The Sunday TimesNews/Comment

18th May 1997



The war since 1995 at a glance

Eelam War III which began soon after the Liberation Tigers
of Tamil Eelam (LTTE) renewed fighting after breaking a
truce by attacking two naval vessels on April 19, 1995 has
gone through many decisive phases. The following is a
chronology of military operations carried out by the security
forces in the north and eastern provinces to recapture areas
held by the LTTE during phase III of the Eelam war.
Year 1995

*June 7 - Security forces launch operation ‘Leap Forward’ from Arali point in Jaffna. In the offensive continued for seven days 127 square kilometres were captured, but troops later withdrew to Palaly. About 50 soldiers were killed in the offensive.

*October 02 - Operation code named ‘Akunu Pahara’ was launched in the Jaffna peninsula. The operation ended in six days.

*October 17 - The first phase of the Riviresa I commences from Jaffna under the directions of the then overall commander for North East, Major General Rohan Daluwatte who was later promoted to the rank of Lt. General and the post of Army Commander. The operation lasted 48 days and the Jaffna town was brought under army control for the first time after about 10 years. At least 18 officers and 419 soldiers were killed in action.

Year 1996

*January 16 - A military offensive code named ‘Rivi Kirana’ was launched to clear Tiger bases from the eastern province.

*April 19 - The second phase of Riviresa was launched in Jaffna during which the Thenmarachchi division was captured in the Jaffna peninsula. The operation ended on April 27 with the army taking control of the Kilali lagoon.

*May 15 - ‘Riviresa III’ was launched and the Vadamarachchi division in the Jaffna peninsula was captured.

With the conclusion of Riviresa I, II & III offensives, the entire Jaffna peninsula was brought under military domination with the aim of restoring civil administration. More than 500,000 civilians have returned to the peninsula since the completion of the operations.

*July 12 - Operation ‘Seda Pahara’ was launched in the eastern province to clear LTTE dominated areas in the eastern province.

The Tigers struck back with vengeance by over-running the Mullaitivu army base killing an estimated 1200 soldiers and removing military hardware. The attack was launched on July 19. Security forces launched operation ‘Thrivida Pahara’ to recapture the camp, but the attempts to recapture the camp failed.

*July 27 - Troops launched operation ‘Sathjaya’ from the Elephant pass camp. Troops encountered heavy resistance and failed to make much headway.

*August 04 - The second phase of operation ‘Sathjaya’ was launched and after a 19-day fierce battle the Paranthan area was captured.

*September 10 - The third phase of operation ‘Sathjaya’ was launched and the Kilinochchi town, another LTTE stronghold was captured.

*December 13 - Security forces launched offensive ‘Singing Fish’ in the Batticaloa district to clear bases in the eastern province. The operation lasted 10 days.

Year 1997

*February 04 - The first offensive for this year was launched under code name ‘Edibala’ from Vavuniya and the main road linking Vavuniya to Mannar was captured.

*May 13 - Operation ‘Jayasikurui’ launched.

(Compiled by Ratnapala Gamage)

Judiciary must be free from executive pressure

Renowned jurist and former Chief Justice of India P.N. Bhagwati last week called for governments to vest the power of appointment of judges to the superior courts in an independent judicial service commission composed of judges, lawyers and law academics presided over by the the Chief Justice.

"This alone would ensure appointment of persons with ability and integrity and eschew political interference," he said.

Justice Bhagwati who spearheaded Indian Public Interest Litigation which upholds the rights of the poor and underprivileged was speaking at a seminar "Provisions of the Draft Constitution and the Independence of the Judiciary" organised by the Vigil Lanka Movement in association with the Asian Legal Resource Centre.

Following are excerpts from his address to a large gathering of lawyers, academics and social activists, at the Sri Lanka Foundation Institute.

There are a few institutions which are vital to the maintenance of democracy and the rule of law. They constitute the life breath of the democratic way of life and the supremacy of law. Drain away this life breath and democracy will perish, the rule of law will be at and end. Inevitably authoritarianism will take their place. History shows that the first step which a ruler takes when he assumes authoritarian power is to impair the integrity and independence of these institutions.

The judiciary stands between the citizen and the state as a bulwark against executive excesses of misuse or abuse of power, or transgression of constitutional or legal limitations by the executive as well as the legislature.

There are also certain human rights which need affirmative state action for their enforcement and, where the state fails to do so, the judiciary has to step in and compel such affirmative state action in order to make these human rights effective.

It is therefore absolutely essential that the judiciary must be totally free from executive pressure or influence and must be fiercely independent. Independence, of course, is a quality which must come from within the heart. It must be a quality which is part of the very fabric of the judge’s existence, but even so, judges must not be exposed to executive threats, inducements or blandishments and must remain absolutely independent and fearless.

I may point out that even under ancient Hindu Law, independence of character, great learning in the various branches of law and impartiality were the essential qualities which must be possessed by a person occupying judicial office. One of the verses in our ancient scriptures says that a judge must possess the following qualities: "He should be learned, sagacious, eloquent, dispassionate, impartial; he should be a guardian to the weak, a terror to the wicked; his heart should cover nothing, his mind be intent on nothing but equity and truth".

If independence of the judiciary is such a basic requirement for the survival of democracy based on the rule of law, the question arises; what do we mean by independence of the judiciary? It is not easy to analyze the essentials which go to build up such independence and impartiality. The term is multiconceptual having different ingredients and components. What may be regarded as independence of the judiciary in a socialistic state may be totally different from what may be regarded as independence of the judiciary in a western democracy. But, broadly speaking, I can safely assert that independence of the judiciary means that the judges should be independent in deciding the case before them exclusive on the basis of merit without fear or favour and no extraneous considerations should motivate their decisions.

The definition of "independence of the judiciary" evolved by the international Commission of Jurists in 1981 and formulated in Article 2 of the Siracusa Draft Principles (see CIJL Bulletin 8) contains some of the essential of the concept:

"Independence of the judiciary means..... (1) that every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influence, inducements or pressures direct or indirect, from any quarter or for any reason....."

Thus conceptually as well as from the point of view of practical reality, independence of the judiciary comprises a basic postulate, viz., "independence of the individual judges" and no judiciary can be said to be independent unless these two essentials are present.

The power of appointment of judges to the superior courts is also a large power and to my mind, at least in the third world countries, vesting it exclusively in the executive is likely to undermine the independence of the judiciary. It is, of course, true that in most of the democratic countries, this power is given to the executive, because the executive is accountable for its actions to the people through Parliament.

But in effect and substance, this accountability has ceased to exist because in many countries, instead of the legislature controlling the executive, it is the executive which controls the legislature and the legislative check has disappeared.

Moreover, accountability can be "enforced" through discussion only after the appointment is made and it is a fait accompli. Moreover, if the power of appointment is vested solely in the hands of the executive, it is not unlikely that those aspiring for judicial appointments might lobby with the executive with a view to seeking favour of judicial appointment and when they are so favoured by appointment on the bench, they would carry with them a sense of obligation to the executive and, unconsciously if not deliberately, be inclined to support the executive in the adjudicatory process.

The position would be the same where the power of giving promotion is vested exclusively in the executive for, in that event, the judge seeking promotion may be predisposed in favour of the executive which has the power to promote him.

Of course, instances are not unknown where judges appointed by the executive have shown themselves to be made of sterner stuff and not hesitated to decide a case against the executive. But with ordinary mortals, which the majority of judges are, the possibility cannot be ruled out that they may be subtly influenced in favour of the executive where there is a dispute between the citizen and the state. Public confidence in the independence and impartiality of the judiciary would be impaired.

It is also possible that political considerations may influence the decision to appoint or promote a particular candidate as a judge and in the process, the best person may not get selected, thus affecting the quality of the judiciary.

We in India have, therefore, tried to qualify the power of the executive to appoint a judge by making it mandatory for the government to consult the Chief Justice of India in the matter of appointment of judges of the Supreme Court, the Chief Justice of the High Court and the Chief Justice of India in the matter of appointment of High Court Judges.

It is of course consultation and not concurrence but the Supreme Court of India has held that consultation must be effective consultation where all relevant facts are disclosed and reasons discussed.

But even this requirement of consultation has unfortunately not proved effective. It is true that the executive has, so far, not made a single appointment which is not approved by the Chief Justice of India but there have been instances where persons recommended by the Chief Justice of India have not been appointed judges, his recommendations having been turned down.

Some lawyers and jurists take the view that the recommendations made by the Chief Justice of India must be binding on the government, which would mean that the power of appointment would be effectively vested in the Chief Justice of India. But I do not agree with this view. In the first place, there is no country in the world where the Chief Justice has been given the power to appoint superior court judges. Secondly, the Chief Justice is not elected himself and he, therefore, does not represent the people and is not accountable to them. Thirdly, no such power should be vested exclusively in one individual, howsoever high he may be. Power can be misused or abused by any one, whether he be the President or the Prime Minister or the Chief Justice.

Security of tenure is, therefore, essential. The tenure of judges cannot be made dependent on the mere pressure of the government. It must be secured against executive and legislative action and that is why in most constitutions we find provisions guaranteeing security of tenure to judges.

In India there is a fool-proof procedure to guarantee security of tenure. A judge can be removed only by an address by both houses of Parliament to the President, passed by a special majority and on the ground of proved misbehaviour or incapacity.

And it is only if a judge is found guilty of misbehaviour or incapacity by a tribunal constituted not by the executive, but by the Chief Justice of India and consisting of sitting members of the Supreme Court judiciary chosen by a Chief Judge, that a resolution can be passed by both houses of Parliament for removal of the judge and moreover, only by a special majority. Thus security of tenure is fully ensured to a judge.

The executive should have no power to suspend a judge of a superior court.

The other factor which may tend to impair the independence of the judiciary is the transfer of judges by the executive. Transfer can be a potent weapon of oppression or retaliation and to vest the power of transfer in the executive would be to give the executive power to control the judiciary.

The executive can transfer an inconvenient judge from one place to another and by doing so not only punish him but also convey a message to other judges that if they do not behave, they too will be subject to transfer.

The power of transfer may be necessary in the public interest but it should never be vested in the executive. There must be a judicial service commission which alone should have the power to effect transfer of judges. In India, the power to transfer High Court Judges is conferred on the Government. It is a power exercisible in consultation without the Chief Justice of India, but even so, it has been abused when the Chief Justice of India has been weak or submissive.

I would not vest this power even in the Chief Justice or the President of the Supreme Court, because even he may abuse this power or misuse it, sometimes deliberately, sometimes out of misinformation and sometimes out of ignorance. I would not trust any single individual with power. Power must be broad based, it must be shared so that with several minds contributing to the decision, the possibility of its abuse or misuse may be eliminated.

Apart from the ordinarily recognized sources of danger to the independence of the judiciary, there is another source of danger which is often not perceived as such, and it is for that reason much more dangerous than the other sources. This source of danger lies in unfust, and improper criticism of the judges for the judgements which they deliver.

There is a pernicious tendency on the part of some to attack judges if the decision does not go the way they want or is not in accordance with their views. Of course, there is nothing wrong in critically evaluating the judgment given by a judge, because, as observed by Lord Atkin, justice is not a cloistered virtue and he must be allowed to suffer the criticism and respectful, though outspoken, comments of ordinary men.

But improper or intemperate criticism of judges stemming from dissatisfaction with their decisions constitutes a serious inroad into the independence of the judiciary and, whatever may be the form or shape which such criticism takes, it has the inevitable effect of eroding the independence of the judiciary.

Each attack on a judge for a decision given by him is an attack on the independence of the judiciary, because it represents an attempt on the part of those who indulge in such criticism to coerce judicial conformity with their own preconceptions and thereby influence the decision-making process.

Another school union complains of poor pay

By Chaminda Tilakaratna

A section of education administrative staff have complained that they are drawing lower salaries than teachers and principals.

They have claimed that they have been done an injustice by upgrading the salaries of principals and teachers who are in lower grades.

Although in 1975 under the L.B. de Silva salary scheme the Grade III administrative staffers salaries were increased, under the 1995 B.C. Perera salary scheme their salaries are lower than teacher’s and principals.

Grade III administrative staff is chosen on merit basis from a limited examination where graduate teachers and principals under the age of thirty years are eligible to sit.

A spokesman for a teachers association said that the administrative staff have higher responsibility than teachers and principals as they are supposed to handle not only administration, but also management of schools and inspections.

The Grade III administrative sector, according to the B.C. Perera salary scheme receive a starting salary of Rs. 86,700 per year while Grade I principals receive a starting salary of Rs. 123,480 per year. Grade I teachers also receive a better salary, they claimed.

EPF enquiries shifts to Labour Secretariat

With effect from May 20 public relations and enquiries office of the Employees Provident Fund Department, Central Bank of Sri Lanka will be located on the Ground floor of the Labour Secretariat, Narahenpita, Colombo 5.

Public enquiries relating to the EPF Department including refund of benefits payment of contrbutions can be made from the above office. Telephone: 581142, 581143,or 581146- Ext. 399.

An eye opener

An organised encroachment by outsiders on state land at Navatkudah in the Batticaloa city has led to tension that could cause communal disharmony, a TULF leader has warned.

Parliamentary group leader Joseph Pararajasingham in a letter to President Kumaratunga has appealed to her to intervene and order the immediate eviction of the outsiders.

Stop it before it’s too late: MP

The Sri Lanka Council for the Blind has hailed Britain’s new Tony Blair government for its decision to appoint a blind man as Minister of Education.

"We firmly believe this appointment will convey a positive message to many political leaders, especially in developing countries, to follow suit in securing equal opportunities for people with disabilities who are nevertheless certainly efficient", the Council said in a message to Mr. Blair on the appointment of David Blunkett as Education Minister.

Lack of PHIs: people’s health suffers

There is only one public health inspector for every 15,000 to 20,000 people in each area, according to Dr. Y.D.N. Jayatilaka, Director of Health Services of the Western Province.

The public health inspector’s duties vary from school health, building inspections, environmental health, and other sanitary work to name a few, that it is not humanely possible for one inspector to keep a check of all the health work of 20,000 people daily.

As a result many of the health hazards of the area are left undiscovered until some one complains.

"Although, there are vacancies for public health inspectors they have not been filled yet. The lack of health inspectors is a problem that confronts the entire country," said Dr. Jayatilaka.

Dr. Jayatilaka explained that as a result of the lack of staff the investigative departments of the Health Ministry are faced with obstacles that hinder inspection.

The number of complaints against eating houses, bakeries have been on the increase, but due to a shortage of staff hardly any action is taken against these establishments.

Recently a consumer who bought bread from a Bambalapitiya bakery found fungus in the loaf of bread was allegedly told by the management "You could complain to anybody whom you want."

Judges’ take-home pay down by Rs. 500

UNP parliamentarian Dr. Jayalath Jayawardene will ask in Parliament from Justice and Constitutional Affairs Minister Professor G.L. Pieris, regarding salary increments of judges.

Dr. Jayawardene mentioned that the judges are faced with many professional problems causing much financial embarrassment due to the new salary adjustments brought into effect at the beginning of this year, which was also the cause of many strikes by public sector employees this year.

He said that unlike other professionals judges were reluctant to even agitate for their just demands, because of the nature of their job.

Dr. Jayawardene said that the take-home pay of a junior judge has been reduced by at least Rs. 500 since January this year, and asked whether the minister would take steps to remedy this. He also requested that the salary increments of judges be adjusted in line with other comparable categories of professions, if it is not the case at present.

Legless youth remanded

A youth who has lost both his legs below knee in a booby trap explosion, has been arrested by the Muttur police on a complaint made by a trader, of house breaking and theft of articles valued over Rs. 376,000.

According to the police on May 6 morning the complainant Samsudeen Mustapha of Muttur had gone to his shop and found it open and ransacked. Mutter police later arrested a youth on suspicion and produced him before the Muttur Magistrate. He was remanded and the police are conducting further inquiries.

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