BASL President shies from taking a stand.

President's Counsel and President, Bar Association of Sri Lanka, Ikram Mohammed said the BASL does not intend to issue any statement on the present controversy involving the Chief Justice "because there is still a police investigation pending."

"The BASL has not considered this matter at all," he asserted. When asked why, he replied, "I really do not know."

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Opinions on the controversy surrounding the Chief Justice

Sri Lanka Muslim Congress (SLMC) Leader, Rauf Hakeem:

"There should be two sides to a story. So far the Chief Justice has denied the allegations and the policemen stand by their statements. The issue has to be looked into and an impartial inquiry has to be conducted. He cannot be tried by the press.

"The matter has to be proven before finding the man guilty of anything. I know what it is like to be tried by the press. I was tried by the state media while he is being tried by the private media. I went through a traumatic period and I feel I should not be hasty in coming to a conclusion regarding the matter.

"The question of intrusion in to one's private life also comes in at this moment. Others involved in the Chief Justice's case have also being highlighted in the stories. As public figures we can take a beating, but for others it is a difficult situation.

"The police have said they will look into the matter, but their impartiality is in question. However, it is quite difficult when an issue regarding a chief justice is brought forward, but it is sad that the nasty tabloid culture is now setting into mainstream newspapers."

UNP MP, K. N. Choksy:

"Since the joint opposition has submitted a resolution to parliament calling for the appointment of a select committee to look into the issue, it would not be fair to make a comment before the committee is formed."

Entrepreneur Patrick Amarasinghe:

"Everyone in this country looks up to the Chief Justice as a supreme person. He should be of the highest level since he sits in judgment of so many people. There should be no doubt about his integrity.

"This is a very vulnerable situation for the Chief Justice to be in. The Chief Justice's personal life is not our business but credibility of supreme persons is very important."

Chairman, Ceylon National Chamber of Industries, Ranjith Hettiarachchi:

"As a business chamber, we don't want to get involved commenting on this type of thing but the maintenance of discipline at all levels - be it presidential, prime ministerial, ministerial, government servants or police - is very important.

"Developed countries have reached that position due to the discipline that is maintained. If there is no discipline, the whole system will collapse."

A prominent lawyer speaking on grounds of anonymity:

"There is no problem with the Chief Justice of this country having an affair with a woman. This is his private life and nobody, including the media, has the right to interfere in his private life. However, the fact that he has lied to the police and allegedly doctored evidence is a serious problem as this does not fit the role of a chief justice."

Lawyer and writer, Kishali Pinto Jayawardena:

"If this is in regard to his private life then nobody has the right to question him. However, the moment these allegations come into the public sphere, in terms of his public conduct or any other public official for that matter, there are very clear principles that ought to be applied and an impartial inquiry should be held."

Director, Centre for Policy Alternatives, Rohan Edirisinha:

"This entire issue that the Chief Justice has been involved in does not befit the role of a chief justice. This is the very reason that I have been arguing for a long period of time that an impeachment resolution should be taken up in parliament against him.

"Unfortunately the UNF government did not take any serious action against him when they were in power, although they had promised that they would. Serious action should be taken against him and an inquiry should be held."

Peradeniya University student, Nishanie Jayamaha:

"The actions of the Chief Justice totally violate the purpose of a chief justice. The chief justice is someone who is there to uphold the law, and he should set an example to the people.

"Some people think the chief justice's personal life and the role of the chief justice are two, but in this case it was dual. There are certain rules and a system that the people have to abide by and the justice system is not the problem, it is the people who are running the system that should be checked.

"There are many justice systems around the world that are corrupt but from any system there are some standards that are expected.

"The common rule or the common law should be upheld by everyone including the chief justice. This is why although the system is fine the people running the system should be checked. And it is also a fact that people react differently to a situation but no one should be above the law.

"The Chief Justice should act more responsibly as his designation 'chief justice' implies what he represents.

Merchandiser S.N. Hettiarachchi:

"What the Chief Justice did was totally wrong and reflects badly on the justice system of the country. One does not expect such behaviour from a person such as the chief justice who is a person holding a high post."

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Questionable evidence

The questionable evidence which challenges the CJ's charge that this present case is a conspiracy against him, involving minor police officers:

 Would five police officers, four from Talangama Police Station and one chief inspector from the IGP's command/police information room join to connive in some bizarre conspiracy that involved the CJ? If so, why?

 Would these police officers have been in a position to fabricate evidence given that the Hyundai car they have noted in their entries is almost brand new and not one that has been in use for even two months?

 How would these police officers have been able to implicate the lady lawyer alleged to have been with the Chief Justice on the night of July 6? The address they have noted in their statements is that of her mother's as stipulated in her identity card which is the address under which her vehicle is also registered. If indeed the policemen were involved in a conspiracy to fabricate evidence to implicate the Chief Justice with a woman, would they not have given the present address at which she resides together with her husband at Dehiwala?

 What of the incriminating evidence in the possession of The Sunday Leader which details how this lady lawyer telephoned the Chief Justice on his personal mobile number close upon 7:40 p.m. on the night of the incident and once more after 9:45 p.m.? They did not speak to each other on their mobile phones during the time of the police detection. She then telephoned the CJ seven times the following afternoon, July 7, both on his mobile phone and hotline at his chambers.

 One might argue that the spate of calls would have been to find out what was going on following the news hitting the public that the Chief Justice was caught in a compromising position with a woman. However the initial information in no way implicated her but another woman. But C.D.S. ( the lady lawyer concerned) was not to know that.

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Lord Brennan's opinion

An opinion by Chairman, Bar Council of England and Wales, Lord Brennan Q.C. on the matter of Sri Lanka's Chief Justice:

In the year 2000, Lord Daniel Brennan Q.C. former chairman of the Bar Council of England and Wales in a report on Sri Lanka's judiciary, recommended that the Bar Association of Sri Lanka (BASL) should consider the appropriateness of requesting the Chief Justice to desist temporarily from officiating as a judge of the Supreme Court and act as a member of the JSC until the conclusion of the findings of the special committee of the BASL.

Lord Brennan together with former Chief Justice, Karnataka and Kerala, Justice Malimath and President, Malaysian Bar Association, Mah Weng Kwai advised the BASL to appoint a committee of highly respected senior past presidents of the BASL to investigate the charges relating to the Chief Justice.

Brennan further advocated that the BASL and all branch organisations should also resolve to not invite the Chief Justice for any function or event involving the BASL, its branch organisations or its members.

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The case for impeachment against Chief Justice Sarath Nanda Silva

The second impeachment motion signed in October last year documented a number of instances of misbehaviour on the part of Chief Justice Sarath Nanda Silva.

          The first case cited was that the CJ in his capacity as ex officio chairman of the Judges Institute which also functions as the official residence of the chief justice had employed as caretaker of this institute a person by the name of Rohana Kumara, a convicted criminal against whom several criminal cases are pending.

          Rohana Kumara it was stated, is a close associate of Nupul Kumara who is accused of the murder of Ranjith Bandara Wijekoon on February 5, 2000, at Peradeniya Gardens where Rohana Kumara is the fourth accused.

            According to the impeachment motion, Rohana Kumara had been in constant touch with the assassin Nupul Kumara and his counsel Dr. Jayampathy Wickremaratne PC, on numerous occasions before and after the murder. Also, that Rohana Kumara had telephoned the Chief Justice, on or about March 8, 2001, whilst he was evading arrest.

          Despite these facts, contained also in the previous impeachment document, the Chief Justice continued to permit Rohana Kumara to function as caretaker at the Judges Institute as well as to use a vehicle bearing the name tag 'Judges Institute.'

          Rohana Kumara was eventually taken into custody on December 29, 2001. At the time of his arrest Kumara had requested that he be allowed to speak to the CJ, but the officer in charge of the police party, Sub Inspector Tennakoon had refused permission.

          Police records reveal that at this moment the third accused in this case, Lakshmi Kusumalatha who had been close by had taken a phone call to the CJ and informed him of Rohana Kumara's arrest.

          When Sub Inspector Tennakoon had questioned Rohana Kumara at the time of his arrest as to why he was evading arrest, Rohana Kumara's reply had been that he was hiding temporarily on the advice of Chief Justice Sarath Silva. This fact was reported and made public, and never at any stage contradicted by the CJ.

          Another case cited is a fundamental rights application case No. 43/2000.  This was filed in the Supreme Court allegedly by attorney-at-law, M. B. S. Weerakone, on behalf of Nupul Kumara in connection with another incident.

            Weerakone subsequently filed a letter in court stating that he did not file the said petition 43/2000 along with 40/2000 and 44/2000 and complained that his signature on the three petitions are a forgery.

          When this matter was taken up on February 19, 2001, before the Chief Justice and two other judges, Sarath Silva simply dismissed the said petition No. 43/2000 and the other two petitions and made no comment about the fraudulent signature that had been placed on the petition.

            Separately, the Chief Justice is charged in the impeachment motion with having acted in a manner unbecoming of the position of a judge of the highest court in the land apart from the office of the chief justice.

          This charge is with reference to three fundamental rights applications referred to the Supreme Court challenging the validity of the appointment of the CJ. These applications sought a full bench to hear and determine the petitions owing to the public and constitutional importance of this matter.

          The impeachment motion referring to these applications assert that the Chief Justice more or less threw these applications out of court where he was a respondent and an interested party by making orders that were partial to his own interests.

          Another fundamental rights application, case no. 503/99 in which Sarath Silva was the presiding judge, he had ridiculed and insulted the petitioner Rev. Rupha Pemananda. The CJ on this occasion has said, "Buddhist monks should not be employed whilst wearing saffron and if they so wish to be employed they should disrobe themselves. They become monks to serve the Buddha Sasana and it is not proper for them to take employment or become members of any organisation, since they are provided with dhana. If they do what they want, they should first disrobe."

          In the fundamental rights case no. 681/99 on which the petitioner was a doctor in public service and a member of the GMOA, Sarath Silva who presided at the hearing had addressed these words to the petitioner: "Government doctors don't perform any work. They are not to be found at their stations, they only know how to go on strike, therefore it is appropriate to punish them."

          In yet another fundamental rights application filed by Lal Priyantha Liyanage in which then Minister Richard Pathirana was one of the respondents, leave to proceed was refused by a bench presided over by Sarath Silva who told the petitioner, "Minister Richard Pathirana came to my house and cried.  He told me he never did a thing like this. I know him. He is not a person who will do a thing like this."

          During the campaign for the 2000 parliamentary elections many applications were filed alleging abuse of state owned media to promote the candidature of the then People's Alliance government.

          Sarath Silva as Chief Justice constituted the benches over which he presided and made orders. In the fundamental rights application filed by UNP Chairman, Karu Jayasuriya, seeking redress against Associated Newspapers of Ceylon Ltd. and its editors for abuse of the media for the benefit of the ruling People's Alliance, Sarath Silva summarily dismissed the application without any reason.

          Another fundamental rights application 578/2000 was also instituted by Karu Jayasuriya seeking orders against the Independent Television Network (ITN) for gross abuse of the media for the benefit of the ruling People's Alliance. Sarath Silva once more dismissed the application without due hearing.

          Karu Jayasuriya was the first signatory to a notice of resolution for the impeachment of Sarath Silva as Chief Justice. This resolution was dated June 6, 2001. Jayasuriya subsequently filed three cases in the Supreme Court.

          The CJ then constituted benches to hear these cases over which he presided. In the case against the then chairman of SLRC and SLBC, the CJ granted leave to proceed but fixed the dates for February 5, 2002 as the date of hearing despite vehement objections of counsel that this would render the application of no effect as the general election was scheduled for December 5, 2001.

          In the FR cases against ITN, ANCL, SLRC and SLBC the impeachment document states that Sarath Silva purposely engaged in delaying tactics in order to render the applications non effective despite the urgency of the matter.

          In the third application 562/2001 he refused leave to proceed and coerced the parties to go before the commissioner of elections without the agreement of the petitioner.

          In the Supreme Court FR application no. 633/2001 filed by Waruna Karunatilleke of the Free Media Movement against the commissioner of elections and the SLRC under the 17th Amendment with regard to the December 5, 2001 general elections, the CJ behaved in a manner highly unbecoming of the office of the chief justice, refusing to give an early date for the respondents to report back to court despite explicit requests from counsel. He also threatened to award costs to the petitioner for coming before court and remarking that the petitioner should turn off the Rupavahini and switch to another channel if he found Rupavahini to be biased in its coverage.

          In his capacity as ex officio chairman of the Judicial Services Commission, (JSC) the CJ is charged with having maliciously caused the termination of services of Hiran Ekanayake, Additional Colombo Magistrate for reasons unconnected with the performance of the duties of his office.

          The Chief Justice accused Ekanayake of being biased against People's Alliance Chief Minister of the North Central Province, Berty Premalal Dissanayake and partial towards Ranil Wickremesinghe.

          The Chief Justice is also accused of attempting to influence Hiran Ekanayake in the performance of his judicial functions in a case instituted against a lady named Hassan Ali who was charged with cheating and fraudulent representations made to persons seeking foreign employment. Ekanayake had refused to bow to the CJ's overtures. He was later summoned before the JSC on June 2, 2000 at which meeting the CJ called upon him to resign from office and hand over his letter of resignation that very day.

          Also in his capacity as ex officio chairman of the JSC the Chief Justice had summoned magistrate Jayaki de Alwis and questioned her regarding the reason why she had made certain adverse orders against Inspector of Police, Umagiliya, the bodyguard of People's Alliance Chief Minister, North Central Province, Berty Premalal Dissanayake. He called upon her to resign. Upon her declining to do so, she was dismissed from service without an inquiry. She was reinstated after two days and thereafter compelled and pressurised to tender her resignation.

          Again in his capacity as chairman of the JSC the Chief Justice subjected magistrate Lawrence Costa to constant harassment on the allegation that Costa was biased towards the supporters of the UNP in making his orders as a magistrate. Costa also later resigned unable to bear the pressure brought on him.

          From April 1992 and up to date whilst holding the office of Chief Justice while his marriage to Manorani Silva subsists in law, he has cohabited and is living in adultery with Damayanthi Shirani Jayasekera nee Gunaratne.

            Damayanthi's husband W. B. A. Jayasekera chartered engineer and former president of the Organisation of Professional Associations subsequently complained to the JSC against Colombo Additional District Judge, Upali Abeyratne who he said had handled his divorce case partially and in favour of Sarath Silva who had been named as a respondent in the divorce case.

          The JSC chaired by former Chief Justice G. P. S. De Silva held an inquiry and ordered that Upali Abeyratne be deprived of promotions for a period of two years and that he be transferred out of the judicial zone of Colombo to Moneragala for two years.

          No Sooner Sarath Nanda Silva assumed office as Chief Justice and thereby took over as chairman of the JSC he cancelled this order and transferred Upali Abeyratne to Gampaha and almost immediately thereafter to Colombo.

          The impeachment motion further charges that Sarath Silva has hurriedly reconstituted benches so he could preside whenever petitions have been filed against the constitution. One such instance was in relation to the Constitution of the Republic of Sri Lanka Bill of August 3, 2000. Despite attorney-at-law S. L. Gunasekera raising an objection to the bench on the ground that Sarath Silva had previously as attorney general taken an active part in the drafting of the bill, and also having been a proponent of the draft constitution at various public fora, Sarath Nanda Silva persisted in taking up the case before him.

          He also on this same occasion disregarded the plea of counsel that this matter of paramount importance should come up for hearing before a fuller bench including the senior judges of the Supreme Court.

          The impeachment document further charges that in the case of Anthony Michael Emmanuel Fernando the Chief Justice sat in violation of the provisions of Section 49 (3) of the Judicature Act. Sarath Silva sentenced Fernando to one year of rigorous imprisonment presiding on the bench despite having been named as a respondent.

          District Judge Palitha Bandaranayake  who contested the findings of the JSC with regard to his dismissal and filed a fundamental rights application against the JSC specifically urged that the three judges of the Supreme Court who are members of the JSC should not hear his case. Yet, the Chief Justice who is also ex officio chairman of the JSC presided over the bench and disallowed Bandaranayake's application.

          The final straw was when the Chief Justice prevented the attorney general from fully stating his position in a matter concerning the distribution of powers on the subject of defence. The matter was before open court following a reference made by President Chandrika Kumaratunga purportedly in terms of Article 129 of the Constitution seeking an opinion of the Supreme Court.

          When the AG was responding to a question from the bench, the CJ interjected to disagree with the AG, stating that the latter was volunteering unsolicited opinions.

Issues