The Sunday TimesNews/Comment

17th November 1996



Alleged bribe

An Education Ministry official in Colombo is alleged to have solicitated a bribe of Rs. 135,000 from a parent to obtain admission for her children to two leading schools in Kandy. Kandy police are investigating the complaint made by the parent.

President seek people's mandate

President Chandrika Bandaranaike Kumaratunga has indicated she is depending on the will of the people and not just on a two thirds majority in Parliament to gain approval for the Devolution Package to solve the ethnic conflict.In an interview with The Sunday Lankadeepa, the President said the Constitution was a mere piece of paper and the people could disown it. The President said she had asked and pleaded repeatedly for UNP support in settling the ethnic conflict and she would continue to seek the opposition parties' help. Excerpts from the interview:

Q. Madam President, are you satisfied that your efforts on development, during the last two years, have borne fruit?

A. Yes, we are satisfied. We have achieved our targets though we had to face many challenges.

Q. You promised to rid the country of the fear psychosis. Has that been done?

A. We said we would end the political fear psychosis and I am happy we have achieved that.

Q. But recently we had incidents of that kind in some areas?

A. Yes. There were such incidents at Katana, Negombo, Anamaduwa and Hasalaka. But those of Katana and Negombo were the work of the UNP. Even the other incidents were instigated by them when they killed our men. For 17 years fear had been a way of life. We could, like the UNP keep people in custody in the guise of maintaining peace. But we did not do that. I feel the few incidents we have had, could have been quelled, if we had resorted to what the UNP regimes did. It is in those areas where fear was instilled that these incidents occurred.

Q. Do you mean that the democratic measures of the government gave way for others to instil the fear psychosis, taking advantage of it?

A. Yes. Now see in S. India. Just after the fall of that government, some of those who had engaged in corruption, were arrested. We did not do that. Many businessmen asked me, why I do not arrest those who are doing corrupt acts, like in S. India. We don't want to do that. It is those UNPers who engaged in corrupt practices then, who are doing the same even now. I was told by a colleague that there was a plan in Hasalaka to create chaos. I warned our organizers not to get involved in such acts, as we will not hesitate to arrest anyone caught in such incidents. I gave police orders to that effect. That is why Hasalaka did not erupt in violence as planned. That was the work of the UNP, and its hired thugs.

Q. There were tyre pyres when the UNP had meetings. Police took no action, according to the UNP?

A. Burning tyres is not a violent act. We saw people holding placards even around Temple Trees. We didn't do anything against them. We had discussions and settled the issues. I feel that the pent-up emotions of our people need to be considered in a democratic manner. As long as they demonstrate peacefully, we need not panic. I was personally involved in settling the chaos that usually follows an election victory. In 1977 Attanagalla alone recorded the burning of 111 houses. We stopped people doing tit for tat demos.

Q. Your government's major problem is the war. What are your plans to end it?

A. We wish we could arrive at a peaceful solution without resorting to war. I have studied the guerrilla pattern of the LTTE even before. Well knowing that they were not the type to be brought to a negotiating table, I tried to adopt the deformed child that is the LTTE. I only had little hope. Hence, the peace talks. I still hold the belief that any problem can be solved by discussion. But as everyone understands, it is not easy to bring them to talk peace. Prabhakaran is never for peace, which is a psychological aspect of his, as he has shown during talks with Rajiv Gandhi. He had said that if he arrived at peace with the Lankan government, his own people would kill him. It is such a person that I have to tackle.

Q. Is the government's effort for peace at a standstill?

A. We tried our best. I am not disillusioned. That is why we have suggested the Devolution Package, for which we have received plaudits from foreign lands too. We are sure we will be victorious even if Prabhakaran disagrees.

We were reluctantly dragged in to this war. But we are victorious upto 60%. I am of the opinion that a military solution is not the best, hence the Package for which we are seeking public opinion.

Q. Do you have a time-frame to end this war?

A. We hope to end it by the end of 1997. Our main problem is that the UNP does not support us. As a responsible party the UNP must unite with us on this question. I have spoken thrice to Ranil Wickremesinghe on this.

Q. Do you still intend to lobby UNP support on this issue?

A. I will not relent in my lobbying. Ranil told me they would appoint a committee to study it, and reply within three weeks. Later he spoke to Dr. Peiris about it, but there is no concrete decision yet. When I asked Ranil if there were problems in the Package, he said there was a problem as far as the unitary state was concerned.

Q. What is the alternative the government has with regard to that problem?

A. We knew that the opposition would make it an issue. I told Ranil not to slip the chance of finding a solution. I told him UNP support was essential at this stage. I pleaded with him to study the Package and project it as their own solution to the ethnic issue, and he could share in the blessings of a solution, which would win them votes from the minorities. He only replied, let us see.

Q. The UNP has up to now not rejected the Package?

A. That is the trick. They want minority votes.

Q. How can you go through with the Dovolution Package constitutionally without UNP support?

A. The Constitution is a mere piece of paper. If the majority disowns the Constitution, it has no value. So even a 2/3rd majority question does not go over the will of the people. Ranil says he does not want to speak to me. But even while not on talking terms and despite their injustice to us at that time, we helped the UNP Government in the Indo-Lanka Accord. But today's UNP is not that.

Q. What is the economic philosophy of the PA government and what progress have you made?

A. As our economic plan takes time we are now unpopular. But we never promised success in two years or so. But I am convinced our plan will bear fruit within our term of six years.

Special IDs issued

Special identity cards will be issued to 75,000 people in Jaffna before the end of this month, the Assistant Commissioner of Registration of Persons, in Jaffna said. Upto October 52,000 people in Jaffna had received these identity cards.

Under PA, Lanka not on road to NIC but to PA-NIC, says UNP

The UNP in a statement issued this week to coincide with the second anniversary of the Chandrika Kumaratunga Presidency described it as a one-woman-no show.

Pledging it would do every thing possible to save the country from the dark juncture looming ahead, the UNP said, the PA had failed to fulfil all its promises and ruined the economy to such an extent that the NIC status which Sri Lanka was pursuing has now been reduced to a PA-NIC status.

In the statement issued by party media spokesman Karunasena Kodituwakku the UNP said:

Today November 12 commemorates the second year of the executive presidency of the PA government. In this period it has not only dishonoured the pledges given in its manifesto but reversed all the advances made in the earlier years.

PA election pledges were headed by a solemn undertaking to abolish the executive presidency, for which even a date was fixed. Far from abolishing it, government has found it expedient to strengthen it. Under the PA the executive presidency has been immeasurably strengthened.

Despite claims about commitment to devolution, the southern area Development Authority has extracted the powers given to the three Provincial Councils (Southern, Sabara-gamuwa and Uva) and vested them in the presidency. Decisions on the nationalisation of private business assets under the rehabilitation of Public Enterprise Bill will in effect be taken by the presidency. The presidency has misused powers to undermine democracy. It has regularly postponed local government elections, and arbitrarily decided to dissolve elected Provincial Councils. Nothing is so fearsome to the People's Alliance than an expression of the people's will.

Other election undertakings too have been cynically breached. Dushanaya has reached epidemic proportions. The financial mismanagement and corruption as shown by Thawakkal, Galle Port, the emerging P&O issue and the low sale price fixed for the Steel Corporation are examples.

Beeshanaya is well entrenched. Anamaduwa, Mathu-gama, Ratnapura Hasalaka and Negombo are the foretaste of political murders to come.

PA's appeal to the electorate was an ill thought and unimplementable populist manifesto. Beneficiaries wait with bated breath for the 300,000 self-employment opportunities promised in the first year alone and the creation of 1 million jobs within 2 years. During these two dark years, the reverse has happened. A number of jobs created by the UNP have disappeared since many firms have closed down. Low income families and school leavers wait on bended knees for their Rs. 2000/- and Rs. 1500/- monthly allowance but to no avail.

The Janasaviya recipients wait with outstreched hands to immediately receive the promised Rs. 2500/- . The UNP had made arrangements to have this sum deposited in their names as a capital nest egg. Farmers, fishermen, artistes, students were all to be beneficiaries of PA largesse. Only the largesse of unfulfilled promises remains . Nothing has been implemented and nothing will be.

Specific promises were made to reduce the price of petrol and diesel. They have been increased by 25% . Gas which was not subject to these promises has also gone up. Cost of living was to be reduced, as symbolised by the dramatic election reduction of the price of bread. Bread has now gone well beyond the reasonable price fixed by the UNP government. A promise was made to restore the dignity and self respect of the public service. Large numbers are now languishing in the pool penalised for doing their duty and taking correct decisions not to the liking of PA politicians. The public service is in disarray. Public and private transport were to be upgraded. The Minister of Transport herself has declared that they are now in a state of collapse.

The quality of the health service was to be improved. Never has the health sector had so many strikes. Everywhere is seen a lack of leadership and direction, apathy and hopelessness.

Under the UNP, Sri Lanka was well placed to becoming a NIC. The present government has replaced it with a PA-NIC.

PA in its two years of non governance has faked sincerity . A toxic combination of intellectual vacuity, incompetence and an insatiable lust for power has led to a one-woman no-show.

The UNP despite the vicious violence unleashed against it, will do its utmost to safeguard the people from the dark future looming ahead.

An anathema to politicians

Lawyers must examine their conduct, before they examine the conduct of Judges,' said a judge to a lawyer in open court. The lawyer, nonplussed by that remarks, hadn't the faintest idea of what the learned judge was referring to. Personally he never had the urge to examine the conduct of any judge.

When he made inquiries he found out that this was a response, to the newly formed Judges Committee' of the Bar Association. Some judicial officers have openly, and others privately, shown their disapproval of the Bar appointing a judges committee. When I heard this remark I fully endorsed the remarks of the judge. I thought that the Bar Association of Sri Lanka has over stepped their mandate, by establishing this committee. After all what right has the Bar got to go into the conduct of judges, which comes within the ambit of the Supreme Court and the Parliament.

This is more so, specially in today's context where politicians openly take a confrontational attitude towards the judiciary.

An independent judiciary is a sine qua non in a democracy. This hallowed institution has become anathema, to politicians, who are impeded by the Supreme Court in putting into practice their dictatorial tendencies. The judiciary has so far acted with great patience and has become the bulwark against erosions on public morality and human rights. Then has the Bar forgotten its fundamentals? Are they trying to help the Government in their endeavour to have a puppet judiciary. With these strong views against the formation of the so called judges committee I spoke to some members of the Bar.

Some members who were knowledgeable about the formation of the committee referred to one incident concerning the transfer of the district judge from Gampola to a primary court, and the revelations that appeared in a Sunday newspaper regarding this matter. This district judge who was known in the entire district for his independence, had issued a warrant to arrest a politician who had failed to pay taxes. This happened during the time of President Wijetunga. This politician had boasted that no police officer would ever arrest him. He would ensure that the judge who ordered his arrest would not remain in Gampola.

When the Gampola Bar came to know about these facts, the entire bar, irrespective of their political differences, rallied round the judge. They wanted the Bar Association to intercede.

The politician had then reportedly informed the President that the Judge had made some offensive remarks in open Court regarding the conduct of the President. This was an absolute falsehood. No lawyer or member of the court staff or even the litigant had heard any remarks which were alleged to have been made by the judge against the President of the country.

The Gampola branch of the Bar Association met the Bar Council and lodged a strong protest against the so-called unwarranted transfer at the behest of a politician. Later the transfer order was revoked and the judge was posted as the district judge, Matale.

The Bar Association at that time was made to understand that it was a routine transfer. Later it transpired that he was transferred at the instance of one member of the Judicial Service Commission. There have been other matters like the lack of basic facilities for judges and the difficult circumstances under which they work. These matters can be brought to the notice of the judges committee by the members of that particular branch. The Bar Association then can openly agitate to improve the conditions of the environment in which judges perform their duties.

He brought to my notice that the Bar played a prominent role in getting vehicles for the judges. It was not long ago that the judges travelled with the litigants to a court house on public transport. The bar made a very strong case to the then executive for the necessity of providing vehicles even to the members of the minor judiciary.

Judges have their own association to look into their grievances, but the Bar can put forward th ese grievances of the judges much more effectively than the judges themselves. Interference with the administration of justice by the politicians has become common. Soon these politicians will try to subvert justice by even threatening the judges.

It appeared in the newspapers that some members of the government group were collecting signatures of persons to impeach some judges of the Supreme Court. If this happens, it will deal a death blow to the independence of the judiciary. It is in the interest of the Bar to protect the judiciary and what better way to protect it other than through a Judges Committee.

Then what about these illegal orders you referred to? I asked.

A very small percentage of magistrates make orders which are per se illegal. The clearest examples of these illegal orders are where there is an offence which is described as bailable. Superior Courts have said in no uncertain terms that if a person is kept in remand without on bailable offences bail it is an illegal order. Similarly if a person accused of a non-bailable offence is remanded for more than 14 days, the suspect has an inherent right to be released on bail, but if the suspect is remanded after 14 days then this is clearly an illegal order.

Sometimes the magistrates do make illegal these orders because the police bring to their notice many matters which are ancillary to the main offence. When a judge makes such an order there is provision for the person aggrieved by such an order to make an application to a higher court to revise such an order. There is also provision, if these matters are brought to the notice of the Supreme Court or to the Court of Appeal, to call these case records from the original Courts and examine the propriety of such orders.

The Court of Appeal is inundated with cases and they have little or no time to examine these illegal orders made by Magistrate. The Judges Committee in appropriate cases, with the recommendations of the Bar Council, will place an illegal order before the President of the Court of Appeal to take suitable action.

The Bar has to protect the rights of the judges and the rights of the individual. During the last regime, when judges were attacked and their houses stoned, and there were processions in front of their homes, it was the Bar Association who protested. The Bar passed resolutions against such high handed actions of the Governing party. The entire Bar irrespective of their personal political views expressed their concern, and condemned all actions which they thought would directly or indirectly interfere with the independence of the judiciary.

What a noble and a laudable notion the formation of the judges committee is.' I said.

But when President made remarks about the manner in which some Supreme Court Judges had given judgements, based on a false premise and when two powerful ministers of the present Government made remarks concerning the conduct of the Judges of the Supreme Court, what did the Bar Association or the Judges Committee do? People get the feeling that the Bar Association has been so politicised that no action has been taken against such frontal attacks made by the executive against the judiciary. What about the removal of the most Senior Judge from the Judicial Service Commission and the appointment of a Junior Judge in place of him. My friend was equally nonplussed as the other lawyer, and said he would bring these matters to the notice of the Bar Council.

What about the independence of the judiciary?

Near the lawyers complex I saw a group of young lawyers led by a recently appointed P.C. obtaining signatures to a petition. I thought it was a petition requesting the Law Minister to repeal the Mediation Boards Act. The reintroduction of Mediation Boards has caused a loss of income for most young lawyers; it was an ideal opportunity to request the Minister to repeal whatever that was done by the UNP. But I was surprised to find that they were obtaining the signature to a resolution requesting the Bar Council not to adopt a resloution, condemning the appointment to the Supreme Court of Dr. Shirani Bandaranayake. Knowing very well that I was a supporter of the present Government, the leader of the group, the P.C., beckoned me.

You know the UNP chaps are going to move a resolution against the appointment of Dr. Bandaranyake.

I paused for a while and said,

I thought that the resolution was propsed by Siri Perera, wasn't he a member of the Communist Party and was a member of the U.C. Kalutara? I thought the resolution was seconded by K.S. Ratnavel. Was he not the lawyer who actively campaigned for Mr. Abeyakoon, for the post of President of the Bar Association, specially when the other candidate was branded by all of you as the UNP candidate?

But you must understand we took 17 years to throw out the UNP, a junior remarked.

After the Elections bureaucrats who were stooges of the UNP have changed their colours to blue, and are impeding the working of the Government.

You can't remove them. Neither can we put our chaps or others who are loyal to us instead of them. But if you try to do so, they run to the Supreme Court and the Supreme Court issues a Stay Order.

Then the Junior said,

As there is no work for junior lawyers, I applied for a liquor permit. What happened? The present permit holder went to the Supreme Court and the Court granted a Stay Order.

But we have been fighting for the fundamental rights and saying that the present provisions were inadequate, and wanted to amend the constitution to include the right to life, etc., etc., I said

You must understand this Government is in power after defeating the UNP. We have got the people's mandate to rule the way we want, and we want the Supreme Court and the other judges to know this. They must not give any orders against the government.

What about the independence of the judiciary, I said

That is a myth. In Singapore, and Malaysia the judges read the political will of the people and rarely make orders that are detrimental to the government in power.

With these Fundamental rights it is very difficult for anyone to rule. Can we seal the press when they publish libel against the government? Can we take our opponents into custody even under the emergency. Can we promote our henchaiyyas or their henchmen, the Minister cannot even appoint a Coroner. The sitting coroner runs to the Supreme Court and says the appointment is unfair.

But what about those ideals we spoke of at our election meetings, the rule of law and the independence of judiciary?

These are vestiges of the British Empire. We have been long independent to know that the judiciary must not be independent, but inter dependent. Cohabit not confront. How can the judges exist without the State? Judges must be independent only on private matters when the State is not involved, he said

But I thought you were in the forefront in the struggle against late J. R. when he tried to stifle the Judiciary. I remember you were canvassing like today with the late A. C. Gunaratne, Q. C. when he moved some resoltuions against the appointment of some Supreme Court Judge.

Yes but you must understand J.R.' was Machchivelli. And we are learning from him, and learning from the past, we have become wiser.

What is this card you are distributing, I asked

We are inviting you to a dinner at a five star hotel, with scotch thrown around. After all these young chaps must have some joy. We are going to decide how to fill the other vacancy in the Supreme Court and the Court of Appeal, one of the group members said.

But there is some problem. There is this chap who has earned a name by disrupting meetings of the Bar. He is very boisterous and is about 4 years at the Bar. If he is successful in disrupting the meeting or opposing the resolution, he wants to be appointed to the Court of Appeal. He says he is an active practitioner and has signed nomination papers of number of candidates who contested the Bar elections, and most of them have won. And he is for the package, and for everything PA stands for. They can count on him.

Then I said considering the present circumstances he is the ideal candidate not for the Court of Appeal but for the Supreme Court.

Continue to the News/Comment page 4*J.R Jayewardene: the parliamentarian *Veteran journalist recalls JR at San Francisco
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