The Political Column

24th November 1996

Arguments for and against the Justice in House

By Our Political Correspondent

The Shiranee Bandaranayake controversy continued for another week, this time the matter coming up in the House.

However most of the members avoided personal references to the new Supreme Court Judge but the appointing authority came under heavy fire.

Batty Weerakoon, General Secretary of the LSSP said.

I wish to make a few observations under the Head of the Supreme Court on what, if not properly considered, can be a very vexed question that could be a demoralising factor to the judiciary at all levels. That is the appointment of Judges to the Supreme Court.

I do not wish to be personal on this matter. What is necessary is to recognise criteria as would be acceptable to the legal community in the appointment of judges to the highest Court in this country. There is not much relevance in the attempt to support appointments made today with supposed parallels dug up from what may have happened 20 or 30 years ago. Even there, do not think there is anything that disappoints us. The late Justice H.N.G. Fernando was first appointed to the Bench as a Commissioner of Assize. He was not only the Legal Draftsman but also one who acted for the Solicitor General. It was thereafter that he was appointed a Judge of the Supreme Court. At that time the Supreme Court was not the last appellate body we had. There was the Privy Council which did in fact in several appeals set aside judgments of the Supreme Court. That, therefore was a completely different situation. Of the appointments made in the post-1977 period there was no question in regard to criteria. It is true that the bar felt disappointed that Justice Samarawickrema was overlooked in the appointment of a Chief Justice to succeed Justice Victor Tennekoon.

But the person appointed to that place was one whom the whole bar welcomed without demur because he was the leading practitioner in the District Courts. I think I remember him coming even to the Assize Court when General Udugama and several others were indicted. It was only his large volume of work in the District Courts that kept him away from a regular practice in the Appeal Courts. As to Justice A.R.B. Amerasinghe he was so learned in his field of the law that it was him whom Walter Jayawardene, QC., chose as his junior in that well-known Laeris Appu fidei commisum appeal which he argued in the Privy Council. He was Secretary to the Ministry of Justice when he was appointed to the Supreme Court bench and he could say that appointment did not take a well trodden path. All the others whom I can think of were practising lawyers who left a large practice to take on judicial responsibilities. It must also be mentioned that contrary to what is being said now both Justices Victor Perera and E.A.D. Atukorale were first appointed to the Court of Appeal and it is from there that they came in due time to the Supreme Court bench.

Formative years

Today we are 15 to 17 years away from that time which may be regarded as the formative years of the judiciary under the Presidential system of government. It is a fact that during this time the judiciary did take a heavy battering from the Executive Presidency. This was the time when Dr. Colvin R. de Silva described what was being done as “monkeying with the judiciary.”

Minister Lakshman Jayakody stepped in at this stage to defend the Executive action.

He said:

There had been protest about the recent appointment of the Judge to the Supreme Court under the powers vested in the President by the constitution. It would, however, not be in keeping with the dignity of the judiciary to discuss an appointment in the House. All that need to be said is that there was certain precedents, like the demanding of resignation of Supreme Court Judges upon the enactment of the constitution of 1978. Some of the Judges were reappointed while others who were not favoured by those powers, were not reappointed. Judges who were not reappointed were in effect sacked. At that time again, only 7 appointments were made. The other vacancies in the bench were not filled.

“The Bar Association did not make a murmur in that occasion, not at a later time when the vacancies in the bench were filled one by one as the then President wished.

“Then again, there was the time when protesters were sent to jeer judges at their homes. The government of the day called it a democratic right to jeer judges. There was no protest from the Bar Association. There are protests, now, about an appointment but there was no protest at that time. The new appointment to the Supreme Court bench has been made, now, under the same powers in the constitution from the University Law Faculty and is therefore not irregular. “Their fears were based on the suspicion that the judge having never worked as a lawyer will find it difficult to fit into the Supreme Court seat. But I tell you that such appointments have been made earlier too. I would not name them because I respect the judiciary and the independence of the judiciary.

“I want to tell you categorically that the only authority that can appoint the judges of the Supreme Court is the President.

“The appointment has been made by her. There is no truth in allegations that the appointee was related to the President. This is far from the truth. The new judge is from the interior of the country.”

Shiranee Bandaranayake issue

Meanwhile, the Bar Council is to meet once again next Saturday to discuss the Shiranee Bandaranayake issue.

On Thursday in Hulftsdorp former President of the Bar Association D.W. Abeykoon was seen distributing letters to the SLFP lawyers inviting them for a meeting to discuss as to what action should be taken to stop the Shiranee Bandaranayake issue being discussed at the Bar Council meeting.

The meeting was scheduled to be addressed by the President’s Secretary Kusumsiri Balapatabendi P.C. at Temple Trees.

The SLFP lawyers had a tamasha the previous week too as a fore-runner to the Saturday’s (16th November) Bar Council meeting.

It was held at the London Grill of the Hotel Oberoi, before last Saturday’s Bar Council meeting when a group of young lawyers began to sing Pel Kavi for more than 20 minutes and disrupted the proceedings.

The “Pel Kavi” protest came after their motion not to discuss a sitting Judge of a Supreme Court was defeated by a thumping majority by the opposite camp, and others ask whether it was an extension of the hangovers of the 5-star dinner they had on Thursday night.

The dinner at Oberoi was sumptuous with a mix of western and eastern cuisine. The menu included:

Asparagas and ham; smoked beef with horse radish; and smoked seer; lobster in lime - butter; chicken liner in Propte rolls; cut carna peas; Chicken drumsticks with Barbeque Sauce; Batter fried Shrimps in Chillie Sauce; Vegetables and Pea Samosa in Tangerine Sauce; Angels in horseback; Ala Bonda .

And everybody’s guess was as to who came forward to foot the bill. It was none other than Ceylon Petroleum Corporation Chairman Anil Obeysekara P.C., who generously met the bill on his personal account.

Mr. Obeysekera by the way is tipped as a possible appointee to the Supreme Court.

At a recent meeting of the Presidential Task Force on Forestry of which Justice Shiranee Bandaranayake is a member, a young environmental lawyer said a member of the Task Force had been elevated to the highest Court in the land and wanted to make use of the opportunity to congratulate her.

But a Senior Forest Official opposed and asked as to whether they did not watch Former President of the Bar Association Desmond Fernando’s interview on the matter which was telecast over a TV channel.

The official said Mr. Fernando came out with a valid argument against the appointment when he expressed his views on the matter.

This matter was raised at the meeting of the government Parliamentary Group too. There, Vasudeva Nanayakkara had made his observations over the appointment but there was no adequate response from the group to take the matter any further.

It is likely that the controversy over the Shiranee Bandaranayake issue will subside with time, and now it is only left for Justice Shiranee Bandaranayake to decide as to what she should do - whether to continue or stepdown, but it’s most likely that she would continue and she may well turnout to be a very prudent judge. When Neville Samarakoon was appointed to the highest judicial post in the land as the Chief Justice, many had doubts about it, but he turned out to be a very independent highly respected personality who enhanced the dignity and status of the Supreme Court.

Besides this, the other major issue of the week was the strike at the Shell Gas Lanka Ltd.

When the Commissioner of Labour felt that the matter was getting out of hand, he informed Minister Mahinda Rajapakse around 2.30 p.m. that it would be difficult to handle the matter.

Minister Rajapakse told him to fix another meeting for 3.30 p.m. and that he would personally handle it. But by that time Presidential Secretary Mr. Balpatabendi had already fixed a meeting for 5.30 p.m..

At the beginning of the meeting when the General Secretary of the All Ceylon Commercial and Industrial Workers’ Union, S. Siriwardena spotted some members of a SLFP Union were present for the discussion including Deputy Minister Moulana, who immediately raised objections demanding they stay away from the discussion. However, they could not reach any compromise in the ensuing deliberations and decided to meet the Labour Minister the following day. He brought about a settlement after having discussions with the Management and the Trade Union jointly and separately. The Minister told the representative of the Company that the country would come to standstill if the strike continues for a few more days and said it would be the responsibility of Shell Lanka to settle the dispute immediately, since they are enjoying exclusive rights of importing and distributing gas throughout the country.

He pointed out that if there was no monopoly in this trade there wouldn’t have been this problem and stressed the importance of settling it at the earliest.

Shell Lanka industrial dispute

By settling the Shell Lanka industrial dispute, Minister Rajapakse showed his ability as a versatile politician, who could pull the People’s Alliance government out of trouble.

Minister Rajapakse, who otherwise being dubbed as the Cabinet reporter proved one point, that he was a man with experience and maturity in the Sri Lankan political arena.

At the weekly Cabinet meeting held on Wednesday, many issues were discussed at length but ended without a final decision.

Prominent among those were the salaries of the top notchers of the Southern Development Authority.

Even Minister Mangala Samaraweera agreed that the salaries were far too high.

Minister Anuruddha Ratwatte said the Southern Development Authority could obtain the services of the Mahaweli experts who are attached to his Ministry, while another Minister said all in the Southern Development Authority were Royalists.

The President responded saying (Rajakeeya Kandayamak) (a Royal team).

A matter relating to medical students who obtain foreign qualifications was also discussed.

Health Minister Fowzie proposed that medical students with foreign qualifications should sit for the medical college final examination in Sri Lanka and be included in the list of merit before appointments were given for internship. This was opposed by Minister of Education Richard Pathirana.

Minister Pathirana said he represents the student population and proposed that doctors with foreign qualifications should first complete their internship before taking up the final examination of the Medical College of Sri Lanka.

This will put them at the bottom of the merit list when post-intern appointments are made by the government.

But the President said it would be difficult for the government to prevent anybody getting into the merit list if they pass the final examination conducted by the Medical Colleges attached to the Sri Lankan Universities.

Minister Srimani Athulathmudali urged the government to re-consider the decision taken during the Budget to prune down the number of overtime hours of the state and senior government employees.

She came out with some statistics in support of her argument and labour Minister Mahinda Rajapakse also supported the stand taken by Ms. Athulathmudali on the overtime issue.

When Minister Rajapakse made an attempt to compute the cost incurred if the government relaxed its earlier decision the President asked as to how he was going to do that there, but the indications are that the government could look at Ms. Athulathmudali proposal favourably.

Mr. Rajapakse, a man with a good heart however got into problems when he visited the home of late Minister Chandra Bandara in Anuradhapura to pay his last respects.

Deputy Minister Bertie Premalal Dissanayake, Bharatha Lakshman Premachandra and several Anuradhapura District MPs went along with him to the funeral.

Angry retorts

The Minister did not have an iota of suspicion that his visit would provoke angry retorts from the members of the Bandara family until Mrs. Bandara openly came out with her tale of woe and said, “see what the Commissions appointed by the PA government has done to my family”.

The week appeared to be bad for the UNP. It started with the death of former Minister Chandra Bandara followed by former North-Central Province Chief Minister G.D. Mahindasoma and Gampaha District Provincial Councillor Davindra Mendis, the only son of former Minister Wijeyapala Mendis.

Davindra, a young politician with plenty of potential in him committed suicide after a spell of depression following the August 31 incidents at Katunayake in which two people including a supporter of the PA were killed.

Following this incident Davindra Mendis was remanded until week before last, but in between, there was another shooting incident, in which four UNP supporters who were returning after the case against Davindra Mendis, were killed by the PA hooligans near the Negombo Base Hospital.

After Davindra was released on bail the family members of the victims of the second incident visited him to tell their tale of woe as to how they were faring after they lost their near and dear ones. This put Davindra in a further state of shock from which he couldn’t recover.

He told some of them he would take a decision soon, but nobody knew what he was going to do.

On Sunday after visiting Davindra’s physician, Wijeyapala Mendis left for Anuradhapura to pay his last respects to Chandra Bandara and it all happened after lunch when Davindra retired to his own bedroom with some newspapers.

Later, he was found in his bathroom unconscious with blood splattered all over his body. The inmates of Mr. Mendis’ house forced open the bathroom and called for the doctors but he was pronounced dead.

For Davindra’s father, Wijeyapala Mendis, the UNP strongman in Negombo it was a shattered dream, for he was grooming Davindra to take over from him. For his mother Nanda, Davindra was everything, she told UNP leader Ranil Wickremesinghe that she did not know as to how she was going to live in that house without her son - Davindra.

It was indeed a sad week for the UNPers having lost three staunch members following the death of former President J.R. Jayewardene.

The UNP Working Committee formally met last week to move a vote of condolence on the death of the former President after Parliament took up vote of condolence on the late President on Tuesday. But during the proceedings it was observed that at one stage the government benches were empty. For the SLFP, speeches were made by Minister Mahinda Rajapakse and Deputy Minister Nandimitra Ekanayake.

Apart from the contribution made by Leader of the House Ratnasiri Wickremanayake, Ministers Bernard Soysa, Srimani Athulathmudali, S. Thondaman, M.H.M. Ashraff and Dr. Neelan Thiruchelvam also spoke.

Here again Dr. Thiruchelvam’s name figured in the signature controversy where he allegedly put the signature of Mr. R. Sampanthan in a press release issued by the TULF.

Though Dr. Thiruchelvam wanted to make a statement in Parliament to this effect he apparently could not find one of his own party men to do that and ultimately had to go to R. Sathasivam of the CWC.

When CWC Leader, S. Thondaman was told by some of his friends about Sathasivam’s involvement, he expressed surprise and said he did not know anything about the matter. But now Dr. Thiruchelvam has been rescued and nobody seem to bother about the matter anymore.

Besides these, nearly forty back-benchers of the People’s Alliance in a dramatic move decided to write to the Speaker on the implications of his move to waive Parliamentary privileges enjoyed by the Parliamentarians with regard to Police arrests and interrogations.

Speaker, K.B. Ratnayake informed his decision to the Police recently and stated in a letter to the Inspector General of Police that his permission was not required henceforth to arrest or question a member of Parliament.

The government used this to interrogate UNP leader Ranil Wickremesinghe two weeks ago about his knowledge of events connected to the Batalanda detention camp which is the subject of a Special Presidential Commission of Inquiry.

The petition states that they learnt from the newspapers about the Speaker’s decision to waive Parliamentary Privileges enjoyed by MPs with regard to arrest and questioning.

The MPs state that they were surprised to hear the latest decision taken by the Speaker in this regard.

They further state that if this was true it could lead to unnecessary complications at a decisive moment in Parliament.

It states:

“Our opponents could manipulate incidents and compel the Police to take us into custody on decisive moments in Parliament resulting in chaos.

The opponents could make use of this opportunity to defeat us in Parliament when votes are taken on crucial issues which would ultimately result in the dissolution of Parliament.

Hence we would appreciate if you would restore the privileges enjoyed by MPs for a long time”

It is yet to be seen as to whether the Speaker would give a hearing to these MPs or leave it as it is in a bid to bring in more discipline to the House and make all Parliamentarians aware of this necessity.

Go to the Situation Report

Return to the Editorial/Opinion contents page

Go to the Political Column Archive