By Dianne silva
National Action plan not feasible, but only buying time for Geneva
FORMER CHIEF JUSTICE SARATH N SILVA SPOKE TO THE DAILY MIRROR ON THE PEOPLE’S CONFIDENCE IN THE JUDICIARY AND THE PROVINCIAL COUNCIL SYSTEM. HE ALSO TOUCHES ON THE MANNAR INCIDENT AND THE PERSONAL CRITICISMS AGAINST HIM.
Provincial Council System
Q:In light of the upcoming provincial council elections; what is your opinion on the provincial council system and the devolution of power, is it effective in a country as small as Sri Lanka? Should the PC’s be given more power?
This whole concept of power sharing and devolution has gone out of veer here in Sri Lanka. We inherited the British system of governance and what would have been best was to stay in line with that; because that system of governance evolved during about 150 years of British rule and Britain modeled us as an example colony and 
we were the best country, in the region, when we received independence. We were at the top of all social indicators, because we had a good system of governance.
We had the parliamentary system and at the same time we had very strong local government institutions, beginning with the town councils and urban councils and the municipal councils. Therefore this village council system was ingrained in our system and the British Council took over this system from the ancient kings who had “gam-sabha”. These “gam-sabhas” were converted into tribunals and village councils. That whole system was dismantled and we have interposed this middle level of governance, which is this provincial council system—which is alien to our system and totally unnecessary. If we had continued with that parliamentary system and the strong local governance system, it would have served our needs extremely well.
However this new system was put in place as a result of the 13th Amendment, which was a very Indian model, which they imposed to solve the ethnic issue. However I doubt that India expected this to ever be implemented on a national level. They just wanted devolution for the Northern Province and some parts of the Eastern province. They worked out a formula based on their country, which is a vast geographical area.
Therefore this is an unnecessary level of governance and we are having these elections repeatedly, which is meaningless to the people.
Q: You mentioned the national question and the ethnic issue, as a third-party viewing these talks between the government and the TNA, what is your view on the sincerity of both parties, when it comes to arriving at a solution?
I think the Tamil side has so many expectations, I really feel sorry for Mr. Sampanthan. Their military thrust was a total failure, so they have exhausted thirty years in a military exercise—as a result of which they all suffered. Therefore now there is a huge burden on the political representatives to deliver what the militants could not deliver. From the government side we have a very centrist outlook, we have a president who has consolidated his position and wants to continue with his whole family around him and he sees this as the model for the whole country. There is this situation where he is trying to take governance on a family extension—which is also not feasible. Therefore this situation where he wants centralization of power and on the Tamil side there is a call for a certain sense of autonomy—therefore there is a sharp conflict.
Q: In light of the views that both parties hold, do you think there is likely to be a solution to the national question while this government is in place?
I think we can only live in hope, but I don’t think that we should expect governments to change in order for solutions to emerge—it is the political system that needs to change. I think it is time for them to realize that the people are expecting a solution and therefore the Tamil side should look at what is practical and the president must also stop basking in the glory of the military victory. Because in Europe it was not the military victory of the Second World War that built the new Europe—it was the political systems and economic systems that created a lasting system. We need to recognize that there is a burning national issue in the country and there should be a greater focus on the level of power as opposed to the unit of power. Defence, foreign policy and finance are the things that should be in the control of the central government, the balance of it should be devolved—to very efficient units, provincial councils is not an efficient unit. It is too large.
Confidence in the judiciary
Q: Some allege that the present impunity in society is due to the people’s deteriorating confidence in the judiciary. What is you view on this?
There is a strong perception that the confidence in the judiciary is declining, I think there is some element of truth in this—because the independence of the judiciary has been eroded. The 17th Amendment was brought about since the President had too much of power with regards to the judiciary and the public service commission.jpg)
—therefore we were on the correct path, although there were drawbacks in the 17th amendment they could have been fixed latterly. However the 18th Amendment is a step in the opposite direction and there is a perception that the judiciary is no longer, all that independent, because appointments are made solely at the discretion of the President. Therefore when the President makes an appointment of judges to the Supreme Court, the Court of Appeals etc., and then naturally the judicial service commission is also composed of them.
Also the treatment meted out to people like Sarath Fonseka, who was a political victim and political prisoner—also eroded this impression.
It is not only the judiciary even the Attorney General’s Department has been brought under the president. These are institutions with a long history, so these are British institutions that should have been strengthened and their independence preserved—instead of which we are eroding their independence.
Q: There is a recent perception of a rift between the judiciary and the executive; do you see this as healthy and supportive of the division of power?
The judiciary should not work in alignment with the executive; one should act as a check on the other. Of course the judiciary must be mindful of the direction in which the executive is trying to take the country. The judiciary should not get involved in matters of policy, however in implementing policy the people’s right should be safeguarded—that is really the watershed. Policy should be left to the executive and in implementing that there should be due compliance with processes and people’s right should be safeguarded. However there should also be respect for the executive as well.
Conflict of interests in the judiciary
Q: Do you think that if there is a conflict of interest for a sitting Chief justice, he or she should resign from their post, if this conflict is brought to light?
Yes, that is a very important issue and a very sensitive issue at that. I think it should be left to the discretion of each judge. Really, so many issues that are seen as a conflict of interests are not seen in the public domain, therefore it is left for the judge to withdraw.
Q: Even at the level of the Chief justice?
No there are some matters, where you feel that a case can be better decided by someone else you should leave the thing alone. Now I have done this, particularly I can remember there was a tax matter involved and I knew the person involved—therefore I told someone else that he better write the judgment. I found that he was also 
going on the same basis as myself—likewise there are situations where you ask that it be listed before another bench. Not only personal relations, but in cases where you have some view on the matter—where you look at them and you think you don’t like how they are behaving, then you should ask for the matter to be looked into by another judge. We do that very often, but it should be left to the good judgment of the judge itself, and you can’t impose a standard of ethics and you are finally answerable to your own conscience.
Q: However when a matter of this nature or this conflict of interest becomes public knowledge, should there not be some higher authority to ensure that this conflict of interests does not get in the way of justice?
You are provoking me to answer. I think it is judicial discretion to ensure that such a conflict of interest does not arise, particularly because it becomes very embarrassing. That is a very dangerous situation, which is where you should exercise real judicial discretion—I think that you should not allow such situations to arise. The executive should also be mindful; and ensure they don’t trap judges into such situations.
Q: You talk of this personal judicial ethic, but what happens when this ethic is lacking?
The only solution is impeachment by parliament, that system is not effective at all. The impeachment process by parliament is a political process. I agree with you, it is not correct that there be only this personal ethic—our constitution is totally wrong there by leaving this check entirely in the hands of a political process, there should be a higher authority at least for the initial inquiry and the final decision should be made in the parliament. If we developed on this constitutional council mechanism we could have come up with a solution.
Q: You spoke earlier about impeachment and personal judicial ethics, you yourself have come under scrutiny during your time as Chief justice and was also subjected to an impeachment motion. How do you view the treatment meted out to you, in light of the present treatment of judges?
The process of impeachment was politicized. At the time the UNP perceived that I was the person sustaining the Chandrika Bandaranaike government, which is furthest from the truth and she had her own attributes and she was going on her path. To her credit she has never spoken to me about a case and she knows me well enough not to do that. The UNP aimed at me three times. They have charges and they give wide publicity to the charges and then I have to ask the secretary General of Parliament “where is this impeachment motion?” and then he says “no committee has been appointment and therefore you can’t answer”. It was an entirely political process. It was more of a mud-slinging campaign to break down my morale.
Q: The National Action plan that was recently released details in one section that all the cases relating to the end of the war, be heard and action filed and perpetrators punished within a period of 24 months. Do you think that is a feasible plan?
I don’t think it is at all feasible. The LLRC is not something that the government wanted, to satisfy the international community it was set up. The LLRC has recommended that the North be militarized, that decision can be very easily taken. We don’t require a timeline for that, it can very easily be done. You don’t need an action plan for that.
Instead of taking the actions necessary, a timeline is set up. This is just buying time for Geneva. I don’t think that we should run this country just to please the people in Geneva, this is also where the TNA is finding troublesome, they cant show anything concrete to their people.
Q: This questioning of the alleged decrease in the confidence of the judiciary became widely discussed after the recent incident in Mannar. The Bar Association went on strike on this issue as well, what type of a precedent do you think this sets for the future?
I know the sensitive areas and Mannar is a particularly sensitive area, when it comes to ethnic issues: you get one third Muslims, one third Hindus and one third .jpg)
Catholics and very few resources, the only resource is fishing and smuggling. It is sad that the political establishment allowed this to be taken to courts, because that is a matter of policy. Whether this group of fisherman should go back to Mullaitivu and who should occupy this land is a matter of policy. The executive passed the buck to the judiciary; the police should never have reported this matter to the courts. This should have been sorted out by the executive an.jpg)
d then if there was some problem in implementing it, then the judiciary could have gott involved. For example “person X is being sent out when it should be person Y”, that is something that the judiciary can decide on. But the executive chose to pass this on to the judiciary.
I think this Minster is also a fairly aggressive person, but that is the way politicians are—you have to be fairly aggressive or you can’t win in those areas. Really the President should have intervened and brought these parties and sorted out the matter and who was going to be re-settled where.
Q: What kind of precedent do you think sets for the future?
This is very bad, I saw following that incident that in Thambuthegama people have stoned the police station. This was due to the suspect in a fatal accident case had been granted bail. Therefore I feel that the police should be more sensitive in issues of this nature—without tear-gassing and shooting people the police should have ensured that such a situation should not arise. When a person knocks down another person and the driver is happily walking around, naturally people get enraged. Therefore the police need to be more sensitive to these issues. But I saw that the IP was trying to explain that it is the courts that released this man; now this is a passing of the buck. I think that is where everything goes wrong.
pic by Waruna Wanniarachchi
