7 May, 2021

Blog

It Is Time For The Judiciary To Defend Itself

By Basil Fernando

Basil Fernando

The recommendations by a Commission appointed by the President, recommending that a large number of criminal cases that have been filed in the Courts of Sri Lanka be withdrawn, is the deadliest blow that has been dealt to the administration of justice in Sri Lanka. If this recommendation is put into effect, the consequence would be that of replacing the Judiciary of Sri Lanka with anyone that the President may choose to appoint in order to annul any of the proceedings that are instituted in a court of law. Thus, it would be impossible for the system of the administration of justice to recover from this blow if these recommendations are allowed to be put into effect.

The recommendations that over 70 cases pending in various Courts in Sri Lanka should be withdrawn on the basis of the recommendations of the said Commission amounts to nothing less than situating such a Commission above the Courts of law in Sri Lanka.

The fact that a Commissioner appointed to this Commission was a Supreme Court Judge does not add anything to alter the fact that these Commissioners were nothing more than civilians. A judge is a judge only to the extent that he or she exercises a judicial power. Only judicial officers can exercise judicial power. Civilians, whatever their former status, would have no power to stand above the courts and to interfere in the affairs of courts.

A question that is worth considering is as to whether a Commission of Inquiry can commit the offence of contempt of court. If the Commissioners act in a manner that interferes with the proper functioning of the courts according to the manner prescribed by the law, they are doing far more harm than anyone punished for contempt of court so far. These Commissioners have been virtually making the accusation that in the cases identified by them, the relevant Courts have politically victimized those named as accused parties.

The Commissioners have gone even further in recommending that these cases must be withdrawn. Is that not an attempt to order the relevant Courts to act on the authority of the Commission?

The action of this Commission is nothing less than a direct interference in the administration of justice. That is also a criminal offence. There is good grounds to bring all the three Commissioners before the Supreme Court for having committed serious acts of contempt of court and of the obstruction of the administration of justice.

It would also be absurd to argue that the Commissioners enjoy immunity, even if what they do amounts to criminal offences. It would also not be a defense to state that they have done what they did on orders received from above.

The recommendations of this Commission are completely null and void as no one including the President can grant a power to some civilians to interfere into the manner in which a court conducts its affairs. Anyone who obeys this Commission and plays any part in trying to put into effect the recommendations made by this Commission on the issue of ordering the withdrawal of cases which are pending before Courts is also committing a serious act of contempt of court. It is only the courts that have that power and the courts can do it only within the framework of due process, where the rights of all affected parties should be heard. Besides, if courts make any decision, it should be appealable. To take the power of the administration of justice in the cases filed before court from the Judiciary of a country and handing it over to anyone else is the highest act of the destruction of the very fabric of the legal framework of a country.

This decision by a Commission to interfere in the administration of justice does not come as a surprise at all. It is merely a very clear manifestation of what has been going on for several decades to undermine the Judiciary. This gradual process has now come to its final stage when the President acting through a Presidential Commission directly interferes with the administration of justice.

With this last assault, the system cannot survive at all except as a farce.

Several Members of Parliament including C.V. Wigneswaran, have strongly condemned these recommendations and called them unprecedented. As he has stated, “If the appointment of the said Commission was a folly, the Commission itself called by Parliamentarian and Field Marshal Sarath Fonseka as the Pissu Poosa (Crazy Cat) Commission, has proceeded with visible glee into territories that angels fear to tread. It is clear that there are several cases that are presently pending in relation to the matters inquired into by the Commission. The Commission is not a body recognized by Article 105 of the Constitution as an institution for the administration of justice. It simply has no business regarding anything to do with matters pending before the Judiciary. All the actions by the Commission in respect of pending cases would constitute a clear interference with the Judiciary and as such would be in violation of Article 111C of the Constitution which states that any interference with the Judiciary would be an offence recognized in the Constitution itself.” (Citation from Colombo Telegraph)

If serious offences have been committed, then the Commission should be held accountable for the wrongs they have done

Who Will Bell the CAT?

That several grave offences including an offence Against the Constitution itself has been committed is clear; that the system of administration of justice has been torpedoed is also clear. The vital question is as to who will act to set things right; who will transform mere verbal protests to action?

Here the ball is back to the courts itself, particularly the superior court judges and Chief justice himself. When the judicial system is faced with the worst attack it has ever suffered, it is those who are guardian of the satemt must act first.  They must act decisively. To act or to perish is the only option left.

Here something must be said about C.V. Wigneswaran’s comment on Neville Samarakoon’s example of defending the judiciary. Truly he acted with courage and responsibility, when he saw that his former friend, then president took him for a ride.

However, history would have been different if he initially realized that the constitution under which he was to exercise his office, was fundamentally flawed. If he opposed that constitution, he would have set in motion a process that would  have defeated J.R. Jayewardene’s ambition to use the construction itself to destroy democracy , rule of law and the independence of judiciary.

Subsequently even otherwise great judges like Mark Fernando and C. V. Wigneswaren also made the mistake of been compromised by acting within the unprincipled limits imposed by this constitution. At one stage, when houses of a few Supreme Court judges were stoned, Judges Association wanted to go on strike as a protest. That was prevented. Had such action taken, even if some judges may have had to make some sacrifices, this constitution would not have lasted this long.

In Sri Lanka guardians themselves failed to defend themselves.

Now, they have their final chance. Will they act in a way, to provide an inspiration for people come forward, to defend the judiciary?

This is one more occasion when the decisions of a few may decide the fate of a nation.

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Latest comments

  • 6
    1

    Ranjan Ramanayake was charged with contempt of court and sentenced to 4 years RI for stating an obvious truth. For sheer egregiousness (in the context of contempt of court), what he did was nothing compared to what the three commissioners of this unconstitutionally appointed commission of inquiry are doing, making absurd and irresponsible recommendations. Each of them should be sentenced to at least 10 years RI and in addition, they must be deprived of their civic rights for life.

  • 6
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    The fall of judiciary is the fall of civilisation. If one person can control entire judicial system it is the fault of judiciary. Judiciary should be at the top of the pyramid of civilisation. Unfortunately, it was killed by judges themselves. They sold their consciences for money and violence. Can they open their eyes and see what the damage they have done to humanity and civilisation? If one judge come forward to challenge or save judiciary, people will come to the streets to protect independence of judiciary.

    • 2
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      I keep thinking of events nearly 90 years ago in Germany. The erosion of the judiciary signalled by the ominous entrance of Storm Troopers to the Kammergericht (the highest court in Prussia) on March 31, 1933, & the passive response of the highest judges.

      And what Hitler declared about — how he justified — the Night of the Long Knives 15 months later:
      “Only a ferocious & bloody repression could nip the revolt (what revolt!) in the bud….
      If someone asks me why we did not use the regular courts I would reply:
      At the moment I was responsible for the German nation;
      consequently, it was
      I ALONE WHO,
      during those 24 hours,
      WAS THE SUPREME COURT OF JUSTICE OF THE GERMAN PEOPLE.” (p. 331 in *)

      Two books I am rereading after years are particularly disturbing at this time when the judiciary is being undermined, * “In the Garden of the Beasts” by Erik Larson, & “Defying Hitler” by Sebastian Haffner.

  • 3
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    What is the “BASL’s stand and how are they going to act is very relevant to this issue. Why that aspect is not discussed here? The “BASL” is very powerful and I believe it is tasked with the responsibility as a “Watchdog” in maintaining an “Independent Judiciary”. Hopefully, some attention and action would be forthcoming in the days and months to follow.

  • 3
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    The British ruled Ceylon under Roman-Dutch law not Anglo-Saxon law. Because it was cheaper. One person, the Judge or Magistrate determines the fate of the Individual. In Anglo-Saxon law this done by a jury of peers:, 12 Fellow citizens and the Judge hands down the sentence.( viz time period for crime committed ) He/ She has no role in determining if the person is guilty or not. The Dutch part in the Roman- Dutch law pertains to marriage, land and Inheritance. Anglo -Saxon law is also based on the premise “your innocent until guilty”. You have to prove to 12 people that Ranjan Ramanayke or Bathuddden is guilty of the chargers brought by the “State “. In the Anglo-Saxon system used in USA, UK, Canada, AUS, NZL and Ireland – the lawyers for thousands of rapists and killers have convinced 12 people their clients didn’t commit the crime ( O.J Simpson / Nicole Simpson murder in 1993 being the most famous one )

  • 3
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    FOLKS, අවදි වන්න … … අද නොවේ නම් එය කවදාද …
    ගෝතබයා මොන්ටිසෝරි වෙත යා යුතුය … කරුණාකර ඔහුට උදව් කරන්න … කාලය අවශ්‍ය වන්නේ මැඩමුලනා තිරිසන්නු දැනුවත් කිරීම සඳහා ය …. ආධිපත්‍යය දරන ජාතියට නායකත්වය ලබා දීම සඳහා බැල්ලිගේ පුතුන් යමක් ඉගෙන ගන්නා තෙක් ජනතාව බලා සිටිය යුතුය. අපේම ජාතිවාදීන්. මේමුලාන් අපරාධකරුවන්ට විරුද්ධ අයට මෙම ජාතිය සදාකාලිකවම ණයගැතියි. …. අද, ඔවුන්ගේ ආධාරකරුවන් පමණක් නොව, මුළු රටවල්ම සන්ධිස්ථානයක සිටී. මිනිස්සු පොලොන්නාරුව බූරුවාට සහ රනිල්ට චෝදනා කළත් ඔවුන් එය යම් දුරකට කළමනාකරණය කළා. මහින්දගේ ජුන්ටා තන්ත්‍රයේ වාර්තා වී ඇති සියලුම ඉහළ අපරාධ බිඳ දැමීමේ නීතිය අද පොලිසිය සහ හමුදා විසින් භාර ගනී. ඔහුගේ සහෝදරයා වන ශ්‍රී ලංකාව විසින් නිෂ්පාදනය කරන ලද මැලෙචා මිනිසා අද වන විට සියලු විනීතභාවයන් බිඳ දමයි.

    තම දෙමව්පියන් වෙනුවෙන් ස්මාරක ඉදිකිරීම සඳහා දිවා කාලයේ දී කොල්ලකන ලද අපරාධකරුවන්ට මෙම ජාතියේ සැබෑ හොඳ නායකයින් බවට පත්විය හැකි යැයි මිනිසුන් සිතන්නේ කෙසේද? එක්කෝ මිනිසුන් ආපසු හැරවිය නොහැකි ව්යාධිජනක විය යුතුය, නැතහොත් ඔවුන් නොසැලකිලිමත් ලෙස ජීවත් විය යුතුය. ….. මේ ජාතිය දැන් ඔවුන්ගේ බෙල්ල කපා දමා ඇත. තමන් ජාතියේ ගැළවුම්කරුවන් වනු ඇතැයි සිතූ අය, බලය අල්ලාගෙන මාස 15 ක් ගත නොවී රට විනාශ කර දමා ඇත. මෙම උපත ලැබූ අපරාධකරුවන්ට ද punish ුවම් කර මේ ජාතිය වඩා හොඳ අනාගතයක් අත්හරින දෙවියන් නොවේද? ගෝතබයා බැල්ලිගෙ පුතා දැන් ඔප්පු කර ඇත, ඔහු ග්‍රාමසේවකටවත් සුදුසු නැත. ඔහුගේ පැතිකඩ විය හැක්කේ ඔහුගේ ඔප්පු කළ හැකි සුදුසුකම් අනුව යන මස් කඩකට හෝ u ාතකාගාරයකට පමණි. අද රට අවුල්සහගත තත්වයකට පත්ව ඇත … බැල්ලිගෙ පුතුන් නායකයන් වශයෙන් ඔවුන්ගේ වරප්‍රසාද භුක්ති විඳින අතර, සැබවින්ම අවශ්‍යතා ඇති ජනතාව අසරණ වේ. අතීතයේ නොවූ විරූ පරිදි මිනිසුන්ගේ කනස්සල්ල on ාතීය ලෙස වර්ධනය වේ.

    • 0
      0

      LM, would you do us all a favour and translate this into English, please.

  • 5
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    As the former AG is now the Chief Justice, he now has to defend himself as the cases filed by him when he was the AG are being questioned by a “Pissu Pusa” who was found fault in a previous time by a court of law. A “Pissu Pusa” has sat in judgement of the decision previously taken by the present Chief Justice. If the Parliament passes this bill, will the Chief Justice, to keep his respect, resign from his present post or will he stay in the position and prove he is a “Cheap Justice”?

    Rajapakse Family has made the Judiciary in Sri Lanka a “comedy club”.

    • 1
      0

      Buddhist1: The writer has raised a very valued and valid point. “Why not file an action against this Commission for “Contempt of the Judiciary and Courts”. This “Report” is now a “Public Document” and the “Statements” therein are “Critical” of the “Judges”; the “Judgements” and had “Interfered” with the ongoing cases in courts. More so, the Commission has violated the “Terms Of Reference”. I am of opinion, the BASL must do this and also by the Legal Professionals. This is more “SERIOUS” than that of the “Ranjan Ramanayake” case.

  • 2
    0

    Along SL’s history, as Mr. Basil Fernando has pointed out, there were GUARDIANS, perhaps far and few between, but righteous and ethical with the moral capacity to fix the system. Unfortunately for the country, they failed to seize the opportunities, and perhaps weren’t sufficiently staunch to see their own potential as GUARDIANS.

    Who are our GUARDIANS today? Of those guardians, can the good take on the those appointed by the devil himself? Aren’t his appointees right in the palm of the tyrant himself and are clearly controlling the uppermost echelons of judiciary?

    8 months ago, Gotabaya Rajapaksa appointed 12 new high Court judges;
    https://www.presidentsoffice.gov.lk/index.php/2020/09/14/12-new-high-court-judges-receive-appointments-from-president/

    5 months ago, Gotabaya Rajapaksa appointed 6 new Supreme Court judges and 15 Appeals Court judges;
    https://www.newsfirst.lk/2020/12/01/president-appoints-new-judges-to-the-supreme-court-court-of-appeal/

    Can we expect anyone of those GUARDIANS appointed by President Gotabaya to step up to save the country from the tyrant who appointed them?

  • 1
    2

    A question that is worth considering is as to whether a Commission of Inquiry can commit the offence of contempt of court.
    …………………….
    Is that not an attempt to order the relevant Courts to act on the authority of the Commission?

    ………………………………..
    There is good grounds to bring all the three Commissioners before the Supreme Court for having committed serious acts of contempt of court and of the obstruction of the administration of justice.
    ……………………………..
    That was prevented (judges protest). Had such action taken, even if some judges may have had to make some sacrifices, this constitution would not have lasted this long.

    Basil is trying to highlight many things. He is basically ending at the big thorn pricking hard, the “Kings Making Constitution of Junius Richard”. Even Chandrika did not whole heartedly try to abolish that constitution. So all the talk of. Locally, about the constitution is only talk. Basil may at retiring time. He maybe thinking of preparing buds to fight for in future. But 75 years is giving a different answer to that question too. Unless society willing take it out, is will not see any light at the end of the tunnel. There isn’t a lot for us to talk on that as much as educated Buddhist Sinhalese (that include Basil too) has got to do.

  • 2
    2

    We have repeatedly mentioned here the thief (Sir Ralph -A Knighted patriot, exactly like Lankawe rulers) who cut off the bell on the Inchcape Rock to rob innocent ships, at end, he too hit on that rock and sunk in the sea. Don Stephen brought the Citizenship Act. Tamil leaders sued the government at Privy council. Solomon Dias brought Sinhala Only. Tamil leaders and employees sue at Privy Council. Sinhala Leaders misguided the Sinhala Mass and took the mandate from them and removed Privy Council from Lankawe by 1972 constitution. In reality, the 1972 republican constitution is the one doing more damage to Law and order than 1978 constitution. Mokan Peiris ruled that the Tamils have no fundamental justice, in the case of a Tamil youth, who was arrested only because he was male model, an object for jealous of Rapist Army criminals, beaten to comma, tied to the bed’s leg and was left there for three days to die. Mokan Pieris was hired when CJ Shiranee was dismissed by the 8th graders Wimal. When she was fired, Justice Sriskantha Rajah ruled it was illegal. He was secretly killed and the family was contained like Kathirgamar family & Fernandopulle Family. Sudharshini wants to go out of politics but could not. Ranil who was elected to fix these problems used his power to save all Royal criminals.

  • 2
    2

    1988-1991 UN brought Rome Statute. Chandrika wanted to sign on that. But Ranil blocked that. He was the one brought to straighten Law and Order, but he introduced official impunity as Law and Order in Lankawe. Ranil is partner and is being sued by victims in 4/21 bombing. But sadly writes and political activist once more wants to bring back Ranil-Vaalaiththodam’s UNP administration. What we outsiders can point out is misidentifying the nature of the political end of every Sinhala leader’s political cunning action; another word for that is “not having political foresightedness.” Need of the time is Educated Buddhist Sinhalese forming a TRO exclusively for their mistakes and they to confess their crimes to people in public forums. After cleaning then in public processes, they need to group themselves and educate the mass. Then they must leave UNP & SLFP at home and should seek help from IC. Otherwise changing JR constitution will change nothing. It was under Soulbury constitution 20,000-40,000 Sinhala youth were massacred.

  • 2
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    Justice in SL is a joke. The policy makers have no self respect. There are many in high places who should be tried for treason, not just for corruption & fraud, which is why the judiciary has been ‘bought’ over. It is the law of the jungle that prevails.

    The situation

  • 2
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    Basil Fernando,

    From the time J R Jeyawardene locked out the judges from their offices, the judiciary in Sri Lanka has been neutered.

    From then onward it was pliant – manipulated by the rulers most of the time.

    It has lost all credibility after amendment 20. All they can do now is keep their jobs and tow the government line.
    Forget about “The Judiciary To Defend Itself” There is no independent judiciary to defend. If any judge sticks his neck out it will be chopped by the strong man of Sri Lanka.

    Be realistic Basil it is not the time to be a hero when thugs are ruling the country.

  • 2
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    Justice in SL is a joke. The policy makers & decision takers have no self respect. There are many in high places who should be tried for treason, not just for corruption & fraud, which is why the judiciary has been ‘bought’ over. It is the law of the jungle that prevails.

    The economic situation is the worst in history. Despite the initial boasting that SL has done better than even developed countries in combatting the pandemic, has turned out to be just hype. The hardships, particularly, faced by the poor by 5 weeks of continuous curfew, has come to nothing & another such period is most likely due to the bungling of the govt. In any other country, the Health Minister would have been sacked for her stupid handling of the pandemic by expecting divine intervention. Internationally, SL is isolated, apart from China, & I am sure those in denial would say life would be better under Chinese rule. SL will not be needing a judiciary then as law & order is decided by a govt. appointed commission, not an independent court of law.

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    Can some body clarify what is Courts of Justice and Courts of Law?

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    Basil Fernando

    Is it not possible for the BASL to go before the Supreme Court on Contempt of Court ?

    It is a futile belief to expect Judges association to act on this matter!

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