22 September, 2018

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Taming The Judiciary & The Legacy Of The 1982 Referendum

By Rajan Hoole

Dr. Rajan Hoole

Dr. Rajan Hoole

…during many years every minister, whatever his personal character may be, consented, willingly or unwillingly, to manage Parliament in the only way in which the Parliament could then be managed. It at length became as notorious that there was a market for votes at the Treasury as that there was a market for cattle in Smithfield. Numerous demagogues out of power declaimed against this vile traffic: but every one of those demagogues, as soon as he was in power, found himself driven by a kind of fatality to engage in that traffic, or at least to connive at it.”
“All the four Judges of the Court were on the bench. Wright… had been raised to this high place over the heads of many abler and learned men solely on account of his unscrupulous servility. Allibone was a Papist, and owed his situation to that dispensing power, the legality of which was now in question. Holloway had hitherto been a serviceable tool of the govern- ment. Even Powell, whose character for honesty stood high, had borne a part in some pro- ceedings which it is impossible to defend… The government had required from its law officers services so odious and disgraceful that all the ablest jurists and advocates of the Tory party had, one after the other, refused to comply, and had been dismissed from their employments.” ~ Lord Macaulay, from The History of England: The English Parliament during the decades after the Restora- tion of 1660, and the King’s Bench in 1688 under James II, at the trial of the Seven Bishops

The UNP and the Judiciary

The massacre of 53 Tamil political prisoners in Welikade Jail was among the most dastardly crimes committed during the July 1983 violence for which the State was directly answerable. But it was a tragedy for which the conditions were being laid over a period of time. The Attorney General’s department and the Judiciary had played roles which indirectly contributed to it.

The Press reported on 30th May 1983 that Parliamentary Standing Orders providing for the removal of judges by parliament were to be amended. Government sources had told the Press that according to the constitution judges could be removed only for misconduct or incapacity either by law or by Parliamentary Stand- ing Orders. They added that the absence of matching provisions has compelled Parliament to draft a new act and standing orders. JR Jayewardene

The Bar Association of Sri Lanka responded to this proposed amendment (Sun 2nd June) by pointing out that such provisions already existed. According to the Constitution a judge of the Supreme Court or Court of Appeal can be removed only by an order of the President made after an address to Parliament supported by a majority of the total members of Parliament. The BASL pointed out that Article 107(3) of the Constitution provided procedures for address, investigation and proof of misbehaviour or incapacity. Investigation and proof were thus crucial to the procedure, giving some protection even against a government with a five-sixths majority in parliament. This majority Jayewardene continued to enjoy after the dubious referendum of 1982. An amendment diluting the provisions for investigation and proof would have enabled the Government to appoint and remove judges at will. In fact, the whole conduct of the Government since the promulgation of the new constitution in September 1978 had sent a clear message to the judges to conform or face the consequences.

At the very time this controversy flared up, a parliamentary select committee appointed on a motion introduced by Gamini Dissanayake on 8th March 1983 was hearing a petition made by K.C.E. de Alwis of the Special Presidential Commission against Justices Wimalaratne and Colin-Thome of the Supreme Court. The story behind this is to do with the UNP Government trying to stuff the judiciary with political commissars.

In August 1978 Jayewardene appointed a Special Presidential Commission (SPC) comprising Justices Weeraratne and Sharvananda from the Supreme Court and a junior judge K.C.E. de Alwis, to inquire into events that occurred between May 1970 and July 1977 – the period of the rule of Mrs. Srimavo Bandaranaike’s SLFP- led government. This was under the Special Presidential Commissions Law, No 7 of February 1978. The legality of the SPC was challenged in court by Mrs. Bandaranaike. On 9th November 1978, the Appeal Court ruled that the SPC had no jurisdiction to inquire into, report on, or make recommendations in relation to Mrs. Bandaranaike’s administration between 1970 and 1977 since it was a period prior to the SPC law.

In a matter of days the Parliament rushed through two bills giving the SPC retroactive jurisdiction and giving Parliament the right to transfer jurisdiction over any category of cases from the Court of Appeal to the Supreme Court. There was an interesting circumstance behind this last apparently innocuous measure.

About September 1978, when Jayewardene’s new constitution came into force, the Supreme Court was reconstituted. Twelve senior serving judges were thus excluded. Four of them were demoted to the Court of Appeal and eight were altogether left out. The members of the SPC received undue promotions. Weeraratne went up to the fifth place of seniority in the Supreme Court from the eleventh place, and Sharvananda from the fourteenth to the sixth, eventually be- coming Chief Justice. de Alwis was promoted over 18 High Court judges to the Court of Appeal.

As we have said elsewhere, Jayewardene’s government in several instances extended abuses to which the 1972 Constitution, and the practices of the previous United Front government, had set precedents. One instance of this was Felix Dias Bandaranaike, who as justice minister in the UF government, appointing a personal friend, party member and former MP to the Supreme Court (see p. 26 of V.P. Vittachi sited below).

Mrs. Bandaranaike refused to submit herself to the SPC. After ex parte proceedings, the SPC on 25th September 1980 found her guilty of the retroactive offence of ‘abuses and/or misuses of power.’ Just three weeks later two resolutions were rushed through in Parliament to impose penalties on Mrs. Bandaranaike for ill-defined offences with retroactive effect. She was expelled from Parliament and deprived of her civic rights for 7 years. Amendments were also introduced to the Election Act making it an offence for persons so punished to canvass for any candidate at elections during the period of disability. In such an event, the candidate too was to be disqualified.

Now we come to the origin of K.C.E. de Alwis’ petition. It turns out that while the SPC was examining charges against Mr. A.H.M. Fowzie, a former mayor of Colombo, de Alwis, one of the commissioners, was having financial dealings with Fowzie. de Alwis had acted as attorney for his son in the sale of a land and the rental of a house to members of Fowzie’s family, with the consideration for the first being paid by Fowzie. Then Felix Dias Bandaranaike, a former minister, who had also been placed under civic disabilities for 7 years by the SPC, petitioned the Supreme Court under Article 140 of the Constitution (as amended by the first amendment), for a Writ of Quo Warranto and a Writ of Prohibition against K.C.E. de Alwis. This was argued before a Supreme Court bench com- prising Chief Justice Samarakoon, Wimalaratne J. and Colin-Thome J. on 23rd and 24th September 1982 and an Order was delivered on 18.10.82. By a majority decision the Supreme Court found de Alwis guilty of ‘conduct unbecoming of a judicial officer’, and held him to have become ‘unable to act and that he was dis- entitled to hold office and function as a member of the SPC of Inquiry.’

This was a devastating judgement on the SPC on the basis of whose findings Jayewardene had got his most potent political opponents out of the way. de Alwis then in early 1983 petitioned the President alleging that Justices Wimalaratne and Colin-Thome had been biased against him and that there had been a ‘vicious conspiracy’ by Felix and Fowzie to get him to enter into financial transactions with the latter. It was this contemptible document that led to Gamini Dissanyake’s motion on behalf of his master and the resulting Parliamentary Select Committee.

Justice Wimalaratne, who, like the Chief Justice, was close to retirement, made an angry response: “I think a case has been made to review all judgements by this judge [K.C.E. de Alwis] in his wayward career…” However, Justice Colin- Thome, being a Burgher and having several more years to retirement, perhaps, felt more vulnerable and appeared before the parliamentary select committee in what was not an edifying scene.

The Select Committee, while not upholding the personal allegations against the judges by de Alwis, expressed reservations about the verdict and faulted the judges for not allowing the Attorney General to address them on behalf of the State. (See V.P. Vittachi’s ‘Sri Lanka: What Went Wrong’ for more details on much of the foregoing.)

*To be continued..

*From Rajan Hoole‘s “Sri Lanka: Arrogance of Power – Myth, Decadence and Murder” published in Jan. 2001. Thanks to Rajan for giving us permission to republish. To read earlier parts click here

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Latest comments

  • 2
    0

    “However, Justice Colin- Thome, being a Burgher and having several more years to retirement, perhaps, felt more vulnerable and appeared before the parliamentary select committee in what was not an edifying scene.”

    What has one’s professional conduct to do with one’s ethnicity?
    Such suggestions belong to the category of racist utterances that the author usually rejects in strong terms.

  • 1
    0

    Dr.Rajan Hoole.

    The irony of all of JRJs rule was that he was a son of a former Judge of the
    Supreme Court-Justice E.W.Jayewardena.
    I was told by a member of that PSC you refer to that the demeanour of Justice Percy Colin Thome was by no means edifying,notwithstanding his forte on stage in those PLAYS at the Lionel Wendt!

  • 1
    0

    July Riots Jayawardena was an arrogant man, and a guy who enjoyed using us guys as pawns in the huge game of chess he was playing. He was also a guy who fancied himself a scholar of history, very concerned with how posterity would judge him. He’s dead, and I don’t believe in after life.

    It is tragic that he isn’t alive to see what he has achieved as exemplified by reports of this sort:

    https://www.colombotelegraph.com/index.php/independence-of-judiciary-questioned-after-court-acquits-all-suspects-in-raviraj-murder/

    I almost had to meet you at a social event in December 1985. I’m glad it had to be missed.

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