By Lacille de Silva –

Lacille de Silva

As a public-spirited citizen, and with wide experience having served the public sector for nearly four decades, I am fully aware that corruption in all sectors in the country has pushed Sri Lanka backwards causing irreparable damage to the Nation. It is sad that in Sri Lanka, although it is a representative democracy, it does not have an independent judiciary. In this country it is observed that the Executive, Legislature and Judiciary do not respect the doctrine of separation of power, which is honoured by leading democracies in the world. The norm is that these three organs shall function independently without encroaching the areas assigned to each other by law. However, it is observed that in this country the judiciary is powerless to check the other two organs that openly challenge its independence and authority, particularly the legislature, that is infested with criminal elements who should have been behind bars.   

Judicial independence no doubt could be considered essential in our country for upholding the rule of law, yet the Yahapalana government that promised upright judiciary has failed the Nation. It is vital that the public should have full confidence in the judiciary and in accordance with the UN Declaration, which says, I quote “all the better safeguarded to the extent that the judiciary and the legal professionals protected from interference and pressure”. It is embarrassing that the government of Sri Lanka co-sponsored a resolution (A/HRC/RES/30/1 dated the 1^st October 2015) at UN conceding that the people have no trust and confidence in our judicial system. After the new government was elected to office in 2015,  the Bar Association  of Sri Lanka (BASL), issued a press statement,  I quote, “the existing judicial system in this country has not met the confidence of the people and that it is an undeniable fact that over a period of time the independence and credibility of  many of these institutions suffered resulting in an erosion of the confidence in the system as a whole”.

After independence, for a considerable period of time, We Sri Lankans had the privilege  of enjoying a professional and independent judiciary.  It could have been probably because the Soulbury Constitution had insulated all State officials including the judges from officials of the other branches in the government until it was repealed in 1972.   After the annulment of the Soulbury Constitution, the judiciary has been failing to enforce the Constitution and Human Rights and we have heard of instances where the judges had favoured their friends, relatives,  and associates and given verdicts in order to punish their adversaries.

It must be stated that the 18^th Amendment vested unrestricted power over the judicial appointment on the Executive President. Then the Yahapalana administration that promised the people an independent judiciary through its 19^th Amendment re-introduced the Constitutional Council to restore the judicial independence. It has however been revealed that these constitutional obligations too have been wilfully and intentionally disregarded and overlooked by the Executive and the Legislature. I am totally in agreement with the Public Interest Litigation Activist Nagananda Kodituwakku (NK) that the 14^th Amendment Bill, that allowed defeated candidate enter parliament through the National List has been made law by fraudulent means, which no doubt amounts to a serious Constitutional fraud involving the Legislature, the Executive and the Judiciary. It is therefore the duty of the Yahapalana Government to strengthen the judiciary so that the government becomes more credible in the eyes of the citizens and the international community. It is also the most appropriate step in this particular case to permit the judiciary to review the matter lawfully, independently and impartially because the matter raised by NK is an important national issue concerning the ‘Franchise and Election’.

According to the facts that had been unearthed by Nagananda Kodituwakku, the bill that was considered by the 12-member Parliamentary Select Committee headed by the then Prime Minister, Ranasinghe Premadasa, did not contain the provision that had been stealthily incorporated subsequently, pertaining to the Franchise and Election Law (Article 3). The evidence shows that there had been two 14A Bills in circulation in the Parliament and the Speaker had ratified a bill fraudulently, which had not been approved by the Parliament at the Committee stage, where a foreign clause, within brackets, had been surreptitiously introduced.   And the relevant parliamentary proceedings demonstrate that no member has proposed any such amendment to the bill presented to the house by the Prime Minister.

However, the evidence filed in the Supreme Court challenging this constitutional fraud reveals that the then President J R Jayewardene had referred the Bill with the false clause to the Supreme Court with a letter dated 8^th April, 1988 sent to the Chief Justice with a note addressed the CJ – I quote “My dear Chief Justice” and had requested CJ to approve the said bill with a fraudulently introduced clause into the Article 99 A, which had never been approved by the Parliamentary Select Committee on Franchise and Elections. 

It is crystal clear that the relevant provision has been incorporated in violation of the defined procedure. It is therefore unconstitutional in terms of Article 82 (6) of the Constitution. Owing to this serious constitutional fraud, the public has been deceived and kept in the dark by the Executive, Legislature and the Judiciary. 

I have reasons to believe that I too have a solemn duty and a formal responsibility in the name of the country and the General public to take steps, with the sincere hope and commitment to restore dignity and confidence of the judiciary, while striving hard to stop further deterioration, trust and confidence in it. It is no doubt we need judges who are open, independent and act in terms of prescribed law. It is therefore of paramount importance to initiate corrective measures, at whatever cost to highlight the issues of corruption in the judiciary against serious corrupt practices involving the judiciary. 

It is vital the judiciary should perform their duties not in keeping with the dictates of politicians. Owing to these implications, there is a serious danger to judicial independence. It must not be forgotten that Judges should not be dictated by politicians. They are in fact the guardians of the country and the people.  The bedrock of our democracy is the rule of law.  We need an independent judiciary.  We need judges who can take decisions independent of the politicians and who do not subscribe to the political winds that are blowing to destabilise the country. We need judges who protect rights and privileges of the citizenry prescribed and embedded in our Constitution. All those rights secured in the Constitution are worthless if we do not have an independent and a virtuous judiciary. I quote a Latin phrase FIAT JUSTICIA RUAT COLUM, which means “Let justice be done though the heavens should fall”. Could we expect such a upright judiciary in this country? Further I invite the reader’s attention to the role of the judiciary in a representative democracy where the judges exercise people judicial power on trust. The celebrated English Judge Lord Denning remonstrates that ‘judges cannot afford to be timorous souls and they cannot remain impotent, incapable and sterile in the face of injustice’.

In these circumstances, in my opinion both the former and the present Chief Justice appeared to have overlooked this critically important matter of NATIONAL IMPORTANCE as required by Article 132 (3) (iii) of the Constitution. I understand that the rights activist NAGANANDA KODITUWAKKU had charged the former CJ K. Sripavan for judicial corruption for the dubious role he had played in this case. In the meanwhile a fuller bench of five judges had been granted by the CJ Dep to hear the appeal made by Geetha Kumarasinghe, an actress and a parliamentarian, against her removal, in accordance with a judicial order given by the Court of Appeal that she had failed to disclose that she was holding dual citizenship in the Nomination papers. And it is common knowledge that the National List abuse is naturally a National issue unlike a private matter for which CJ Dep had granted a bench of 5 judges.    

It is observed that the National List case challenging the appointment of defeated candidates  by the Activist Nagananda Kodituwakku has been languishing in Court whilst the defeated candidates enjoy office as MPs (some of them appointed as Ministers) for more than 2 years,  whereas the law [Article 104 (H)] says such action shall be heard and determined within a period of 2 months from filing action. However, it is learnt that the Activist on 31^st July 2017, had formerly informed the Chief Justice that he would not proceed with the matter, as the Judiciary had been turning a blind eye and instead makes an attempt to impose professional restrictions on the activist, who is a lawyer in Sri Lanka and England. 

I therefore, performing my duty as a concerned citizen have formally charged the present CJ Priyasath Dep as well on 18^th July 2017 for judicial corruption, as the evidence suggest that he too has abused his office, having overlooked the need to appoint a fuller bench to consider a matter of grave NATIONAL IMPORTANCE and for delaying this important matter thereby denying the people of their sovereign right of franchise.

Writer is the former Secretary to the Presidential Commission of Inquiry into Serious Acts of Fraud and Corruption (PRECIFAC) and the former Director (Administration) Parliament