25th July, 2004  Volume 11, Issue 2




















Hail To The Chief?

Sarath N. Silva, our worthy Chief Justice, is no stranger to controversy. Right from the time he was attorney general (and possibly even before, for memories fade easily), he has found it possible to make headlines in connection with one scandal or another. Indeed, judging by the media's coverage of his meteoric career, it is entirely possible that, like Bill Clinton, he will be remembered more for his extra-judicial exploits than the mark he makes on Sri Lankan jurisprudence.

The latest scandal in which Silva has found himself embroiled, dubbed by the print media for the umpteenth time as "The CJ Affair," is hardly more bizarre than many of the earlier ones. According to the joint-opposition's motion tabled in parliament last Wednesday, it relates to allegations that "The Chief Justice was detected in a compromising position with a woman around 9 p.m. in a car in a public place on July 6, 2004."

Last week's edition of The Sunday Leader gave explicit and graphic details of the background of the case. Our purpose in doing so was not to embarrass Silva or diminish in any way the high office he holds. Indeed, we take the view that any legal act the Chief Justice might care to perform in an enclosed vehicle with any person regardless of age or sex is his own business. It is not a matter of public interest. We do not elect to be the moral arbiters of Silva's private conduct, so long as it does not impinge on his public duty as Chief Justice.

What does become a matter of public interest and controversy however, is Silva's pre-emptive denial to the media next day, stating not only that no such incident occurred, but that the rumour that it did was being circulated by persons who had interests in cases before him. Silva went on to give a detailed account of his version of events on the night in question, stating that his own security personnel would back him up. A peremptory inquiry by the IGP went on swiftly to uphold Silva's story. The basis of the rumour that swept Colombo however, it soon became clear, was an actual entry that had been lodged by policemen attached to the Mirihana and Talangama police stations. The question now arises as to what their motives were.

Was it a bona fide case of mistaken identity? Did, as some media groups partial to Silva have argued, the policemen fail to write the details of the vehicle and the identification cards of its occupants correctly? Even if so, were, as Silva implied, the policemen in the pay of people who had cases before him? Who are these people? What are the cases? All these questions and more have been left unanswered. This is worrying also for the reason that Silva, in his own mind, probably suspects people associated with cases before him as being responsible. Should he continue to sit in judgement over them?

The appointment of a parliamentary select committee to dredge through the allegations and sift out the facts would be most welcome. It would be refreshing however, if the committee were to respect Silva's private life. What parliament and the people have a right to know is not who Sarath Silva locks himself up in cars with - if indeed, he is given to doing so - but whether the Chief Justice, in his denial, told the truth, in which case the police's faux pas in implicating him should not go unpunished. On the other hand, if- God forbid! - Silva had lied, this would be clear grounds for impeaching him all over again. It would not do to have a Chief Justice who would knowingly lie to the people of this country.

Few would question that Sarath Silva has been the most controversial Chief Justice this country has ever had. As attorney general, he was publicly ridiculed by President Kumaratunga on national television as being inefficient. She had personally handed him letters for action and there had not been so much as a reply, she said. Silva did not respond to that, but eventually found himself promoted, by the very same President, to Chief Justice.

Silva has not been so forgiving however, when irked by lesser mortals. When, as attorney general, he found his department justly criticised by Sports Minister S. B. Dissanayake, he promptly withdrew its services from the Sports Ministry. When it was revealed that one of his officers had offered an inducement in order to persuade a member of the Bribery Commission to resign, Silva denied knowledge of it. Yet, so piqued was he that he withdrew the services of the Attorney General's Department from the Bribery Commission, effectively crippling it.

This is not the first time an attempt has been made to subject Sarath Silva to investigation by a select committee of parliament. In the aftermath of his impeachment in 2001, a similar motion found itself challenged before the Supreme Court. Although the motion materially affected Silva, he as Chief Justice appointed a three-judge bench to hear the case. The court ruled to prevent the speaker appointing a select committee to investigate the impeachment motion against Silva. Days later, a five-judge bench, also appointed by Silva, in effect negated the earlier judgement, making the Supreme Court an object of ridicule in the eyes of the public. Remarkably, two of the judges, Priyantha Perera and Shirani Bandaranayake, were common to both benches.

Such was the corner into which the judges painted themselves that Opposition Leader Ranil Wickremesinghe, never quick on the draw when it comes to attacking anyone, ridiculed Justice Shirani Bandaranayake by name in parliament. He pointed out that the judge, who had been appointed amidst considerable controversy by the PA government, had never appeared in a case in court prior to her appointment to the bench and would do well even now to attend law classes. On that occasion, the Chief Justice's skin was saved by the dissolution of parliament, which saw an end to the motion of impeachment. All that stands to be unravelled now, as a result of his latest alleged peccadillo.

Indeed, Silva's swift denial of the events of July 6, barely 24 hours after they allegedly occurred, is entirely uncharacteristic. In his best-selling book An Unfinished Struggle, Victor Ivan meticulously documented the case against Sarath Silva, quoting chapter and verse from documentary sources. Although years have passed, Sarath Silva is yet to deny a single allegation made by Ivan, and some of them are so damning that we hesitate to quote them here. Yet, if that was character assassination, Silva would have no character left. And he chose to stay mum. No charge of contempt of court. No charge of defamation.

The implications of the allegations against Sarath Silva transcend his position as a judge, and indeed, his position as Chief Justice. They are of so serious a nature that they bring the whole of Sri Lanka into ridicule. All one has to do is go to www.google.com and search for the offending words An Unfinished Struggle - more than 25 hits for all the world to see.

If Sarath Silva is unfit to hold office, of course he should be turfed out. It is a decision for parliament to make. Ironically, though the UNP impeached him in 2001, throughout their two years plus in office, when they had a comfortable parliamentary majority, Ranil Wickremesinghe chose not to act against him. That omission, Wickremesinghe will discover, was careless, although entirely consistent with his party's lackadaisical approach to governance. Now that they are in opposition, they have chosen once more to investigate Silva. While necessary, that does the UNP's credibility little good. Either Sarath Silva is good enough, or he is not good enough, to be Chief Justice of Sri Lanka.

The events of July 6, and especially Silva's denial of the next day, are not political issues: they should be resolved in a manner that, if anything, is fundamentally judicial. We often forget that such powers as the Supreme Court enjoys are delegated to it by parliament. It is wholly fitting that when the integrity of that court is in question, parliament steps in and asserts its judicial role. That, now, a select committee can do. Let us now see with what objectivity, resolve and fairness our representatives in parliament perform that sacred duty.

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