Sri Lanka’s private sector should have been more forceful in challenging a chief judge seen as brilliant but dominating whose judgments raised questions about the process of public interest litigation, a public forum was told last week.

Affected businesses could have asked for immediate reviews of what they considered bad decisions of the powerful former Chief Justice Sarath Silva who reversed three privatization deals, among other controversial and wide-ranging decisions, lawyers said.

A spate of applications for revision came only after Silva retired.

Corporate lawyer Arittha Wikramanayake told an LBO-LBR chief executive officers forum which discussed the impact of the public interest litigation that defendants were too scared to challenge the Chief Justice.

"The complaint here is not about the process," he told the forum. "The people complain they were rushed into the hearing. Unfortunately no one had the courage to get up and say, okay, enough is enough.

"We had a very, very strong Chief Justice, a brilliant Chief Justice, let me add, and everybody caved in. Nobody had the guts to stand up to him. And that is the crux of this problem."

Wikramanayake said the affected parties, if they were not happy with Silva’s judgments, should have gone up for review immediately, instead of waiting until Silva retired, as they did before trying to challenge his decisions.

He also said that if relevant documents were not considered in the Supreme Court case, a review would at least have made them public.

"Parties are scared to do it," Wikramanayake said. "They were scared of this one individual. Let’s be very frank about it. That’s what happened."

Wickremanayake said there were instances of very good cases of public interest litigation. In the case of the three recent cases, the private sector itself had complained about them.

Without specifying he said one transaction was "arguably good", the other bad and the third ugly.

Senior lawyer and president’s counsel K Kanag-Isvaran said that while the Supreme Court is the final court; it has an inherent jurisdiction to correct errors in the interest of justice.

"The future is for the court itself to examine and advice itself and ourselves as to what are the limits on the exercise of its jurisdiction in the light of concerns expressed across the board on the exercise of it."

Kanag-Isvaran, who is a member of the Law Reform Commission, said there were concerns about the suitability of the Supreme Court to hear complex privatization cases.

"This is one of the problems which I believe has to be addressed urgently. Because before you find a person liable in law - say for wrongful transactions or fraudulent transactions - it is fundamental they should have the right to be heard fully and be represented.

"Now the problem is that the Supreme Court - for resolution of such disputed questions - in my mind is not the appropriate forum."

He said that the court has discretion to review judgments if there is fresh evidence available after the delivery of the judgment which the court must examine because "had it been before, it could not have come to that view."

Lawyer and regulatory specialist Rohan Samarajiva said reforming the legal system was a long-term solution and that an immediate remedy would have been to have the cases reviewed by a five judge bench.

"I think there have been egregious violations of natural justice where significant documents have been placed before the courts and they have not been paid attention to and where decisions have been given on matters that have not been argued before that particular bench."

Samarajiva also queried whether at least in one case, the privatization of bunker supplier Lanka Marine Services (LMS), dragged on, which prevented a quick review.

"This particular judgment, the LMS judgment, it didn’t have a closing date. It went on and on for several months with all kinds of labour matters and resignation letters and various other things. In a way one could say that this was dragged on to prevent a real challenge.

Two separate cases were filed against the LMS deal - one the privatization itself and a second on a tax holiday. The second case was not fully heard. The first judgement dealt with both issues.

Kanag-Isvaran said there was need for guidance in the application of laws where legal reforms could help in order to maintain confidence in the judicial system.

A "fear psychosis" has been created because of the three judgments and public interest litigation, he said.

"That’s why I posed those questions whether time is not right for the court to take cognizance of these anxieties," he said. "They can do it on their own - and say these are the limitation we will place.

"Are there any limitation on the type of cases you will entertain under a public interest litigation, because of the inappropriateness of the matter for an inquiry by the Supreme Court, where the cross examining of a witness, the testing of evidence and things like that are not unfortunately possible, it’s not the forum? I would seek guidance from the Supreme Court."