The appointment of Justice Priyantha Jayawardena as a Justice of the Supreme Court has caused controversy with opposition parties and many others protesting and accusing the government of making a ‘political’ appointment.
Their claim is that senior judges of the Court of Appeal were overlooked and the appointment was bestowed on an individual from the Private Bar. Among those who are complaining are the Bar Association of Sri Lanka and former Chief Justice Sarath N. Silva.
Critics of the government will point an accusing finger at President Mahinda Rajapaksa. It is also clear that it is not Justice Jayawardena’s credentials that are being questioned; it is his loyalties that have come under scrutiny.
As a private lawyer, Jayawardena has worked with many legal luminaries such as S.L. Gunasekera, Ranjith Abeysuriya, Eardley Perera, and D.S. Wijesinghe. He was appointed a President’s Counsel in 2012. He is an expert in Labor Law, Commercial Law and Constitutional Law.
Justice Jayawardena also has an impressive academic record and has been consulted by many authorities on matters related his expertise. As such, there can be little doubt that he is qualified to hold this high office. Indeed, there have been no queries regarding his suitability for the role.
Questions have been asked because of Justice Jayawardena has had links with the Ministry of Economic Development headed by Minister Basil Rajapaksa and also with a leading business magnate. However, to cast aspersions on Justice Jayawardena’s integrity simply because of these links would not be fair.
In any event, politicians making appointments to the judiciary is not a practice begun by this government or the incumbent President. It is a practice that dates back more than forty years in this country when Felix Dias Bandaranaike was the Minister of Justice during Sirima Bandaranaike’s rule in the early ‘70s.
The most famous example of a lawyer from the Private Bar making it to the highest court in the land was when former President J.R. Jayewardene handpicked his one-time election agent, Neville Samarakoon and appointed him not just to the Supreme Court but also as the Chief Justice!
There were howls of protest even then, with the Sri Lanka Freedom Party (SLFP) leading the campaign. Eventually Samarakoon acquitted himself as a man of integrity and Jayewardene attempted to impeach him and remove him from office. However, saner counsel prevailed and that did not happen.
There were many other appointments to the judiciary from the Private Bar. Justices Mark Fernando, C.G. Weeramantry, S. Sharvananda, A.R.B. Amarasinghe and Ranjith Dheeraratne were all elevated to the bench from the Private Bar. No one would question the integrity of these gentlemen.
Indeed the appointments of two recent Chief Justices gave cause for concern. Sarath N. Silva was the Attorney-General when he was appointed as Chief Justice - over and above the sitting judges of the Supreme Court - by then President Chandrika Kumaratunga. There were protests against that too.
It was Chief Justice Silva who was to determine that President Kumaratunga should call for a presidential election earlier than she had planned it, thereby effectively reducing her term of office by one year. This paved the way for the election of Mahinda Rajapaksa as President.
Chief Justice Silva was then accused of acting partially as he was Rajapaksa’s close personal friend. However, during the latter period of his tenure as Chief Justice, Silva was bold enough to proclaim several judgments that embarrassed the government which was then headed by President Rajapaksa.
Chief Justice Shirani Bandaranayake’s initial appointment to the Supreme Court too was also criticized heavily and even challenged in court. Bandaranayake was a university academic who had served in the Colombo University’s Department of Law when Minister G.L. Peiris was its head.
Bandaranayake, despite her distinguished academic career at the university, had no judicial experience whatsoever and was being placed in the highest court of the country. Given this background, questions were being asked about her competence to deal with intricate legal matters.
Again, her appointment was described as ‘political’ as Peiris was Minister of Justice at the time. The rest, as they say, is history: Bandaranayake, initially perceived to be loyal to the government, became its biggest headache and was unceremoniously impeached through a questionable procedure.
These events suggest that men and women elevated to the Supreme Court in Sri Lanka have had the knack of demonstrating their integrity, regardless of how they got there. It is evidence that they have often acted against those who appointed them and acted according to their conscience.
In an ideal world, an independent body should make all judicial appointments. In a world that is far from perfect though, the opposition and other stakeholders in the legal system should hold their fire and allow Justice Jayawardena to perform his duties, instead of rushing to judge the newly appointed Justice.