership program should be postponed by at least a week. But SB went ahead and started the program disregarding the directive of the supreme court. But the SC did not take notice of this behavior of the government. If Sarath Silva was the CJ he would have put SB behind bars immediately. I don’t personally agree with Sarath Silva’s politics but at least he had some principals and had the courage to stick to those principals.