Hulftsdorp Hill

14th June 1998

Those who strive to stifle judicial independence

By Mudliyar

" I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow. Once for all, let it be understood, 'that no endeavours of this kind will influence any man who presently sit here" said Lord Mansfield . The Sunday Observer, the official organ of the Government, on June 7 1998 published as its main news item in 36 pt banner headline " Accused UNP politico at dinner with HC judge" and the news item read "A High ranking UNP politician, against whom a case is pending in the High Court, is reported to have met that particular Judge hearing the case over DINNER (emphasis mine) at the Blue Oceanic Hotel in Negombo recently. The meeting is said to have been arranged by a Magistrate who has plans to contest the forthcoming Provincial Council elections on the UNP ticket.

Another High Court Judge who is also said to be a good friend of the Magistrate made the trio at the dinner session. The Magistrate concerned has already made arrangements to contest the elections and is also said to have close connection with the underworld. According to judicial sources, the meeting over the dinner and the newly cultivated friendship between the UNP politician and the High Court judge, may have a significant impact on the judgment in the case" The same news item, which was carried in the Silumina of the same date, had a slightly different banner headline. The accused UNP politico has been elevated to a leader of the UNP. According to the Silumina, the alleged meeting of the accused, who is according to the news item a front line leader of the UNP, at the Blue Oceanic Hotel was at LUNCH. (emphasis mine). Anyone with a modicum of intelligence would inquire how two newspapers published at Lake House could make a mistake as to whether the accused politico sat for lunch or dinner with the High Court judge. Unless the sleuth or the scribe saw the High Court Judge and the Accused sitting for lunch and continued eating till dinner.

The object of the two newspapers controlled by the Government, is very clear. The onslaught on the Judiciary has resurfaced after some hibernation. After having passed a torpid or dormant state for some time, the government has turned its guns on the judiciary again, this time through its organs at the Lake House by an unnamed reporter casting aspersions on the judiciary of this country. The calumny is addressed to two High Court judges and a Magistrate.

The rationale behind this attack is obvious. The President and the lesser personae of the government have been elevated to power by the people of this country, who believed the propaganda outbursts of these self proclaimed messiahs, who promised they would with their life and blood protect the judiciary from the humiliation that the august institution was subjected to during the JRJ regime.

The President of the country was the first to vent her feelings when she criticised the Supreme Court of this country, who had protected the rights of the present messiahs when they were in the opposition. Then came the GLs, and the Pulles, who echoed the sentiments of the President; the judiciary was now a stumbling block. Though hosannas had been sung over and over again in the government controlled media about the progress of the regime to the credulous public to gain their huzzas, the truth of nonperformance has overtaken the gobbelsian propaganda which had converted only the propagandists.

The judiciary has been the only recourse the people of this country had for the last 3 _ years, as the non performance of the government has been equalled to the most ineffective opposition we had for many years. The politically oppressed people had been given some respite strictly within the powers that had been vested upon the judiciary especially by the Supreme Court. Fundamental rights continue to be violated now as they were before. The relief which the Supreme Court very carefully granted was not understood by the father of the present Constitution, JRJ, or the present President. But in addressing a communique to her opposite Ranil, the President, forgetting the immediate past, has stated "Here I must hasten to add, that this was the first occasion when I met the Commission, quite unlike the good old days of your 17 years rule, when multifarious forms of intimidation were employed against judicial officers."

There was silence after the Editor of The Sunday Times was convicted by the High Court for criminal defamation. The government media, and specially the news papers, suddenly found themselves in an unfamiliar role of defending the sanctity of the High Court premises when Desmond Fernando P.C. garlanded the editor. The new saviors of judicial independence wrote, scripted and pronounced their commitment to judicial independence and their absolute condemnation of even suggestive desecration of the Court by even the President of the International Bar Association.

But when Sirisena Cooray was discharged by the Supreme Court, and when posters appeared welcoming the discharge of Mr. Cooray, the President hinted that Mr. Cooray may known the judgment before it was delivered. Could this have meant the judges had leaked the judgment to Mr. Cooray? The great protectors of the Judiciary in the government media reported the President, but did not think it was another attempt to bring down the esteem of the Supreme Court in the eyes of the gullible public. The Supreme Court cannot call a press conference and defend itself. What the President did not know was that a false picture had been painted about the merits of the case. It was not difficult for a lawyer of the calibre of Choksy to demolish the case put forward by the State using primarily the affidavits of the State. Anyone with some gray matter in his cranium would have known the final conclusion of the case in a country where the judiciary was independent and not compliant.

A few months later, Ms. Shiranee Thilekewardene acquitted Bandula Padmakumar, the Editor of the Lakbima weekly newspaper, who had published a literal translation of the same gossip Column which convicted the editor of the Sunday Times. Ms. Shiranee Thilekewardena was not promoted to the Court of Appeal. No penpusher or the Bar Association spoke up for Judge Thilekawardene. In the good old days, the Bar Association would have been in the forefront to fight her case.

Next came the bombshell. Mr. Mahanama Thillekeratne, High Court judge, Colombo, in a judgment that encompassed the essence of the judicial independence we have cherished from the very inception, (going back to the days of British Imperialism and reminiscing the courageous decision of the English judges in the Bracegirdle case) whilst acquitting Dr. Rajitha Senaratne, an appointed M.P. of the UNP, exposed the abyss into which the prosecution has fallen to concoct a false case to bring home a charge of fraud.

There are several other cases against prominent UNP MP's which are pending before the High Court of Colombo. It was therefore necessary, to discredit the High Court Judges of Colombo, and make them change their independent stance.To achieve this, a story was planted in a premier newspaper, making every single Judge of the High Court vulnerable in this grave judicial sacrilege that he has supposed to have indulged in.

The Sunday Times was inundated with calls who inquired and then ventured to suggest names of honourable gentlemen that sit upon the High Courts, not only in Colombo but in the Outstations as well. The rumormongers worked with immense vigour. The prominence that was given to this publication was such that even the discerning became credulous. The circumspect became naive. The names of Judges always associated with honour and independence became the villains who perpetuate the underworld.

As the week passed by, the rumour mongers at Hultsdorf had almost without question identified the culprit politician and narrowed it down to two or three judges. If this was the opinion of the black coated gentry, what would be the reaction of the ordinary public towards the judges that administer their future and fortune. But success was achieved. The temple of Justice stood desecrated.

The two politicians who have cases before the High Court are Mr. Sarath Kongahage and Dr. Jayalth Jayewardena. Of the two, neither of them is a frontline leader of the UNP. Both are appointed MPs. Mr. Sarath Kongahage, like Dr. Rajitha Senaratna, came to the UNP initially from the SLMP. Mr. Sarath Kongahage was appointed by Mr. Ranil Wickremasinghe to fill the void created by the assassination of Mr. Ossie Abeyagoonasekera, whereas Dr. Jayalth Jayewardena was the physician of President Premadasa and President Wijetunga. It was President Wijetunga who appointed Dr. Jayewardene. The alleged incident took place according to the news item at Negombo at the Hotel Blue Oceanic. Dr. Jayewardene is overseeing the Negombo electorate. Therefore by process of elimination and intelligent deduction one could eliminate Mr. Sarath Kongahage from the scene of offence. As the case is before Mr. Mahanama Tillekeratne, the learned High Court judge could also be discounted. Dr. Jayewardene has two cases, or the same case split into two periods, and the cases are before Mr. Nimal Dissanayke and Mr. Dudley Karunaratne. Mr. Nimal Dissanayake has been one of the Commissioners who inquired into Batalanda. Even the most vociferous critics of Commissions would agree that the Commissioners of Batalanda acted first as judges and then as commissioners. Mr. Dudley Karunaratne came to Colombo only recently. No one has ever even whispered about any misdemeanour with reference to these Judges.

No High Court Judge has ever visited the Hotel Blue Oceanic in the recent past. The management of the Blue Oceanic Hotel who knows Dr.Jayalath Jayewardene as the politician who oversees Negombo for the UNP very well, have flatly denied the story to the hit squad of investigators employed by the Government to find evidence against Judges. If there was an iota of truth, why did the Official organs at the Lake House wait till the 7th of June to publish this. Obviously the government was writhing in anger due to the judicial independence displayed by Mr. Mahanama Tillekeratne in exposing the banal tricks that the prosecution was upto in fabricating cases against their political opponents.

It was the good fortune of the people of this country that every method, that has been employed to suborn the Judges whether they are Magistrates, District Judges, High Court Judges or Judges of the Superior Courts have failed. The Supreme Court has led by example.

If what we have said is wrong, and if there is even an iota of truth in the news items, we challenge the government, and the newspapers to name the two High Court Judges the Magistrate and the Politician, the date and the time of this alleged dinner, so that the Supreme Court or the Judicial Service Commission can take appropriate action. The members, the staff and the books maintained at the Blue Oceanic Hotel, would amply demonstrate the utter falsehood of this story .

Let me conclude by quoting Justice A. R. B. Amerasinghe Judge of the Supreme Court which would be a grim reminder to those who strive to stifle with the judicial independence "Every private communication to a judge for the purpose of influencing his decision upon a matter publicly before him is necessarily calculated to divert the course of justice and deserves the reproof and censure as a contempt of court. If we are to do what men and women vested in us to ensure that we their Judges are free from peril and foul horror, real or pretended, express or veiled, ought to be effectively exercised.'

Jungle Telegraph

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