A system plagued by absurdity and atrocity

We thus saw the rather obvious predictions coming true, an "almost hung" Parliament and the country on the road to that most extreme of happenings under PR, a fragmentation of the party system and shifting coalition governments.

This has its own dynamics. On the one hand, in the absence of a clear lack of political integrity on the part of the two main political parties, the above may not be that much of a bad thing after all. On the other hand, the reality translates to an inevitable bargaining with parties who could literally bring the House down. Assuredly however, the uncomfortable legislative presence of radical minority parties like the Janatha Vimukthi Peramuna and the Sihala Urumaya foresees a far less complacent law making in the times ahead. In that sense, it brings into being a painfully long overdue challenging of both the government and the opposition on the floor of the House.

But more than anything else, the 11th Parliament will subject the Peoples Alliance Government and its President to a crucially demanding test of statesmanship. And that this would determine the electoral future of the Peoples Alliance in this country is without a doubt. For we are not talking of politically opportunistic Bills like the 17th Amendment Bill that was attempted to be brought in before the life of the 10th Parliament expired but was stymied by opposition within and without Parliament. We are also not talking of Constitutions being brought in haste or cross over bills that operate in selectivity. Given the political and popular sensitivities of the moment, such moves would only be short of national suicide. Instead, the people need to see the new legislature establishing on a clear political consensus and as a matter of priority, the Constitutional Council controlling appointments to high posts, an Elections Commission with extensive powers and its parallel Public Service Commission and Judicial Service Commission.

Above everything else, the people need to see positive moves by the legislature to lift this country out of its deeply frightening culture of election violence and a complete eradication of the "Wayamba" precedent. The onus is therefore clearly on the National Unity Alliance to abide by its initial determination to ensure that the government strip immunity from all those responsible for blatant election malpractices in Kandy.

From another perspective, it appears that those individuals responsible for the atrocities in Kandy only did crudely what others accomplished in more style elsewhere. In thus showing how doing it the "Wayamba " way has become part of our election lexicon, what they deserved therefore was not brickbats but rather a peculiarly unique bouquet. While the official results in twenty two polling centres (thirteen in Kandy) were annulled due to polls rigging this Tuesday, monitoring organisations such as PAFFREL and the CMEV have taken the position that the level of violence necessitating annulment was much higher. The Elections Commissioner meanwhile went on record saying that though the law does not technically permit him to remove stuffed votes, he was doing this in pursuance of practices followed by his predecessors.

Illegal votes which were stuffed into ballot boxes in 47 polling stations were removed before counting. In Killinochchi votes of 41 polling stations were also annulled. The Commissioner had, in fact, recommended to the President in the past that the Parliamentary Elections Act be amended in order to give him the power to annul the poll in a polling station where there has been stuffing of ballot papers and to call for a fresh poll.

In the context of these recommendations passing unheeded, it is commendable that the Commissioner took it upon himself to take whatever limited action possible in the circumstances. Nevertheless, the need to carry out the proposed amendments to the law remains.

What remains as most obvious in the wake of Tuesday's polls is that the appointment of an independent Elections Commission will reduce, to a large extent, debate on whether action taken by the Commissioner in particular instances is warranted or not. The Elections Commission envisaged in the proposed Constitution comprises five persons appointed by the President on recommendation of the Constitutional Council though it is the President who has the discretion in appointing the Chairperson of the Commission.

Among its positive features is the authority given to the Commission to deploy police officers in such a manner as is necessary to promote the holding of a free and fair election. Its members are subject to removal procedures on par with that of appellate judges. It also has the power to appoint a Commissioner General of Elections to carry out the decisions of the Commission, on the lines of the Bribery and Corruption Commission, unfortunate though citing the latter example may seem at this point of time.

In this context, a suggestion made by Commissioner of Elections Dayananda Dissanayake's predecessor, the present Defence Secretary Chandrananda de Silva some years back warrants mention. Reflecting on the weaknesses of the prevalent electoral system, de Silva suggested an Enforcement Commission comprising of sitting judges which could function as a Court of Law from the date of the issue of the notice of an election up to two weeks after the completion of the declaration of results. This body, he said, could entertain petitions, any acts of violations of the law and bring the offenders to book including by way of orders to arrest and directions to the police. Alternately, one could recommend the specific empowering of the Human Rights Commission in this respect.

Tuesday meanwhile witnessed the emphasis on preferences involving financial capacity together with the absence of an obligation to submit statements of expenditure (found in the earlier election laws) all adding up to making financial extravaganza the determinant at the election.

Correspondingly, what has become evident in the face of flamboyantly extravagant election campaigns carried on by most candidates is the need to enforce a ceiling on election expenditure. Presently, the election laws in Sri Lanka do not regulate the amounts spent on canvassing and campaign excepting in specified contexts such as where such expenditures are termed an offence or a corrupt or illegal practice. Equally, amendments to the law are needed to prohibit the use of both the private and the public electronic media in a manner that favours one party over another. The blatant misuse of the state media in favour of the Peoples Alliance in these elections was specifically commented upon by the Commonwealth Election Monitoring team, this week.

All these things remain in the hands of the new legislature. In the ultimate analysis, the 11th Parliament calls for a break from the recent and the not so recent past. It calls for genuine lawmaking. We will see if it rises to the challenge.

Where yes men should have no part to play

By K.M.M.B. Kulatunga P.C. (Retired Judge of the Supreme Court)

Courts are the medium of administering justice. However it is not a function, which is in the exclusive domain of individual Judges, for public justice can be assured only if it has the co-operation of the Legislature, the Executive including the Police and the assistance of the official and the Private Bar.

During the colonial era there was a period when executive and judicial functions were combined. Lenard Wolf's Diaries illustrate how in the morning he functioned as the Government Agent and later in the day heard cases both criminal and civil maintaining a high standard. Until independence the separation of judicial power from the executive did not occur but the law reports show that justice was administered without fear or favour and without doing violence to the rule of law. Thus in Bracegirdle case in 1937, the Supreme Court held that the Governor's order for deporting Bracegirdle was invalid as the precondition for such order, namely, a state of emergency did not exist.

I also recall that Village Tribunal Presidents who were highly respected by the people adjudicated minor disputes. 

During the period of the Soulbury Constitution administration of justice continued to be satisfactory.

The Original Court Judges who exercised both civil and criminal jurisdiction from the time of their first appointment were competent when they received appointments in the Supreme Court. Many of the appointees to the Supreme Court were from the Attorney General's Department whilst some members of the Private Bar also accepted judicial appointments after sacrificing a lucrative practice. Judges were respected and independent.

Soulbury Commissioners in recommending the establishment of the Justice Ministry said this was without prejudice to the performance of the duties of the Attorney General and the Solicitor General. There was no interference of the functioning of the duties of the Judges, and the Judicial Service Commission consisting of the Chief Justice and the next two senior most Judges were in charge of the appointment and the disciplinary control of Original Court Judges. However, during a period of over 50 years of independence, there has occurred a decline in the administration of justice mainly due to the progressive and total politicisation of the life of the community. Illustrations of this situation follows:

In 1947 Sir Alan Rose (Legal Secretary under the Donoughmore Constitution) was made Attorney General on the recommendation of Prime Minister D.S. Senanayake. At the same time the Attorney General was placed next to the Chief Justice on the table of precedence. In 1951 Alan Rose was appointed as Chief Justice. In 1948 Hema Basnayake who was in the Attorney General's Department was appointed to the Supreme Court from where he returned to the Department as Attorney General.

In 1955 Basnayake was appointed Chief Justice on Prime Minister Sir John Kotelawala's recommendation. The same year Sir John Kotelawala overlooked T.S. Fernando Q.C. who was Solicitor General and procured the appointment of H.N.G. Fernando, Legal Draftsman to the Supreme Court. T.S. Fernando was appointed to the Supreme Court during the Bandaranaike Government.

In 1966 A.C.M. Ameer was appointed as Attorney General overlooking Victor Tennakoon Q.C., Solicitor General. The new Government in 1970 appointed Tennekoon as Attorney General overlooking the claims of L.B.T. Premaratna Q.C., Solicitor General, Acting Attorney General.

From 1972-1974 several people who were associated with pro-government political parties were appointed to the Supreme Court. Appointment of judicial officers and public officers was vested in the Cabinet of Ministers and its delegates. Appointments of Crown Counsels and the Solicitor General were taken over by the Secretary Justice. I was a Crown Counsel in 1970, when Felix Dias Bandaranayake, Justice Minister visited the Department and directed that henceforth law officers should assist in implementing government policy. While other officers were silent, I remarked that our duty had always been to assist in implementing the policy of the law.

The new Government elected in 1978 established a Supreme Court and a Court of Appeal and re-appointed some of the then Judges to the Supreme Court, demoted some to the Court of Appeal. Some were retired. New Judges were appointed to the Supreme Court from different sources including conservative Judges. Samarakoon Q.C. was appointed Chief Justice over the most senior Judge Samarawickrema, Acting Chief Justice. As Mario Gomis comments in his book, "ln The Public Interest" Judges were generally pro-executive and conservative.

When I was Acting Attorney General in 1988 I was consulted by the Secretary, Cabinet of Ministers, probably on the directions of the President Jayewardene, on the question whether the Supreme Court in giving relief to nurses in a fundamental rights case was competent to declare a Cabinet decision invalid or to admit as evidence such decision which was "confidential". I replied that the Court had the jurisdiction to do so.

Yet it appeared that even subject to constraints, the judiciary was performing satisfactorily. However, every Government expected the judgments to be issued in favour of the Government. But the Court gave judgments for and against the Government. Thus in the Gamini Dissanayake Expulsion case the Court dismissed the petition in the public interest whilst in the Sarvodaya case the Court gave judgment against the State upholding the fundamental rights of the petitioner. I wrote the judgment in each case. I experienced no hostile reaction in either situation.

I have observed a gradual decline in the independence of the officers of the Attorney General's Department. They are unable to tender correct advice to the State for fear of incurring the displeasure of the executive. State officers do not appear to accept the Attorney General's advice. The cause of this situation is the fear psychosis created by politicisation. Police officers are subject to political interference. They are not being trained in scientific methods of criminal investigation. Some of them are skilled in unlawfully detaining suspects and torturing them. Recently the police applied to be given the power to detain a suspect for 72 hours. To my knowledge no police officer who has been ordered by the Supreme Court to pay compensation for torture has been punished. On the other hand, a recent judgment of the Supreme Court has approved the promotion of such officers.

Sri Lanka has acceded to the Torture Convention and an Act of Parliament has been enacted making torture an indictable offence. Consistently with the Constitutional guarantee of freedom from torture (Article 11 of the Constitution) provision was included in the Establishment Code prohibiting the Attorney General from appearing for public officers against whom violation of Article 11 of the Constitution is alleged. The police have recently complained against this provision. Every person charged with torture has to arrange for his defence. If so, why should public officers be privileged to have State Counsel to appear for them. The rule is that if the officer succeeds in his defence his legal expenses are reimbursed. Hence the complaint of police officers is unwarranted.

After the Bandaranaike assassination case no political or other major crime was properly investigated and prosecuted. This is tragic. Of course if an influential person is the complainant or the crime has political implications, the case has been tried by three Judges at a Trial-at-Bar or by the High Court expeditiously. In other cases police are lethargic. They complain that crimes are undetected for want of public co-operation! The truth is that many crimes are rooted in corruption and linked to underworld criminals.

The Judicial Service Commission having powers over the minor judiciary consisted of the Chief Justice and the next two senior most Judges. The Commission now consists of the Chief Justice and two junior Judges. There is no proper scheme for selection and training of competent Lawyers to the minor judiciary as in Thailand. The Sri Lanka Judges Institute which was established in 1985 is ineffective. Hence the standards in the Original Courts continue to deteriorate.

It appears that the Judges in the Superior Courts are slow to give orders against the State. Lawyers too have become politicised. One group of Lawyers describes itself as "SLFP Lawyers".

It is observed that presently a Minister has personally undertaken activity of offering privileges to Judges of Original Courts such as handing over vehicles, and sending them on scholarship training, also the opening of Courts and allied institutions. Even the Chief Justice appears to be maintaining links with the executive which exceed the traditional limits. There is no objection to maintaining public relations between the judiciary and the executive. But the present developments appear to show a degree of politicisation of the judiciary as in the public service.

The result of these conditions is the undermining of the rule of law. It is in this context that politicians have become bold enough to assert that Parliament and Courts may be closed and some Judges will be retired. Even though freedom of speech is subject to restrictions prescribed by law in respect of privileges of Parliament, defamation and contempt of Court, statements have been made in respect of Judges on the basis that they too are State officers. Are the legislators and the executive unaware of Article 170 of the Constitution which shows that Judges are not "State officers'' by definition? Cannot the Attorney General guide them? It seems to be a task beyond them. Cannot private lawyers convince the Courts regarding the rights of citizens and the executive? It appears that they are reluctant to press their cases against particular Judges. 

This may be a diplomatic method of ensuring that their practice is not adversely affected. This is unfortunate for the State and the citizen. The effect of this situation will be seen in the future in the shape of public turmoil. One indication of what is in store is the present tendency of the public to impose drastic punishments on persons suspected of crime well before their trial. "Those whom the Gods want to destroy, they first make them mad."

It is the public interest which is the victim of these conditions. I have analysed the causes of the malady. Depoliticise the system. Go back, if possible, to the Soulbury period of the judicial system sans the discriminations. A joint effort by the professionals and all branches of Government is required where mere "yes men" should have no part to play. Objective advice should be accepted; flattery should be rejected.

Ms. B: the golden era of Sri Lanka's foreign policy

By Ameen Izzadeen

When elephants clashed it was the ants that got crushed, but when the world superpowers clashed Ms. Bandaranaike was among those who made ants into elephants in world politics by making the Non-aligned Movement a third force in the bipolar international system. 

The non-aligned countries were non-actors when the post World War II global order took shape with the United Nations in the centre and the world divided on the basis of pro-American or pro-west and pro-Soviet or pro-east. When Sri Lanka, then known as Ceylon, regained its independence in 1948, the Cold War had just begun. Within a decade the two blocs were on the brink of war on several occasions over a host of crises such as the Berlin blockade, the U2 spy episode, the Korean war and the Soviet invasion of Hungary.

In the midst of these crises, the ideology of non-alignment gathered momentum and Sri Lanka played a major role not only in planting the seed but also in nursing it as it grew into a gigantic banyan tree bringing under its shade more than one hundred countries. 

Since independence Sri Lanka steered clear of Cold War politics despite its defence pact with Britain. It hosted the Asian Prime Ministers' conference in 1954, paving the way for the Bandung conference of Afro-Asian countries in the same year and the first NAM summit in Belgrade in 1961.

Though non-aligned in principle since independence, Sri Lanka took on the world powers with its policy of positive neutralism only after 1956 – the year S. W. R. D. Bandaranaike took over as prime minister. He criticised the British and French aggression on Egypt in the crisis over the nationalization of Suez Canal in 1956. In the same year – one year after Sri Lanka's admission to the United Nations – he condemned the Soviet invasion of Hungary and Sri Lanka was included in a UN committee that sought to resolve the crisis. 

At a reception accorded to Marshal Tito of Yugoslavia, Mr. Bandaranaike said: "We are not neutralists. We do not adopt a negative attitude. Our attitude is a very positive one, in following our different ways of life in non-alignment with power blocs. I do not like the word uncommitted. We are committed to the hilt."

Sirimavo Bandaranaike, Mr. Bandaranaike's widow, who was thrust into politics after his assassination in 1959, was equally, if not more, committed to her husband's non-aligned policy. 

Ms. Bandaranaike was the cynosure of all at the NAM preparatory summit in Cairo and the first NAM summit in Belgrade in 1961 not only because she was the first woman prime minister of the world, but also because she championed in no uncertain terms the non-aligned cause her husband and other third world leaders advocated. She called on the non-aligned countries to play a positive role in influencing world opinion so that no government however powerful could regard warfare as an alternative to negotiations.

Her interest in world affairs and the recognition she gained in the international arena silenced her critics who had scoffed at her, describing her as a housewife who knew little about local politics, let alone international affairs.

The year she assumed the mantle of leadership of the country, the crisis in Congo was growing out of control and a year later the Cuban missile crisis placed the world on the brink of a nuclear war between the two superpowers.

As regards Congo, Ms. Bandaranaike instructed Sri Lanka's UN envoy to team up with envoys of other non-aligned countries to solve the crisis through UN mediation. Sri Lanka's role was soon recognised by the international community when it was asked to play a leading role in UN efforts to maintain peace in Congo. 

As regards Cuba, Sri Lanka proposed a UN-mediated solution – a proposal backed by other non-aligned countries. 

Ms. Bandaranaike's policy in making the country's stance and that of the NAM known to the world demonstrated that third world countries would not remain silent observers when world peace was disturbed or sovereignty of states was threatened by outside powers.

Her interest in international affairs through non-aligned policies grew to such an extent that she was soon banded together with non-aligned pioneers such as Marshal Tito and Gamal Abdal Nasser. When a division among the third world countries emerged over China's effort to form an Afro-Asian bloc as opposed to a non-aligned bloc, Ms. Bandaranaike despite her close relations with the communist state, stood firm and prevented the NAM from collapsing.

She convened a NAM preparatory summit in Colombo and successfully convinced the NAM countries that non-alignment was the correct and only way ahead for the developing countries if they were to survive in a world plagued by superpower rivalry. Her efforts paid dividends when the Cairo summit was held in 1964, restoring NAM unity.

She was also instrumental in helping the NAM emerge unscathed when it faced a crisis of a more serious nature – the border war between India and China in 1962. The two countries were pioneers in forging Afro-Asian unity to confront the hegemonic politics of the two power blocs.

They were also vying for the leadership of the Afro-Asian group. When war broke out, Ms. Bandaranaike acted fast on her own without the compulsion of any other country to bring the conflict to an early end and resolve the border dispute between the two Asian giants. 

She convened a conference of six NAM nations in Colombo. Both India and China sent delegations, giving legitimacy and according recognition to Ms. Bandaranaike's efforts. Her proposals were accepted by India in toto while China accepted them as a basis for negotiations. Though it cannot be said her efforts paved the way for the end of the conflict, her efforts brought the two countries closer to Sri Lanka, helping the island nation obtain political and financial assistance from them. 

Soon Ms. Bandaranaike was able to strike a deal with India on the question of stateless people in Sri Lanka and Chinese Premier Chou en-Lai visited the country, offering financial aid and a promise to build an international conference hall in memory of her late husband. In the 1970s she was also able to negotiate with India and make it concede Kachchativu to Sri Lanka. 

The foreign policy she followed had been so meticulously framed that it adopted the middle path as far as the politics of power blocs was concerned and a balanced approach in regional politics. This policy was very well demonstrated in her policy towards the Asian power struggle involving India, China and Pakistan with the latter two in alliance against the former. 

Ms. Bandaranaike did not antagonize either India or Pakistan when the two countries went to war in 1971 over the independence struggle in East Pakistan, now Bangladesh. India accused Sri Lanka of allowing the Pakistan civilian flights carrying troops in civvies to fly via Colombo. But Sri Lanka was able to convince India that it had no hidden agendas. It is reported that Sri Lanka allowed Indian diplomats to check one Pakistani flight and made them convince that the allegation was unfounded. 

She developed a personal relationship with world leaders, especially Premier Indira Gandhi of India, Chinese Premier Chou En-Lai, Yugoslavian leader Marshal Tito and Egyptian leaders Gamal Abdal Nasser and Anwer Sadat. 

Foreign policy decisions are also shaped by personal relationships among world leaders. Ms. Bandaranaike's friendship with Ms. Gandhi was such that it was said that had she been in office from 1977 to 1983, the crisis in the North and East would not have aggravated to the extent to what it is today. 

India would never have helped the separatist groups. On the contrary, it would have helped the Sri Lankan government to either quell the rebellion or find a solution to the crisis.

Her overt support for the Arab cause, especially the Palestinian crisis, made her a household name in West Asia.

She severed diplomatic links with Israel in the wake of the 1973 Arab-Israeli war. After the 1976 NAM summit was held in Sri Lanka – a crowning glory in recognition of Ms. Bandaranaike's role as a strong pillar of the NAM – the Arab states opened the doors of employment for Sri Lankans. The revenue from West Asian jobs became one of the top foreign exchange earners of the country in later years.

Guided by her faith in socialist democracy, Ms. Bandaranaike's contribution to world peace and the economic survival of the third world was numerous. Salient among them was Sri Lanka's proposal in 1971 to the United Nations sessions that the Indian Ocean be declared a zone of peace, keeping the superpowers out of it. Another contribution was its active participation in convening the UN conferences on law of the sea and drafting and redrafting the treaty – a progressive document that contained provision bringing the world rich and the poor for the common good of all humanity. 

It was also during Ms. Bandaranaike's term that Sri Lanka made progressive proposals at the United Nations Conference on Trade and Development aimed at ensuring a better price for third world commodities and preventing exploitation by western multinationals. The proposals had the overwhelming support of the third world though the developed capitalist countries did not like them. 

Ms. Bandaranaike's foreign policy was simply not only an extension of the domestic policy with national interest as the basis, but it was also an approach that had the common interest of the third world at its core. 

It was a cry for international justice, a struggle for equality and a call for fair play. But it was also too ambitious and idealistic in that it gave little recognition to the fact that world politics is guided more by realism than by idealism. 

The nationalisation of oil companies and her pro-soicalist economic policy which her critics saw as anti-west showed her failure to reckon real politick.

However, Ms. Bandaranaike's froeign policy made Sri Lanka a friend of all and enemy of none. And it could be well said that the golden era of Sri Lanka's foreign policy was witnessed during the Ms. Bandaranaike era.