on a razor's edge
Supreme Court Judge, C.V. Wigneswaran
retired Supreme Court Judge, C.V. Wigneswaran created
waves in judicial circles on his last day on the bench
when he criticised the present judicial system as being
fraught with personal prejudice and subjective thinking,
warning that the present conditions did not bode well
for the future of the judiciary in the country. In an
interview with The Sunday Leader, Justice Wigneswaran
outlined about instances in his own career when he came
face to face with this prejudice and gave his
recommendations on how the judicial system could be
reformed. Following are excerpts:
What was the most memorable or significant experience of your
I have had several significant incidents, specially when I was
up in the north. It related to episodes with the military as
well as the militants. But what I would like to share with you
as a significant experience relates to a committee meeting we
had in Colombo at Shrubbery Gardens in the early 1980s.
was in the committee of the Judicial Officers Association.
There was an emergency meeting convened. I had come all the
way from Mallakam to attend the meeting. Several judges had
come for the meeting from all over Sri Lanka. The committee
was agitated about the stoning of the Supreme Court Judges'
every one of the committee members wanted to stage a strike.
They simply wanted to show their protest against the manner in
which some of the members of the higher judiciary had been
treated. After a lot of heat was generated, a vote was about
to be taken. If taken it would necessarily have been carried
through with at least 95% of those present voting for the
staging of the strike by judges until steps were taken against
the perpetrators of the high handed act.
excused myself for raising a contrary view. However serious
the matter at hand was, judges should not under any
circumstances strike, I said. We were not a trade union. Even
if we were to strike, we should remember that in 1980 a
headstrong government that had received a five sixth majority
in parliament had sent so many workers home. Their families
were still suffering.
executive could easily dismiss the judges, call upon some
senior lawyers to act for some time and meanwhile recruit new
judicial officers for the original judiciary, which was in all
about 150 in number at that time. I was prepared to go back to
Hulftsdorp where I had practised for 15 years.
asked the judges, how many of them were confident that they
could get back to their respective areas and practice our
profession. In any case I said, the committee should not
decide for the entire membership. This was a serious decision
to be made. Not an emotional ad hoc decision at the spur of
had spoken for about 10 minutes. I was prepared to join the
others in the strike and face the consequences if they too
were truthfully prepared to face all eventualities. Someone
asked what was the alternative. I said, Superior Court Judges
were quite capable of looking after themselves. They did not
need our strike.
could pass an unanimous resolution expressing our shock and
utter disappointment at the high handed acts and the seeming
executive lethargy that had followed.
Slowly the members changed their views. Finally only a
strongly worded resolution was passed. A strike was averted.
senior judge who was wholly supportive of the strike, when he
met me in the Court of Appeal many years later (almost a
dozen), welcomed me by saying "here comes the man who
broke our strike!" In a country where decisions are more
often taken on emotional grounds bringing untold misery in
their wake, I was able to reason out an alternative.
What are your plans for retirement?
Many judges plan out their future while still in service. Even
judgements are sometimes tailor-made to attract lucrative
after retirement benefits. I am sorry I have no plans. I work
in the present. The future is always uncertain and would be
looked after by He who created me and who has directed me so
What was the toughest problem you encountered during your time
as a judge?
There are two incidents that come to mind. The army had shot
at a disabled driver and killed him at Atchuveli within my
jurisdiction at Mallakam. The army pleaded self-defence but
later evidence proved the army had concocted the defence.
examination of the dead body and the adjunct areas, I was
satisfied that it was not what the army had made it to be.
Since the soldiers who shot had admitted to the firing of
ammunition from their respective firearms (in self defence as
they said) which killed the deceased, I wanted the police to
arrest them and produce them before me the next day in the
next day when I came out of my official residence, which was
just behind the courts, I found several armed soldiers all
over. They were pointing their guns more or less towards me.
Obviously the army was annoyed with me for arresting two of
as a senior cadet at Royal College, Colombo, I had handled
guns and I did not feel the slightest perturbance at the sight
of guns or at the obvious show of strength and threat. Many a
judicial officer in the north had been completely flustered
and rattled by the malignant militaristic environment that
pervaded the Northern Province at that time.
any event we in Mallakam had faced unprovoked gunshots from
helicopters, which landed right at the entrance to the court
house while sittings were on. We had continued sittings
thereafter within minutes of adjournment, thanks to the
courageous lawyers and litigants.
went into my chambers and sent word for the officer in charge
of the soldiers. At least 25-30 soldiers were to be seen
around. If I remember right, one Wijeratne, a short stocky
officer, came in. I asked him why such a large contingent of
soldiers was present within the court premises. He said they
had come to give security to the two soldiers taken into
custody. I told him that once the police took control of the
soldiers, the security of the soldiers passed onto the police.
were an ample number of policemen under the command of A.S.P.
Navaratnarajah and that the soldiers and their trucks and
jeeps were unwanted in the court premises and must immediately
leave the court compound. Wijeratne hesitated. I told him that
I gave him just two minutes to leave the court premises with
all his men and vehicles. That was an order. It was carried
officer called Rajudeen thereafter had come to see me but
would not inform my staff what business he had with me. A
visitors book that had to be signed by all who wished to see
me, handed over to him to fill in his name and state the
reason for seeing me, was thrown by him to the ground,
allegedly. Hence he was not allowed to see me.
the case went on. Bunty Zoysa came over to look after the
interests of the soldiers. But on the JMO's evidence, the
ballistic expert's evidence and the basis of eyewitnesses
evidence, the two soldiers were found to have been involved in
cold-blooded murder. But soon the Attorney General entered a
nolle prosequi and the soldiers were spared a trial in the
High Court. They went scot-free.
next incident was during the 1983 July riots. The army had
just shot down many persons on the road without any
provocation whatsoever and their bodies were lying at various
places within my jurisdiction.
into sudden deaths suddenly disappeared. Relatives of deceased
contacted me through lawyers. The police refused to come out
of their police stations for fear that there might ensue
clashes between the army and police.
spoke to the OIC, Chunnakam over the telephone and the
conversation was as follows:
aren't you coming?"
fear the army."
who told you that the army is responsible for the
They are responsible."
I say people dressed in army uniforms had committed these
murders. So why don't you come?"
conducted the inquests personally on all the dead bodies and
gave a verdict of homicide in each of them by persons dressed
in army uniforms travelling in such and such vehicles, giving
the vehicle numbers provided to me at the inquests. I directed
the police to investigate as to whom those vehicles belonged
human rights activists traced the numbers to genuine army
vehicles and what happened in Mallakam was splashed across the
globe in human rights journals!
You spoke of prejudice and personal agendas interfering with
the judicial process on your last day on the Supreme Court
bench. Could you elaborate more on that?
It is not my intention to point accusing fingers at any
individuals. But if you ask any lawyer in Hulftsdorp who has
some understanding of what happens in the Higher Judiciary
today, he would tell you looking at the constitution of a
bench and the subject matter coming up before that bench, as
to what the outcome would be.
often such evaluation would be correct. How is it possible? It
is because the bias, prejudices and may be personal agendas of
individual judges are fairly well delineated, that it is
possible to safely predict. Some judges would be very hard
regarding the same matter when it relates to one set of
litigants and very lenient with others.
was this subsequent case with similar facts to the earlier
case. The same judge dealt with the later case differently
compared to the earlier case. The judge, when it was pointed
out to him, said the facts were different. I was told Faiz
Musthapha, who appeared in the later case, in exasperation had
said, "Sir, not that the facts are different. But the
voices in support are different!"
our personal views with regard to a counsel may be, we must
not forget that counsel appear for and on behalf of litigants
and it is the litigants' interests which are at stake. Many of
us often forget this and allow our personal animosities and
prejudices to take charge of us. Those who have been
prosecutors all their life before joining the higher
judiciary, often look at counsel with a jaundiced eye.
Have you had personal experience of this prejudice during your
tenure at the Supreme Court?
Yes. Within few weeks of my coming to the Supreme Court this
judge who was the leader of our bench, when a junior lawyer
got up to support a Fundamental Rights (Article 11)
application based on police brutality, asked the lawyer why he
was supporting that application, saying, "After all, you
were assaulted by the police for what you had done. If you had
acted properly the police would never have assaulted you. Why
are you wasting our time?" The junior lawyer was never
given a chance to support his application.
a similar application was supported by a senior counsel, this
judge would have been tongue-tied, though his prejudices were
perennial. All police acts or administrative acts are fair and
reasonable, seemed to be the presumed viewpoint of those who
had acted for the executive and its allied institutions
throughout their professional life before adorning the higher
When you refer to personal prejudices, is there in your view a
political element that is reflected in these biases?
So long as self-interest and self-advancement happen to be the
motivating factors, political elements must per- force creep
in. Not that judges are divided among themselves on strong
politico-philosophic viewpoints. I remember some judges in the
District Court used to be classified as pro landlord judges
and others pro-tenant judges.
is not the case in the higher judiciary. All political
viewpoints are ultimately geared towards personal
self-advancement. If a person could shift his steps at the
right moment, like Mohammed Ali in the ring, he would attract
political patronage from whichever political quarters he
desires. Political slantings are more often for personal
President Chandrika Kumaratunga has said Sri Lanka's judicial
system is the most corrupt in Asia. Do you agree, and if so,
what remedial measures do you suggest?
I do not know whether Her Excellency made any such statement.
If she had said so, she must certainly have done an in-depth
comparative study in coming to her conclusions. I have not
done such a study. But if that were so the most important
remedial measure I would suggest is that political
manipulation of the judiciary must stop forthwith. It is only
judges who have political and other influential backing who
would resort to big time corruption.
judiciary must be left to be independent, it must become self
sufficient with adequate resources to enable it to maintain
its independence. The judiciary must not be filled at its
higher echelons with executive-pliant officers who have had
very close relationship with the executive and the
screening of new recruits initially must be undertaken like
how it is done when recruiting young state counsel into the
Attorney General's Department. Recruitment must be in
accordance with strict value based criteria and such recruits
must be given adequate training, instilling in them certain
basic norms and standards.
has to be done by judges who have themselves been original
court judges, not others who had been bred in hierarchical
government departments conditioned by their environmental
needs and compulsions whose perception could never be
There has been a call by the president of the Bar Association
to use contempt of court against the media to prevent
criticism of the judiciary. Do you think this is a healthy
practice, given your own views that there is in fact prejudice
prevalent in the judicial process?
Generally, the following matters fall under contempt of court;
failure to comply with an order of court, an act of resistance
or insult to the court or its judges and conduct likely to
prejudice the fair trial of an accused person.
media has for a very long time avoided referring to personal
indiscretions on the part of judges out of courtesy. Law has
decreed that Superior Court judges shall enjoy security of
tenure to ensure independence of the judiciary. But if the
very fact that security of tenure has been guaranteed under
the constitution motivates judges to resort to indiscretions
over and over again the media would not be able to hold its
is like the children who get to know before their mother does,
that their father has some other interests. They would keep
the fact of their father's indiscretions secret, out of a
sense of shame as well as due to their concern for their
mother. But if the father persists emboldened by his
children's reticence, then the children must inform their
do not know what the president of the Bar Association had in
mind when he said what he said or even whether he said so. Any
form of control, unless it is universally acclaimed to be a
healthy exercise, must be avoided. Institutions must be
allowed to flow smoothly not unduly curbed and controlled.
the media must also recognise their role in society, its
tremendous power to affect the thinking process of its readers
and therefore act responsibly. So while voicing my disapproval
of undue control of the media, I would urge the media to act
responsibly. Self-discipline is the best discipline.
If an ordinary citizen said they would have to consider other
ways apart from the judicial process to seek redress, would
the Supreme Court have considered that contempt of court?
Seeking other ways so long as it does not border on
violence and duress need not concern the Supreme Court. But,
what I meant by alternative methods was a radical political
change in the country, which might bring in its wake overall
changes that might submerge existing institutions due to their
inadequacies and insufficiencies.
us not forget that certain areas where the writ of the
government is ineffective today, there are new judicial
innovations that have been worked out, divorced from the
Do you feel that the credibility of the Supreme Court in the
country today has diminished in the eyes of the public, in
comparison to a few decades ago?
All over the world, judicial institutions are receiving the
minute scrutiny of the polity at large, and many adverse
comments are being made. Ultimately every institution depends
on the calibre and integrity of the people who run it. It is
not for me to say how the people feel about the Supreme Court
of Sri Lanka having been part and parcel of it until now.
I could say this. If we do not shed our bias and prejudices,
cliquism and factionalism, our esteem would most certainly
suffer. Let me make a simple observation. In the earlier days,
not so long ago, many a Supreme Court judgement would have all
three judges stating their views either approving or
dissenting from the main author of the judgement. It is very
rarely that such an activity takes place today. Lethargy of
judges may have long-range consequences.
Do you feel there should be more accommodation of members of
the minority community in the judiciary?
I am one who thinks there should be more accommodation of
good, efficient, mature, adequate and experienced judges in
the higher judiciary. I do not like to refer to minority and
majority community judges. If there be all minority community
judges at one stage in the Supreme Court able to conduct their
affairs adequately there should be no complaints from the
majority community, so long as the judges are known to have
the interests of the community at large at heart.
should there be complaints if there are only majority
community judges at a particular point in time. But Northern
and Eastern Provinces conduct their cases in Tamil. When their
records come to the appellate courts, judges should not depend
on translations and interpretations.
judges who have adequate knowledge of Tamil must also be in
the appellate courts. Sometimes old Tamil deeds from Chilaw,
Puttalam, Negombo and Upcountry areas also come with the
records. These deeds are not translated. Unless judges can
make out their contents there could be a serious travesty of
to the question whether members of the minority community
should be accommodated into the original judiciary, I most
certainly would advocate recruitment of such persons even on a
quota system. At the moment there seems to be preference given
to one community even among the minorities.
to Northern and Eastern Provinces should be of those competent
in the Tamil language with adequate knowledge of English on a
quota basis depending on the proportion of Tamils, Muslims and
Sinhalese living in those areas. Similarly to the other seven
provinces there should be recruitment of those competent in
the Sinhalese knowledge with adequate knowledge of English on
a quota basis depending on the proportion of Sinhalese, Tamils
and Muslims and maybe even Burghers living in those areas.
they come to the Appellate courts these recruits from all nine
provinces should be able to function in English. But I get the
feeling that soon even the appellate courts would switch over
to Sinhala. But the new set of students passing out of Law
College might change that situation sometime later. English
must not be jettisoned from the appellate courts under any
circumstances. So my answer to your question is, recruit more
from minority communities at the initial stages.
Do you feel that the constitution of benches in the Superior
Courts is done on a rational basis or to achieve particular
objectives in given cases?
As I told you earlier, experienced lawyers and even others
are today able to look at the constitution of benches and
predict the result of a case specially those having a
political or societal hue.
I distributed new cases in the High Court, Colombo, Western
Province to the five courts that existed then (now seven) when
I was primus inter pares was by not looking into the names of
parties but distributing merely on the numbers.
the first five numbers may go to the respective five courts
(one to five) and the next five may go to the courts from five
to one, or vice versa or I may start from court three and go
on to court two through court four, five and one. Even I would
not know to which court a particular case would go. None of
the members of the staff would be able to decipher a pattern
since no particular pattern was adhered to.
in the Supreme Court, none of us knew how the allocation of
cases was done. If the junior most judge was in charge of
allocation of cases, I must confess that I never got a chance
to be involved in the process, when I entered the Supreme
Court in 2001. More often only selected judges were in charge
and that too for a long time.
it was a fact that Justice Mark Fernando was kept out of
important cases. Since I was more often accommodated with
Justice Mark Fernando I was also spared the distinction of
hearing socially or politically sensitive cases. Even if I was
accommodated on a bench at the leave stage, once my views were
known to be contrary to certain others, I would never be given
that case thereafter.
I am unable to refer to any rational basis except to come to
the conclusion that particular objectives were the only
rational basis adhered to!
During your experience do you think the powers of the
executive presidency have ever interfered with or influenced
the higher courts of this country?
Only one instance has been publicised. President J.R.
Jayewardene had met Chief Justice Samarakoon at a party and
mentioned to him that a particular bench should consist of so
and so and so and so, since he was interested in the outcome
of the case. Chief Justice Samarakoon had puffed at his pipe
and said nothing. The next day he had constituted a different
bench, which did not grant the relief the executive president
expected. Of course that led to the attempted impeachment of
Chief Justice Samarakoon for whom I have always had much
from the executive presidency do not come from the way you
have posed your question. It starts much earlier. When the
executive presidency prefers to fill up the higher judiciary
with a majority of very young lawyers however capable they may
or may not be, who had been pliant in the hands of the
executive throughout their professional life hobnobbing with
ministers and others until the other day, the interference
must look at problems coming before them naturally from a
state's perspective and not from a people's perspective.
Courts should act as a bulwark of the people not as a proxy
for the state. Only a minuscule minority would have the
capacity to transcend their conditionings.
the majority of these comparatively younger persons with
absolutely no original court judicial experience nor judicial
temperament are brought into the higher judiciary they would
be an easy source of assistance to the powers that be. Their
allegiance would be to the executive and not to the people at
executive presidency need not directly interfere nor
influence. Close relationships that had preceded appointments
to the higher judiciary if continued would necessarily assist
the executive presidency. If further benefits for the future
are looked forward to by these judges the executive presidency
need not even move its fingers. Its interests would be
adequately looked into!
Do you think the judicial process is becoming redundant
because of a lack of independence?
The original judiciary cannot be run like a government
department with its hierarchical assemblage. Every judge
however insignificant his area of jurisdiction might be is a
king in his own domain. But a king has his checks and
balances. In fact his responsibilities and accountability are
far more serious and severe than those who enter the higher
judiciary from departments or from the unofficial bar had been
attempt to cow down judges to suit the hierarchical perception
of some members of the higher judiciary would affect the
judicial process. Unless those who understand and empathise
with the judges of the original courts run the administration
of the original courts the judicial process will suffer
may have to think of a Judicial Services Commission hereafter
consisting of retired senior original court judges only with
adequate financial resources and self-sufficiency to run the
Unless recruitment of judges and the process of
judicial administration undergo radical changes I see the
judicial process becoming a question mark.
In your experience, which was the period when the judiciary
was truly independent?
I can only speak for the period during which I was a judge
during the last 25 years. When I went over to Mallakam there
were about 6,000 to 7,000 cases pending. About 35 cases were
fixed for trial for a day and about 400-500 cases had to be
called daily. More often when the calling cases were finished
with, it was time to postpone trials.
was a feeling among judges, since the quarterly reports to the
JSC spanned a period of three months, all cases must be fixed
for trial within such three months. I found no circular that
compelled us to do so. I spaced out the cases for six to eight
months so that only 250-300 cases were to be called and not
more than six to eight cases were fixed for trial daily.
must have sent a petition to the JSC. A letter came from JSC
asking me as to why trial cases had been postponed for eight
months. I explained with statistics that unless this was done
cases would continue to be postponed and never concluded.
Chief Justice Samarakoon caused a circular to be sent to all
judges calling upon them to take such steps necessary to
conclude cases early and intimating to them that it was not
incumbent on them to fix trial dates within three months.
Chief Justice Samarakoon was practical, pragmatic and
Chief Justice Samarakoon's time to my knowledge there was no
interference with judges but he showed tremendous concern for
them and at the same time was very strict with us. He had no
favourites among judges whose indiscretions he would overlook
and others whose slightest lapse he would pounce upon with
would not listen to backbiters. If he had anything to ask he
would directly ask such judge and get his explanation. Though
his appointment was politically motivated he stood his ground
against the executive president when the latter tried to
trifle with the judiciary.
would say Chief Justice Samarakoon's period of stewardship was
comparatively more independent than other periods. Justice
Sharvananda being from a minority community had certain
intrinsic disadvantages in the field of administration. He had
to depend on others for his knowledge of Sinhala.
You said in your last statement on the bench that there was a
constrained atmosphere within the judicial system. How is it
constrained and who is responsible for it?
My answers to your other questions must have enlightened
your readers as to how such constrained atmosphere came to
engulf the judiciary and who could be the cause for it.
compulsions have come about due to an administration that
expected a departmental hierarchical obedience from judges. In
order to achieve such obedience wedges were driven into the
system. Patronage to some and punishment to others were meted
out. Comply or be condemned, was the underlying threat.
politicians and policemen who should not have received any
patronage from the judiciary were perceived as important
persons and original court judges have been compelled to
comply with orders illegally issued to protect or pamper such
errant offenders. Judges who publicly recorded such issuance
of orders by intermediaries on behalf of their principals were
dealt with severely.
wrong judicial orders by judges must be challenged in the
appropriate appellate court. Any attempt by persons howsoever
highly placed to countermand such orders through extra
judicial means must be considered to be a constraint on the