By Elmore Perera –

An Open Letter to Retired Supreme Court Justice D.J. de S.Balapatabendi

My Dear Bala,

Nisi Dominus Frustra – Justice Vs. Impunity

From the days of my childhood the following words were indelibly etched in my mind.

“Richmond expects that you will ever play the game,
In the field or in the hall honour Richmond’s name,
Richmond stands for manliness and for honour bright
Be a man and honour Richmond by upholding right.

Richmond’s dear memory cherish when you men become,
In the greater field of life strive to overcome,
Fight against all wrong and evil and you shall not fail
Remembering Richmond’s motto you will ever prevail”.

Describing the unique position that Judges occupy in the framework of government, Sir Winston Churchill said inter alia that “There is nothing like them at all in our Island. They have to interpret the law according to their learning and conscience. The principle of the Independence of the Judiciary from the Executive is the foundation of many things in our Island life. It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule. The Judge has not only to do justice between man and man. He also – and this is one of his most important functions considered incomprehensible to some large parts of the world – has to do justice between the citizens and the State. The proper administration of Justice requires Judges who are skilled and learned. It is even more important that their decisions are honest and impartial and are arrived at without pressures or interference, however slight and from whatever quarter”.

Inspired by the ample evidence of these qualities exhibited by Samarakoon CJ, Wanasundera J, Wimalaratne J, Colin Thome J and Mark Fernando J in particular, I committed myself to “fight against all wrong and evil” fortified by the assurance that “remembering Richmond’s Motto (Nisi Dominus Frustra) you will ever prevail”.

Your appointment as a Judge of the Court of Appeal came at a time when I was fast losing faith in the zeal and ability of our Judiciary to dispense Justice. I entertained considerable confidence that you would emulate Colin Thome J, a distinguished Richmondite, whose dispensation of Justice was rewarded with pelting of stones at his residence.

Applications instituted by me on behalf of the OPA, CIMOGG and Avadhi Lanka challenging the unconstitutional appointments made by President Rajapaksa, without first appointing persons duly nominated to the Constitutional Council, were supported before you on 19th April 2006. Addressing you, I submitted that you were a Richmondite, I was a Richmondite and President Rajapaksa was a Richmondite and that it was therefore obligatory on our part to safeguard him. My submission was that if these unconstitutional appointments were permitted to stand, it would be a matter of time before President Rajapaksa lost his credibility both within Sri Lanka and Internationally. After affording me a patient hearing you directed that notice be issued on all 17 Respondents. However, when the relevant documents to be sent to the Respondents were tendered to the Registry, then Registrar of the Court of Appeal, Mrs. M.M.Jayasekera (presently reinstated as Registrar, Supreme Court) informed me that notice had not been issued by you. Greatly perturbed, I met you in your Chambers and apologetically inquired if I had, in any way embarrassed you in Open Court, when supporting these applications on 19th April 2006. Apparently non-plussed, you assured me that I had not embarrassed you in any way and that you had in fact issued notice. When I informed you of what Mrs. Jayasekera had said, you called for the case records and recorded your order in one of them.

Shortly thereafter, along with other appointments, you were appointed President of the Court of Appeal in violation of Article 41C(1). I instituted actions in the Supreme Court against such appointments and never appeared before you, or any other such appointee, thereafter.

Your appointment as Chairman of the Permanent Commission to Investigate Allegations of Bribery and Corruption was seen by me as an opportunity for you to “fight against all wrong and evil” in the confidence that “remembering Richmond’s motto you will ever prevail”.

Dr. Shirani Bandaranayake did not prevent her husband from discharging the responsibilities thrust on him by President Rajapaksa. In like manner, neither did you prevent your son from discharging the responsibilities thrust on him by President Rajapaksa.

Following a fairly long gestation period of minimal activity, you seem to have been suddenly activated into first levelling charges against Dr. Bandaranayake’s husband and then against Dr. Bandaranayake herself for, what you presumably believe is, corrupt activity. In your “fight against all wrong and evil” please rest assured that “remembering Richmond’s motto, you will ever prevail”. Admittedly the “wrong and evil” envisaged is restricted to proven ‘wrong and evil’ and excludes fabricated allegations which cannot be substantiated.

The College Crest and the Motto “Nisi Dominus Frustra” were both chosen by Rev. James Horne Darrel in 1900, and still remain unchanged. President Rajapaksa’s Senior Legal Adviser Asoka Silva, former legal adviser to the Cabinet Mohan Peiris or the leader of the self-proclaimed ‘men of integrity’ in the Attorney General’s Department, Palitha Fernando, will no doubt lucidly explain to you the basis of the motto in Psalm 127. Your actions, which speak louder than words, will indicate clearly what you consider to be ‘ut dominus’ as far as you are concerned.

With every good wish
Yours sincerely,
Elmore Perera

 

The Re-introduction of the Independent Commissions

C.A. Beard was “convinced that the world is not a mere bog in which men and women trample themselves in the mire and die”. He said that “Something magnificent is taking place here amid the cruelties and tragedies, and the supreme challenge to intelligence is that of making the noblest and best in our curious heritage prevail”.

Margaret Thatcher once famously said “There is no such thing as society. There are individual men and women and there are families”.

Daily reports in the Media indicate that “Murder, rape, child abuse, disappearances, land grabbing, thuggery and violence, bribery and corruption, racist and hate mongering activity and acts of impunity by those in power are endured by people as an unavoidable part of daily life at every level. Any semblance of credibility has been lost due to the partisan conduct of all law-enforcement agencies. Lawlessness is the order of the day”.

Having served a full term of 3 years as a member of the Independent National Police Commission under the 17th Amendment, Deshamanya M.T.A. Furkhan making the aforementioned observation has clearly implied that the re-introduction of the Independent Commissions has now become a matter of urgency and is a worthwhile challenge to the intelligence of the OPA professionals. What is required he states, is not an appeal or a recommendation, but as in 2001, the OPA once again drafts the legislation to amend the Constitution to bring back the Independent Commissions and to agitate for action through the OPA network of resources. Coming from a founder member of the OPA, this is certainly heartening.

Faced with a similar situation in November 2000, the OPA, with the assistance of many eminent persons outside the OPA, drafted relevant proposals. All political parties except the SLFP, responded positively to the OPA’s invitation to discuss and review these proposals. The acceptance of these proposals by the SLFP was made a pre-condition for the formation of an interim government by the JVP. In September 2001 the 17th Amendment was adopted by Parliament with only one abstention and none voting against.

The Constitutional Council was established in March 2002. The Independent Commissions were established in or after October 2002.The non-appointment of the Elections Commission was condoned by the Supreme Court on the basis that the 17th Amendment did not specify the period within which such appointments should be made by the President. The Rule of Law was gradually re-established and better Governance brought about.

In January 2006, the terms of office of the Constitutional Council, the Public Service Commission and the Police Commission had expired, two of the three members of the Judicial Service Commission had resigned and the term of office of the Human Rights Commission was due to expire in April 2006. The Prime Minister and the Leader of the Opposition had jointly nominated M/s Nihal Seneviratne, Ranjit Abeysuriya, Kumar Nadesan, Justice C.V.Wigneswaran and Prof. A.F.Sherifdeen for appointment to the Constitutional Council. However, no appointments were made by the President in violation of Article 41A (5) which required that the appointments should be made “forthwith”.

On 06.02.2006, the OPA President issued a Press statement and sent copies of same to all 225 MPs urging that the vacancies in the Constitutional Council be filled expeditiously so that the Independent Commissions could thereafter be appointed.

The 17th Amendment specifically prohibited the President from appointing any persons to the Independent Commissions or to the High Posts stipulated therein, without prior approval of the Constitutional Council. Article 38 (2)(a)(1) provided that any Member of Parliament may, by a writing addressed to the Speaker, give notice of a resolution alleging that the President has been guilty of intentional violation of the Constitution and should therefore be impeached. However, disregarding these provisions, the President arbitrarily appointed persons of his choice to fill the aforementioned vacancies without making the appointments to the Constitutional Council. Several actions were instituted in the Supreme Court and the Court of Appeal on behalf inter alia of the OPA challenging these unconstitutional appointments, but the Courts refused to intervene. Whereas the Attorney who instituted most of these actions was suspended for more that 8½ years, the persons unlawfully appointed to these posts carried on regardless.

The passage of the 18th Amendment abolished the Constitutional Council and legitimised the making of arbitrary appointments by the President. Such appointments have resulted in the breakdown of law and order aforementioned.

Reversal of this pernicious trend by the re-introduction of the Independent Commissions is no easy task. Powerful forces are likely to resist any such move. It is a huge challenge to the Intelligence, Independence and Integrity of the OPA.

The OPA must first decide whether it will resolutely stand up to the task, or wash its hands off and shirk its responsibility to society.

A draft Composition of the Constitutional Council is as follows.

41A(1) There shall be a Constitutional Council (hereinafter referred to as the “Council”) which shall consist of eleven persons of eminence and integrity who have distinguished themselves in Public life, are not members of any political party and are prepared to devote their full time to the functions of the Council, appointed by the Speaker.

(a) one nominated by the President .

(b) one nominated by the Speaker.

(c) one nominated by the Prime Minister.

(d) one nominated by the Leader of the Opposition .

(e) one elected by MPs who belong to Political Parties other than those to which the PM and Leader of the Opposition belong.

(f) one elected by MPs who are Independent or belong to Independent Groups other than those to which the PM or Leader of the Opposition belong.

(g) five nominated jointly by the PM and Leader of the Opposition, where any of the four major communities (viz. Sinhala, Tamils, Muslims and Indian Tamils) are not represented in the Council, the PM and the Leader of the Opposition shall, after consultation with MPs belonging to that community, if any, ensure that a person to represent such unrepresented community, is nominated for appointment to the Council

(2) the Speaker (or in his absence, the Deputy Speaker) shall upon receipt of the nominations aforesaid, forthwith make the respective appointments. In the event of such appointment not being made within forty eight hours of receipt of the nomination, the said nominee shall be deemed to have been duly appointed.

(3) the members shall elect one of their number as Chairman of the Council.

*Elmore Perera, Attorney-at-Law , Founder CIMOGG, Past President OPA ,23rd April 2013