21st June 1998
When Judges refuse to be puppets
"We have a democracy and rule of law. We have to act accordingly. The rule of law is implemented very slowly. Here I have to tell you a truth. Our legal institutions and courts were corrupted during the UNP tenure. I do not wish to state any thing further. The people will come to know the truth in the future. Eleven Judges of the Supreme Court were sent home within 24 hours and in various ways others were appointed; they are still there." This is a translation of what the President said over national Television to the nation. Is this position correct, or is it wrong? It is most unfortunate that one of the leaders who played fiddle with the Supreme Court was an advocate and a son of a judge of the Supreme Court. He was none other than the late J.R. Jayewardene.
JR Jayewardena came to power with a solemn undertaking given to the people that he would establish a Dharmishta Government, a Government which will uphold the virtues of 'Dharma' or righteousness. A few months before his government came to power there was virtual anarchy in the country, drifting aimlessly towards disaster. Socialist politicking and tinkering, had driven the country towards disaster. Hunger, deprivation and poverty were the order of the day. The political masters had got themselves alienated from the people, even as rice and curry meals were banned on Tuesdays and Fridays, on the advice of the golden brains controlling the finances of the country.
Thus was proved a theory which when put into practice made every one poor except the ruling classes. The era of dustbin eaters came into being. There was a great need to correct this illogical political pottage. An era of righteousness was the dire need. JR knew the pulse of the masses and obtained a landslide victory. In 1978 the new constitution was born. Sri Lanka became a democratic socialist republic.
Under Colvin's constitution, there was the High Court and the Supreme Court. Under JRJ's constitution there was in addition the Court of Appeal. Of the 18 judges of the Supreme Court seven were absorbed to the Supreme Court and four were demoted to the Court of Appeal and eight judges were sacked. The Dharmishta reign had begun with the sacking of eight judges. They were J. Pathirana, T.W. Rajaratnam, C.V. Udalagama, T.A. de S. Wijesundera ( Present Chairman of the Bribery Commission), Malcolm Perera, K.M.N. Tittawella, S.W. Walpita and W.D. Gunasekera. The President's statement to the nation that 11 judges were sent home was a factual inaccuracy.
All the judges of the new Supreme Court who were appointed to that office have retired and some are not among the living. When the President said those who had been appointed are still serving the Supreme Court it was inaccurate. For example, the present Chief Justice was appointed to the Court of Appeal from the Attorney-General's Department. . Tissa Bandaranaike was a judge of the High Court and was promoted to the Supreme Court. It must be noted that all the judges who were appointed to the Supreme Court were judges of the previous Supreme Court. The public tendency to believe that some judges of JRJ's choice were appointed is wrong.
But the fact remains that eight judges of the Supreme Court were sacked for reasons only known to JRJ. When there was a vacancy for the post of Chief Justice after the retirement of Victor Tennekoon, JRJ refused to promote JusticeG.T. Samarawickrame, the senior- most judge of the Supreme Court. It was said that Justice Samarawickrema was an agent of .Dudley Senanayake, before he was appointed to the bench from the private bar. Nonetheless JRJ did not want to promote him. Instead he went in search of a loyalist. Ultimately Neville Samarakoon Q.C. who had an extensive civil practice was approached and after much persuasion, and with great reluctance he accepted and was sworn in as the Chief Justice. JRJ probably thought that as long as Neville Samarakoon was the Chief Justice he would be in a position to control the Supreme Court. This is what most politicians aspire for. They tend to justify their aspirations on the basis that they have got the mandate of the people to run the country according to their whims and fancies. They forget that when the people voted for a righteous government or a government that would eradicate 'Bheeshanaya' and 'Dooshanaya', the people did not vote them to monkey with justice, judicial institutions or judges. We have a judicial system which is over a hundred years old and has commanded the respect of the people, unlike the JRJ regime which lasted only for 11 years, or any other present or future government which would last only for two terms under the present constitution.
Is Chandrika following in the footsteps of JRJ in trying to subvert the judicial system of this country? JRJ failed to do so. If the people are vigilant there is no way in which any future government could succeed to stifle or suborn the courts or the judicial system. JRJ soon found out that Neville Samarakoon, the new Chief Justice, was acting in the manner that exalted office demanded of him. He could not be cajoled or coerced to act in any manner which would give the public the impression that he was acting like a puppet on a string. This is what he said on the September 11, 1978 at the inauguration of the new Supreme Court, with reference to the sacking of the judges "We have gathered together to usher in the New Supreme Court in the traditional manner known to Bench and Bar. I and my brothers have been members of the old Supreme Court, and should have wished for it an honourable demise and decent burial, but that was not to be. Words have been uttered and aspersions cast in another place which seemingly affects its hallowed name. What more is in store I do not know." These were prophetic words. When JRJ found that he could not manipulate the judges as he wanted, he gave the Chief Justice and the Supreme Court a torrid time The conduct of the Chief Justice of this country was the subject of an inquiry by a select committee. Fifty seven members of parliament signed a resolution for the removal of the Chief Justice. The present President states that during the UNP tenure the judiciary was corrupt. The judges appointed by JRJ when the 11 judges were sacked are still functioning.
If the innuendo was that it is difficult to implement the law through these judges, appointed by JRJ, the fact is that JRJ himself thought in a similar fashion when judgments were given against the executive. The judges appointed by JRJ decided in 1983 that S.P. Udugampola violated the fundamental rights of Rev. Daramitipola Ratanasara Thero.
But the government ordered that damages be paid from public funds, and promoted the guilty police officer. They stated publicly that public officers should do their job and follow orders without fear of consequences from adverse Court decisions. It was JRJ's Supreme Court that found the constitutional rights of Ms. Vivienne Goonerwerdene violated by a Sub Inspector of Police, Kollupitiya. JRJ was very angry. Kalu Lucky's came to the fore and paraded outside the houses of judges, shouting obscenities and slogans exhorting the rights of the public to demonstrate. If judges appointed by JRJ acted as stooges of JRJ then it was not necessary to demonstrate in front of their houses or stone them. JRJ used parliamentary select committees to forewarn them about the independent stand the judges have taken. It was the opposition who took these matters before the public and educated them about the executive interfering with the independence of judges. When the present government was in the opposition, they rushed to the Supreme Court when fundamental rights were being violated and were granted relief. It was the Supreme Court with the then Chief Justice Parinda Ransinghe and assisted by the present Chief Justice and Justice Mark Fernando who decided to relent the Supreme Court rules to entertain even letters from detenues at various camps and inquired into their grievances and released them from detention. It is unfortunate that the advisors close to the President have forgotten history, and have offered wrong advice to her on many matters, including the recent history of the Supreme Court. Instead of the UNP corrupting the Judiciary, the Judiciary, when ever an opportunity was given to it, acted independently and within the spirit of the constitution. Many leaders think that when in power their power is unlimited and unfettered. I would like to remind all those politicians who attack the judiciary under the veil of parliamentary and other immunities of a statement from Sir Winston Churchill:
"The Principle of the complete independence of the The Judiciary from the Executive is the foundation of many things in our island life. It has been widely imitated in varying degrees throughout the free world. It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule.
"The only subordination which a judge knows in his judicial capacity is that which he owes to the existing body of legal doctrine enunciated in years past by his brethren on the bench, past and present, and upon the laws passed by Parliament which have received the Royal assent. The judge has not only to do justice between man and man. He also – and this is one of his most important functions considered incomprehensible in some large parts of the world – has to do justice between the citizens and the State."
The British Judiciary, with its traditions and record, is one of greatest living assets of our race and people and the independence of the Judiciary is a part of our message to the ever –growing world which is rising so swiftly around us.'' And finally from the Phillimore Committee Report : For example, in one publication it was stated as a fact that the judge had conferred in private with one party to proceedings with a view to advising them about the next step to take. Although this was untrue and a gross contempt, no proceedings were instituted. Most attacks of this kind are best ignored. They usually come from disappointed litigants or their friends." Whether the appointing authority is JRJ or Chandrika and irrespective of whether they are disappointed or not with the judgments the judges deliver, the Supreme Court will uphold the sacred trust that has been given to it by the people of this country.
It is with a sense of humility that we inform our readers that our endeavour to compel the authorities to take action against the police officers, who assaulted Lakmal Cooray and threatened to shoot Titus Cooray, High Court judge colombo, and his son, has borne fruit. Mr. Cooray has written a letter to the A. G., complaining about this incident and C. R. De Silva PC Additional Solicitor General has directed the CID to investigate and arrest the offenders. On the 19th of June Inspector of Police, Mathota Arachchige Asoka Senarath Jayatilleke, Police Sergeant P. G. Dayaratna Banda, Police Constables M. Ajith Priyantha and W. Karunanayake were arrested and produced before the Gangodawila Magistrate N. V. Karunathilaka and were remanded, in spite of the CID not objecting for bail, till the 9th of July 1998.
The grave depth to which the country has fallen due to political interference could be rationalized by the statement the Magistrate made when remanding the accused. "We have to make independent orders. When the police were assaulting Lakmal Cooray, for not buying a cigarette for them, the mudalali who owned the boutique had informed the police that the boy was the son of Titus Cooray, a judge of the High Court, Colombo, but they have assaulted him in spite of the warning. When the complainant Titus Cooray went to the police station to inquire about the arrest, a police officer had pointed a gun at the High Court judge and threatened to shoot him. If this is the way in which the police would treat a high court judge, what would be the position of an ordinary citizen? The majority of the ordinary citizens of this country are innocent, but officials and police officers violate the law. In a democratic country it is mainly these officers who do not adhere to the rule of law. As long as I am the Magistrate in this court I will perform my duties without fear or favour. I am not frightened to state what I have to state in open court. Even if I am transferred I will do my duty honestly. When a small man is brought before court even for a minor offence, the police would unhestitatingly move that the suspect be remanded. But in this case, the investigating officers of the CID, on their own moved the accused be released on bail, or that the CID had no objection for the accused being released on bail. This incident had created lot of displeasure in legal circles and among the law abiding public. I cannot release the accused on bail, I may be transferred out of this station. I am prepared for that. It has become a common ground that when some government servant is doing an honest job he is transferred out on instructions received from VVIP's. I use the provisions of the New Bail Act and remand the suspect under section 14, and the police could inform the progress of the investigation every 14 days".
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