The Sunday TimesNews/Comment

25th April 1997



Let people rally round our judges to protect our freedoms

By Mudliyar

The Government has not given up its vendetta against the judges of this country. As judges express their views in interpreting the law, governments that are elected to uphold democracy become angry if the judgements are not in keeping with their thinking.

It must be said that after July 1960 with the election of the Sri Lanka Freedom Party headed by Sirima Bandaranaike the independence of the Judiciary which was sine-qua-non with previous regimes became a thing of the past. Felix Dias Bandaranaike who himself was a son of a Supreme Court Judge was the first to trifle with the independence of the judiciary. It was Felix who expressed the limitations of a democratic form of government. It was Felix who wished that the judges and the legal profession took directions from him. It was his notion that the law is an ass and anyone with average intelligence can be a pleader He thought that he can subvert the legal profession by introducing a system of barefoot lawyers like the barefoot doctors in China. He did not know that when Mao-Zedong introduced barefoot doctors it resulted in thousands dying at the hands of artisans who had been given a three-month training on all aspects of medical science. It was Felix who wanted the Supreme Court to be reopened with the promulgation of the new Constitution.

But to his dismay and chagrin there were judges like Victor Tennekoon who kept him in his proper place. Then came J. R. Jayewardene who sacked judges under the guise of introducing the 1978 Constitution.

It is now accepted by everyone, both the bitter foe and the closest supporter of R. Premadasa, that he was the only head of state who never interfered with the judiciary. He was the only President who followed the recommendations of the Bar Association in appointing President’s Counsel. Unlike the previous Presidents and Ministers, he was not learned in the law. But according to his own admission he learnt the law by reading old law reports thrown to his compound at Kehelwatta.

Like the governments I have mentioned, this Government is also in the habit of dangling carrots before judges in the mistaken belief that judges will succumb to these subtle attractions and give judgements in favour of the Government.

Recently there were vacancies in the International Criminal Tribunal for the former Yugoslavia for eleven judges. The International Criminal Tribunal for the former Yugoslavia was constituted by the United Nations General Assembly to try criminal cases of politicians and others who had been responsible for the massive human rights violations in the former Yugoslavia.

The tribunal has a mandate for the prosecution of persons responsible for serious violations of International Humanitarian Law committed in the territory of former Yugoslavia since 1991. It is the first such tribunal that was established to determine individual guilt or innocence in connection with serious violations of International Humanitarian Law by a truly international tribunal. The International Military Tribunals at Nuremburg and Tokyo, its predecessors, were multi-national in nature representing only part of the world community. This tribunal was to go into the widespread violations of humanitarian law which included the practice of “ethnic cleansing”

In the 20th century, people believing in the omniscience and the omnipresence of one God were trying to murder and rid the community of the other who were believing in another God. The barbaric practice conducted by the so-called white skinned people with the most advanced, sophisticated instruments of torture put to shame the Hutus and the Tutsies of Rwanda in Africa. This clearly proves that human beings by nature are cruel, and it is part of the civilising process to get rid of such cruelty. Whether you live in Africa or Europe, cruelty can surface and people do commit the most atrocious crimes and resort to the most inhuman cruelty in the name of their race or religion.

The term of office of the first eleven judges elected in 1993 for four years was concluded and the member states of the United Nations were asked to nominate candidates. Nineteen states did nominate judges to be appointed to the ICTY with eight sitting judges being nominated for re-election by their countries; three sitting judges were not seeking re-election.

Justice S.W.B. Wadugodapitiya and Dr. Asoka De Z. Gunawardene, two judges of the Supreme Court applied to our government to nominate them, through the Chief Justice for the vacancies of the International Criminal Tribunal. Chief Justice G.P.S. De Silva recommended the two applications to the Government. Justice Wadugodapitiya who was the Solicitor General was appointed by the former President R. Premadasa as one-man Commissioner to inquire into certain allegations that were made against the Sri Lankan Government and officials regarding their dealings with Israel and their secret service agency Mossad. A former Mossad agent wrote a breathtaking book on the Secret Service of Israel.

At that time it was well known that President Premadasa had little doubts about the allegations that were contained in this book which referred to some powerful Ministers and officials of the J. R. Jayewardene regime. Others contended that Mr. Premadasa wanted his implacable foe, Gamini Dissanayake exposed as an agent of Israel. The book by Victor Ostrovsky and Claire Hoy entitled ‘By way of deception’ took Sri Lanka by storm. Some of the references made as to the dealings of the former Government were so astounding that the Mossad had to officially deny its contents. One of the terms of reference was whether Mossad was responsible for causing the preparation of false feasibility report for a construction project in the Mahaveli Development Scheme which was funded by the World Bank so that a Israeli construction company would be awarded the contract.

Mr. Wadugodapitiya as the Commissioner did a commendable job. Never was there any allegation against him for any act of impropriety. There were no star witnesses, nor units to coach witnesses, nor NGOs to pay witnesses to give evidence to implicate officials and politicians who were opposed to the Premadasa regime.

Mr. Wadugodapitiya’s report completely exonerated Mr. Dissanayake and others of any wrong doings. Justice Wadugodapitiya was one of the judges who along with Justice Mark Fernando, Justice Amarasinghe and Justice Wijetunga by a majority decision took the view that it was necessary to consult the Chief Justice and act on his recommendation in appointing Judges.

Justice Asoka De Z. Gunawardene was the Judge who decided that the dissolution of the Provincial Councils was contrary to the Constitution. His promotion to the Supreme Court was not automatic. He in fact lost his seniority as Shiranee Bandaranayake was appointed before him. These judges have earned the respect and the approbation not only of the lawyers of this country but a larger majority of the people who are interested in the rule of law. They may have steadfastly and swiftly acted to prevent any abuse of power by any Government whether it was the UNP or the PA. The entire Bar and the public would have fully endorsed the application to this august international tribunal and would have expected the Government to support their application.

So it was the responsibility of Governments to sponsor, support and nominate candidates to this august tribunal. The Government of Sri Lanka for reasons best known to it refused to accede to the request and recommendation of the Chief Justice to nominate Justice S.W.B. Wadugodapitiya and/or Justice Asoka De S. Gunawardene

Former Supreme Court Judge Tissa Dias Bandaranaike (Centre)
Instead it sponsored George Randolph Tissa Dias Bandaranaike, former Judge of the Supreme Court, Chairman of the Special Presidential Inquiry I and II (Killing of Lalith Athulathmudali and the Kobbekaduwa Probe), the son of Coppelstone Bandaranaike and a close relative of President Chandrika Bandaranaike Kumaratunga to this most coveted prestigious post. It is with great regret that we inform the readers of this column that George Randolph Tissa Dias Bandaranaike had failed to get elected to the Tribunal. Latest reports say that our nominee has received only 20 voted The Judges who are elected are:

Antonio Cassese (Italy) re-elected
Claude Jorda (France), re-elected
Richard George May (United Kingdom), newly elected
Gabrielle Kirk McDonald (United States), re-elected
Florance Ndepele Mwachande Mumba (Zambia), newly elected
Rafael Nieto Navia (Colombia) newly elected
Fouad Abdel-Moneim Riad (Egypt), re-elected
Almiro Simoes Rodrigues (Portugal), newly elected
Mohamed Shahabuddeen (Guyana), newly elected
Lal Chand Vohrah (Malaysia), re-elected
Wang Tieya (China), newly elected

When the Chief Justice wrote to the Government recommending the nomination of two of the most respected judges of the Supreme Court, the Government instead of recommending and nominating them to the United Nations to be appointed as judges of the International Criminal Tribunal for the former Yugoslavia had informed the Chief Justice that in the future no sitting Judge would be permitted by the Government to accept any foreign appointment and all such appointments will be given to retired judges. This indeed is an indictment on the judges for their independence which they have shown in the past.

Judges of Sri Lanka have been invited to participate at various conferences and seminars and appointed to various appointments including the International Labour Organisation. These judges have done their duty by the country and the international community with great acceptance.

In Malaysia, when there was a battle between the Bar Association and the Chief Justice, former Chief Justice Parinda Ranasinghe and Justice Mark Fernando were appointed and the judgement delivered by these Judges was hailed as a masterpiece. Justice Mark Fernando had been invited to participate at the ILO and his work has brought great credit to Sri Lanka. Our judges have, since the British system was introduced to this country, acted independently. They have always kept the flame of democracy alight in this country. It is the judges who have protected our rights against tyranny.

The politicians in office seem to think that the biggest hindrance to the development of the country is not their incompetence and their impudence, but the democracy that existed for nearly half a century. Every time a bill or legislation is brought by them in the name of progress to thwart our freedom the judges have stood in their way.

This malady affects most politicians in office. When Justice Mark Fernando allowed the application of a police officer who had not been given the extension by the D. B. Wijetunga’s UNP government in a fundamental rights application, President Wijetunga was furious. He summoned Tilak Marapana, the Attorney-General and wanted it conveyed to the Chief Justice that the government would not tolerate the intervention by the Judiciary in the domain of administrative functions. That police officer was a sympathiser of the SLFP and he would be an hindrance to his administration, and how can the IGP continue to give orders to him, the President retorted. Old DBW was so furious with Justice Mark Fernando. It was only on the next day that Mr. Marapana was able to convince him. This is a clear example of how benign Dr. Jekyl becomes a horrendous Mr. Hyde in power. Most politicians have forgotten that Justice Mark Fernando and other judges of the Supreme Court have given judgements against the UNP government if fundamental rights were violated by the UNP government. Every judge has to protect us from the tyranny. But most people have forgotten this. Justice Mark Fernando had been singled out for attack by cowardly politicians covering themselves under the cloak of immunity.

Our very existence may depend upon their independence. The governments of the past after the advent of Felix Dias Bandaranaike tried to make inroads into the independence and bring the judges to the thinking of their ideas and ideals.

Felix may have been a hero when in office. Like most politicians out of office he was derided. In hindsight we see the obvious fallacies in their theories. During that time J. R. Jayewardene was haunted by the ghost of Lee Kwan Yew. The kind of pseudo democracy that is in Singapore always appealed to him. In the name of progress every politician if given a chance would take over the liberty that the people of this country have enjoyed.

Left - Seoul: economic miracle but two presidents are behind bars. Right -North Korea: Dictatorship at work but little progress

Now the present President is haunted by the dictatorship that existed in South Korea. But in North Korea there are no strikes, there are sky scrapers, there are monuments built to venerate Kim-il-Sung; his son, Kim Il Jong; the great benefactor of the people is the President for life, but the economy has failed. The North Korean government is unable to give the bare necessities to the people. Thousands are dying of starvation, many more are dying in prison camps. The entire population is craving for freedom.

In South Korea dictatorships established under the most benevolent democracy in the world, the USA, have developed the country. At the same time it has produced robber barons and politicians who rob the country through the robber barons. South Korea is only a little better than North Korea. Therefore politicians seem to think the biggest hindrance for the development of the country is not their incompetence and impudence but the democracy that has existed for nearly half a century. Every time a bill or legislation is brought to thwart our freedom the judges have stood in their way.

We have in this country strikers and strikes. We have the freedom to demonstrate. These freedoms may have been abused by politicians to get into power and throw governments which they alleged curtailed these freedoms. Now in power they want to be worse than their predecessors. They are looking in awe to countries like South Korea and Singapore which have developed at the expense of human liberty. There are no court systems to safeguard human liberty in those countries. That is why the youth in those countries, specially in Korea, had violently protested, and which cost them their life. When the South Koreans were violating human rights, the USA was silent and condoned the atrocities. But when the youth are massacred in China when they demonstrated for freedom the USA became the champion of human liberty. Like our government in the opposition they reverse their role depending which country is governed by which government.

To the champions of democracy the LTTE are freedom fighters. But Gadaffi is a terrorist. Similarly to our politicians when in power Judges are a mere arm of the Executive and should stamp the seal of approval under the guise of a just judicial system. That is why the Government strives to transform this state from a democratic and just but a poor nation into a totalitarian unjust but a rich nation. And judges — independent judges are the greatest hindrance to these aspirations. So it is in their interest to pressurise the judges and still if the government fails, then to prevent the Judges from going abroad, and sitting in international tribunals and participating in conferences. If the carrot that is being dangled is rejected then they strive to lure the Judges by making them to wilt under pressure, like what JRJ did to Justice Neville Samarakoon Q.C. If possible get MPs to ask questions about the conduct of the Judges even without a substantive motion in Parliament and get the Judges to resign and then appoint political henchmen as judges so that judgements could be written by legal luminaries.

Finally the greatest danger we face today in the name of constitutional reforms and amendments is whether the great G.L. Peiris will do a JRJ. With the promulgation of the New-Package Constitution all the judges will lose their job so that they can be sacked and others of their choice can be appointed. Remember this was done in the name of democracy and Dharmishta regime by JRJ.

The people of this country who cherish freedom should be ever vigilant to prevent this from recurring again. The opposition, like the SLFP when JRJ was President, is very weak. The Bar Association, unless pressurised, will not take upon itself the responsibility of protecting our judges, and judges themselves do not have a voice of their own. Therefore, there must be a movement of the people who are educated and intelligent and are gravely concerned of the rule of law, human liberty and violation of human rights to prevent any Government, whether this Government or any other future Government, from trying to subjugate our Judges.

The Bar Association has so far failed to take notice of the contemptuous statement made by G.L. Peiris as Minister of Justice referring to the conduct of Fort Magistrate Mervyn Wijetunga. Similarly the Bar Association has not given or made any statement about the ruling given by the AG on the Rienzi Arsakularatne affair. The Bar has failed to express concern about the non-promotion of judges. But the members of the Association with a overwhelming majority elected the present President and the Secretary. The members believed that they would oppose any interference by the Executive to their profession and prevent any further interference with the Judiciary which has to be independent. We must all remember only before an independent Judiciary can the members appear and plead their clients cause.

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