History will be made this week, when Sarath Nanda Silva, the 41st Chief Justice of Sri Lanka is set to appear before the Supreme Court, where a three- judge bench will decide if a contempt of court case filed against the former head of the judiciary will go to trial. The case will be taken up on Thursday, February 7 and the Attorney General and the former Chief Justice have been noticed to appear before the Supreme Court. Counsel for the petitioners will make submissions on the contempt of court complaint, following which, if the Justices deem there is a prima facie case, the Attorney General will be tasked with drawing up a list of offenses on the basis of which the case will proceed. University academics Chandraguptha Thenuwara, Hewawaduge Cyril and Prishantha Gunawardane filed the Fundamental Rights petition, charging that the former Chief Justice had made a speech at a political rally in Maradana, Colombo on December 3, 2018, during the 51-day political crisis, severely criticising the Supreme Court and the interim order granted by the Court in the case against the dissolution of Parliament.
The statements were made at the pro-Mahinda Rajapaksa ‘Jathika Ekamuthuwa’ rally organised to call for a general election on the evening of December 3, 2018, when the Court of Appeal delivered its interim order in the Quo Warranto application, preventing Rajapaksa and his ‘Cabinet’ from functioning, the petition states.
The petitioners state that the former Chief Justice had claimed during the rally, that in the interim order issued by the Supreme Court in the dissolution case, “the court has simply ‘hung’, ‘hung’ the Parliament, ‘hung’ the general election and ‘hung’ the office of the President.”
Silva had added that the interim order on the Quo Warranto application had ‘hung’ the Cabinet, the petition states.
“That the order of the Supreme Court has in effect destabilised the institutions of the government, undermined the due procedures and weakened the application of the Constitution.
That the franchise of the people has been looted by Your Lordships’ Court, in violation of the Constitution.
Contrary to the opinion of Your Lordships’ Court as per the order issued on November 13, 2018, the authority to dissolve Parliament is vested in none other than the President as per Article 30 and Article 33 of the Constitution. That these orders have been obtained from the Supreme Court by substituting new words through Article 70 of the Constitution. The role of all institutions including the Judiciary should not be to render the authority of the Constitution and the sovereignty of the people to be nullified. If any person is taking steps to render the franchise of the people annulled, then such persons are acting against the Constitution,” were a few claims that were included in his speech at the said rally, the petition states.
The university academics making the contempt of court complaint claim that Silva’s speech was “calculated to influence” the judicial process in an ongoing and pending matter awaiting final determination, since the dissolution case was still being deliberated when the remarks were made.
The petition added that the statements have a “serious effect and impact on the esteem of the Supreme Court” and charge that the terminology and the manner in which these words have been couched by a former Chief Justice in a manipulative manner was intended to lower the respect for the court in the minds of the public. “It is even more regrettable and unpardonable as such words have been uttered by a person who himself has dealt with so many other people allegedly for having committed contempt of court and punished them with imprisonment during his tenure as Chief Justice,” the Petition states.
The petitioners have called the speech “oppressive, arrogant and insulting” in tone and tenor, and calculated to “create in the minds of the public the sinister innuendo that Your Lordship’s Court has acted and is further attempting to deliver justice in an unfair manner.” The petitioners have also faulted Silva for acting in violation of the Constitution by acting as private legal counsel to former President Rajapaksa, subsequent to his retirement as Chief Justice. On August 17, 2018 CID investigators working on the abduction of senior journalist Keith Noyahr went to the residence of the former president Mahinda Rajapaksa’s residence at Wijerama road. Among the many who were at the premises to show solidarity, was the former CJ Silva. IP Nishantha Silva who conducted the questioning, when appraising the court on the events that unfolded on the said date, said that two people had stayed back in the room with the former President, to assist him in the questioning - Prof. G L Peiris and the former CJ Silva. When investigators had requested others to leave the room to conduct the questioning, Prof. G L Peiris had heeded to the request while the former CJ had stated that he was acting in the capacity of the legal counsel of former President and had wanted to stay back, the petition states.
Article 110(3) of the Constitution of Sri Lanka provides as follows: “No person who has held office as a permanent Judge of the Supreme Court or of the Court of Appeal may appear, plead, act or practice in any court, tribunal or institution as an Attorney-at-law at any time without the written consent of the President.” Former Chief Justice Silva has always been a controversial figure. His tenure as Chief Justice was chequered by allegations of corruption, abuse of power and ‘conduct unbecoming’, resulting in impeachment charges being brought against him twice.
Silva continued to enjoy political patronage however, and remained Chief Justice until retirement in 2009. During that time, he dismissed the ‘Helping Hambantota’ Tsunami funds misappropriation case filed against then Prime Minister Mahinda Rajapaksa, which might have blocked his presidential candidacy in 2005. Years later, Silva issued a public apology to the nation, claiming he had made an incorrect determination in the Helping Hambantota case.
These remarks have also been cited in the Contempt of Court complaint against Silva by the university dons, whose petition states that the remarks substantiate the fact that he had “manipulated his position as the Chief Justice to further his personal objectives and desecrated the coveted office of the Chief Justice in total abuse of its position and the powers in utter contempt of the esteemed institution and the sacred office.”
In 2001, while Silva was serving as Chief Justice, the International Bar Association concluded that there was “an overwhelming need for an independent credible judicial system” in Sri Lanka. It detailed instances of lack of accountability, breach of natural justice and potential for undue interference and pointed out that institutions which should be protecting the Rule of Law, including the President, government and the Chief Justice, were instead acting to undermine it.
The IBA further opined that other Court members had been removed by Chief Justice Silva without inquiry.
Since retirement, Silva has openly dabbled in politics, see-sawing between being friend and foe to former President Mahinda Rajapaksa. The former Chief Justice and the former President have a long history, with Silva’s son having served as Page Boy at Rajapaksa’s wedding.
Ironically, as Chief Justice, Silva made history by sentencing former Minister S.B. Dissanayake to two years rigorous imprisonment for being in contempt of court over remarks he made in Habaraduwa, Galle in 2003, criticising the judiciary. The case against Dissanayake continues to be cited in all contempt of court actions filed to date.