19 September, 2020

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The Judiciary: Gains & Concerns

By Rajan Hoole

Dr. Rajan Hoole

Dr. Rajan Hoole

Present Realities and Precarious Options – VI

A senior Tamil administrative officer served in Trincomalee when dozens of Tamil detainees broke jail from Batticaloa in September 1983. The officer was detained under the PTA in December 1983, suspected of aiding the escapees. He languished 45 months on an order from the Defence Ministry without a single charge being framed and released just after the Indo-Lanka Accord. Nor was he ever produced before a magistrate. A habeas corpus application was then problematic and a fundamental rights appeal unthinkable.

In the Ananda Sunil habeas corpus case of 1983 (see Sect.19.5) the victim’s wife and witnesses had to retreat under Police intimidation. In the Paul Nallanayagam case of 1985 (see Sect.20.9), the Police foiled the fundamental rights appeal simply by filing a fictitious affidavit. There was no question of the Police being charged or punished for perjury and contempt of court.

Ex-Chief Justice, Sarath Silva

Ex-Chief Justice

Torture in police custody remains routine. Yet, the Supreme Court now regularly grants fundamental rights appeals from detainees who have the means to pursue them. Correspondingly, witnesses are less reluctant to testify. However, when the Supreme Court started asserting its independence under the PA, it made the Government unjustifiably paranoid.

The Athulathmudali Commission found that Cooray, a strongman in the Premadasa regime, had played a leading role in the former minister’s murder. The Supreme Court, for the lack of admissible evidence, set aside the findings on Cooray (see Sect.19.6). Cooray walked away from Court a media celebrity. It was a setback for the Government and yet a triumph of the legal process.

President Kumaratunge appointed Sarath N. Silva Chief Justice (CJ) in mid-September 1999. After serving on her SPC examining the Vijaya Kumaratunge murder, he was made Attorney General. He was appointed CJ over Justice Mark Fernando, the senior-most judge. As CJ, he became chairman of the Judicial Service Commission (JSC). As then second in the hierarchy, Mark Fernando should normally have been on the JSC. But the President appointed instead the retired judge Ramanathan, who chaired the Vijaya Kumaratunga Commission.

The appointments are contentious. Sarath Silva earned respect during the JVP insurgency as an appeal court judge hearing habeas corpus applications. However, the main issue in his appointment as CJ concerns two petitions from the public seeking his removal from the roll of attorneys-at-law, on grounds of professional misconduct during his tenure as AG. One petition by the Ravaya editor Victor Ivan alleges attempts to suppress evidence in the case of a magistrate accused of rape and misappropriation. The other concerns allegedly influencing a district judge to remove improperly his name as co-respondent in a divorce case.

The Supreme Court found these complaints sufficiently serious to merit investigation (see Special Correspondent, The Midweek Mirror, 15.9.99, and Section 21.3.4.). There is here a question of propriety in appointing as head, the very same person whose conduct is before the institution for inquiry. Addressing a related issue, the eminent lawyer H.L. de Silva told the Bar Association (Sunday Times 29.8.99) :”... the primary causes of this degeneration in the Judiciary are the weaknesses of character of the judges themselves, and the ineffectiveness and lack of firmness on the part of those who are called upon to exercise disciplinary control over them…

The appointment of the Attorney General to the position of Chief Justice would also have struck many as the executive setting the limits to judicial independence. The two previous Attorney Generals, Sunil de Silva and Tilak Marapone, were relied upon respectively by Presidents Premadasa and Wijetunge to advise them intimately. Sunil de Silva helped Premadasa to get over the impeachment crisis (see Keith Noyahr, Sunday Times 28.8.1994). If indeed the executive sets limits to judicial independence, it must also be seen in the context of a long history of its being compromised by defective laws sought by various governments, and adjudicating with bad laws and constitutions. Under such conditions, compromise tends to become a habit.

In reversing the findings of the District Court against the Citizenship Bill, the Supreme Court was out of tune with the cosmopolitan and fair- minded sections in Parliament that opposed the Bill. In Kodeswaran’s case, faced with having to annul the Sinhala Only Act, Chief Justice H.N.G. Fernando avoided the issue by a questionable judgement.

With regard to the solution to the ethnic problem, H.L. de Silva observes (see Bibliography) that if the 1972 Constitution had locked the door against federalism, the 1978 Constitution (Jayewardene’s) seems to have locked it once again and thrown away the key through the window. Then having signed the Indo-Lanka Accord in 1987, Jayewardene was obliged to get the Provincial Councils Bill (13th Amendment) though Parliament. The JVP had launched a campaign of intimidation, threatening legislators and judges. The full bench of the Supreme Court deliberated the constitutionality of the Bill. H.L. de Silva wrote (Lanka Guardian 1.5.1992): “By a majority of one, through somewhat strained legal reasoning and a measure of judicious realpolitik, the Court upheld its constitutionality.

H.L.de Silva agrees with the dissenting judgement of R.S. Wanasundara (Deputy CJ), O.S.M. Seneviratne, L.H. de Alwis and H.A.G. de Silva that the Provincial Councils envisaged were quasi-federal in character and violated unitarity. Those who upheld the Bill, were S. Sharvananda (CJ), H.D. Thambiah, Percy Colin-Thome, and E.A.D. Athukorale. Parinda Ranasinghe upheld it conditionally. The first three were from the minorities. All who opposed it were Sinhalese.

It may be noted that the Bill was in keeping with world opinion and the ICCPR, which enshrines ‘the right to self-determination of peoples’, and certainly did not undermine democracy. Moreover, courts are not bound by textbook definitions and it is their rightful function to interpret the constitution according to changing needs and realities. By contrast, the 4th Amendment of November 1982 to replace parliamentary elections by a simple majority at a referendum, was clearly a travesty of democracy and constitutionality. R.S. Wanasundara, who voted against the Provincial Councils Bill, had, however, along with Sharvananda, allowed the 4th Amendment. The layman may be pardoned for thinking that several judges of the Supreme Court were being swayed by narrow considerations outside the ideals of judicial integrity.

Had the Supreme Court blocked the Provincial Councils Bill while the Indian Army was at war with the LTTE in the North, it would have added another unwanted element of instability to a country teetering on the brink. Jayewardene must have felt vindicated in his tinkering with the Supreme Court. Having locked himself in and thrown the key, he perhaps had no choice. Perhaps several of the issues over the years, in this highly polarised country, were too momentous to be placed for a decision on the shoulders of a handful of judges. Now Chandrika Kumaratunga envisages drastic constitutional change. The door is locked, and the key missing. Inevitably, some of the thoughts that crossed Jayewardene’s mind will cross hers too. Judicial independence in a satisfactory form may have to await benignant constitutional change.

*To be continued..

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

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    Rajan Hoole.

    You have mentioned about the Kodeeswaran case.As you would know this went upto the Privy Council in the lae 60s.

    The other is is the appointment of Sarath.N.Silva as the Chief Justice.
    Victor Ivan in a book published by him, exposed him as a man living in adultery!

    In fact,the greatest lawyer of of all times did not apply for Silk,for the simple reason he did not want to offend the Powers then.
    Eventually H.V.Perera was invited by the Supreme Court,and honoured with Silk!

    Could you please elaborate on what you written with more details?

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