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It seems that attorney-MPs of the National People’s Power (NPP) Government are intent on setting a new ‘moral tone’ (I am saying this tongue-in-cheek) by urging public officials to disregard or delay the implementation of decisions handed down by the Court.

Ignoring judicial orders NPP-style?

Let us be clear at the outset. These are not just one or two personal ‘views’ of ruling party parliamentarians. Such ‘views’ were expressed at a discussion of the ‘Western Provincial Coordination Committee’ in regard to the threatened eviction of ‘unauthorized settlers’ from Narahenpita consequent to a court order upon the land being legally ‘acquired for the Baseline Road Project.’

This was on the initiative of the Road Development Authority (RDA). Because the occupants refused to leave, a further court intervention has become necessary, an RDA official explained. For the occupants, their case was made by local area politicians that they had been in ‘long term occupation’ of the land. They had been paying electricity dues as well as rentals.

They had their names noted on the electoral register. ‘The occupants were unable to be represented at the court hearing due to the covid-19 pandemic, they are in a vulnerable position,’ it was said. It was at this point that the fracas arose with the content of what was said being bad enough but the manner of its articulation being infinitely worse.

A tempestuous defence

Reacting in the ‘heat of the moment,’ as some may say, the NPP attorney MP at the head table, snapped at the official saying, ‘we discussed this last week, didn’t we? I said then not to implement the court decision against them because they have nowhere to go… didn’t we come to such an agreement?’ Perchance motivated by concern for those affected, the reprimand was highly inappropriate.

Intervening, the NPP’s Deputy Minister of Public Security, (also an attorney), defused the situation by saying that ‘we respect the court order…’ He added that, ‘with respect (‘nisi gauravayak sahitha’) to the court, ‘our policy’ is that the RDA should legalise the occupation by the settlers. No doubt, he was caught between the devil and the deep blue sea in the wake of his fellow parliamentarian’s extraordinary outburst.

But is this not a novel re-writing of the manner in which judicial decisions are implemented? That is, giving ‘deference’ to a court order while external conditions are added, delaying or preventing its implementation based on future ‘policy’? By what stretch of the law does ignoring or delaying implementation of court decisions on whatever basis not amount to contempt of court?

Such political hot air is redundant

In contrast, the appropriate if not sensible course of action should have been for the relevant state agency, the RDA, to apprise the Bench of the vulnerabilities of the occupants if evicted and request an appropriate revision. Another option would have been to canvass the matter in a higher court. The exact facts regarding the Narahenpita case are yet to be disclosed.

Sri Lankan courts have, on occasion, been sympathetic towards ‘long time’ settlers on state land in particular circumstances. Karunawathie Jayamaha and others vs Janatha Estate Development Board and others (2003, Appellate Law Recorder, 10) is a seminal case in point. Here, the Supreme Court protected the rights of persons who had been paying rentals while occupying state land.

The acceptance of payments by the respondent authority for a ‘long time’ meant that ‘unauthorized possession or occupation’ was not established, (then) Chief Justice G.P.S. de Silva decisively and sensitively ruled. Reversing the decision of the Court of Appeal, a writ of certiorari was issued quashing the quit notice under Section 3(1) of the State Lands (Recovery of Possession), Act No 7 of 1979 (as amended).

 Unpalatable conduct
by ruling politicians

It is unfortunate that this precedent seems to have been dropped by the (judicial) wayside. But to return to the untoward conduct of NPP parliamentarians, it is no wonder that President Anura Kumara Dissanayake regularly engages in damage control over the overreach if not juvenile behaviour of his party members.

Perhaps the NPP may benefit from refresher courses regarding the law and ethics lest the ‘system change’ that was promised becomes a nightmare. Or is there another layer of political justification thereto? The NPP grumbles about the Constitutional Council (CC) and independent oversight commissions not reflecting its ‘own’ choices.

A new Constitution has been promised where the membership of the CC and the oversight bodies will change ‘every time a Prime Minister changes.’ That position, as publicly reported, has not been refuted to date. In effect, this is to reverse the very meaning of ‘independent oversight.’ This stance is justified by the ‘unprecedented mandate’ that the NPP received to reverse ’74 years of democratic decay’, it is said.

 Echoes of the past

Similarly, an arrogant dismissal of court decisions in favour of ‘party decisions’ can be read more sinisterly as covering a partisan political agenda with the gloss of high moral talk. Is this the one case that inadvertently surfaced during a recorded discussion? Or are Government parliamentarians encouraging officials as a practice to ignore court orders on ‘policy considerations’? This is where it becomes perilous for governance.

Behold the flipside of majorities foolishly conferred upon ‘alternatives’ which arouse the passions of the polity. The 2019/2020 ‘landslide victory’ of a warrior-President (Gotabhaya Rajapaksa), the most ruinous leader of post-independent Sri Lanka, is a case in point. A Rajapaksa scion who is heir to that tarnished political legacy has jeered at unwise ramblings by NPP newcomers to ‘disregard’ court decisions.

He has asked if this is the ‘system change’ that the public wanted. But that is empty rhetoric given that this former President (his uncle) told public officials who asked for circulars on which to take policy decisions, that his word itself ‘is the law.’ Was his nephew, also a lawyer, deaf, dumb and blind at the time?

The heady intoxication of power

In regard to these excesses and in responding to former President Ranil Wickremesinghe’s rants against the judiciary, a similarly critical stance has been taken in these column spaces. On the current controversy, the point does not need belabouring. A ‘future policy’ change is no basis to delay or not implement court orders.

Attorney-MPs must know this. In particular, they must advise themselves of punitive punishments imposed by the Supreme Court for contempt on disregarding court orders, most recently on the former Commissioner of Immigration and Emigration. He was sentenced to a jail term for ‘wilfully’ disregarding an interim order suspending an electronic visa scam.

This official had acted in obsequious obedience to a political command under a different regime. Despite heading a government institution, he had failed to ‘comprehend the compelling need to comply with orders of court,’ the Bench said. Then the NPP loudly denounced that official’s conduct. Now, are its parliamentarians not following suit?

A ‘freezing’ of the public service

There is another dimension to this tangled debate. Public officials are facing a hyper-drive by state oversight agencies tasked with tackling bribery and corruption. This is commendable. But a dangerously political taint has also visited this exercise at times.

A distastefully propagandised hyper-drive on catching the ‘corrupt’ has led to the public sector grinding to a halt across the development spectrum. Senior officials are refusing to take responsibility for mandated projects with allocated money returned unspent to the Treasury.

Add to this, if ruling politicians urge to ignore or delay implementation of court decisions for whatever reason, this will freeze the public service even further. In sum, the conduct of some (to be fair) NPP representatives in mimicking the democratic intemperance of the Rajapaksas is becoming more startling by the day.

That is inevitable perhaps given the intoxication of power but deplorable nonetheless.