Sri Lanka Public Interest Litigation: “Fraud unravels all”

Sept 18, 2009 (LBO) – “Fraud unravels all”. This was a central claim made by Mr K. Kanag-Isvaran, P.C., at the LBO/LBR CEO Forum’s panel discussion on the economic implications of judgments of the Sarath N. Silva Supreme Court.

If a fraud is established in the privatization of a state asset, the appropriate remedy would be to restore the status quo ante.
There appeared to be some level of agreement among the panellists that the summary procedures of a Fundamental Rights case before the Supreme Court were not the most appropriate for establishing fraud. The procedures did not allow for determination of factual matters that were necessary.

It was suggested that based on several decades of experience with fundamental rights, the Court itself, through its powers to define its own rules and procedures, could bound the currently overbroad scope of this jurisdiction, in matters such as locus standi, time bar to instituting cases, determinations of matters of fact by lower courts or by special commissions, the internal procedures for assigning judges to cases, etc.

Alternatively, it was suggested that the Law Reform Commission could take the initiative, supported by concerned parties such as the business chambers. Improving the procedures used to adjudicate cases involving complex socio-economic matters in the future, would not give relief to the parties aggrieved by the specific decisions of the Silva Court. This would require some immediate and retrospective remedial actions.

If fraud unravels all, should not the injustice of a decision also unravel all?

There was no consensus on this question, but it does seem that respect for precedent should not extend to patently unjust decisions. Who could determine that a decision of the Silva Court was egregiously unjust and violative of the principles of natural justice and that its outcomes should be unravelled?
It appears that the best way to restore faith in the Supreme Court would be for a three-judge bench of the present Court to determine whether a prima facie case existed, and then for a five-judge bench to hear arguments and make the final decision. Respect for stare decisis should not extend to patently unjust decisions, especially decisions that barely cited precedent.

How could the recurrence of the apparent miscarriages of justice be prevented in the future? The return to responsible monetary policy by the Central Bank in recent times was mentioned in a different context. That correction occurred because there was free and frank debate in the media about excessive money printing that led to high inflation.

In the case of the judicial activism or the judicial deviations of the Silva Court, there was deafening silence from the legal profession and very little substantive criticism from the media, with very few exceptions. The Legislature, which had the power under the Constitution to serve as a check on the Judiciary, if necessary by impeaching an offending judge, did nothing. It is important that the reticence about discussing court actions that appears to be unique to Sri Lanka be removed. Like in India, there must be robust public discussion about the actions of the judiciary.

These three-fold actions combined with the restoration of the institutional safeguards provided by the 17th Amendment to the Constitution are the best ways to repair the damage caused in the past few years.

Rohan Samarajiva heads LirneAsia, a think tank. He is a lawyer who was also a former telecoms regulator. To read previous columns go to the main navigation panel and click on ‘Choices’ category.