Wither independence when judges host parties for politicians?

By Uvindu Kurukulasuriya | Published on July 14, 2011 at 12:20 am

“ the service exacts from itself a higher standard because it recognizes that the state is entitled to demand that its servants shall not only be honest in fact but beyond the reach of suspicion of dishonesty” - Colvin R De Silva- no confidence motion against Prime Minister Sirima Bandaranaike

Chief Justice Asoka De Silva recently retired and took up a position as advisor to President Rajapakse

When one achieves something in life, throwing a party is a normal thing. When a judge is promoted to the Supreme Court, he or she, like any layman, would want to celebrate it. But an unusual celebration took place two weeks ago on Friday July 1st, at the Gregory’s Road residence of the newly appointed judge to the Supreme Court of Sri Lanka, Sathya Hettige.

Unusual

Why unusual? The guest list at Hettige’s party raised some eyebrows. President Mahinda Rajapakse, his brother Minister Basil Rajapakse, and the Prime Minister D.M. Jayaratne were all present. Justice Minister Rauff Hakeem was also there, but that is less noteworthy. It is normal practice at functions held to celebrate high judicial office that the Justice Minister is invited, and he is usually the only politician invited.

Plied with alcohol

It was Walter Jayawardana Q.C., Secretary to the Ministry of Constitutional Affairs under Dr. Colvin R De Silva in the 1970s who exposed how judges went homes drunk after parties. Explaining how the politicisation of the judiciary started in post-colonial Sri Lanka, Jayawardana  said the downward slide commenced under then Justice Minister Felix Dias Bandaranaike who invited judges to political parties and offered drinks. That was only one method among many that Felix used to politicise the judiciary. The parties are still being thrown. It’s the host that has changed. Now it is not the politician but the judge who unashamedly invites politicians and ply them with alcohol.

Justice Sathya Hettige

Justice Hettige has pioneered this new tradition inviting politicians to parties even as legal circles had been criticizing him for his improper behaviour. He invited President Rajapakse to his daughter’s wedding, and  the President signed as a witness and stayed more than one hour at the wedding ceremony. When Sarath Fonseka challenged his Courts Martial in the Court of Appeal, this matter came to light, and Fonseka’s counsel Romesh De Silva P.C., objected to Hettige sitting in the case, since the Courts Martial against Sarath Fonseka was appointed by the President. But the objection was overruled and Sarath Fonseka’s writ applications were also rejected.

The International Bar Association’s minimum standards on judicial independence, at clause 44 says, “A judge shall not sit in a case where there is a reasonable suspicion of bias or potential bias.”

Serious criticism

Hettige has also been the subject of serious criticism over accepting ruling party nomination papers despite alleged procedural errors, and rejecting opposition nomination papers for local government elections. Justice Sathya Hettege must explain why he invited President Rajapakse to his daughter’s wedding to sign on behalf of their family, it being unlikely Rajapakse imposed himself as a witness. What is his relationship with the President? Is it appropriate that a Supreme Court judge should continue to have personal and social relations with the executive branch, especially of a government whose behaviour is extremely questionable from the viewpoint of democracy and the Rule of Law?

Conflict of Interest

Lanka Independent has raised serious issues affecting the integrity of the Sri Lankan judiciary. We raised the issue of the

Former Chief Justice Sarath N. Silva holds up a copy of the Ravaya newspaper

appointment of retired Chief Justice Asoka de Silva as Senior Legal Advisor to the President. We raised the serious conflict of interest issues relating to the present Chief Justice.

Within the Asian region, the sixth Conference of Chief justices of Asia and the Pacific in Beijing in August 1995 adopted the statement of Principles on the Independence of the Judiciary. Sri Lanka was represented by the Supreme Court Judge P.R.P. Perera voluntarily agreed to the Principles on behalf of the then Chief Justice G.P.S. De Silva.

Principle 38 of the Beijing statement says, “ Executive powers which may affect judges in their office, their remuneration or conditions or their resources, must not be used so as to threaten or bring pressure upon a particular judge or judges.” And principle 39 says, “ Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.”

Chief Justice must explain

The Chief Justice must explain how her husband was appointed as the Chairman of Sri Lanka Insurance Corporation, and

Chief Justice Shirani Bandaranayake

to the Lanka Hospitals Corporation PLC as a member of its Board of Directors along with Defence Secretary and Presidential sibling Gotabhaya Rajapakse, who was Board Chairman. How was he also appointed as Chairman of the National Savings Bank? Has he applied for the job? Was he interviewed? Who were the other applicants? Weren’t there any other qualified applicants other than her husband? She must also explain how these things are consistent with international standards concerning judicial independence. If she cannot, she or her husband must resign. After all, like Caesar’s wife she too must be above suspicion.

There were editors who fought for the independence of the judiciary. Ravaya Editor Victor Ivan, Sunday times editor Sinha Ratnatunga, then Deputy editor now Lakbima News editor Rajpal Abenayaka and late Lasantha Wickramtunge. Sadly, since the Rajapakse came to power, we can’t see any of these acts of misconduct discussed in the Sri Lankan media. The editors who fought for the independence of the judiciary are sleeping, or converted to the Mahinda Chinthana or they can’t write because of media suppression. What is sadder is that these editors say there is no media suppression in Sri Lanka or simply not fighting against media suppression.

When Sarath Silva was controversially appointed Chief Justice by then President Chandrika Kumaratunge Ivan’s Ravaya newspaper printed a black front page with a picture of the oath taking ceremony published upside down.

Change of heart

How did these journalist and activists who once stood for democracy get into this blind alley? Lasantha Wickrematunge fought to the death. But of  Victor Ivan, who was once on the side of democracy and truth fighting alongside Lasantha? It was Ivan who wrote hundreds of articles about this very same issue and later published a book titled  ’An unfinished Struggle’.

Sarath Silva and Victor

When Sarath Silva was controversially appointed Chief Justice by then President Chandrika Kumaratunge Ivan’s Ravaya newspaper printed a black front page with a picture of the oath taking ceremony published upside down. When Shirani Bandaranayake was appointed as a judge to the Supreme Court, Ravaya attacked her appointment week after week, headline after headline. Since President Rajapakse came into power in 2005 Victor Ivan has remained silent on the burning issues now facing the judiciary.

Shirani embraced

When the very same Shirani Bandaranayake was recently appointed as Chief Justice  Ravaya wrote an editorial embracing her appointment. When Victor Ivan and the Ravaya newspaper exposed corruption in the judiciary before 2005 and the advent of the Rajapakse regime, he was criticized by some others saying the only reason for his taking on the judiciary at that time was not a passion for its independence but his own personal problems with Sarath N Silva and Chandrika Kumaratunge. Unfortunately by his silence and inaction today, he is proving those allegations true.

uvindu@lankaindependent.com

5 Comments to “Wither independence when judges host parties for politicians?”

•  Abeysinghe
  July 14, 2011 at 7:41 am

  Your comments are valid for a State which is committed to those principles of Judicial Independence, Media Freedom and, above all the basic norms of democratic governance. Sri Lanka does not have a Stat today. The State of Sri Lanka is withered away. We have a only a government – oops…sorry a no government either… a family regime aspiring to create a new dynasty for the ignorant masses who will be happy if they have a King…not an elected President or a Prime Minister

  Reply

•  Sash
  July 14, 2011 at 1:48 pm

  Great Uvindu. can you tell me how to find Colvin’s speach and Walter Jayawardena’s speech! I’m also working on this subject. keep it up.

  Reply

  •  Uvindu
    July 15, 2011 at 10:53 am

    Thank you. Colvin’s speech you can find from Hansads and also there is a pamphlet call ” Agamathiniya mokada kale” published by LSSP. if you are looking for this particular quote, you have to go to SP xx 1954 in National archives or parliament . Colvin quoted it from NU Jayawardena Inquiry and that Commission quoted it from one English Commission.
    Re Walter Jayawarden’s speech, it too published as pamphlet in late 70s. I gave it to some one else and never returned! Send me an email I will help you.

    Reply

•  Upali t
  July 14, 2011 at 6:45 pm

  That’s great.There are many value points and a good analysis.

   

Wither independence when judges host parties for politicians?

“ the service exacts from itself a higher standard because it recognizes that the state is entitled to demand that its servants shall not only …

By Uvindu Kurukulasuriya