Opinion

Sarath Silva opens Pandora’s Box

27 Aug 2014 - {{hitsCtrl.values.hits}}

He is no stranger to controversy but this week, retired Chief Justice Sarath N. Silva has opened a Pandora’s Box of legal arguments, claiming that President Mahinda Rajapaksa is not eligible to run for a third term as President of the country.

Mr. Silva argues that when the 18th Amendment to the Constitution, which did away with the limit of two terms as President for any individual was introduced, President Rajapaksa had already been subjected to the previous law and was therefore disqualified from contesting again.

It would have been easy to dismiss Mr. Silva’s claim as he is no longer the Chief Justice but he has gone so far as to state that he would mount a legal challenge in the Supreme Court to argue his case, if necessary. It is a stance that places Silva directly at loggerheads with the Government.

Silva’s tenure as Chief Justice though, was littered with such controversies and his latest assertions therefore come as no surprise. However, despite making many provocative statements since his retirement, this is the first occasion where he has indicated he would take matters to Court.

Sarath Nanda Silva schooled at Trinity College in Kandy, proceeded to the Sri Lanka Law College. He was admitted as an Advocate of the Supreme Court of Sri Lanka in June 1967 and began his career in the Attorney General’s Department in 1968 as a Crown Counsel.

Later, Mr. Silva obtained a Master of Law degree from the University of Brussels. He was promoted to Senior State Counsel in 1975 and Deputy Solicitor General in 1979. Appointed as a Judge of the Court of Appeal in 1987, he became the President of the Court of Appeal in 1994.

Mr. Silva was first appointed to the Supreme Court in 1995. He then briefly left the Judiciary when the then President Chandrika Kumaratunga appointed him as the 38th Attorney General of Sri Lanka in 1996. Many observers saw it as a precursor to his appointment as the next Chief Justice.

Mr. Silva was indeed appointed by Ms. Kumaratunga as the country’s 41st Chief Justice three years later in 1999, succeeding G.P.S. De Silva. While there was a precedent of appointing the Attorney General as Chief Justice, there were also more senior judges in the Supreme Court at the time.

Mr. Silva served for ten years as Chief Justice. Whereas previous Chief Justices shunned the limelight and were rarely in the habit of making pronouncements on issues of national interest except in the form of judgments, Mr. Silva was always in the public eye, making thought-provoking comments in the media.

His tenure as Chief Justice was steeped in controversy. As a result, he was an extremely polarising figure but Mr. Silva also did not shy away from taking tough decisions and in retrospect, his judgments have left an indelible mark on today’s political landscape, even five years after his retirement.

Mr. Silva headed a bench which ruled that the merger of the Northern and Eastern provinces under the Indo-Lanka Accord was no longer tenable. This was a landmark decision that ended decades of political wrangling and to some extent dampened the ‘homeland’ concept of the merged provinces.

It was also Silva who decided that President Chandrika Kumaratunga’s second term of office ended in 2005 and not in 2006. It is a verdict that still remains shrouded in controversy, much like Silva’s current pronouncements about President Rajapaksa’s eligibility to contest for another term of office.

It is noteworthy that because of this Mr. Silva fell out of favour with Kumaratunga. He was not in the good books of the United National Party (UNP) either, with the party attempting to impeach him when it was briefly in power from 2001 to 2004, while Kumaratunga was still holding the reins as President.

It was also Chief Justice Silva who jailed S. B. Dissanayake, then in the UNP, for contempt of Court. Similarly Silva was to preside over a judgment that pruned the retirement allowances of former President Chandrika Kumaratunga.

He presided over a Bench that put an end to allegations against the then Prime Minister Mahinda Rajapaksa which suggested that he misused Tsunami relief funds. In this ‘Helping Hambantota’ case, the complainant, UNP parliamentarian Kabir Hashim, was penalised.

Mr. Silva also famously decreed that presidential immunity did not apply after retirement from office and presided over a bench that fined Kumaratunga three million rupees after finding her guilty of abuse of power in the infamous ‘Water’s Edge’ deal.

He was instrumental in delivering judgments against parliamentarians who lost their seats when they crossed over from one political party to another. As a result many opposition MPs crossed over to the Government and the ruling party now commands a steamroller majority in Parliament because of this.

Towards the end of his tenure as Chief Justice, some judgments issued by the Supreme Court did not help the Government’s cause. For instance, Silva was scathing in his criticism of the country’s school admission policy and of Treasury Secretary P.B. Jayasundera who was ‘banned’ from public service.

Other judgments directly questioned -- and at times reversed -- government action. These included the ‘hedging’ deal entered into by the Sri Lanka Petroleum Corporation, the Lanka Marine Services case and the case where an order was made against conducting raids on lodges in Colombo.

Mr. Silva headed a bench which ruled that the merger of the Northern and Eastern Provinces under the Indo-Lanka Accord was no longer tenable. This was a landmark decision that ended decades of political wrangling and to some extent dampened the ‘homeland’ concept of the merged provinces

Because of these verdicts, there was speculation that Silva may enter politics after retirement. There was even speculation that he may contest the 2010 presidential election. Perhaps wisely, he chose not to do so. However, he has remained a strident voice in the media and has been as critical as always.

Even though one of Silva’s successors, Chief Justice Shirani Bandaranayake has since been impeached, he is still arguably the country’s most controversial Chief

Justice. His latest claims about the presidential election can only strengthen his claim to that title.

Opinion

Sarath Silva opens Pandora’s Box

Mr. Silva headed a bench which ruled that the merger of the Northern and Eastern Provinces under the Indo-Lanka Accord was no longer tenable. This was a landmark decision that ended decades of political wrangling and to some extent dampened the ‘homeland’ concept of the merged provinces

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