The arrest, keeping in the remand custody for inordinate period of time, prosecution and finally the Court ruling made in the Kumar Gunaratnam’s case should open the eyes of all concerned citizens of their immutable sovereign rights enshrined in the Constitution, that includes the Judicial power, the Court System exercises purely on trust.
Kumar Gunaratnam is a native Lankan, who had fled the country for fear of his life. Technically he is an Australian passport holder for immigration purposes, yet born Sri Lankan, who has lost his natural right of abode, as he had obtained Australian naturalisation, without retaining his biological right of abode. He was arrested on 04th Nov 2015 ‘for overstaying in his own native land’ and charged in the Magistrate’s Court.
For violation of visa restrictions, for persons born in or coming from a country other than one’s own birthplace, the Immigration law provides penal sanctions (a jail term of not exceeding five years and to a fine not exceeding two hundred thousand rupees at the election of the Magistrate). And the Legislature never intended this provision of law to be used against born Sri Lankans. In Kumar Gunaratnam’s case, the Court has imposed him a fine of Rs 50,000/- coupled with a imprisonment of one year in Jail ‘for over stay’ in his own birthplace.
How the justice system functioned under the British colonial rule
There was somewhat similar case occurred in the British Colonial period, popularly known as Bracegirdle case. Mark Bracegirdle was an Englishmen and a planter. During his stay in Ceylon, he was an undercover supporter of the Socialist movement formed by two respected socialist leaders, N M Perera and Colvin R de Silva. And on 3rd April 1937, he attended a meeting at Nawalapitiya organised by Dr N M Perera and addressed it criticising the exploitation of estate labour by British planters and threatening to expose scandalous abuses of poor plantation workers. He demanded that no planter should be allowed to break labour laws to abuse the poor plantation workers.
Photo- Mark Bracegirdle, seated left next to LSSP leader Colvin R. de Silva, in front of other party members in about 1937.
The British planters were very angry about this exposure made by a fellow Englishman and considered Bracegirdle’s conduct was ‘harming their prestige’. The end result was a deportation order issued on Bracegirdle by the then British Colonial Governor Sir Reginald Stubbs. However, Bracegirdle defied the deportation order and went into hiding.
The Workers Movement launched a campaign for the withdrawal of governor’s deportation order and on the May Day (1948) rally held at the Galle face green, it was demanded that Bracegirdle should be made a free man. At the said rally Bracegirdle made a dramatic appearance on stage, but the police were reluctant to arrest him. However, some time later he was taken into custody for violation of governor’s Deportation Order.
The LSSP led by Colvin and NM Perera the Leftist leaders, fought for the release of its comrade and challenged the governor’s order in the Supreme Court, then comprising only of English Judges, who apparently administered justice, independently, free from any control or interference from the British Governor.
On 18th May 1948, when Bracegirdle’s matter was taken up, the Bench was presided over by Chief Justice Sir Sidney Abraham. The Chief Justice Abraham, vividly demonstrating judiciary’s total independence from the governor’s control, ruled against the Governor’s order, in favour of Bracegirdle, and set Bracegirdle free.
This example shows essential prerequisites for representative democracy, which shall not prevail unless the three branches of the government (the Executive, Legislature and Judiciary) function independently. However, this does not mean that there shall not be any interaction between the three institutions. Yet, the Judiciary shall not compromise the judicial independence, which is fundamental to the upholding of rule of law. In their decision making, all Judges shall be made to accountable to the supreme law, the Constitution and the other statute laws, which the Judges must apply honestly, fairly, independently and with their integrity uncompromised.
In a representative democracy, the Judiciary that exercises people’s judicial power purely on trust, undertakes to protect, vindicate and enforce people’s judicial power at all times. Therefore, it is under duty to respect the principles of judicial accountability and independence, which underpin the public confidence in the justice system and the important role of administration of justice, as one of the three pillars upon which a responsible Government relies.