Hulftsdorp Hill

4th Apirl 1999

Leave the judiciary alone

Sinhala in the courts

By Mudliyar

Leave the judiciary alone

By Mudliyar

“Today the Courts are protecting the human rights of killers and those who violate them, but not the human rights of those of us who strive to protect them.” This statement by President Kumaratunga at an election rally in Negombo, appeared in the Divaina of March 30.

It appears the President is back to her favourite pastime- bashing the UNP, Ranil Wickremesinghe and the independent Judicial system of this country. In the process making statements which are untrue and causing a lot of pain of mind to the Judges.

The President forgets the pledges she gave the Judges, whenever she is invited to a ceremony consisting mainly of Judges. It was not long ago that she gave a solemn promise to the people, that there’ll be no interference with the judiciary. But like the pledge she gave to the JVP that she would do away with the Executive Presidency February 15, 1995 she has forgotten and violated that promise with impunity. She continues to give pledges to Judges and then castigates them whenever she feels free to do so.

Whatever the President thinks of the Judiciary, locally and internationally the Sri Lankan Judiciary, unlike the Government, is held in high esteem. It is not a secret that even the most developed countries in the world are astounded by the Judicial independence demonstrated by the Courts of this country.

This is what the report for the Centre for the Independence of Judges and Lawyers based in Geneva, Switzerland says: “There is a strong culture of judicial independence in Sri Lanka. The Supreme Court, in particular, is vigorously independent. While it took some time for it to get used to the exercise of its fundamental rights jurisdiction under the 1978 Constitution it now exercises that jurisdiction freely and effectively. Perhaps the most important decision of the Supreme Court in recent years was its decision in November, 1987(during the Presidency of JRJ) in the case of a Bill introducing the 13th amendment to the Constitution which created the Provincial Councils and devolved extensive powers to them. The result was on balance a victory for the Government, since it was able to modify the terms of the amendment so as to avoid the necessity for a Referendum. However the judgements show a conflict of strongly held individual opinions and certainly not a Judiciary subservient to the Executive. In another case of great Constitutional importance, the Court of Appeal held that the dissolution of two Provincial Councils was invalid under the 13th amendment because those concerned had acted beyond their powers. (This was during the time of President Wijetunga). There have been other, more recent cases in which the Supreme Court has given decisions unwelcome to the Government in power. An important recent example is the challenge to the validity of the Sri Lanka Broadcasting Authority Bill. In a powerful judgement, the Court held that the Bill was inconsistent with the Constitution in a number of respects, and could only be enacted by a special Parliamentary majority or by a Referendum.”

This is what the report has to say about Sirisena Cooray’s release: “We conclude that the Supreme Court has shown independence and good judgement in balancing the interest of national security against the fundamental rights of the petitioner. As a result some of the most serious potential consequences of the efforts to oust the jurisdiction of the Courts over Emergency Regulations and order made under them or the PTA had been averted”.

It was only on March 30, this year the Supreme Court refused to accede to the request of a team of leading President’s Counsel and other senior lawyers to release Member of Parliament Abdul Cader, Keheliya Rambukwella and two others- from custody-which was the interim relief sought by the petitioners. Similarly it was only a few days ago the Supreme Court upheld the expulsion of two independent members from Parliament who had joined the EPDP which is a constituent party of the PA. The expulsion was at the instance of the EPDP.

The Supreme Court also held the expulsion of Ravi Karunanayake invalid. The expulsion was at the instance of the DUNF Srimani Athulathmudali faction. It is regrettable that the President who is a graduate of the Sorbonne University in Paris, -one of the citadels of democracy, would make statements undermining the judiciary, while her predecessor R. Premadasa who, according to her brother Anura, sold ‘lewariya’ in Kehelwatta, was the only Head of State who never made any reference to the Courts of this country.

A majority of the judges both in the minor judiciary and the superior courts would unanimously agree that no other president or Government has done so much for the upliftment of the Judiciary as President Premadasa.

Though Chandrika Kumaratunga seems unable to get over the habbit of bashing the judges, her ministers and other acolytes go before the United Nations Committee against Torture and present the country report based mainly on the judgements of the Supreme Court.

They contradict the pronouncements of the President, and praise the Supreme Court for upholding the core values of human freedom which is intrinsically interwoven to the fabric of a society which upholds the Rule of Law and human freedom.

The Country Report presented on Nov. 21, in 1997 to the U.N. Committee against Torture clearly and strives to protect its image by praising the Supreme Court in its fundamental rights jurisdiction. What President Kumaratunga does not realise is that the fundamental jurisdiction as enshrined in the Constitution has no provision to protect the rights of the Executive.

This is the basic principle in Constitutional law which even a student who studies for the First in Law should know. Paragraph 42 of the Country Report submitted to the UN Committee against Torture by the Kumaratunga Government says: “Since the late 1980s however the court has not only emphasised the liability of the State but also the personal liability of State officers named as respondents in petitions under Article 11. In recent years the Attorney-General as a matter of policy has declined to appear on behalf of such officers and they have had to retain their own legal counsel. The Court has now made a practice to order that part of the compensation be paid personally by the offender from his own resources, pointing out that payment of damages by the State can foster notions of impunity. In addition to an order that compensation be paid, the Court generally refers the matter to the appropriate authority concerned for action that it deems fit and proper.

For example, where police officers have been found guilty of torture it has directed the Inspector General of Police (IGP) to take disciplinary proceedings or directed the Registrar to forward a copy of the judgement to the IGP to maintain a record of the findings for departmental purposes and to ensure that the sums are paid expeditiously.

In the case where the Court has found in favour of the petitioner appropriate compensation was awarded. In the more serious violations the relevant higher authority was ordered to take action against the offending officer and/or maintain a record for departmental purposes. (See table below)

It must be noted that the Supreme Court has taken the view that freedom from torture must be ‘jealously protected’ and every case is scrutinized extremely carefully.

It is a well known fact that the international image of the country depends fairly on the assessment of the Country Report tendered to this Committee. It is the Supreme Court and the Superior Court which had played an important and significant role in establishing the human rights conditions that prevailed in the country. An independent observer who attended this meeting from Sri Lanka was extremely happy that a country like Sri Lanka did not have a subservient judiciary like most other countries.

For them it is an unbelievable phenomenon that we have Judges who deliver judgments which are not welcome by the Executive. This alone has made us proud in the eyes of the world.

The Committee against Torture has castigated other countries which have puppet Judiciaries- where the strings are held firmly by the Executive. The independence of the Judiciary helps our country to get even aid from other institutions for development.

The decisions of the Supreme Court have shown that we are not a banana republic.So in the name of God! or a pantheon of Gods we appeal to you Madam, please leave our Judiciary alone.

Sinhala in the courts

Dear Mudliyar,

I read with considerable interest the articles that appeared in The Sunday Times on the use of Sinhala in the Courts. In 1994 I published a book titled ‘Selected Essays’ on legal and allied subjects which was favourably reviewed by the present Minister of Foreign Affairs. One of the essays was titled ‘law in the language of the people’ containing my observations on the use of the Sinhala language in the Courts.

It was published in the ‘Daily News’ of July 23, 1975. I came across some of the printed proofs of my book and found the article which I am sending you. There are some other proofs which also might be of interest to you.

Prior to my retirement from the Supreme Court in 1974, I presided at a Sessions of the Supreme Court at Galle and in keeping with the policy of the government of the day, ventured at conducting the proceedings in the official language.

Primarily, I informed the members of the Panel of Jurors summoned, of my decision and with the co-operation of counsel for the defence empanelled only jurors familiar with the language. The entire proceedings comprising the addresses of counsel, the record of the proceedings and the examination of the witnesses was in Sinhala.

With my limited knowledge of the language I obtained the assistance of the Sinhala interpreter to dictate my charge in Sinhala in chambers, prior to addressing the Jury.

The narration of the facts was not difficult and in regard to matters of law such as ‘reasonable doubt’ the difference between knowledge and intention and the numerous other legal terms which arise in the course of an Assize trial, correctly translated into Sinhala, I was able to charge the Jury in simple language interspersed with the correct Sinhala translation of the legal terms.

The sessions which continued for about a month was satisfactorily done and the late S. Dhahanayake who had a large Assize practice at the time, was satisfied that I had done justice to the conduct of the cases. I did not venture into any complicated matters lest I come a cropper which was likely to evoke the caustic comments referred to by Justice Ninian Jayasuriya. In the article of mine referred to above, there is a reference to the case of Prematileke (75 NLR).

If this is a case from the Southern Circuit of the day it may be a discussion of one of my charges at the time.

A.C. Alles

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