Whither judicial independence: JSC expresses concern
Two weeks after polls for the Sabaragamuwa, Eastern and North Central Provincial Councils, the United People’s Freedom Alliance (UPFA), the main winner, is on a political roller coaster ride with both allies and their own ranks. The rough and tumble centres mainly on the appointment of Chief Ministers and what to give or take from alliance partners.
The focal point was of course the Eastern Provincial Council (EPC). Last Sunday, President Mahinda Rajapaksa had some strong words and a tough message for Rauff Hakeem, leader of the Sri Lanka Muslim Congress (SLMC). “You must remember I am not going to resort to any political horse deals. I would rather have my councillors sit in the opposition. You can remain in my cabinet and form an administration in the East if you so wish,” he said.
Besides the two, also present on the occasion was Presidential Secretary Lalith Weeratunga. Yet, a ministerial team engaged Hakeem behind-the-scenes articulating the UPFA’s position and urging the SLMC to re-consider its main demand, the appointment of a Chief Minister from its ranks. The dialogue ended with UPFA’s Najeeb Abdul Majeed (55), a non-cabinet Minister of Co-operatives, Local Government and Provincial Councils in the previous UPFA government, being sworn in as Chief Minister for EPC. His first visit to the east yesterday was by helicopter for a welcome reception in Kinniya. Bad weather forced the chopper to land in China Bay. The SLMC, in return, obtained written acknowledgement over its demands contained in a document that was handed over. The Sunday Times (political commentary) gives a detailed account today of how the dodgy deals between UPFA leaders and the SLMC played out.
In the North Central Province (NCP), former Chief Minister Berty Premlal Dissanayake, who was quoted as telling election rallies that he would remain in that post “forever,” was in for bad news. The UPFA leadership decided on S.M. Ranjith, who secured the highest number of preferential votes. His brother, S.M. Chandrasena, Minister of Agrarian Services and Wild Life, resigned from the cabinet on Wednesday to facilitate the appointment. There was speculation in UPFA circles that his ministerial post was to go to 32-year-old Duminda Dissanayake, the son of former NCP Chief Minister Berty Premalal Dissanayake. He is now Deputy Minister of Youth Affairs and Skills Development. The move has heightened the likelihood of a cabinet reshuffle. United National Party’s Kings Nelson, son of H.G.P. Nelson, a former cabinet minister, will be the leader of the opposition.
Former Chief Minister Dissanayake did not seem pleased. He summoned a news conference at his residence in Anuradhapura on Thursday. He said that 120 UPFA local council members including chairmen and vice chairmen in the Anuradhapura district have “threatened to resign from their positions” if he was not appointed as the chief minister. He claimed they had informed that their “letters of resignation and affidavits to this effect” would be handed over to him. Some have already done so, he said. If he was not appointed as the Chief Minister for NCP, he said, “I will also function as an ordinary member in the council representing the SLFP,” he claimed. “One should have the experience to be the chief minister”, he argued.
President Rajapaksa, who has got tough on disciplinary issues, disallowing two blood relatives of the same family from holding political office, was away in India when Dissanayake made the remarks. A senior minister who did not wish to be identified for obvious reasons said the President would “handle the matter upon his return. His views on the selection of a chief minister have to be respected and cannot be ridiculed publicly.” Yet, some Cabinet ministers were still in favour of Dissanayake.
There was hardly any controversy over the appointment of a chief minister for Sabaragamuwa. The previous incumbent, Maheepala Herath, who contested in the Kegalle District, will hold the post. Efforts by Minister John Seneviratne to lobby for the appointment of a councillor from the Ratnapura District did not succeed. So did efforts by Minister Pavithra Wanniaratchchi. She met Rajapaksa together with her husband, Kanchana Jayaratne, who polled the highest number of preference votes in the Ratnapura District. The President said it was against the government policy to allow the wife to be a cabinet minister if the husband was to be appointed a chief minister. The “blood relatives” rule applied. Dr. Thusitha Wijemanne of the UNP will be the leader of the opposition.
As reported in these columns last week, the SLMC had sought the chief ministerial post in the East. Among other demands was an additional ministerial position in the cabinet. Its leader, Rauff Hakeem told a ministerial team headed by Economic Development Minister, Basil Rajapaksa last week that “there is no question of the UPFA refusing the appointment of an SLMC chief minister.” He argued, “I have the majority. Our independent identity and strength have helped capture the anti-government vote. We can market it.”
As revealed last week, a meeting of parliamentarians of the SLMC was under way ahead of a briefing Hakeem was to give members of the Tamil National Alliance (TNA). It was then that Minister Basil Rajapaksa, de-facto chief negotiator for the government and is well-known for his trouble shooting experience, called Hakeem to invite him for a meeting. Just then, the parliamentarians were troubled by the absence of one of their colleagues – Basheer Segu Dawood. He had, during the polls campaign, tendered his resignation as Deputy Minister of Co-operatives and Internal Trade. He declared it was not morally right on his part to criticise the government whilst being an alliance partner. Some SLMC parliamentarians held the view that it was a move to force Hakeem also to tender his resignation. However, Dawood denied there was a grand design. Their worry increased after Tamil media reports quoted Minister Rajapaksa as welcoming Dawood’s move. Notwithstanding these issues, the group decided that Hakeem should meet Minister Rajapaksa after informing the TNA he is unable to see them.
That Friday night (September 14), Hakeem and Minister Rajapaksa discussed a multitude of issues and options. They included the appointment of a chief minister, a chairman of the council (the equivalent of a Speaker) and the appointment of ministers. Minister Rajapaksa was to point out that ministerial positions would have to be considered for one time SLMC stalwarts now with the UPFA. Two ministerial portfolios were offered to the SLMC. Hakeem wanted a third ministerial position offering to forego the offer of the Chairman’s post to a party nominee. What has set a poser now is the absence of a Tamil minister in the EPC. Former Chief Minister, Sivanesathurai Chandrakanthan (a.k.a. Pillayan) has turned down the offer of a portfolio in the EPC and has been appointed a Presidential Advisor. In that position he will not only have official vehicles but will continue to have personal security contingent assigned to him.
Minister Rajapaksa was to point out that conceding the SLMC demand that one of its nominees be the chief minister would create the erroneous impression that the UPFA government was being held hostage. This would also create problems should there be a future parliamentary or presidential election. Hakeem was to recount the role of the SLMC in the UPFA and how it extended support for the passage of the 18th Amendment to the Constitution. He said since then, there were issues on which there was both “disenchantment and disillusionment” over the “treatment meted out to the party.” He said “this has to be corrected” so “the rank and file” would be satisfied.
Although a meeting was scheduled for the next night (Saturday September 15), it materialised only on Sunday morning. President Rajapaksa met Hakeem in the company of his Secretary, Weeratunga. This is where the President said he did not believe in horse deals or in decorating persons as ministers. He was keener on what the party and the leadership had to say. He said Hakeem was free, if he so wished, to remain in the cabinet and still form an administration in the Eastern Provincial Council. If that happened, UPFA councillors would sit in the opposition. Hakeem explained that his party had won a mandate and looked forward to “seriously working with him.”
Later that day, Hakeem was to summon a meeting of the SLMC parliamentary group. He briefed them on his talks, first with Minister Rajapaksa and later with President Rajapaksa. Views were varied. Some speakers held the view that the party should have adopted a stronger line since it had “won an overwhelming mandate” from Muslim voters. Others argued that the leader had thereafter been given a mandate by the party hierarchy to talk to UPFA leaders and agree to an “acceptable settlement.” Needless to say there was disappointment that things had not worked the way anticipated. The group decided, however, that the Tamil National Alliance (TNA) leaders should be informed of the developments.
On Monday morning, a meeting was set up at a rather unusual place – a Korean restaurant along Park Road. It was ahead of business hours and a variety of finger food had been ordered. Turning up were TNA leader Rajavarothyam Sampanthan, General Secretary Mavai Senathirajah and M.A. Sumanthiran MP. Hakeem, who was there together with his party leaders, opened the discussion. “I told President Rajapaksa the desirability of inviting TNA. I said the SLMC was prepared to work out a collective formula, one that was a good way of avoiding polarisation. It would be good to consider a Muslim as a chief minister,” Hakeem said.
Sounding optimistic, he added, “that could still be possible.”
Sampanthan said he was not averse to discussing matters. He then turned angry. He said the minorities, both Tamils and Muslims, had been let down. The SLMC had veered away from the UPFA, contested separately from the UPFA and won even the anti-government votes. It held a promise to the Tamil speaking people to safeguard their interests. Now, it had chosen to support the UPFA. He was insistent that the SLMC should not have taken any decision other than join the TNA to form an administration. To do otherwise was a betrayal of the mandate the SLMC had won, he said. “It should not be a case of musical chairs. We cannot afford confrontational politics. Discretion is the better part of valour,” he argued.
Hakeem then spoke about the need for a continuing dialogue between the SLMC and the TNA to resolve issues related to Tamils and Muslims. He cited the recent case in Mannar where an incident had “led to a confrontation with the judiciary.” He noted that it had been mishandled and named the government politician responsible. The root cause has been the re-settlement of Tamil fishermen from Vidattaltivu in Kondapitty. It had been previously occupied by internally displaced people from the Muslim community. The issue had been by exploited by some groups. Another issue is a place of Muslim worship built allegedly on a burial ground, also an issue that had been mishandled by the same government politician. The third was a dispute over a mosque at the Karativu junction in Ampara. He said those issues could always be discussed between the SLMC and the TNA.
Sampanthan told the Sunday Times, “We offered the chief minister’s post to the SLMC even during the election campaign. The legitimate thing to do is for the Tamil-speaking people to get together and work together. Hakeem is a loyal servant of the Rajapaksas. That is unfortunate. The Tamil-speaking people, who suffered a great deal, have been betrayed.”
Later on Monday, Hakeem had a meeting at the Ministry of Economic Development at Darley Road. It was with Ministers Rajapaksa, Nimal Siripala de Silva, Maithripala Sirisena and Dullas Allahapperuma. A strong bid was now made to iron out differences and ensure that the SLMC not only remains within the UPFA fold but also heeds their viewpoint too.
Hakeem told the Sunday Times a proposal was made that a UPFA nominee be made chief minister for first half of the term. Logically, the next half was to be a nominee from the SLMC. The fact that it would otherwise be construed by the public as a capitulation by the UPFA to the SLMC was re-iterated.
“My mandate does not permit me to do that. I will have to first consult the party high command and the MPs,” said Hakeem. He also said that other “long standing grievances” of the party should be resolved. One such issue was described as “administrative boundaries.” A UPFA source said yesterday that the SLMC had sought the creation of a Kalmunai Coastal District by dividing the existing Ampara District. This is on the grounds that the Muslims in and around Kalmunai and surrounding areas where they are predominant now had to travel to Ampara. Minister Rajapaksa said issues could be discussed and resolved.
Hakeem returned to Parliament and summoned SLMC General Secretary Hassen Ali to his office there. He wanted him to prepare a letter listing out the SLMC demands. That included sharing the term of office of the chief minister with a UPFA nominee, the creation of the new administrative division and two ministerial portfolios in the Cabinet with preferred subjects. “The issues will now be resolved,” said Hakeem to Hassen Ali. There was not enough time to summon the party’s high command. Hakeem spoke on the telephone with each one of them and obtained approval. Hassen Ali carried the letter to Minister Rajapaksa. Hakeem had by then taken a back seat. SLMC leaders were making telephone calls to UPFA ministers to obtain acknowledgement to their letter. Last Tuesday morning, Hakeem despatched one of his security officers to collect the acknowledgement letter from Susil Premajayantha from his Udahamulla (Nugegoda) residence. The latter had signed it as General Secretary of the UPFA. In that he has confirmed receipt of the letter handed in by the SLMC. In that letter, the SLMC itemised its demands that were previously discussed. Hakeem was to later tell Hassen Ali to keep the letter in a “safe place’
As word spread, Hakeem came under intense pressure from some of his party’s rank and file for not clinching a deal with the UPFA that was satisfactory to them. Some felt that there was also a need to close ranks by bringing in Basheer Segu Dawood also into the fold. An SLMC parliamentary group meeting was fixed on Monday evening at the Bullers Road (Colombo) residence of Dawood. Hakeem was to defend his role. “If there is someone to bring unity in the party, it is me. I cannot allow my sentiments to decide. The need is to protect the party,” he said. Then, what he said indicated a stark reality – that the SLMC was strongly divided on the outcome of its dialogue with the government. Hakeem said, “Whatever decision is made, MPs and the newly elected Provincial Councillors have to abide by it. There could be attempts to undermine the leadership,” he cautioned.
On Wednesday, the Eastern Provincial Council members of the SLMC were to meet at 11 a.m. in the Parliament complex. Just before the meeting could begin, Hakeem’s phone rang. It was Minister Dullas Allahapperuma. He said that an Air Force helicopter had flown to Colombo retired Rear Admiral Mohan Wijewickrema, Governor of the Eastern Province. He said Hakeem was needed together with Hassen Ali at “Temple Trees” for the swearing in of Najeeb Abdul Majeed. He said that the latter, as General Secretary of the SLMC, would have to give a letter expressing the party’s support for Majeed’s Chief Ministership. Hakeem had earlier telephoned Hassen Ali and told him to come to Parliament. He rang again and said he should rush to Temple Trees. Instead of chairing the meeting, Hakeem drove there. When he arrived, he found Hassen Ali had arrived in a suit with a tunic collar. It was just past noon and President Rajapaksa was at lunch. Among those who had joined him were Governor Wijewickrema and Chief Minister designate Najeeb Abdul Majeed. Later, when they walked to the foyer, television cameras rolled whilst Hassen Ali handed over the letter that said the SLMC would support Majeed.
Having sworn in Najeeb, Rajapaksa was to speak again to Hakeem. He said that TNA leader Sampanthan had visited him earlier in the morning. “I told him what I told you,” he said referring to Rajapaksa’s words to Hakeem that he could, if he so wished, form an administration with the TNA. In such an event, the President said, the UPFA councillors would sit in opposition benches. “I had thought that is not what you wished,” replied Hakeem. In the evening, Chief Minister Abdul Majeed was invited to the Hakeem household at Alfred Place for tea with the SLMC councillors. During a brief speech, Hakeem said they would work together and respect each other’s ideologies.
A statement issued by the TNA after Sampanthan’s meeting with Rajapaksa said: “Following on an invitation from Mr Lalith Weeratunga, Secretary to the President, to the TNA leader Mr. R. Sampanthan on the night of 17th September 2012, for a meeting at the President’s House on 18th morning, a meeting took place between the President and Mr. Sampanthan as arranged. Ministers Maithripala Sirisena, and Prof. G.L. Peiris were also present at the meeting. The President congratulated Mr. Sampanthan on coming a good second at the Eastern Provincial Council Elections and Mr. Sampanthan stated that if the Elections had been free and fair, the TNA would have come first.
“Mr. Sampanthan further stated that that as per the mandate received by the TNA, and the SLMC, the TNA invited the SLMC to form a government and offered the SLMC the Chief Ministership. The UNP would have backed such an arrangement. The President responded by stating that he was quite prepared to sit in the opposition and indicated this to the SLMC and also referred to the offer made by the TNA to the SLMC. He, however, stated that now things were finalised. Mr. Sampanthan stated that the eleven members elected to the Eastern Provincial Council from the TNA should be able to function freely and independently and without any deterrence or discrimination. If this did not happen, it would mean that the Tamil people were being punished and that this should not be allowed…………………………”
Sampanthan told the Sunday Times President Rajapaksa also asked him about TNA’s position with regard to participation in the proposed Parliamentary Select Committee that was to formulate a package to address Tamil grievances. “I told him we are prepared to take part. However, the government should fulfil the promises made to us before that,” he said. He added that the President told him he was leaving for India the next day (September 19) and hoped to meet him again after his return. Undoubtedly, Rajapaksa wanted to be up to date when he held talks with Indian Prime Minister, Manmohan Singh.
Rajapaksa, who returned yesterday from India, has to ensure the swearing in of two Chief Ministers – for North Central and Sabaragamuwa provinces. In the light of developments in the recent polls coupled together with controversies in some key ministries, a cabinet reshuffle is now a certainty. Thus, with new Chief Ministers and a new ministerial team, he will oversee the government’s budget in November. More PC polls are sure to follow as his popularity remains virtually intact.
Another crisis he may have to address would be what appears to be a tussle between the government or the executive and the judiciary. Government sources claim members of the Judicial Service Commission (JSC) were invited for a discussion on the upcoming budget but did not present themselves. However, there appears to be another view.
The question has surfaced after Dayasiri Jayasekera, United National Party (UNP) MP for Kurunegala District, raised issue in Parliament on Thursday. Here are extracts from the speech he made:
“In this country where we have a presidential system of government, we have three organs, the Legislature, the Executive and the Judiciary. Usually one does not try to supersede the other. The Parliament is supreme, the President enjoys Executive power and the judiciary has the powers over interpretation of laws. But today things here are being turned around. Today the power of parliament has been devalued. The responsibilities of Parliament are being delegated to the Executive and due to enhanced power; the Executive is impinging on the powers of the judiciary preventing them from doing their work independently.
“This is what is happening today. Sometimes court houses are being stoned, judges are being threatened, some ministers are telling judges what steps to be taken before the judgment is given and when this does not happen they stone their houses. Thereafter they pretend that the suspects cannot be found. Thereafter the courts start finding the suspects. Certain judgements are not given until the elections are over.
“Because of actions like this, today the powers of the judiciary are being made a mockery. This is a very disgraceful situation and this is pushing democracy in the country towards its destruction. Today the Judicial Services Commission (JSC) secretary Manjula Tillkaratna has been forced to go public with these issues. For the first time in its history, the JSC has had to issue a media statement. It’s the first time it has happened. The JSC secretary has had to issue a statement saying that there is an attempt to interfere in the judiciary. Under the Constitution the JSC has no place to take up its grievances. It has no Court to go to. For the first time the JSC has issued a statement. The statement says: ‘The attention of the Judicial Service Commission (JSC) has been drawn to baseless criticism of the JSC and in general on the judiciary by the electronic and print media’.
“What is happening now? The state media is not only attacking the judiciary but also the JSC. The state media and media persons who have been hired are doing this.”
A.H.M.Azwer: Madam, I rise to a point of order.
Dayasiri Jayasekara: There is no point of order in that.
Minister (of Justice): Rauf Hakeem stands up
Jayasekara: please do not disturb.
Minister Hakeem: I rise to a point of order
The Presiding member: You can raise the Point of Order
Minister Hakeem: Hon member knows that any matter concerning issues of judges will have to be discussed by way of a substantive motion. Therefore…..
Jayasekara: This was raised by Hon Azwer in his Adjournment Motion in the morning. That is why I am referring to that.
Minister Hakeem: No. It is a violation of the Standing Orders
Mangala Samaraweera: This has nothing to do with the conduct of the judges. This is a statement.Jayasekara: No, the problem is that the Hon Azwer asked this question in his Adjournment Motion in the morning. That is why I am referring to this. He is the one who raised this in Parliament. So, I have a right to answer that. That is my right.
Jayasekara (Continues): The JSC Secretary said in the statement that people from different strata are attempting to influence the Judiciary. It also said an attempt was made to summon the Chairperson of the JSC who is the Chief Justice and two other Supreme Court judges for a meeting. Who is the person who made an attempt to summon them? Can the Executive summon the Chief Justice and tell her what to do? What is happening to the judiciary? This is our question. I am responding to Hon member Azwer. The JSC Secretary is further explaining that the JSC is the superior institution which is empowered with the appointment of Magistrates, District judges, their transfers, dismissal from service and disciplinary action against them.
The Presiding member: Your time has ended
Jayasekara (continues): Under the Constitution any direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence for which you could be charged in the High Court. My question is who has interfered. Who has interfered and created this situation.
The JSC Secretary has been compelled to issue a press release to say that the JSC is dedicated and it is its responsibility to protect the independence of the judiciary and discharge its service without being intimidated by influence, threats or criticism. He has nowhere else to go. He clearly states there is interference in the judiciary.The Presiding member: Your time is over, please stop.
Jayasekara: The parliament has a responsibility to stop this trend and safeguard the independence of the judiciary. The right of the CJ and the other judges to give independent decisions must be protected.
His remarks came in the backdrop of an official three-page statement issued in Sinhala on Tuesday by the Judicial Service Commission (JSC). Here is an English translation. “The attention of the Judicial Service Commission (JSC) has been drawn to baseless criticism of the JSC and in general on the judiciary by the electronic and print media. The main objective of those behind the conspiracy of those trying to undermine the JSC and Judiciary is to destroy the independence of the judiciary and the rule of law.
“It is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regarding decisions taken by the Commission keeping with the service requirements. Recently the JSC was subjected to various influences after the Commission initiated disciplinary action against a judge.
“Moreover an attempt to convince the relevant institutions regarding the protection of the independence of the judiciary and the JSC over the attempt to call for a meeting with the chairperson of the JSC, who is the Hon Chief Justice and two other Supreme Court judges, was not successful. The JSC has documentary evidence on this matter.
“It is the JSC that is the superior institution which is empowered with the appointment of Magistrates, District judges, their transfers, dismissal from service and disciplinary action against them. It is an independent institution established under the Constitution. Under the Constitution any direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence which could be tried in a High Court.
‘It should be emphasized that the JSC is dedicated and it is its responsibility to protect the independence of the judiciary and discharge its service without being intimidated by influences, threats or criticism. I have been instructed by the Commission to issue this media release to keep the majority of the public who value justice informed about an attempt by conspirators to destroy the credibility of the JSC and the Judiciary. — Manjuala Tilakaratne, Secretary, JSC.”
The next day (Wednesday), an organisation styling itself the “Free March” held a news conference in Hulftsdorp. One of the organisers said the membership was made up of lawyers, other professionals and civil rights activists. Two lawyers made comments.
Attorney-at-Law Gunaratne Wanninayake said that the JSC had issued a media statement on September 18 that due to political pressure it could not act independently. He said interference in the judiciary was an offence punishable by the High Court after a trial. People would lose trust if the independence of the judiciary was tampered with.
Attorney-at-law J.C. Weliamuna said there had been attempts to interfere with the judiciary even in the past. The judges got together and managed to get over it.
Of the number of recent attacks, the worst attack, he added, was probably the attack on the Mannar Magistrate Court and the intimidation of the judge himself. There was a “very unusual media release” by the Judicial Services Commission that referred to unfair media attack on the JSC, he added. He blamed some state media outlets. “We lawyers do whatever possible to protect the judges and the rule of law. What judges could do about it is limited,” he declared.
On the same day, the Colombo Chief Magistrate’s Court Lawyers Association (CCMLA) held a news conference to protest a resolution adopted by the Colombo Law Society. It said the resolution urged that provision be made for the President to make appointments to High Courts and Courts of Appeal from the “unofficial bar.” The resolution has now been forwarded to the Bar Association of Sri Lanka (BASL).
Colombo Chief Magistrate Court Lawyer’s Association (CCMCLA) senior Member Chandra Liyanaarachchi said the resolution would jeopardize the judiciary. “If I am appointed as a High Court Judge I could not refuse to meet my former clients because I was dependent on their fees,” he explained.
“When a senior lawyer from the private bar who is practising in these courts is appointed especially to Trial Court like a High Court, there is a strong possibility of such a judge being partial towards the likes of his former clients.” Moreover, he said, with only a “couple of years” of practice, a fresher form the Law College interviewed by the Senior Judges including the Chief Justice, after six months of training at the Judges Institute could be only appointed as a magistrate.
Liyanaarachchi said that there is procedure for the appointment of a High Court Judge. A district court judge could be promoted as High Court Judge when he has the necessary experience and qualifications. A Senior State Counsel or a Deputy Solicitor General too could be appointed from the official Bar. He also pointed out that there are only a handful of instances where members of the “unofficial Bar” were appointed as judges by the country’s Presidents to the Supreme Court but not to the High Court or the Court of Appeal.
The Judicial Service Association, whose members are all judges, also issued a statement on Friday. It said, “The Secretary to the Judicial Services Commission (JSC) issued a statement on 18.09.2012 expressing its displeasure at the interference being directed from various quarters towards the conduct of the official activities of the Commission.
“While we appreciate the decision taken by the JSC to uphold the rule of law and the maintain properly the independence of the judiciary, we will unreservedly support action taken by the JSC as well as measures it decides to take to safeguard the supremacy of the law and the independence of the judiciary.”
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