The Political Column

8th December 1996

Tell people what Govt. does not want them to hear

By Our Political Correspondent

The Shiranee Bandaranayake controversy took a dramatic turn with four lawyers petitioning the Supreme Court.

The lawyers, Kumar Ponnambalam, L.C.M. Swarnadipathy, E.F. William Silva and Udaya Keerthiwardene filed petitions under article 126 of the Constitution which deals with fundamental rights.

Chief Justice G.P.S. de Silva who considered this as a special case nominated seven judges of the same court to hear the case.

The bench comprised Justices Mark Fernando, Ranjith Amerasinghe, P. Ramanathan, S.W.B. Wadugodapitiya, Priyantha Perera, A.S. Wijetunge and Ananda Coomaraswamy.

Usually only three judges are nominated to hear these types of cases, but since the petitions are against a member of the same court, the Chief Justice would have thought that it would be prudent to put it to a fuller bench.

The pertinent question in the case is whether the fundamental rights of the petitioners have been affected.

The state’s position appears to be ‘No’ since the three petitioners have shown no interest in being appointed to the Supreme Court, and hence the right to equality had not been affected.

It was the argument of Attorney General Sarath N. Silva that these lawyers have filed a proxy for Justice Asoka De Z. Gunawardene, who has now been appointed to the Supreme Court.

The Attorney General argued that matters relating to Justice Asoka De Z. Gunawardene had been misrepresented in the petitions filed by these lawyers.

He posed a further question. Actually, whose fundamental rights have been affected? In short it is Shiranee Bandaranayake’s fundamental rights that had been affected.

She has been appointed to the Supreme Court and here there are four cases filed against her to debar her from functioning as a judge of the Supreme Court.

The Attorney General also referred to the petitioners’ claim that their freedom of speech had been affected and their right to practise the profession righteously had been affected. But he said the lawyers had come to the Supreme Court, the highest court in the land, having exercised their rights under the constitution.

He moved to caution the Supreme Court that if the application was entertained there could be more fundamental rights petitions against sitting judges of the Supreme Court which could lead to the erosion of authority of the highest judicial body in the country.

The AG argued that the court should not entertain such applications against judges of the Supreme Court which could threaten the existence of the very institution.

Last Tuesday, Justice Mark Fernando, a very senior judge of the Supreme Court, refused to go on the bench with the newly appointed judge on the ground that she was a respondent to a petition filed in the Supreme Court. Justice Fernando sent a note to the Chief Justice, explaining his decision on the matter.

Subsequently, the apparently embarrassed Shiranee Bandaranayake withdrew from the case allowing only Justice Mark Fernando and Justice A.S. Wijetunge to hear it.

There is general agreement that the appointment is questionable, but many people now believe that the action taken by some lawyers on both sides are beyond the limits of decorum.

Though dissent is a part of the democratic process, the issue has put the credibility of the highest court in the land at stake. Therefore, it is essential at this stage to act with restraint, without resorting to courses of action that could bring disrepute to a profession that is held in high esteem.

We have the case of government doctors who protest on many an issue, often showing a lack of discipline.

The basic fault in the whole exercise lies with the lawmakers, who failed to lay down a criteria when appointing judges and we hope that in the future, the government would follow the convention which prevailed over the years in appointing judges to the two highest courts.

The best solution could be to amend the existing provisions to provide the executive with guidelines when appointing judges to the highest courts in the land.

The matter relating to the appointment of judges was also discussed at a meeting between Attorney General Sarath Silva and President Chandrika Kumaratunga early this week.

Although she made a decision to appoint Asoka De Z. Gunawardene to the Supreme Court before her official visit to France, she observed that several cases had been filed challenging her earlier appointment to the Supreme Court.

She met Attorney General Sarath Silva to inquire as to whether she could go ahead with the appointment of Asoka De Z. Gunawardene to the Supreme Court when a problem had arisen in respect of another appointment.

The AG advised the President that it could not have any bearing on the present case and gave the greenlight.

Subsequently, the President went ahead with her decision and appointed Mr. Gunawardene to the Supreme Court, of course this time in keeping with the convention.

After that, the President had to go for another important event, to host her Ministers and MPs for dinner at the President’s House.

During her trip to Paris, the President had been able to lure businessmen from France to invest in Sri Lanka.

Monday’s party was very casual with Ministers and MPs trickling in one by one.

Prime Minister Sirima Bandaranaike and Speaker K.B. Ratnayake attended the party as distinguished guests.

Others enjoyed chatting and dancing their cares away. Prominent among them were Minister Dharmasiri Senanayake and Richard Pathirana who guided the MPs to sing the popular “Baila” while Minister Fowzie asked the MPs to sing “Nurse Nona” apparently because he is having another confrontation with them.

Minister Senanayake who had returned from an embassy party, first took to the floor while the music-loving General watched him keeping a very low profile.

Later Minister Senanayake went up to the Prime Minister to have a chat holding his glass in one hand while seated beside her.

Minister Mahinda Rajapakse also walked up to Ms. Bandaranaike with due respect, keeping his glass under the shade of a chair.

Almost all the ministers were there chatting and joking and as the time moved on, President Kumaratunga also joined them clapping to the tune of the strains which filled the air at the President’s House.

Most of the members of the government Parliamentary group first went to Temple Trees for the dinner since the invitation indicated that the dinner was to be held there, but they were directed to the President’s House at Fort which was decorated and illuminated to suit the occasion.

By 8 p.m. almost all were there and there was a free flow of all kinds of liquor.

The sing-song spearheaded by Minister Pathirana and Tissa Karalliyadda first started with light songs like “Siripade Samanala Kanda Pene” and “Danno Budunge” suddenly reached fever pitch with Mr. Pathirana singing “Arapiya Sophia Dore”, a popular baila of the old timers. Dharmasiri Senanayake thought it would be a fitting tribute to the President if he sang the famous “Rajina Mamai Ape Rajje.”

Pandu Bandaranaike, Reginald Cooray and Benette Cooray and others also joined when Nalanda Ellawala joined with Dharmasiri Senanayake to sing the “Mamai Benai.”

Jayatissa Ranaweera, Ratnapura district MP, who hails from Embilipitiya also performed some traditional dances which looked like some Sinhala folk dance.

The buffet dinner had some sumptuous Chinese, Indian and Sri Lankan preparations with Molagatanni and Chicken Kottu catered by the Hotel Galadari.

Minister Ratnasiri Wickramanayake was the first to walk towards the dinner table followed by Prime Minister Sirima Bandaranaike while the President had a friendly chat with the MPs.

The sing-song session however came to an abrupt halt when the President said it was time for dinner.

As the dinner came to an end and one by one started leaving, the President quipped “ Me Okkoma Pattare Yavi” (All this will appear in newspapers) but what’s wrong?

“But what’s wrong in our singing?” she asked the Ministers and the MPs. “We are meeting after a long time after working strenuously Ñ all this will go in the newspapers, but we have nothing to hide.”

“We are a government with transparency. We should meet again. The next get-together should be in Kandy.”

Among the Ministers who were present were, S. Thondaman, Lakshman Kadirgamar, Srimani Athulathmudali, C.V. Gooneratne, Dharmasiri Senanayake, Richard Pathirana, Mahinda Rajapakse, Amarasiri Dodangoda, G.L. Peiris, A.H.M. Fowzie and others close to the administration but the notable absentees were Ministers S.B. Dissanayake and M.H.M. Ashraff.

Mr. Ashraff of course informed the President’s office of his inability to attend the dinner since he was not well.

At the dinner hosted by the President, PLOTE leader Siddharthan and Sivadasan of the EPDP asked her as to why she decided to hold the local elections in the Northern and Eastern provinces without consulting them.

The President reminded Mr. Siddharthan that she told him and EPDP leader Douglas Devananda to visit Jaffna and report back to her on the situation prevailing there and whether it was conducive to hold elections, but none of them wanted to do that. Thereafter she decided to send her own team to assess the situation.

Accordingly, she said she decided to hold the local elections for the Northern and Eastern provinces.

Though the President spoke briefly on governmental matters at the party, many more things were discussed at the weekly Cabinet meeting.

Minister Srimani Athulathmudali once again raised the overtime problem of the workers and requested the government to look into the matter.

The President said the decision to prune down overtime was a Budget proposal and it should not be taken up over and again, since she had directed the Ministry Secretaries to take a decision on the matter depending on the demand for overtime.

Minister Fowzie thereafter came up with another grievance relating to nurses and the President directed him to appoint a committee of his choice to deal with the problem.

At this stage, the President came up with a Cabinet paper on the salaries of the Southern Development Authority of which Navin Gooneratne is the Chairman.

As soon as the President submitted her Cabinet paper, Minister Mahinda Rajapakse intervened to ask whether the SDA Chairman had resigned.

The President said there was nothing like that and asked Minister Rajapakse whether he wanted to send Mr. Gooneratne home.

Subsequently, the President made a general remark and said the proceedings of the previous Cabinet meeting too were reported and quipped that this meeting too would be reported in detail.

With this remark Minister Mahinda Rajapakse moved a Cabinet paper to shift the Foreign Employment Bureau to a new premises the monthly rent of which would be Rs. 500,000.

The President said these things would not be approved in a hurry and put the matter before the Cabinet for its observations.

The Constitutional Reforms Committee also met throughout the week to consider various matters including the Finance Commission.

As the proceedings were in progress UNP’s Tyronne Fernando told the members that the Sri Lanka Broadcasting Corporation had misreported the proceedings of the Select Committee in one of its news bulletins on Wednesday.

A.C.S. Hameed who was listening carefully, said “as the former Minister of Information you should know that you don’t take SLBC seriously.”

Mr. Hameed also made some thought-provoking remarks about the media during the Parliamentary debate on media last week.

“I think it is time that we in Sri Lanka had a clearly articulated national policy on information and media, which is consistent with the Constitutional guarantees of freedom of speech, expression, publication and information. We also do not have an Information Act. We should set out the obligations of the State and the limits of the citizens’ rights.

“I want to make it clear that the country is going through a difficult period Ñ the war in the North-east, and youth unrest in the South again beginning to gather momentum, and the economy in bad shape, partly because of factors beyond the government’s control and partly brought about by the government. Therefore, at this hour it is important that the Press also makes its active contribution towards the resolution of these problems.

“In this environment I think it is very important that the relationship between the Press and the government should be one of compromise and not confrontation. A battle between the two does not help the country. The government should reconsider its attitude towards the Press seriously, and the Press also must act with a high degree of caution and responsibility.

“George Orwell stated in his unpublished Introduction to “Animal Farm”, “If liberty means anything at all it means the right to tell people what they do not want to hear.” With apologies to him, I say that “If liberty means anything at all it means the right to tell people what the government does not want them to hear.”

“In my view there will be always confrontation between the State and the Press. We must try to minimise this confrontation. I think we should follow the British pattern of providing Trial by Jury. This led to the practical freedom of the English Press.

Therefore the Trial by Jury of Press offences is a way of strengthening the philosophy of liberty. As Lord Delwyn “a jury can do justice whereas a Judge who has to follow the law, may not.” Therefore, Trial by Jury in the area of criminal law is an important security against interference with the media freedom.”

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