21st September 1997

Death knell to independent judiciary

By Mudliyar

Minister G.L. Pieris was entrusted with the Constitutional reforms in order to settle the ethnic strife. A political package which had been the brainchild of the TULF was introduced with suitable amendments. The President and her Ministers and others who advised her firmly believed that the only way in which the ethnic conflict would end was by a political package. JRJ believed in the Indo-Lanka Accord, Premadasa in the Peace talks, and now Chandrika in the political package. When the political package was introduced there was a lot of support from the Tamil community in Sri Lanka. They hailed the President for having boldly introduced such a package. This was in spite of the fact that most Sinhala Buddhist organisations were opposed to the political package. She was determined to go ahead with the package. Then something very significant happened. Prabhakaran from the jungles of Wanni, unequivocally rejected the package in toto and reiterated his commitment to achieve his dream goal, an independent Tamil Eelam.

The pundits and the theorists are again reconsidering in a slightly modified form about the necessity to find a political solution through the package, and if the LTTE refuse support to the package, the Tamils in the South and abroad and the international community would bring pressure on Prabhakaran to relent the hard stand he has taken on the establishment of Eelam. The theory is as old as the LTTE itself. Whether the political package will bring peace to Sri Lanka is yet to be seen. Going on past events as long as the LTTE is strong and Prabhakaran is its supreme commander and the Government fails to win the war, the political package is doomed to fail. This is my opinion.

Let us now discuss the political package and the devolution of judicial power to the regions. When the original proposal was leaked to the press it contained some provisions to the effect that every region will have its own Chief Justice, Judicial Service Commission, Attorney General and the IGP appointed by the Governor of the region on the recommendation of the Chief Minister. In the original proposals under section 17(1) establishes a High Court in every region. Section 18 discusses the establishment of a Regional Judicial Service Commission consisting of three Judges appointed by the Constitutional Council in consultation with the Chief Minister. Under Section 19 the Governor shall appoint a Regional Attorney General.

If the political package and the constitutional reforms are to be adopted in the proposed form, all regions will have a High Court, an Attorney General and a Judicial Service Commission and all appointments of judges will be made through the Judicial Service Commission of the region. The Regional Judicial Service Commission will be responsible for the appointment, transfer, dismissals and disciplinary control of judicial officers within the region. One of the great disadvantages of appointing judges within a region is that the judges could be transferred only within the region, which in today's context would be a province. At the moment the judiciary of this country has had a record of honesty and integrity and has been the main bulwark against various transgressions made by Governments in order to suppress the rights of the people. When the magistrates are recruited from the regions and are transferred within the region, soon the independence of the system will be threatened. People will know the antecedence of the judge and he would have to serve within his career at a station more than once as the regions are small in extent. The judges who have maintained a very independent profile aloof from the people will no longer be able to preserve such aloofness. The Regional Judicial Service Commission will have the same problems like the judges as they have to serve only the region and recruitment will essentially be from the region. Even if the judges and the Judicial Service Commission maintain and continue to maintain their independent stance there will be a lot of pressure by the Chief Minister and his cahoots to interfere with the system of justice. Today there have been innumerable occasions where the politicians had tried to interfere with the independence of judges. Though the incidents have been few and far between yet these incidents loom large in the minds of the people who cherish the independence of the judiciary.

The Regional Attorney General will be appointed by the Governor from among persons qualified to be appointed as a Judge of the Regional High Court. A Regional Attorney General will function and hold office during the pleasure of the Governor.

With the establishment of Regional Councils under the proposed Constitution, the Chief Minister will be deemed to become an extremely powerful person. He will advise the Governor on the appointment of the Judicial Service Commission and the Attorney General of his region. The Attorney General wields enormous power specially on matters concerning criminal law. Today, there are many murders directly or indirectly connected with politicians. Only a few weeks ago the Leader of the Opposition of the Beliatta Pradeshiya Sabha was killed by an unknown gunman. A week before that another politician's brother was killed at Beliatta. On the 16th of August, 1997, when the government was celebrating three years in office, and when the opposition was planning to have protest meetings, at Biyagama, a UNP politician was shot at and injured. Before that the violence inflicted at the behest of the government politicians on the opposition was alarming. This Government has made a lot of ground in striving to reduce human rights violations on the minorities in the country. The government knows the minority lobbying force in the international fora are so great that the slightest violations by the Armed Forces on the minorities are tackled with extreme efficiency, but when it comes to attacking the opposition and killing its members, and violently disrupting their meeting, the government within the past three years has surpassed any previous government. When the government talks of the Bhishanaya it was known that every single member in the government and the opposition were unanimous in their resolve to stamp out violence by the Southern terrorists. It was their unanimous resolve that the Southern terrorists headed by the JVP and the DJV must be flushed. After the death of Wijeweera, but for one incident concerning the murder of Richard De Soysa, the Bhishanaya came to an abrupt halt. Whatever the propagandists say about the Bhishanaya today, when it did happen and when the insurrection was brutally crushed, there was a sigh of relief everywhere. The 1993 Pradeshiya Sabha elections was one of the most peaceful elections conducted after 1977. In certain places in the South, where Bhishanya was at its height, the UNP won with huge majorities.

After this Government came into power the political violence perpetrated on the opposition continued to rise. No arrests were made on the killings and on the violence and very few cases have been filed. Inquiries have been conducted in a most lackadaisical manner. In some cases the police began inquiries to exonerate the suspects who are government supporters. If the situation is so bad, if the inquiries are conducted by the police of the central government what would be the position if these enquiries are conducted by regional governments at the behest of the Chief Minister?

Political interference are so ingrained in the system, that the Regional Councils will further strengthen such dastardly actions. There would be petty kings elected as Chief Minister who would act like War Lords and the life and liberty of the subjects will be at the mercy of the Chief Minister and his political henchmen. What actually is happening in the North under the commandment of Prabhakaran will happen in the South. The country will be torn into factions, where the Christians and Catholics will fight the Buddhists where the Christians are in a majority. The Christians and Muslims will suffer the same fate at the hands of the Sinhala Buddhists. The Sinhalese will fight the Sinhalese on differences like caste and creed. This is not a doomsday prophesy founded on conjecture but it is the real factual situation when petty individuals become Chief Ministers and when they think with the Regional High Courts, Regional Attorney General, Regional Judicial Service Commission and the regional IGP under his command, where he would be propelled into a position where he would think he is above the law.

Mrs. Savithri Gunasekera, Professor of Law of the Colombo University has always thought that the Attorney General should be completely an autonomous department which will have the strength and courage to prosecute any one in the government or in the opposition irrespective of the position he or she holds. Mr. Ranil Wickremesinghe said that he would fight for the establishment for an independent Police Commission which will investigate any crime committed by anyone without political interference. The Police have virtually become the stooges of the government in power. Only an independent Police Commission which is not responsible to the politicians will be in a position to perform their functions smoothly And it should strengthen the rule of law, but with the proposed provisions of the Constitution we will have political lackeys as judges, members of the Judicial Services commissions, Attorney Generals and Police Officers who will be subservient to their masters. The pearl of the Indian Ocean will be divided into regions where the rule of law will have no place in the Order Book.

When these things continue to happen in the South, Prabhakaran or his successor will go from strength to strength and try to achieve their goal which will suddenly become a reality.

The devolution of Justice to the regions would be the death knell of an independent judiciary. The rule of law will be replaced by the law of the jungle and the survival of the fittest.

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