The President And Sri Lanka’s Judiciary

Filed under: Colombo Telegraph,Opinion,Popular |

By Kishali Pinto-Jayawardena -

Kishali Pinto-Jayawardena

The attack on the Secretary of the Judicial Service Commission (JSC) last Sunday, which some have read justifiably as an attempted abduction, is certainly quite unprecedented in the history of this country. We may have had tensions between the judiciary and the executive before. But the level of impunity with which this attack was carried out is both shocking and shameless in its audacity. Public confidence that due and proper investigations into the attack and the punishing of the perpetrators is abysmally low.

The fact that such attacks directly target Sri Lanka’s judiciary is a development that should propel each one of us into even a belated awareness as to the nature of the enormous crisis that confronts us.

President not bound by the Constitution

Attempts by government ministers to impliedly threaten to impeach the Chief Justice and then magnanimously as it were, declare that the government does not want the tug of war between the executive and the judiciary to continue, is part of this charade. The outrage displayed by the Speaker in regard to the Supreme Court Determination not being handed to him but to a parliamentary official is similarly disingenuous. Who does the government think that it is fooling? Or is it simply that the government really does not care any more?  We suspect that this is indeed the case. The government’s modus operandi in regard to the Divineguma Bill makes that self evident.

So it is now quite clear. Article 111C of the Constitution which stipulates grave punishment (including deprivation of civic rights) for anyone who, “without legal authority” interferes or attempts to interfere with the judicial powers and functions of any judge, is not applicable to Sri Lanka’s Executive President for that matter, his Secretary purporting to act on his behalf.

And when such interference is manifest by the President as directed towards the JSC, we are now supposed to infer that the President has ‘legal authority’ to engage in such actions and get away with it. This appears to the only logical conclusion that we can arrive at.

Duty of judges to speak out to protect the institution

Article 111C is no stranger to Sri Lanka’s constitutional scheme and was contained in the 1972 Constitution as well.  Up until the Presidency of Mahinda Rajapaksa, executive interference with the ‘powers and functions’ of judges had not been so blunt as to directly invoke this prohibitive clause. The creeping subtlety with which basic structures of the country’s judicial system have been undermined has only been paralleled by its exceedingly dangerous coercive character. In later years, this executive interference became far more direct, accompanied as it was by the political ambitions of some who sat on the Bench.

A few judges have been bold enough to speak out publicly as to the fate that has befallen the independence of Sri Lanka’s judiciary such as former judge of Sri Lanka’s Supreme Court, Justice CV Wigneswaran some years ago in relation to the degeneration that prevailed during former Chief Justice Sarath N. Silva’s period. More recently, we had retired High Court judge W.T.M.P.B. Waravewa speaking in the wake of his delivering the dissenting order in the conviction of former Army Commander Sarath Fonseka. But these occasions of outspoken and forthright condemnation of the status quo by courageous judicial officers are regrettably few and far inbetween.

Certain basic principles are very clear. The first principle is that it is the first duty of the Bench and the Bar to oppose executive interference with the judiciary.  Towards that end, strike action resorted to by judicial officers is perfectly legitimate though there are those who may profess to think otherwise on grounds that this is to thrust judicial officers into the political arena. This is to engage in pure casuistry (ie specious or excessively subtle reasoning intended to mislead). One would have wished for more honesty in acknowledging the gravity of the threat faced by Sri Lanka’s judiciary but perhaps that is to ask for too much indeed.

Harking back to the history

Certainly, the vicissitudes affecting the functioning of the JSC are well known to constitutional analysts. External threats to its independence by politicians are extensively documented. The 1972 Constitution’s replacement of the old independent Judicial Service Commission under the Independence Constitution by a twin Judicial Services Advisory Board (JSAB) and Judicial Services Disciplinary Board (JSDB) is one good example.

The second Republican Constitution of 1978 did contain many features that were a definite improvement on what had prevailed. The old JSAB and the JSDB, which had proved to be notoriously incapable of preventing political interference in the minor judiciary, were replaced by an independent JSC whose considerable authority was enhanced thereafter by the 17th Amendment to the Constitution. The interventions of the Constitutional Council in being empowered to approve the nominations of members to the JSC, (other than its Chairman which by tradition is the Chief Justice), was also laudable. But this was only a short summer. The 18th Amendment put paid to all those ambitions.

Are we to consign Sri Lanka to the ranks of failed states?

During the past decade, the JSC underwent considerable turmoil at several different levels. The resignations of (then) Justice Shiranee Bandaranayake, now Chief Justice and (now retired) Supreme Court Justice TB Weerasuriya from the JSC on ‘grounds of conscience” ( an euphemism for stark differences with the former Chief Justice) during the period of the Sarath Silva Court underscored the sharp tensions that were at play.  It was also during this time that the JSC, ruled by a mercurial and deeply authoritarian Chief Justice, drew a rebuke from the United Nations Human Rights Committee on the basis that its ruling processes as to the transfer, disciplinary control and dismissal of judges of the subordinate courts lacked transparency and appeared to be devoid of fairness.

At that time, the threats to the public respect accorded to Sri Lanka’s judicial institution emanated largely from within. Yet years later, the impact continued as much as an antique vase once broken can never be restored to its former glory even if the most careful restoration work is carried out.

Now we have a situation where disrespect for the courts and for the law is out in the open and where a targeted attack on judicial staff and officers is not only possible but quite inevitable if the slightest dissent is shown. The credible implication of a government Minister in the attacks on the Mannar courthouse as well as last week’s assault on the JSC Secretary makes that plain.

Is the silence on the part of those who have a duty to speak out, going to continue despite this grave turbulence? If so, then we may as well wash our hands and consign Sri Lanka to the ranks of failed states.

Print Friendly

13 Responses to The President And Sri Lanka’s Judiciary

  1. 0
    0
    Any government, in particular one led by a corrupt leader with dictatorial ambitions, would naturally resort to all types of hanky- panky when there is no strong opposition leader who could sway the masses and bring about an upsurge of public opinion against all anti-democratic measures. In a country where there is no vibrant civil society and a strong opposition, even the judiciary may fear to assert themselves. There is no sense in treating the symptoms as long as the root cause remains unaddressed.

    Saman Wijesiri
    October 14, 2012 at 7:55 am
    Reply

  2. 0
    0
    The judiciary have lost the confidence and respect of the common man,by the way “suspects” brought before magistrates ‘remand’ them automatically,without first ascertaining from them the sequence of events which led to their arrests. Such inquiry is mandated by law,but is ignored. Magistrates accept,without question,the tales told by the police. Even obviouly injured ‘suspects’ are not questioned. In the notorious Navanturai incident,almost a hundred villagers assaulted in the middle of the night,with obvious broken limbs and other grievous injuries were remanded by magistrate Premshanker. Magistrate Joy Mahadeva of Kayts court,sent a ‘criminal’ type summons to Professor Hoole,though the “offence” he committed was reporting election violations. Luckily he was warned by his lawyer friends not to go to court as he would be ‘sent to jail,without bail’,and fled abroad.

    Justice
    October 14, 2012 at 12:50 pm
    Reply

  3. 0
    0
    Tissa-Rani…….. If it was good for JR why not for MR. JR too was corrupt leader with dictatorial ambitions. During JR’s time masses too did not matter……… WHERE WERE YOU THEN MS. TISSA-RANEE ??? probably you did not have paymasters to write……..

    dicky Bird
    October 14, 2012 at 4:22 pm
    Reply

    • 0
      0
      This type that believes two wrongs make a right. Absolute infantilism to say if it was good for so and so? Why is it bad for so and so? Please some one give this Dicky Bird a toffee to suck with the wrapper on.

      gamini
      October 14, 2012 at 6:04 pm
      Reply

    • 0
      0
      god, are you off your mind? Or drunk? This is noit Tisaranee’s article!

      pandukabaya
      October 15, 2012 at 10:05 am
      Reply

  4. 0
    0
    Failed State, my dear, we have been for quite a while. Have no qualms about it. The argument is to what extent? The real enemies of the nation are all those MPs who voted for the 18th amendment and thus killed the reforms that could have helped the country so much vide the 17th Amendment. What we are now feeling are some of the affects of the Constitutional Coup our Honourable Members of Parliament sanctioned without a whimper. The raw truth, as someone reminds me, is most of these yokels do not understand the legislation they have passed. The “good” news is the worst is still to come. Senguttuvan

    Senguttuvan
    October 15, 2012 at 12:13 am
    Reply

  5. 0
    0
    To add to the comments of reader Justice is the case of nearly 9,000 GKCCC depositors – from the cream of the middle class – now thrown to the streets as Lalith Kotelawala has defrauded them in style of their life’s savings totalling Rs.28 billion. Last week in their demo to Temple Trees many claimed, inter alia, they have pulled their children from private schoosl because they are cleaned out by Kotelawala who lives in luxury. Some senior citizens in wheel chairs claimed they are unable to pay their medical bills. Several have committed suicide in the past 3 years. The CJ intervened into the case and ordered the payment of Rs.200,000 each last December. But the order was simply ignored. Even the President at some point met representatives of the depositors and assured early settlement ????? How can the people have faith in a justice system as unreliable as this? Senguttuvan

    Senguttuvan
    October 15, 2012 at 3:33 pm
    Reply

  6. 0
    0
    Yes… this article had nothing to with Tissa-Ranee…….ha..ha..ha Yet… see the responses… why do people get so emotional or agitated???

    dicky Bird
    October 15, 2012 at 3:37 pm
    Reply

    • 0
      0
      your stupid respoinse shows how agitated you become. Not others!

      pandukabaya
      October 16, 2012 at 11:56 am
      Reply

  7. 0
    0
    Kishali goes to great lengths to quote historic precedence, analysing and deciphering the behaviour of government and its officials, while comparing with what could have been ideal or preferable. I believe she is way below the mark when it comes to suggestions for remedying what she perceives as the situation. Somehow, while not intending to hurt her feelings, she reminds me of a poodle looking out the window at night and barking at the moon…all to no avail!!

    Lasantha Pethiyagoda
    October 15, 2012 at 4:36 pm
    Reply

    • 0
      0
      my dear Lasantha, your responses ti Kishali’s articles smacks of a personal vindictiveness towards persons who can articulate issues with authority quite unlike your rambled writings. Restrain yourself.

      Chandra
      October 16, 2012 at 11:58 am
      Reply

  8. 0
    0
    Dicky Bird, You ask,”why do people get so emotional and agitated?” My question is: why do you get so malicious and vicious as to drag in someone not in the scene to vilify?

    Saman Wijesiri
    October 16, 2012 at 1:42 am
    Reply

  9. 0
    0
    A fine article. Facts are well presented. Don’t mind a poodle barking at you!

    Saman Wijesiri
    October 16, 2012 at 3:16 am
    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>