26th August 2001
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Darkest period of judiciary

By Victor Ivan 
The request made by Dato Param Coomar- aswamy, the UN's special rapporteur on the independence of the judiciary, through the Minister of Foreign Affairs, to prevent Chief Justice Sarath Silva from functioning in the post of Chief Justice until the work on the impeachment was over has evoked a strong protest from the Justice Minister Batty Weerakoon. Mr. Weerakoon says that absolutely no power can interfere with the judiciary and that, in any case, according to our Constitution the judiciary is an independent institution with which no one can interfere. 

It is true that the Constitution is the fundamental and the basic law of our country. However, it is not possible for us to disregard the contents of the international covenants which we have signed. 

Sri Lanka is a sovereign state but it is also a member state of the UN. Sri Lanka cannot disregard the agreements it has entered into as an independent state. 

It was in 1966 that the UN adopted an international convention on civil and political rights, an international convention on economic, social and cultural rights and a protocol on civil and political rights. These two conventions took effect in 1976. Thereafter in June 1980, Sri Lanka signed the first two conventions and in October 1997 signed the protocol. 

With Sri Lanka signing the protocol in addition to the two conventions it became possible for a person in Sri Lanka who is not satisfied with the judgement given by Sri Lanka's judiciary relating to matters included in the convention on civil and political rights, to go to the international court which is called the Human Rights Committee of Geneva. With that the Supreme Court lost its supremacy. The countries which have signed the protocol are obliged to accept a judgement or a recommendation made by the human rights committee. The human rights committee does not act only as an institution which inquires into complaints made by citizens of the countries that are a party to the protocol. That committee has the right to notice the head of state and to report to the UN when there are violations of human rights on a mass scale in a member state. 

The subject of the independence of the judiciary too comes under the convention on civil and human rights. The UN has appointed a special rapporteur for this special subject and it is Mr. Coomaraswamy (a Malaysian national) who functions in that capacity. The holder of that post has the right to notice the head of state through the foreign affairs minister when the independence of the judiciary in a member state is threatened and also to report the matter to the human rights committee if that notice is disregarded.

It was in 1985 that the UN made a statement of the fundamental principles relating to the independence of the judiciary. Those principles were drafted at a conference held in Milan in Italy from August 26 to September 06.

Thereafter a conference of the chief justices of the Asian and Pacific countries was held in Colombo from September 13 to 15, 1993. It was at that conference that a policy of the independence of the judiciary of the countries of the Asian and Pacific region was drafted. The sixth conference of the chief justices of the Asian and Pacific region was held in August 1997 in Beijing in China and the draft prepared in Colombo in 1993 was discussed there and new amendments were made to the draft. It is that document which is considered the Beijing Convention on the independence of the judiciary. All the states which have signed the protocol on civil and political rights and which belong to the Asian and Pacific region have an obligation to act in accordance with that convention. 

This was not the first time that Mr. Coomaraswamy had made a notice to the President through the Minister of Foreign Affairs. 

He sent a notice to the President through the Foreign Minister protesting against the appointment of Mr. Silva to the post of Chief Justice when the President made that appointment. That objection was based on two facts. One was that Mr. Silva was appointed Chief Justice at a time when there were two plaints which were being inquired into before the Supreme Court against him. The second matter which was a subject to an objection was the appointment of a junior to the supreme court ignoring the seniors. All these actions were contrary to the principles of the Beijing Convention.

The world at the time when Chandrika Kumaratunga was elected to power and continues in power is different from that in which J.R. Jayewardene was elected to power and remained in power. At the time Mr. Jayewardene came to power even the UN had no convention on the independence of the judiciary. There was no Beijing Convention of the countries of the Asian and Pacific region on the matter. It was in such a vacuum that Mr. Jayewardene played with the independence of the judiciary. However, Mrs. Kumaratunga is playing with the independence of the judiciary disregarding the existence of an accepted world and regional convention on the matter. 

Although a Sama Samaja Leader like Mr. Weerakoon cannot understand what will happen to an inquiry when a person against whom accusations of corruption are levelled is appointed as the head of the institution which holds the inquiry the ordinary people may have no difficulty in understanding the pros and the cons. That struggle nourished the independence of the judiciary and helped it to develop as an institution trusted and respected by the public. However, the PA has been able to reverse that whole process with the help of Mr. Silva. The period of the PA has been the darkest epoch of the judiciary. There has never been and there can surely never be a darker epoch. 

The writer is the Editor of Ravaya

Clinically Yours - By Dr. Who

Funny business of resignations

Most of us Sri Lankans are now resigned to our fate but then, there seems to be a curious paradox about this resignation business, right? First we make a hue and cry that no one resigns after anything. For example, neither the Air Force chief nor the Defence Minister resigned after the Airport attack. The Minister of Transport did not resign despite a series of transport disasters. 

And the Samurdhi Minister has not given way after being virtually called a fraud by his boss, the President. And each time some such catastrophe occurs, everyone calls for everyone else's resignation and blames them for not handing in their papers. Then, on the other side of the coin we have a separate spectacle: a spate of resignations by twenty-something deputy ministers and three ministers. And what do we do? Condemn them for what we call their servile attitude in trying to score brownie points with their boss and call it an insult to democracy. And we don't forget to hail those who refuse to resign as men of 'integrity' either! Why then, do we have these double standards? 

The common denominator in the two situations- resigning en masse and not resigning- is that on both occasions, those who do so are only trying to further their own interests. And the people at large are only too wise to the trick. Search your memory and try to recall 'honest' resignations undertaken by ministers. They are few and far between. One remembers M. D. H. Jayewardene and Gamani Jayasuriya in the J.R. Jayewardene era and Lalith Athulathmudali in the Premadasa regime and that's it-the list is very short. Of course there was the mock resignation of our good General Anuruddha Ratwatte after the attack on the Dalada Maligawa but the story is that posters calling for his re-instatement were up on the walls before the resignation papers were handed in. And the rest, we know, is history. And now we have this 'undated letters of resignation' trend, set so wisely by none other than JRJ. Those who cried from the rooftops saying it smacked of dictatorial tendencies then are now defending the same tactic, saying it is merely a show of solidarity with the President and that it was an entirely voluntary act. Ah, we have such kind hearted ministers and deputy ministers-aney pav! So, the more things change, the more they stay the same. But politicians will do us a favour if they spare us the agony of watching the rituals in the media: the pictures of smilingly handing over their resignations and then issuing statements to the public explaining what it was all about and how this noble sacrifice was undertaken in the greater interests of the nation: they make it sound as if Sri Lanka would perish if the Deputy Minister of Upcountry Development did not resign! It's time then, to strike a deal. Resign if you must- and because your boss wants you to-but spare us the sermon. In return, we will not call for your resignation, no matter what; that we know by now is a futile exercise, anyway. And it's a good thing too. If everyone who ought to resign had resigned by now just imagine what this country would have been like: without an Air Force Commander, Defence Minister, Samurdhi Minister, Transport Minister and many more. Now that list- it is very long indeed! 

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