International Crisis Group Asia Report No 172, 30 June 2009

Pages 10-12

3. The chief justice

The president’s unfettered appointment power includes selecting the chief justice of the Supreme Court. The chief justice in turn influences fellow judges of the Supreme Court and members of lower tribunals. The recently retired chief justice, , is widely regarded as having played a central role in the judiciary’s current politicisation. His appointment is viewed as a “turning point for the judiciary” He developed his position into an alternative political centre to the presidency. In the words of one lawyer in late 2008, “there are now two dictators in our system”.

As a result, one commentator noted, “the court ceased to restrain government actions and indeed arbitrarily upheld the powers of government against citizens”.

Another commentator described Silva as having “ruined [the judiciary] from within”.

Silva’s style of judicial governance has left a problematic legacy for his successor.

President Kumaratunga swore in then-attorney general Sarath Silva as chief justice on 16 September 1999.

At the time, Silva was subject to two pending complaints of misconduct. The UN special rapporteur on the independence of judges and lawyers Param Cumaraswamy indicated concern about the appointment given the pending complaints.

Two petitions in the Supreme Court challenged the appointment. Those petitions were heard and rejected by the Supreme Court’s seven most junior judges. That bench had been chosen by Silva, in a clear conflict of interest.

In his nearly ten years as chief justice, Silva used both traditional and innovative methods to control the judiciary. First, in a break from tradition, he assigned junior judges who were his close allies to decide on the panels (or benches) of judges for particular cases in the Supreme Court. By tradition, assigning benches had been the responsibility of the most junior judge, who placed judges randomly on cases.

By directing who hears what cases, the chief justice wielded possibly decisive influence on outcomes. Early in his tenure, Chief Justice Silva ensured that justices with independent views, such as Justice Mark Fernandoand Justice C.V. Wigneswaran, did not sit in significant constitutional cases.

Second, the chief justice also stacked the Judicial Service Commission (JSC), which is responsible for discipline and promotions in the lower judiciary. As discussed below, the JSC was a vehicle for Chief Justice Silva to ensure that lower court judges “toe[d] the line” he wished.

Third, the chief justice tightly controlled discretionary funding and training, with judges having to seek his approval for overseas travel, conferences and other side benefits.

Between June 2000 and late 2007, the World Bank managed an $18.2 million judicial reform program that primarily funded “huge, mainly infrastructure” projects and had little success with its larger reform objectives.

The chief justice chaired the program’s steering committee.

According to one former Supreme Court justice, “Silva used the World Bank to extract personal favours…. It was a patronage system”. Watchdog groups have complained that beyond new physical infrastructure, there is little evidence that the World Bank funds have benefited the courts.

Finally, the chief justice exercised significant influence through the attitudes he expressed while adjudicating. “When he takes cases lightly, this permeates the whole judiciary”, said one lawyer. Early in his tenure, for instance, Chief Justice Silva made disparaging comments from the bench about the importance of detention and torture cases. In the following years, there was a marked decline in the number of fundamental rights petitions filed and judgments rendered.

As a result of these levers, Chief Justice Silva gained “a complete hold on both the JSC and the Court. He uses his juniors to get his own way”, said one former Supreme Court justice.

One sign of this control was the near-complete absence of dissenting opinions in the court’s judgments under Silva. This is in clear contrast to the 1970s and 1980s, when dissent was common.

In June 2009, President Rajapaksa appointed as chief justice Asoka de Silva, the most senior justice on the court – regrettably without involvement of the constitutional council. The appointment offers a chance to reverse the former chief justice’s legacy of a hyper-politicised judiciary. De Silva is known as a cautious, capable and fair jurist, without his predecessor’s strong and highly political personality. He is expected to work more closely and cooperatively with his colleagues on the court. His experience as a judge on the International Criminal Tribunal for Rwanda gives him a welcome familiarity with international legal practices and perspectives. Whether the new chief justice seizes the opportunity will help determine whether the judiciary reclaims its constitutional role as a check on abuses by the executive and legislative branches which have deepened Sri Lanka’s ethnic conflict.