5th March 2000

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Reforming ministers before the constitution

Sports Minister S.B. Dissanayake's assertion this week that the constitutional reforms package will be pushed through, even if it means closing down Parliament and the courts and "if any judges are in disagreement with this, they can go home", is clearly a declaration that stands by itself in its wit, brevity and style. For that wickedly satirical soul trying hard in consequence to locate the remnants of a legal revolutionary in the Minister's stout person, the answer is clear and simple.

Just a little bit more of this type of thinking and we will undoubtedly improve our already gleaming democratic image in the eyes of the world. Indeed, we will need no more of any of these troubling debates as to who should govern whom and how, understandably irritating as it all is to simpler and far more uncomplicated minds.

What has gone largely unnoticed however is the fact that Minister Dissanayake was not alone in his disparagement of the Sri Lankan judiciary this week.

Thus, his colleague in charge of Plan Implementation and Parliamentary Affairs, Jeyaraj Fernandopulle, in the most august traditions of parliamentary privilege, made full use of his immunity in the House to lash out at Supreme Court judges, whom he perceived as being, let us make no bones about it, anti-government and (as a necessary consequence), "pro-UNP".

But then why should we marvel at this continuing abuse of judges in particular or the courts as a whole? It is, after all, only the most wooly headed citizen of this country who would expect either the Minister of Justice or the President to call senior Ministers of this Government to order immediately and severely, when they indulge in such dangerously provocative flippancies. The occasion therefore cannot but call for the addressing of some sorely needed home truths to Ministers Dissanayake and Fernandopulle and their like- minded colleagues.

Let us start with acknowledging the fact that the Peoples Alliance may have won the most recent elections and may yet again win many more elections to come, conceivably with the votes of all of us or despite the votes of all of us.

Be that as it may, we can only wish the Honourable Ministers and their colleagues, both in the government and in the opposition (either side does not really make any difference now, anyway), the very best of good luck in their efforts to govern or misgovern this wretched country. In the process however, they might take seriously the warning that this far from divine right to rule that they claim for the moment, has its limitations.

Assuredly, it does not give them the right to abuse the ministerial privilege that they have to speak their mind in the House or outside with a supremely careless disregard for the truth or the consequences of their allegations. Dissecting the precise nature of the remarks that they have made is therefore long overdue. The assertions of both Ministers are grounded in an all too familiar defensiveness. Implicit in both is the reasoning that an independent judiciary is necessarily a hostile judiciary with peculiarly sinister designs on the PA Government. Thus did Minister Fernandopulle's remarks in particular, underscore an obviously strong sense of grievance that he is still labouring under with regard to the fundamental rights decision that found him liable of violating the rights of certain of the taxi drivers at the Bandaranaike International Airport taxi stand. From here, it is but a short and inevitable step to an unholy comparison with what happened to the judiciary during the Jayawardene days. Hence the questions posed from Minister Fernandopulle to the Opposition " Do we stone the houses of judges when the government lose cases?. Today, the government has lost all cases, not like in your times when you won all the cases? Did you have a single case (against you) when you were in power?"

While the ire prompting these questions is, of course understandable, the logic certainly is not. As has been pointed out ad nauseam on so many occasions and by so many people, the Peoples Alliance need not strain at the seams to claim for itself the glory at the proclaimed independence of the Sri Lankan judiciary during the past ten or so years.

Even the most casual observer of the judicial process in this country could enlighten both the Honourable Ministers on that point. For example, a quick and honest memory check particularly on the part of Minister Fernandopulle as a lawyer and a gentleman, would reveal to him that some of the most notable decisions of the Supreme Court, which are now authoritative not only in Sri Lanka but throughout the Commonwealth and indeed the world, were delivered by the Court prior to 1994 and the ascent to power of the Peoples Alliance.

These pre 1994 cases moreover are those that have formed the basis for later decisions upholding the rights of citizens of this country against arbitrary action by any officer of the state, regardless of his or her status. Thus, we have the decision in the Joseph Perera case in 1987 which, for the first time, struck down an emergency regulation and ruled that posters highly critical of the government were constitutionally protected.

Then, there is the equally cutting edge decision in Amaratunge Vs Sirimal and Others, popularly known as the Jana Gosha case, of which the Honourable Ministers, as members of the Opposition then, would surely have been most aware. Decided on the 6th of March, 1993, the Supreme Court unanimously held in this instance that police beating of the petitioner who was taking part in a "noise protest" organised by the Opposition and the taking away of his drum, was a clear violation of his fundamental rights under the Constitution. Surely, both these Ministers would then have enthusiastically agreed with Justice Mark Fernando's warning when he quoted from American law to the effect that "stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day." Then, we have the Provincial Governors Case in 1993, this too a matter most closely concerning the then Opposition, where Chief Minister appointments were set aside on the basis that they had not been made reasonably. Similarly there is the decision in Mohammed Faiz vs the Attorney General, where a ranger was given relief because his fundamental rights had been violated not only by the police but by certain politicians who had "instigated" this violation. The list is indeed too extensive to continue.

In the final analysis, what is important is the obvious. Ministers Fernandopulle and Disssanayake need to be specifically reminded that it is not only through the stoning of judges' houses that intimidation of the judiciary can ensue. On the contrary, it is by rash and ill-judged statements like those made during this week that as great or even greater harm can be done.

And if Minister Fernandopulle persists in referring to the past, why be so selective? Why not go back even more and dwell on what happened in the early 1970's when the initial institutional humiliating of judges was embarked upon to the extent that they were, at one time, even deprived of the traditional trappings of their office, such as their robes and wigs?

This would then hopefully indicate to the Honourable Minister that comparisons with the past, in any sense, is worthless besides again pointing out the obvious, that the people did not put the Peoples Alliance in governance to keep on priding themselves that the sins of the past are not repeated to quite that same degree. Regrettably but not surprisingly, it is at this level of the painfully obvious that dialogues with our politicians continue to rest.

A bankrupt intelligence service

A Special Branch as an Intelligence Arm of the Police Department is essential to provide and support the Inspector General of Police with intelligence for his task of maintaining law and order and peace in the country. It will also enable him to swiftly pass on information and intelligence gathered from operations and investigations to the National Intelligence Bureau and to the Government.

Police Officers by the very nature of their duties frequently interact with society, which in turn provides abundant opportunities to pick up information and to cultivate informants for the purpose of procuring intelligence. Intelligence flows not only from sources of information but also from investigations. The Police are specialists in this area and therefore should always be the first choice in any network to collect intelligence. An effective Special Branch will ensure that information flowing from subversive groups will be properly channelled and disseminated to those who need to know and systematically stored for purposes of assessment and follow up operations. The role of investigation in the process of intelligence gathering has to be appreciated and the Police should be given this responsibility with the necessary resources.

Prior to 1984 the Special Branch of the Police Department handled the country's security intelligence. Hardly a development of security concern escaped the notice of the Special Branch of that time. E.g.:

* The 1962 Coup The Special Branch had covered every step of the coup conspiracy in which senior officers of the Police and Armed Services were also involved. It was thereby in a position to frustrate the coup attempt as soon as the first steps were taken to launch the coup, and also to provide solid evidence from surveillance reports which when confronted with, compelled the accomplices to make a clean breast.

*.The 1971 JVP Insurrection All details of the impending JVP insurrection were reported by the Special Branch by April 1971 for timely action by the government. Unfortunately the Defence Ministry sat on this report till so much of life and property was lost and in fact denied the existence of such a report till someone fished it out from a drawer of the Secretary of Defence. All police stations were however alerted on time and that helped to avert an otherwise different situation that would have changed the history of this country.

* North- East Terrorism The Special Branch kept a close tab on what was going on and also on those involved in terrorist activities in the North-East which began to show its ugly face since mid seventies. By early eighties the Special Branch had gathered sufficient intelligence that not only justified, but strongly urged, the arrest and detention of about fifteen terrorist ring leaders, pending further investigations and appropriate court action. But unfortunately such obvious course of action (arrest and detention) was disapproved by President Jayewardene who took up the position that charges should be framed if there was evidence. The President underestimated the terrorist problem in spite of the intelligence reports and the killings by that time, of Mayor of Jaffna, Alfred Thuraiappa, Inspector Bastiampillai and all other witnesses to the killings. He refused to appreciate the fact that there can be no cases without witnesses, and there was no question of listing witnesses, with terrorists at large killing them with impunity. The Special Branch for its part did all that could be expected of it, but political interference stood in the way of nipping terrorism in the bud.

Unfortunately in I984, with the formation of the National Intelligence Bureau under the Defence Ministry, instead of organizing and developing the N I B to be a closed department working at the higher level as was intended, the Special Branch of the Police Department with all its men and resources and even the district level intelligence branches, were taken away from the control of the Inspector General of Police to form the N.I.B under the control of the Defence Ministry, depriving not only the Police Department but the whole country of a well organized intelligence network that was in place.

What happened thereafter is that the intelligence services became more and more politicized. Discreet and effective surveillance on selected targets broke down with more and more dependence on telephone tapping and harassment of political opponents and critics of the government. It has come to a stage when intelligence reports are tinkered with, to suit the political thinking of the government, instead of the government adjusting it's thinking to suit the intelligence reports that unfold the true state of affairs. It did not take long for the authorities to realize that the N.I.B as an intelligence gathering organization was an utter failure and that there was an urgent need to restore the Special Branch as the Intelligence Arm of the Police Department.

Although this realization had dawned as early as 1991 and a decision taken to re- establish the Special Branch within the police Department 'very early', the necessary funds and resources required for the purpose were not forthcoming. Defence Ministry Officials were not prepared to let go the carnival they had got used to enjoying these resources, the apple of the eye being the secret vote. N.I.B Officers for their part, squander the secret vote under cover of information from 'sources' whereas whatever information they get, come from the Police Department.

There is no dispute in the fact that the present situation in the country calls for a very high level of intelligence gathering. The most logical course of action even at this late stage, is to restore the Special Branch to the Police with all resources, sans politics, and the N.I.B to organize itself to the higher level as is intended, without destabilizing the Special Branch of the Police Department, and leave it to the Police to do its job.

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