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By Kishali Adhikari
"Dissent among judges has always been a part of the judicial process," he says. "Sometimes, such dissent takes a caustic tone, at other times, it is more polite. Judicial disagreements only add spice to the legal process which would otherwise be intolerably losing," he comments.
Attorney General Sarath N. Silva explores some of the issues raised in this controversy.
Following are excerpts from the interview:
Q: Is there a necessity for Special Presidential Commissions of Inquiry to function at all, except of course as a political exercise by the victors against the vanquished every time a government comes into power? Instead, why cannot ordinary courts of law deal with these issues?
A: The whole idea behind appointing these commissions is to find out the truth about a questionable situation in a public manner. The commissions investigate matters that cannot be the subject of formal judicial proceedings. Judicial inquiries are initiated on the basis of a specific charge or charges against an individual or individuals. The court cannot enter into general inquiries regarding matters of public interests.
Special Presidential Commissions of Inquiry are a good check on the exercise of political power. They serve as a warning to all politicians to remember that political power is a trust and that they would be held accountable for misuse of that power even at a later stage.
At present, four such commissions have been appointed to look into the deaths of Vijaya Kumaratunga, Lalith Athulathmudali, Denzil Kobbekaduwa and to investigate alleged malpractices in government bodies.
One cannot dispute that there commissions are investigating matters of tremendous national importance. Some of these matters under inquiry could not be adequately examined in a court of law due to the process of inquiry being completely stalled at that time.
Q: The functioning of these commissions has been criticized on several grounds. It has been pointed out that the rules of natural justice are not observed and that by conducting preliminary investigations in public they permit highly scandalous statements to be made about persons by those who do not have first hand knowledge about these events. Do you agree with this?
A: Sittings of the commission are part of a public process. Evidence is given on oath and a right to be heard is statutorily enshrined.
Moreover, anyone who is affected can make a request to cross examine.
However, what happens is that some persons who are implicated do not wish to cross examine through fear that more skeletons will come out of the cupboard. This was evident in proceedings before the Vijaya Kumaratunga Commission. If a person lies before a commission, that person can be punished for contempt. In law therefore, the commissions have adequate powers to ensure a free and fair hearing. If there are defects in practice, they should certainly be remedied.
Ultimately the public will judge for themselves where the findings of a particular Commission is not justified by the evidence as what happened in Ms. Sirimavo Bandaranaike's case.
Q: Executive Interference with those Commissions have been alleged through the years. The latest controversy was of course over the Vijaya Kumaratunga Commission where after the commission had commenced its sittings, the President publicly stated as to who had killed Mr. Kumaratunge. This was argued to amount a presumption of the findings of the Commission.
As a former member of the Commission, can you comment on this?
A: The President is supposed to have made such a statement to "India Today" which was never affirmed or denied locally, subsequently, the President made an application to give evidence before the Commission which was refused by us because she was the appointing authority. This last fact is however little known. The Vijaya Kumaratunga Commission report will shortly be placed before Parliament.
Q: This power of the President to appoint sitting judges as members of Commissions appears to offend the principle that justice should not only be done but must be seen to be done. Does it not lay particular judges open to charges of favoritism?
A: Another little known fact is that through the President is empowered by law to appoint members of commissions, in fact she requests the Chief Justice and the President of the Court of Appeal to nominate members. The President is bound by such recommendations when President of the Court of Appeal, and myself have had to deal with these requests.
Indeed, many judges are very reluctant to serve on the Commission and we have to persuade them to do so.
However, while this is so, perhaps it might be better to statutorily embody this consultative process. This is one way in which the law can be changed.
Q: Sitting judges being nominated to these commissions have led to a fair amount of public controversy regarding the judiciary, with one judge of the Court of Appeal recently resigning from a commission over disagreements with its Chairman.
Can you comment on this?
A: Appointing sitting judges & Special Presidential Commissions of Inquiry is justifiable because the commissions engage in proceedings that can ultimately result in severe consequences for certain people, where sitting judges are concerned.
Moreover, the selection is limited unlike in the case of retired judges. In fact, if retired judges are appointed, probably there will be more allegations of favoritism. As I said before, the practice is that judges are recommended by the Head of the Court to sit on these commissions.
It is unfortunate that judges have engaged in these sort of disagreement with each other. At present, it is confined to one commission and we can only hope that it would not spread further.
Judicial disagreement however occur all the time even within the ordinary court system through much of it is not visible to the public eye. It is only because the Special Presidential Commissions themselves are so public that these judicial disagreements have also become public.
Judicial dissent is after all, a part of the judicial process. It adds spice to it.
By Kshalini Nonis
A Cabinet Sub-Committee is looking into the problems faced by Sri Lankan workers in the Middle East.
The team, comprising Foreign Minister Lakshman Kadirgamar, Labour Minister Mahinda Rajapakse and Transport Minister Srimani Athulathmudali, is expected to submit a report in a couple of months, Foreign Ministry officials said.
The difficulties Lankan workers face have been recurring for years and our Embassies in the Middle East have been able to provide only basic facilities. Employers also refuse to cooperate with our Embassies in certain instances - an additional hurdle.
On a recent visit to Kuwait, Mr. Kadirgamar had talks with the Minister of Social Welfare and Labour in Kuwait on the difficulties faced by Lankan housemaids in that country. It was agreed that the two governments would make a joint effort to solve their problems.
Suggestions were made by both sides to establish a camp to accommodate the housemaids who leave their employers due to various problems.
There are some 92,000 Lankans working in Kuwait of whom about 80,000 are housemaids.
By Kshalini Nonis
Lack of funds is blocking the Colombo-Matara superhighway. This Rs. 20 billion, 134 km long, six- laned highway is illegal, the Environment Foundation Limited (EFL) has protested to the President.
Environmentalists fear that the project is going to be implemented without an Environment Impact Assessment (EIA) as required by law.
The EFL letter to the President states: "The entire exercise is illegal and we regret that a minister of your government has allegedly been party to an illegal exercise."
Officials of the Road Development Authority (RDA) said that a source has not yet been found for the allocation of funds and at present only an access road is being built parallel to the proposed highway. They also said that an EIA and feasibility reports were being done.
Meanwhile the residents of the area have also formed an association protesting against the construction of this highway. According to them, 16,000 families will be left homeless and a large area of bad land will also be affected, if the highway becomes a reality.
By Arshad M. Hadjirin
Following the attack on the Colombo harbour last Friday two cargo vessels by-passed the port for security reasons, said their local agents in Colombo.
The container vessel Challenger, heading to Colombo from Singapore, hearing of the dawn attack changed course and went to South Africa.
The liner owned by Mitsui was due to load a shipment of containers from Colombo.
Pushpa Amarasekara of Delmege Forsyth, Local agents for the vessel said that inspite of this incident other vessels of this line would continue to call at Colombo.
Another ship, which belonged to UASC, had also skipped the Colombo port fearing there would be no workers to clear it.
Other local shipping agents assured their vessels would use the Colombo harbour. But additional insurance cover might be necessary due to the security risks, they said.
New Board of Directors to the Airport and Aviation Services was appointed this week.
The members of the new Board are:
Mr. S. Manamperi (Chairman), Mr. Sarath Gunewardena, Mr. Neville Jayawardena, Air Vice Marshall P. M. Fernando, Mr. Prasanna Kumara Wickremarachchi. Two more members are to be appointed to the Board.
The Old Board comprised of Admiral Ananda Silva (Chairman), Mr. Sarath Gunewardena, Mr. Neville Jayawardena, Air Vice Marshall P. M. Fernando, Mr. Dayantha Athulathmudali Mr. M. Karunakalage.Continue to the News/Comment page 3
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