Playing musical chairs with the Judiciary

5 February 2015 07:13 pm Views - 2860

The Judiciary should not be reduced to a vaporized form of laughing gas. All three learned Chief Justices, sadly, might earn a place in history more for this bizarre event than for the many smart judgments pronounced in court.

Ordinarily Mother Lanka would have been mocked for tainting the judiciary if this happened before 8/01 in the international media. At the time of writing it remains an unreported non - event for media people covering events around the world. Such is the news of the free media. Don’t blame the local media - they had slotted the trio as the good, bad and the ugly and were consistent however hysterical they sounded. It was better than keeping mum as did those great pretenders of fair justice of international fame.

Normally the winner at musical chairs is the last occupier; but no longer is it a post that will guarantee a pension because a holder fallen from grace is treated with ridicule in the legislature and dispatched to the dustbin.  Once a decorated position of eminence treated with honour and respect; so it was in the past tense: not so in the present tense. Part of the problem lay with the holders of such office - the other part lies with those who appoint them to such office. Hopefully- future tense does not make it worse in trying to right wrongs. Two wrongs never make a right. Fortunately no foul deeds are attributed to the new appointee. History has proved life in the scorching seat is getting warmer.

Chief Justices and Justices of the past were men who left office, led exemplary lives in retirement, living on their hard earned pensions and private means away from the glare of publicity in times there were no opulent arbitrations around to make a quick easy buck. Arbitrations have been devalued due to the conduct of a few retired judges. 

 When great judges left office and made a rare appearance in public, well - wishers gathered around and pampered them as when we meet a greatly respected teacher of our schooldays.  On the Bench they were upright men who did not act as being above the law and decided cases on its merits. That is the measuring yardstick of genuine and sincere grandeur. Some errant judges-like delinquent retired policemen - fear to make public appearances dreading of being slighted and a few indeed are spurned on appearance. Accept it-they did not play fair-if treated thus in later life.

We had men like M.C.Sansoni, H.N.G.Fernando, Victor Tennekoone, Neville Samarakoone; some were public servants who rose from the ranks, others came from the cream of the private bar. They were fearless and feared: did not lose the human touch of imbibing extra drink at a party among friends or laying flutter on a horse at Ascot or playing pool at the Orient Club with the regular mates or talking out of turn but expressing views that were candid and blunt.Such men with blood bones and marrow with tolerable human infirmities are preferable to those that pass off preaching from pedestals sounding saintly but trying to make a name by punishing politicians when out of office and wooing them to the hilt when in office.

We had former Chief Justices who became governors and presidential advisors- all political offices for fee and reward. We had former Chief Justices who became spokespersons for politicians. We had Chief Justices who changed their political coloration when in office and out of office, varied in hours of floodlight and in times of daylight.Don’t blame politicians alone if justices opt to play part time politics. 

Politics is a legitimate entitlement when out of office but good men like former Chief Justices H.H Basnayake or G.P.S. de Silva would not engage in such unholy practices but would be seen in a temple in quiet contemplation or in conversations of wisdom without fanfare or publicity as they did when in and out of office.

 An honourable mention need be made of controversial Chief Justice Sarath. N. Silva –while in the Attorney General’s Department he was the only known counsel who opted not to accept a legitimate fee for work done for state corporates except his basic salary for work performed and his financial propriety was exemplary on the Bench. 

However reasonable it might be for a judge to be like any other citizen on retirement: a retired judge has a higher calling, as it could otherwise make their decisions whilst in office look or sound suspect or weighted. Judges have to pay a price which lawyers and laymen do not sufficiently appreciate.
Chief Justices like ministers have to take their due share of blame for accepting high office and not living up to standards expected of them. Politicians make offers of judicial office for their advantage; a prudent learned man must know not to accept it, if unsuited or if offered for extraneous considerations. Don’t cry foul when the dice is loaded against you after accepting such office and moving to an unaccustomed strange world that gives many a comfort of a temporary duration. It does hurt when it is suddenly terminated and a need arises to shift back to seek solace in the old rocking chair back home, which is no longer a comfort corner.
Shirani Bandaranayake had her moment of glory.  Valediction ceremony was a send off that none should grudge - for she was unceremoniously dumped – it was probably more a spin off for her support teams to raise a last hurrah.Though some of her supporters called for her restoration as the permanent Chief Justice, which was her lawful place if her dismissal was indeed void, as was presented, she harmed her image by resigning swiftly to make it a day/night event in allowing her to present herself as Chief Justice for twenty-four hours and then have her dispatched home in style in an official vehicle.

That gives rise to the theory of an arranged match with the government that does not amount to exoneration but more a symbolic short – term gesture of goodwill; but for whose benefit? For her or for the Bar Association! To add insult to injury a fresh appointment was made to the post of Chief Justice instantly to make it look more a friendly fixture; to hell with it should have been her proper response if such was a voodoo exercise. To her credit, out of office carrying many grievances, she still did not play politics, as did another former holder of such office.

My sympathies are more with other judges who are invited to adorn the ceremonial court at the whim and fancy of the changing political scenario. Naturally men/women who judge have their own convictions of right and wrong in watching the parade of the coming and going of Chief Justices. Do they have an opportunity or the will to exhibit their pleasure or displeasure to the political authority for the embarrassment caused to them? Every Chief Justice is another brother or sister judge with whom they had much friendly contact in sitting together on the Bench and is deemed fit or unfit overnight by the legislators according to their fancy.

As for my colleagues, the lawyers encounter no such issue being independent entities. But that independence disappears when shown a wig, gown, sash and a judicial title – they will bend bow and go on parade shoving others to overtake. There are still a few brave independent men and women lawyers sufficiently bold to stand aloof from the ongoing cavalcade.

If Shirani Bandaranayake’s removal procedure was bad, Mohan Pieris’s dismissal methodology is doubly worse. Watch out, some day he may be accorded an official farewell before another ceremonial court and tributes will be paid by a different set of lawyers and presided over by another president of a Bar Association with or without political aspirations. Possibly the motley crowd that attends the function will be the same black coats and white saris-they know where the bread is buttered- notwithstanding a change of administration, the show must go on.

[There was] opposition to the appointment of Mohan Pieris by the President and the Defence Secretary on the ground of his proximity to political authority and support for the removal of Shirani Bandaranayake in public for her conduct as the head of the Judicial Service Commission hurting the reputation of the country and holding a sacred office. It was also a time allegations of a grave nature(yet to be proved) were being made against her husband holding office that should never have been accepted from a political authority [whilst being the Chief Justice.  Some of the allegations in the charge sheet framed against her in Parliament were concocted at the Central Bank and did not sound true especially her transactions at the NDB where CEO Russell de Mel testified correctly.

Let me tell you, both Shirani and Mohan have qualities to be admired and respected:they knew well of my opposition to them both: they always gave me a fair hearing in the most courteous and respectful manner and pronounced the correct decision for or against me.What more does a lawyer need from a judge? But the need of a nation is much more. They carry worth as persons of value in a new world where arbitrations are money minting mine fields for a few retired judges that carry a queer practice of requiring fees be paid notwithstanding the case being postponed months previously merely because an entry was made in their otherwise vacant diaries! A Supreme Court judge named Dheeraratne never demeaned himself by accepting such office for a pot of gold.

Mohan Pieris was compelled to make as a telling point to the then President Rajapaksa –“if you ever appoint anybody on a political basis, the day you lose office such will try to please your successor-opponent beyond the call of duty.’ I rather not mention his response. This is a lesson an appointing authority often forgets and suffers. That phrase is not an original of mine but a repetition of a comment made by K.Shanmugalingam (“K.Shan”), a lawyer of great integrity to Mrs Sirima Bandaranaike when Felix Dias Bandaranaike appointed Sharvananda a senior lawyer, as a justice of the Supreme Court. He removed her civic rights when the administration changed and he was later made the Chief Justice. K.Shan was in the team that defended her with H.L.de Silva, E.D. Wickremanayake and me.  

We are fortunate most judges are fair; most judges are honest; treat them for what they are-they will always will try to do their best if lawyers help them to act properly. It is the lawyers who spoil judges mostly with their wooing and flattery to wean them away from the course of justice. A fickle few fall to such traps set with butter and cream. It is a worse display to witness in court than watching a game of musical chairs from afar.