When former President Chandrika Kumaratunga appointed De Silva over more senior judges to sit as Chief Justice of the Supreme Court in 1999, the public criticized De Silva as a tool of the Kumaratunga administration.
However, in 2005, De Silva ruled that Kumaratunga would have to step down from office one year earlier than expected, paving the way for then-Prime Minister Rajapaksa to run for President.” the US Embassy Colombo informed Washington.
A Leaked “CONFIDENTIAL” US diplomatic cable, dated June 27, 2007, updated the Secretary of State on Sri Lanka’s Judiciary under the Chief Justice Sarath N. Silva details Silva’s judicial behaviour. The cable was written by the charge d’affairs James R. Moore.
James wrote “After Rajapaksa won the Presidential election, De Silva continued to support him in significant court cases.
In March 2006 the Court ruled the investigation violated Rajapaksa’s fundamental rights and ordered a United National Party (UNP) parliamentarian and two others to pay the President compensation for opening the investigation.
In October 2006, De Silva ruled to de-merge the Tamil dominated North and East provinces, a politically sensitive and important decision for the President and the JVP.
Referring to Silva’s shift from regularly supporting the President in its rulings he wrote “In the following cases this month, however, De Silva reversed this trend and ruled against the President in a string of popular decisions many hailed as brave and just in its protection of fundamental rights.
The Supreme Court issued an interim order to prevent the Inspector General of Police from taking steps to evict Tamils from Colombo or prevent them from entering Colombo despite orders widely believed to have come from the Ministry of Defense.
De Silva issued a stay against Government plans to sell nearly 25 percent of its shares in Sri Lanka Telecom to a Malaysian company. The Court also subpoenaed all Government documents related to the sale.He also granted Tiran Alles’s petition to file a Violation of Fundamental Rights case against the Government for his arrest on May 30. Alles was arrested on charges of supporting terrorism after the President fired Alles’s allies, Mangala Samaraweera and Sripathi Sooriyarachchi, from their ministerial posts.
Under the subheading “SILVA’S MOTIVES POLITICAL, NOT JUDICIAL” charge d’affairs James wrote “Legal insiders say that while they are pleased with the recent rulings, they are not necessarily the result of an improved judiciary, but rather, are born in part out of De Silva’s political ambitions and alliances.
Embassy contacts say De Silva has close ties to members of the JVP and JHU.
Former Attorney General and De Silva colleague, Shibly Aziz, told us De Silva was ‘riding the wave’ of JVP and Jathika Hela Urumaya (JHU) support. He cited the rapid fire manner in which the Court issued decisions in June designed to target the President and his Administration and win popularity with the public.
“Aziz told us that never in the judiciary’s history has there been a chief justice with such absolute control over the rest of the country’s judges.
Aziz said De Silva picks the most compliant judges regardless of their seniority. Pieris told us that even when De Silva is not personally on the bench, the Supreme Court justices make decisions approved by De Silva. Pieris said the only Supreme Court justice who dares challenge De Silva, Dr. Shirani Bandaranayake who is second in seniority, has now been marginalized. Aziz and Pieris point to the small number of dissenting opinions written during De Silva’s tenure as further evidence of his dominance.” he further wrote.
James Moor wrote “Thus far, President Rajapaksa has remained publicly silent on De Silva and his recent rulings, but there is little doubt he is unhappy with the Chief Justice. Supreme Court Justice Jagath Balapatabandhi (strictly protect) told our political FSN that,President Rajapaksa privately asked De Silva to retire.
If De Silva does not voluntarily retire, the President would have to convince Parliament to impeach De Silva to put his man in the Chief Justice’s seat, which is unlikely given De Silva’s current level of public support. De Silva retires in 2009.