Washing dirty linen …


By Somapala Gunadheera

What transpired about the Judicial Service Commission and its Secretary at the recent media conference with the President is disturbing. It is significant that all protagonists connected with the topic are lawyers. Hence the legal fraternity has a duty to analyse what had been said from the point of view of judicial independence and safeguard the interests of their profession. This is an attempt to get to the bottom of the matter objectively.

It all began with a news release by the Secretary, JSC, about an invitation to meet the President and the Commission’s decision to decline it. It is an unusual release alright, but fairness demands inquiry as to why the JSC was driven to such an exception. It is possible that the rumours going round the gossip circle about attempts to use undue influence on the Commission had a bearing on the release. It may be that the JSC wanted not only to do justice but also to show that justice was being done.

Purpose of the invitation

The President has said that the invitation was to hold an informal discussion. It may well be so at a time at which the President was calling various sectors for pre-budget discussions. If so, it could have avoided any misunderstanding by specifying the purpose of the meeting, following normal office routine. Did the Dale Carnegie in the President over-extend himself in this instance? With decades of practice as a lawyer behind him, the President ought to have known better than to call up the apex body of the Judiciary across the gap that separates the powers.

The President has explained that he had no intention to influence the JSC. In fairness to the President, it has to be borne in mind that despite all the Draconian powers that he has amassed around himself, he has made no attempt so far to disrupt the line of precedence in making appointments to the Judiciary, as has happened several times under the previous regimes, overlooking obvious choice. He has not contrived to sack judges or import outsiders to the top of the Judiciary following past practice. To my knowledge, the only such appointment that he made pertained to an outstanding personality whose claims had been ignored by successive dispensations.

The President has denied that he was even aware of the case of a judicial officer that had been recently disciplined by the JSC, and highlighted by the gossip circle as the motive behind summoning the PSC. His claim not to have interfered with this matter rings true but this is a situation which only the Commission could be privy to and even if the claim was untrue, a responsible JSC would not violate the hallowed traditions of the Judicial Service by resorting to a public denial of it.

The President reveals that it was normal practice for Judges to meet him and that even the present CJ has done so. She has also spoken to him on the telephone. These practices are unavoidable in today’s demand for speedy communication. The question is why only on this occasion, when she was called up on the phone, the CJ acted differently and declined to oblige unless the invitation was sent in writing.. That buttresses her judicial independence and the President, if he was as wise as he was nice, would have smelt a rat in the condition imposed and ‘proceeded no further in this business’. All the trouble that followed was a result of this act of indiscretion.

Allegation against the Secretary, JSC

The Secretary of the JSC has been placed in an embarrassing position by the personal reference made to him at the conference. I was touched to see him trying to vindicate his honour in an interview with a Sinhala paper. He has been placed in that predicament because the person who made the relevant remarks was immune to litigation under our Constitution. If they were made by any other, the officer could have exercised his right to seek a legal remedy.

This dichotomy makes it incumbent on the privileged party to bend over backwards to hold back personal references that may lead to defamation under normal circumstances. But that calls for an extremely exceptional level of flexibility for a person directly fielding a barrage of questions raised by the cream of the Media present at an open meeting. Though the President’s breakfast meetings may have a lot of populist appeal, it appears to be prudent to deal with current hot issues through an ‘Address to the Nation’ as done elsewhere. Of course the Media may miss their hoppers under such an arrangement but the President would avoid a lot of ‘lunumiris’.

The personal reference to the Secretary to the JSC mentions a letter sent to the President by the father of a sitting judge, alleging harassment of his daughter by the officer concerned. Surely a lawyer, who has attained the level of competence and independence to handle the multifarious challenges that arise in a Court House, does not need paternal support to defend herself against the alleged misdemeanour. She should know basic rules of procedure that provide recourse to the CJ under such circumstances. There is no doubt that her complaint would have been properly dealt with as in the case of the judicial officer whose suspension is alleged to have kicked up the ongoing rumpus. Doting papas do a lot of damage to the dignity of their children by trying to interfere with their official affairs. The popular habit of making the President a panacea for all ills and rushing to him at the drop of a hat appears to be making serious inroads into his precious time.

A Tit for tat?   

Strangely, the dispute about the Presidential invitation has been followed at its heels by a suddenly renewed interest in prosecuting the case against the former Chairman of the National Savings Bank. It was bad enough to have appointed him to that post, disregarding the internationally accepted code of ethics covering the appointment of Judges’ spouses to public offfice. Fortunately the above conduct of the JSC indicates that the move has failed to achieve the effect that such an appointment might produce in the normal course of things. Be that as it may, now that the appointee has resigned from the post, why open a can of worms by a sudden interest in bringing the case to the limelight? Public opinion has already seen a link between the two episodes.

The news item that announced that the investigation had been fast tracked, attempted to give credibility to the move by stating that it was being directed by a Commission headed by a former Judge of the Supreme Court. To my mind, it is incredible that with his background and with so much to risk in his family life, the Chairman took the contested action on his own. Was he acting in good faith or under dictation? It is for the Bribery Commission to find out who the dictator was, if there was any. In any case, a farsighted administration would have laid this case by until the ongoing crisis had abated.

Where is the BASL?

The BASL of which I am a life-member, has reacted to the above dispute with habitual fanfare including the usual demonstration in the Premadasa Square. They have appointed a high level committee to go into the matter and sought an interview with the CJ but nothing appears to have happened on the ground, to show their contribution. So far no tangible action appears to have been taken against the media that is reported to have committed contempt of court with a reference to the CJ. BASL’s reaction to the Bathuideen Affair was no better. After the initial gung-ho response to the incident, they lapsed into a coma, making it necessary for some concerned individual lawyers to take up the matter in the Court of Appeal. BASL’s bark appears to be worse than its bite.

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