Last Monday evening, actress Malini Fonseka was leaving the hallways of “Temple Trees,” once the home of British businessmen, an editor, colonial rulers and later for decades by democratically-elected leaders of Sri Lanka. I walked in to greet President Mahinda Rajapaksa and sit down for a 90-minute conversation. Present was Bandula Jayasekera, President’s spokesperson. Presidential [...]


Issues behind President’s tussle with the judiciary

= Weeratunga writes second letter to CJ explaining reasons for the meeting with Rajapaksa
= Ministerial team and Government lawyers appointed to work out course of action

Last Monday evening, actress Malini Fonseka was leaving the hallways of “Temple Trees,” once the home of British businessmen, an editor, colonial rulers and later for decades by democratically-elected leaders of Sri Lanka. I walked in to greet President Mahinda Rajapaksa and sit down for a 90-minute conversation.

Present was Bandula Jayasekera, President’s spokesperson. Presidential Secretary Lalith Weeratunga was to join in later. If he sat in a chair placed in the middle, chairs in two rows on his left and right, on the floor that has seen how the country’s history has been shaped by its leaders over the years, were empty. “My commitment to ensure an independent judiciary is uppermost. I cannot understand why there should be such unfounded accusations against me or my government,” the President said. He was alluding to the statement issued by the Judicial Services Commission (JSC) Secretary on Tuesday September 18. The full text of the statement appeared in The Sunday Times (political commentary last Sunday), for the first time in an English newspaper.
Only moments earlier, Rajapaksa had diffused a crisis after Ms. Fonseka, the heart throb of cinema lovers in Sri Lanka, was asked to step down as MP. She quit only to be told by Rajapaksa that she should withdraw her resignation. It was too late. Hence, she will soon be sworn in as a new MP.

Needless to say the break would affect her claims to a parliamentary pension. The JSC in what appeared to be an unprecedented statement claimed there was “baseless criticism” of it and on the judiciary by the electronic and print media. It said, “various influences have been made” regarding decisions taken by the Commission and cited disciplinary action against a judge as an example. What was more disconcerting to UPFA leaders was a paragraph which said “. 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.” JSC Secretary Manjula Tillekeratne said “I have been instructed by the Commission” to issue the statement.

“I wanted them to be present for a discussion in the light of the next budget. I wanted to make sure their financial requirements and other needs are met when the budget is presented in Parliament. I also wanted to discuss how foreign scholarships and other training programmes for judges had to be enhanced,” Rajapaksa told the Sunday Times. In the past, he said, those who held the office of Chief Justice and Judges of the Supreme Court had heeded calls to attend such meetings and did not in any way consider that “an interference in the judiciary.” He added, “It is incumbent on me to ensure the smooth functioning of the judicial system in the country. I can only find out the shortcomings by asking them what they need and what steps have to be taken.” He said he would place all the facts before the public when he meets editors of national newspapers and heads of electronic media on Thursday.

“I have nothing to do with the Commission to investigate Bribery or Corruption probing Pradeep Kariyawasam. I saw it in the newspapers that a complaint has been made by someone in the JVP (Janatha Vimukthi Peramuna),” Rajapaksa said. Last week, the Sunday Times reported on its front page that a controversial National Savings Bank (NSB) share transaction involving its former Chairman Prasad Kariyawasam was being probed by the Commission to Investigate Bribery or Corruption on a priority basis. The report said that the Commission chairman declined comment on why this particular inquiry was being fast tracked.
However, ahead of that breakfast meeting, an angry Rajapaksa briefed his ministers at the weekly cabinet meeting on Wednesday evening. It came when official business, the approval of a number of cabinet papers, was over. He wanted the ministers to stay behind to listen to something important he had to say. In essence, Rajapaksa told his ministers that he had invited a delegation of the Judicial Service Commission to discuss matters relating to their financial and other requirements in view of the upcoming budget. However, he said that the JSC Secretary had issued a statement which contained several serious and unacceptable accusations. They ridiculed the government and sought to destroy the confidence people had. It appeared that there was a move to create a situation like in Pakistan, he said.

In that country, the Supreme Court and the government of President Asif Ali Zardari are locked in a debate that has continued for months. It is over the Prime Minister writing to Swiss Bank authorities to disclose secret funds held in that country by Zardari. After then Prime Minister Minister Yusuf Raza Gilani refused and resigned his portfolio, his successor Raja Pervez Ashraf agreed to write. Vasudeva Nanayakkara was the first to react. “There is something behind this. It could even be a foreign conspiracy. We all will have to be careful,” he said.

The cabinet decided to appoint a committee to examine the matter in detail. Besides leaders of constituent parties of the UPFA, others included Ministers Basil Rajapaksa, Maithripala Sirisena, Mahinda Samarasinghe, Anura Priyadarshana Yapa and Nimal Siripala de Silva. On Wednesday night they met for three hours at “Temple Trees” to discuss various aspects of the issue. Joining in were President Rajapaksa and a team of lawyers backing the government. Rajapaksa explained the background. He said that as Minister of Finance, it was his responsibility to ensure adequate financial provision is made for the judiciary and other related institutions. One of the issues discussed at the meeting was what action could be initiated against JSC Secretary Tillekeratne. This was on the basis of complaints received against him. Other stronger measures to deal with the situation were also discussed but the meeting was adjourned for Wednesday.

Economic Development Minister, Basil Rajapaksa said “sections” were trying to make out, “rather wrongly,” that the government had been “interfering” because the Supreme Court has held that the Divineguma Bill required approval of the provincial councils. He told the Sunday Times (See box story) that the government was now consulting Provincial Councils to obtain their approval in keeping with the Supreme Court ruling. Both during the cabinet meeting and the meeting of the ministerial committee on Thursday night, External Affairs Minister G.L. Peiris came in for severe criticism by President Rajapaksa for “sponsoring” what the former said were “good measures for the judiciary.” This was whilst many others, including cabinet ministers, were bitterly opposed to the move and did not want Rajapaksa to go ahead. He pointed out that the government was now paying a heavy price.

The Supreme Court ruled that “we make a determination in terms of article 120 read with Article 123 of the Constitution that the Bill (Divineguma) in question is in respect of matters set out in the Provincial Councils List and shall not become law unless it has been referred by His Excellency the President to every Provincial Council as required by Article 154 (G) (3) of the Constitution.”

Speaker Chamal Rajapaksa who read out the ruling said, “I wish to convey to Parliament that determination of the Supreme Court on the ‘Divineguma’ Bill which was challenged under the Constitution. The Supreme Court has determined that if the President does not refer the Bill to the Provincial Councils it could not be made a law, as this Bill relates to the Provincial Council list. This ruling should be printed in the Hansard.

Chief Justice Shirani Bandaranayake receiving her letter of appointment from the President

“According to the Supreme Court determination under Clause 121 (1) of the Constitution it clearly states that when a petition is filed in the Supreme Court, a copy of it should be sent to the Speaker. I observe that, stating that the legal requirements would be fulfilled by sending the documents to another Parliamentary official instead of the Speaker was an impingement of powers of the Speaker enshrined under the Constitution and a devaluation of the sovereignty of the people. I will discuss this issue with party leaders and will take necessary action.”

On Thursday morning, Rajapaksa spoke out strongly at the breakfast meeting with editors of national newspapers. This is how the event played out:

President: We could not meet due to the Provincial Council elections. We are waiting for Higher Education Minister S.B. Dissanayake. He is the main person in focus today, because of the protests by students and university academics (FUTA and IUSF) taking place. The protestors seem to be doing the same things which we did while in the opposition. We went to Geneva and held protests outside the UN Human Rights Council. Now I like to open the discussion, you can raise questions.

Q: There was a controversy over the JSC statement issued recently. What is the position on this matter?
President: I saw a news item in a newspaper about the interdiction of a judge. There are so many instances where judges have been interdicted. These things happened during former Chief Justice Sarath Silva’s time too and even during the period of the former Chief Justice Asoka de Silva. I do not personally know the judge who was interdicted. But the call for a meeting had no connection with the judge’s matter. This was to discuss about the foreign training facility for judges. Since the budget is coming and allocations were to be made, we needed to discuss this. This is nothing new, because Chief Justices have come for such meetings earlier. I do not know why they thought that it was connected with the judge’s issue.

There were complaints previously about the JSC, but we did not do anything about it, because it could be interpreted as interference in the judiciary. It is bad for the country if that happens. In this case the JSC should have sent the letter to me, without going to the media with a statement. Lalith Weeratunga (Presidential Secretary) who sent the invitation will explain this to you.

Weeratunga: I wanted to have a cordial discussion on welfare matters. I called the Chief Justice and informed about this meeting. She wanted me to send it in writing. Therefore, I sent the letter saying that on the direction of the President I was calling for the meeting on September 17.

Rajapaksa: If we wanted to discuss any controversial matter, we are not going to send an invitation in writing. I have been in politics for 42 years and I know the problems in sending in writing such an invitation. Nobody will do this, not even a normal person who goes to courts in fear.

Q: Have there been any invitations extended to Chief Justices for such discussions in the past.

President: Yes there have been several discussions. This JSC issue is an imaginary issue. There is no truth in it.

Q: What are the specific complaints about the JSC?

President: According to the Constitution, the most senior person should be appointed to the JSC. He (Secretary) was the 30th in the list. We did not take up the issue, though initially I said that an experienced person should be appointed. We did not follow up on the issue, because it was an appointment by the Chief Justice.

Q: What type of complaints have you got?

President: Cases of harassment, transfers etc.

Q: Have there been any complaints involving women?

President: (Holding a document in hand asks whether it is the same complaint the media have received?) There is one like that, but it did not come to me as a complaint. If I say everything, you will say I said it. However, If you say what is the complaint you have received, I will say whether it is the same one that I have.

Q: A complaint received on April 25th from a judge in Colombo about an indecent proposal?

President: Yes I got a complaint. Transfers should be done, but you can’t transfer a person six to seven times. We are receiving further complaints.

Q: Can an MP make a complaint to the JSC, like for instance in Minister Rishard Bathiudeen’s case?

President: There is nothing wrong in that. Otherwise who can an MP go to? Among those who complained was a lawyer. If such complaints are received, it needs to be investigated. You must not run to the newspaper first. If a newspaper carries something wrong it can apologise later.

Minister Anura Priyadharshana Yapa: There are instances where Magistrates have been investigated.
President: There are instances when the Human Rights Commission has carried out investigations..
The Sunday Times has been able to piece together some of the sequence of events that led to a stand-off between the Executive and the Judiciary. This was through conversations with both UPFA sources and well-informed legal sources close to the judiciary.
Presidential Secretary Lalith Weeratunga had written, on the instructions of President Rajapaksa to Chief Justice Dr. Shirani Bandaranayake on September 13. He had invited her and other members of the JSC for a meeting on Monday September 17 at 4.45 p.m. at Temple Trees. Whilst Justice Bandaranayake is Chairman of the JSC, the other two members are Justice Gamini Ameratunga and Justice S.I. Imam.

The fact that the letter did not make clear what the invitation to talks was about seems to have caused some concern for the JSC. Added to it were matters arising from the ruling on the draft Divineguma Bill as well as the questioning of Pradeep Kariyawasam. It was to prompt an emergency meeting of the JSC in the afternoon of September 14. It was decided that a meeting between the JSC, which is the ultimate authority over appointments, promotions, transfers and in exercising disciplinary control of the minor judiciary, and President Rajapaksa was harmful. This was on the grounds that the judiciary is entirely independent. According to one authoritative source, it was pointed out at the meeting that the Executive had no power to summon even a magistrate leave alone Supreme Court judges. They are answerable only to the JSC, it was pointed out.
Chief Justice Bandaranaike has written to Presidential Secretary Weeratunga on September 14 that it would not be proper for the JSC to participate in the meeting scheduled for September 17. She is learnt to have also pointed out that a meeting of such nature would be cause for severe criticism thus eroding public confidence in the independence of the JSC. She was of the view that similar meetings had not taken place in the past.

Rajapaksa wanted his Secretary to set the record right. Presidential Secretary Weeratunga responded to the letter on September 25. He is said to have pointed out that the invitation for the meeting was an entirely routine exercise aimed at increasing logistical support the Executive could provide the judiciary to preserve its independence. He had reminded that separation of powers made it incumbent for the three organs of government — the Executive, the legislature and the judiciary – to function in harmony within the confines of the rule of law. He expressed President Rajapaksa’s concern that the JSC had thought that a meeting with the Head of State was not appropriate and would lead to erosion of public confidence. This was at a time when there was interaction between the Executive and the judiciary on a regular basis.

Weeratunga had made clear Rajapaksa’s strong commitment to uphold the independence of the judiciary. This was whilst ensuring that it was within the rule of law and accommodating criticism, however damaging it could be. A mechanism to offer redress has also been provided. Weeratunga is also learnt to have told Chief Justice Bandaranayake that though Rajapaksa has taken note of the JSC decision not to meet him, he would still meet them as has been the practice that was followed.
Concerns at the highest levels of the government have been heightened after both superior and lower courts gave decisions that have been perceived, rightly or wrongly, as against the Executive. Such events accumulated over a period of time seem to have added to the on-going crisis. Even on Wednesday night’s discussion by the ministerial committee and lawyers backing the Government, the chronology of events leading to the current situation was discussed.

Asked for his comments, JSC Secretary Tillekeratne told the Sunday Times, “I cannot say anything beyond the statement issued by the Judicial Service Commission. I am not authorised to speak on those matters. As for myself personally, I deny the vicious accusations hurled against me. They are false. This has only led to serious concerns for my safety as well as those of others in the judiciary.”

As Secretary to the Commission, Tillekeratne is responsible for “coordinating affairs between the Executive and the Legislature, executing the policies of the Judicial Services Commission in appointing, transferring and disciplinary control of judicial officers, conducting training of judicial officers including judges of the High Court, organising seminars and overseas visits, monitoring the performance of judicial officers in granting annual salary increments and promotions, organising meetings of the commission and matters pertaining to the holding of interviews, etc., to assess suitability of judicial officers in making recommendations with regard to the appointment of judges of the High Courts.” In terms of the JSC Constitution (111K) “No suit or proceeding shall lie against the Chairman, member or Secretary or officer of the Commission for any lawful act which in good faith is done in the performance of his duties or functions as such Chairman, member, Secretary or officer of the Commission.”
The JSC is vested with the power to -

(a) Transfer judges of the High court: (b) appoint, promote, transfer, exercise disciplinary control and dismiss judicial officers and scheduled public officers. (2) The Commission may make: (a) rules regarding training of judges of the High Court, the schemes for recruitment and training, appointment, promotion and transfer of judicial offices and scheduled public officers; (b) provision for such matters as are necessary or expedient for the exercise, performance and discharge of the powers, duties and functions of the commission.

(3) The Chairman of the Commission or any Judge of the Supreme Court or Judge of the Court of Appeal as the case may be, authorised by the Commission shall have power and authority to inspect any Court of First Instance, or the records, registers and other documents maintained in such Court, or hold such inquiry as may be necessary.

(4) The Commission may by Order published in the Gazette delegate to the Secretary to the Commission the power to make transfers in respect of scheduled public officers, other than transfers involving increase of salary, or to make acting appointments in such cases and subject to such limitations as may be specified in the Order.

To President Rajapaksa, the issue with the judiciary has now extended to a ministerial team. With the help of their own legal advisors, measures to overcome the present crisis would be evolved. That, no doubt would also prompt a response from the judiciary but most UPFA leaders said they did not wish to engage in a confrontation.

This is whilst Rajapaksa had to tackle other issues. At last Wednesday’s weekly cabinet meeting, to the surprise of most ministers S.M. Chandrasena, Minister of Agrarian Services and Wild Life, was present. He was reported earlier in the media (including in these columns) as having quit his portfolio to allow his brother S.M. Ranjith to be sworn in as the North Central Province Chief Minister. He rose to make a lengthy speech heaving praise on President Rajapaksa for defeating terrorism and embarking on a successful development programme for the country. He said that he respected the UPFA policy that no two blood relatives could serve in two different bodies. Hence, he was handing in his resignation that night. Rajapaksa accepted it and declared “I have said this before.

I am saying it again now. Anyone can come in and anyone can go.” The meeting ended on that note.
For the UPFA government, a tussle with the judiciary comes at a time when other learned sections of society are taking up cudgels. They include the Federation of University Teachers Association, University students, GCE (A) level students over the “Z” score and doctors threatening strikes. During seven years as President, Rajapaksa has faced many a challenge and overcome them. The new challenges he faces are formidable. Yet, a President credited with muting the main opposition to deadly silence and winning elections one after another would face them whilst a nation watches what the outcome would be.

All PCs will pass Divineguma Bill: Basil

The perception that a standoff has arisen between the Executive and the Judiciary over the draft Divineguma Bill is wrong, says Economic Development Minister Basil Rajapaksa.

“We have abided by the Supreme Court ruling that matters set out in the provincial list shall not become law unless the bill has been referred to the Provincial Councils by the President,” he told the Sunday Times.

“Already three PCs – Western, Wayamba and Uva – have approved it. We will soon obtain the approval of three more – North Central, Sabaragamuwa and Eastern Provincial Councils. They will first meet to elect new Chairmen and Vice Chairmen. Thereafter, it will be the first business from them, whilst the rest of the Councils will also approve,” he added.
The only exception, it appears is the Northern Provincial Council which is yet to be elected. However, its Governor, retired Major General G.A. Chandrasiri, has discussed a government request for approval. The Governor’s Secretary, S. Ilangovan, told the Sunday Times the Governor’s approval would be sent to the government tomorrow.

The draft Bill provides for the establishment of a Department of Divineguma Development. This is by amalgamating the existing Samurdhi Authority, Southern Development Authority and the Udarata Development Authority.
Minister Rajapaksa said the new legislation was threefold: (1) to establish Divineguma community-based organisations at rural level to provide for a coordinating network at the district and national level; (2) to establish Divineguma community-based banks; (3) to establish Divineguma community-based banking societies. He said a pledge to foster the welfare of Samurdhi recipients was made in Mahinda Chinthana (Thoughts of Mahinda) as well as the Mahinda Chinthana Idiri Dekma (Thoughts of Mahinda – Future View).

Rajapaksa said that when the draft bill was ready, the Attorney General had opined that the Bill need not go before the Provincial Councils for approval. He was of the view that it did not contravene the Constitution. Since the Bill was published, however, two parties had gone to the Supreme Court. Since Rajapaksa was named in the petitions, he obtained private counsel whilst the Solicitor General argued the Government’s case. After the SC ruling, President Rajapaksa, he said, had sent it to the Provincial Councils before he left for India on September 19. A provision which calls for an oath of secrecy from those serving in the proposed new department, he said, had been taken from the previous Samurdhi Act. The idea was to ensure officials maintained the confidentiality of their transactions. “The new Bill is not as bad as it is being projected by its detractors. It will bring immense benefit to workers,” Rajapaksa insisted.

He also answered questions posed to him on a number of other matters. Here are edited excerpts:

The recent talks with Sri Lanka Muslim Congress: Both during the 2005 and the 2010 presidential elections, we lost badly in the Eastern Province in numerical terms. We had to know our strengths and weaknesses. Besides those contesting from opposition parties, there were four parties from the government side that fielded candidates. We cannot say that they received what is called “anti-government” votes. They travelled in government vehicles to take part in the campaign. They had security details.
The SLMC agreed that there should be a Muslim as Chief Minister of the Eastern Provincial Council. If there is a need to change him mid-term, it is legally possible. All have agreed to consider this if necessary and when the time comes. However, events could change, for example if there is going to be parliamentary elections. Yet the mutual understanding with the SLMC is even better than before and there is better chemistry on both sides.

Development plans in the City of Colombo: The aerial landscape of the City is fast changing. Work on the tallest building in Sri Lanka – an 85 storied tower – will get under way soon. In the same venue, the property surrounding the Transworks House, there will be three other lower towers too. The Transworks House, a colonial building that once housed the Public Works Department (PWD) will not be demolished. Instead, it will retain its present form but will be converted into a boutique hotel. Another colonial building which now houses Cargills will also be retained and converted into a boutique hotel.

However, the areas surrounding this building will be demolished and the construction of a new shopping complex will get under way.

Establishing industries in Sri Lanka: Priority consideration is being given to the establishment of pharmaceutical factories. Similarly equal consideration is also being given to the establishment of textile mills. Sri Lanka was once known for growing its own requirements of cotton and having mills in Veyangoda, Thulhiriya, Pugoda and Minneriya. We have to develop both the powerloom and handloom industry. We are also working on plans to develop IT industry which has high end employment.
Tourism development: We are experiencing an in increase in arrivals from Russia, China, India, South Korea and Ukraine. The ongoing dispute between China and Japan over the Senkaku/Diaoyu islands, we learn, has led to the cancellation of thousands of Chinese tourists travelling to Japan. We want to see whether we can persuade them to come here. The Shangri Lanka hotel will be ready to cope for the upmarket tourists. Crowne Plaza of Australia has shown interest in building hotels in Sri Lanka.

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