Untitled - International Commission of Jurists

President Kumaratunge in late 1999 chose to bypass the senior-most judge in
appointing the new Chief Justice following the retirement of Chief Justice G.P.S. de
Silva’s retirement. The Court then entered a period of unprecedented political turmoil.
Observers pointed to the unprecedented decision by President Kumaratunge to bypass
senior-most justice on the Supreme Court, Justice Mark Fernando, who had delivered
several rights-conscious judgments. Appeals by several senior lawyers to the
President requesting her to abide by the rule of seniority and appoint Justice Mark
Fernando to the post of Chief Justice went unheeded. Petitions had also been
delivered to her by concerned citizens of the country to appoint an individual of high
repute to the post of Chief Justice whose integrity is seen by the public to be above
suspicion as well.
At the time of the appointment, Attorney General Silva had two motions pending
against him, alleging misconduct and seeking to remove his name from the roll of
Attorneys-at-Law. A judicial committee of Supreme Court judges had been appointed
to probe into the allegations by then Chief Justice G.P.S. de Silva. His appointment
was made notwithstanding these ongoing inquiries, setting a controversial precedent
in this regard. Dato Param Coomaraswamy, then United Nations Special Rapporteur
on Independence of the Judiciary, advised President Kumaratunge not to proceed with
the appointment pending the conclusion of the inquiries on the misconduct of the
Attorney General. The advice was disregarded. 97
In the years thereafter, continuing allegations of the lack of impartiality of the
Supreme Court were made against the former Chief Justice, who retired in early June
2009. These allegations included the ‘fixing’ of benches to hear important cases 98 and
the bypassing of senior judges in the constitution of the relevant Benches. 99
According to former Supreme Court Justice, C.V. Wigneswaran:
“….in the Supreme Court, none of us knew how the allocation of cases was
done. If the junior most judge was in charge of allocation of cases, I must
confess that I never got a chance to be involved in the process, when I entered
the Supreme Court in 2001. More often only selected judges were in charge
and that too for a long time. And it was a fact that Justice Mark Fernando was
kept out of important cases. Since I was more often accommodated with him, I
Committee stage of discussions of the votes of his Ministry stated that ‘It is very important for the
Court to confine itself to the proper sphere and not to overreach itself and not to arrogate to itself the
functions that belong to the Executive and the Legislature.”
97 Though this was the first time that a Chief Justice was appointed in such contentious circumstances,
this was not the first time that a departure from precedent in appointing the senior-most Supreme Court
to the office of Chief Justice was evidenced; one such notable instance was when then President J.R.
Jayawardena declined to appoint the senior-most judge of the Supreme Court R.S. Wanasundera as the
Chief Justice following the retirement of the incumbent Chief Justice, S. Sharvananda in 1988. This
was commonly attributed to Justice Wanasundera’s dissent in the 13 th Amendment Case- In Re the
Thirteenth Amendment to the Constitution and the Provincial Councils Bill [1987] 2 Sri LR 312.
98 Pinto-Jayawardena, Kishali and Weliamuna, J.C. ‘Corruption in Sri Lanka’s Judiciary’ Global
Corruption Report 2007, Corruption in Judicial Systems, Transparency International Global Corruption
Reports, Cambridge University Press, at p. 275.
99 Justice Fernando retired two years prematurely in early 2004, stating on record that he was unable to
serve honourably in his judicial office. From the point of the appointment of Chief Justice Sarath Silva,
Justice Fernando (along with some other senior Supreme Court judges) was not nominated to hear key
constitutional matters, see ‘Corruption in Sri Lanka’s Judiciary’ op. cit.’
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