By C.V. Wigneswaran –

C. V. Wigneswaran

From the time politics was allowed to enter the haloed precincts of our Public Service vindictiveness and favouritism by one set of politicians in power has been alleged by the opposition and when the opposition politicians came to power subsequently victimization of their supporters by the previous regime had been alleged. The opposition then in power thereafter went on to favour those in the Public Service who supported them. We have forgotten that this pernicious practice is the outcome of the politicization of our Public Service.

Neither Parliament nor politicians should interfere with the public service. That would violate the principle of separation of powers enshrined in Article 4 of the Constitution. The public service is part of the Executive. However, even the President and the Cabinet have only limited power in respect of the Public Service. The Constitution contains three chapters dealing with the Executive –viz.  VII, VIII and IX. Chapter IX deals with the Public Service. The only power that the Cabinet has over the Public Service is at a policy level. Article 55(4) of the Constitution states as follows-

“Subject to the provisions of the Constitution, the Cabinet of Ministers shall provide for and determine all matters of policy relating to public officers”.

The Constitution in its wisdom does not permit even the President nor the Cabinet of Ministers to interfere with the workings of the public service. Cabinet can only give policy guidance.  In other words Cabinet cannot interfere with the decision of whom to prosecute. That decision is for the Attorney General, and the Attorney General alone. 

It is probably for this reason that H.E. the President has not sought to include the Attorney General within the ambit of this Commission of Inquiry, despite naming several other institutions.  However, it is shocking to note that the Commission has decided to embark upon its own voyage and decided to persecute even the prosecutors. 

The Cabinet is responsible to Parliament in the discharge of its functions. If Cabinet itself can only give policy direction to the Public Service, then what can Parliament do in its supervisory capacity?  It can only question Cabinet on its policy directives.  Parliament can also pass legislation ensuring that specific safeguards are built into the system to prevent political victimization.  But it certainly cannot be involved in giving any directions to the Public Service at the individual level. That would be a grave transgression of the Constitution and violative of Articles 4 and 55.

Hon’ Jayantha Weerasinghe, Attorney at Law, who had appeared before me in several cases when I was High Court Judge, Colombo, yesterday gave a detailed description of what happened to his clients including Mr.Basil Rajapakse during the Yahapalanaya Government. It was very dramatic and descriptive.

But if individuals or their Attorneys at Law felt that evidence had been manufactured against them or that they have been politically victimized they have numerous avenues open to them to vindicate their rights through the judiciary. First, a person can raise the objections in the criminal case itself. They can invoke the jurisdiction of the Supreme Court in terms of Article 126 of the Constitution for the violation of their Fundamental Rights. They can invoke the Writ jurisdiction of the Court of Appeal in terms of Article 140. They can institute proceedings for malicious prosecution and seek damages. The powers of the judiciary are so wide that injustice can be prevented and damages awarded. The Executive and the Legislature simply have no role to play at the individual level.  Individuals MUST seek the assistance of the Judiciary. 

The idea that political victimization by a previous regime should be looked into by special commissions and committees is anathema to the rule of law. It has no place in the context of Article 126 of the Constitution. Article 126(1)of the Constitution states as follows-

“The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive of administrative action of any fundamental right or language right declared and recognized by Chapter iii or Chapter iv.”

Therefore it is my view that the entire idea of the appointment of a Presidential Commission of Inquiry to inquire into and obtain information pertaining to the alleged incidents of Political Victimization of Public Officers, Employees of State Corporations, Members of Armed Forces and the Police Service was misplaced. The Public Service must be allowed to do its duty objectively not to please those in power politically.

If the appointment of the said Commission was a folly, the Commission itself called by Hon’ Sarath Fonseka as Pissu Poosa 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 having 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 which statesthat any interference with the Judiciary would be an offence recognized in the Constitution itself. If this Debate seeks in any manner to implement the so-called recommendations of the Commission this House too would be violating Article 111C. That is probably why, despite the ill-advised wording of the motion, no directions are being sought from the House.

It is probably for this reason that the penultimate preambular paragraph of Gazette 2157/44 of 9 January 2020, which established the Commission, states that the Commission’s mandate is without prejudice to any measures that have been taken or which may be taken. To do something “without prejudice” in relation to another thing is to ensure that whatever that has already been done cannot be affected. If so, how does the Commission recommend the “undoing” of several matters?  It is simply inconceivable that the Commission does not understand its basic mandate.

Of course there is an urgent necessity to revamp the Judiciary like how Chief Justice Neville Samarakoon set about doing. He set an example himself. Though personally selected and appointed by President JR Jayewardene himself, when he found the President  was trying to interfere with the independence of the Judiciary he crossed swords with the President. He was of the firm belief that Judges should be honest, hardworking, fearless and independent. Many of us who were recruited by him feel nostalgically proud of him.

Having said this, I need to make my observations from a different stand point.Though the recent events and activities seem to point to the death knell to democracy, rule of law and the independence of the public service and judiciary, from the point of view of Tamils who have suffered at the hands of the successive Sri Lankan governments by being denied justice so far, this action of appointing a Commission and accepting a Report of this nature by this Government is welcome to us Tamils in a perverse way. It is welcome, because it highlights exactly what was recently said in Geneva. It gives a wonderful example of how the Government in Sri Lanka perverts the course of justice. It proves what is being said by Tamils – the Government of Sri Lanka cannot be trusted to allow justice to take its own course. This is why Tamils and Human Rights’Organisations and the UN are clamouring for the appointment of international tribunals. If those accused of corruption will not be allowed to face trial what hope is there of getting war criminals tried?! Those of you in the Government that blame the Diaspora and NGOs and the West for allegedly persecuting Sri Lanka – should look hard at what you are doing right now – It is you who is letting the country down by such dubious methods to save your vassals and bondsmen.

None of us have the right to say that we alone love this Country. If the majority in this Country acted humanely, prudently and with far sight, this Country would not be in the dire straits it is today. Our youth would not have taken up arms. I hope we change our ways and tread towards sanity, unity and prosperity.

*In the Parliament on 23^rd April, 2021 during Parliamentary Sessions – Debate on the Report of the Presidential Commission of Inquiry to inquire into and obtain information pertaining to the alleged incidents of Political Victimization of Public Officers, Employees of State Corporations, Members of Armed Forces and the Police Service. Speech by Justice C.V. Wigneswaran, M.P.