The Political Column

16th April 1999

Why no action on judge?

By our Political Correspondent

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With the dawn of the Sinhala and Tamil New Year, peace talks aimed at solv-ing the north-east problem have entered a new phase.

The main opposition UNP which had been dragging its feet for more than five years on the matter without extending a helping hand to the government to come out with a solution has now taken a positive stand.

The change of heart came following the defeat at the presidential elections in December last year. Though the defeat was a surprise to the UNP, for the people who saw the party's weak and negative campaign, the results were as expected.

The UNP's move to extend its support to the government should, however, be commended whether it came as a result of their defeat or not.

Now, both these parties at the negotiating table should expedite the process of resolving this burning problem without spending much time on sorting out trivial issues.

What we saw during the past one month or so was the two parties trying to resolve their own problems rather than looking at the country's problems in a bipartisan manner.

For instance, when the President talked about her educational qualifications, the UNP talked about an interview purported to have been given by the President to an international magazine. They also accused each other of making various utterances during the presidential election.

People now feel that these two parties should set aside their differences and concentrate on the national issue as the north-east conflict has claimed more than 60,000 lives both Sinhalese and Tamil and maimed tens of thousands of people.

During the bipartisan talks between the government and the UNP some important issues were discussed. In the previous week, UNP leader Ranil Wickremesinghe raised a question about the Wanni debacle and accused the government of castigating the UNP without any reason. He told the President to either file action against the UNP if she feels the party was actually behind the Wanni debacle or exonerate it.

Instead of talking about the UNP's alleged role in the Wanni debacle, the President tactfully deviated the course and said there was little meaning in filing action since most of the judges of the Supreme Court were appointees of a UNP regime. In other words, what she probably meant was that most of the judges were UNP supporters.

Such remarks are likely to raise the hornet's nest as similar remarks were made by the President in the past.

She once linked the judges with the UNP when she commented on a judgment in a liquor licence. In her defence, several senior ministers took the Supreme Court to task in parliament. In all these instances, it was a "one-way ticket" for both the President and the ministers because the judges who are holding responsible and high office in the country were not afforded an opportunity to explain or reply.

In the meantime, the government is also unhappy over a Supreme Court ruling in a fundamental rights case filed by Brigadier Parry Liyanage. The Court upholding Brigadier Liyanage's petition said he was unfairly treated and not promoted to the rank of major general. When the promotion was not forthcoming in defiance of the court ruling the Brigadier filed contempt papers in the supreme Court.

Judiciary is an arm of the government but it should maintain its independence and should be free from executive or legislative interference. This is vital for democracy to be vibrant. If court orders are flouted, then erosion of the law and order sets in. This will only help to devalue the governmental system which the President and the cabinet of ministers had solemnly pledged to uphold and safeguard at all times. Not only that, it would also contribute towards the citizens losing respect for the judiciary.

In view of this, the President should be more careful in making remarks regarding judges who are unable to reply to the executive of the country. Otherwise, it will lead to a situation where there would not be any smooth working relationship between the two vital arms of government.

This kind of clash is not peculiar to the Sri Lankan society. It was evident in the 1970s when Felix Dias Bandaranaike was the minister of justice. Former President J. R. Jayewardene also had to clash with some members of the judiciary, especially with former Chief Justice Neville Samarakoon who criticised the executive at a prize-giving address in Colombo.

Angry government leaders, keen on finding faults with the Chief Justice, hurriedly looked through law books to see as to how a judge of the Supreme Court could be removed. To their surprise they found that such procedure was not available in the statute book. Thereafter they hurriedly passed a procedure where a judge could be removed by parliament.

In the case of Chief Justice Samarakoon, the government appointed a select committee to go into the matter. The Select Committee was headed by Lalith Athulathmudali, who was at onetime practising under Neville Samarakoon. However, the matter ended there.

In the latest case, the President reportedly told the UNP delegation that she had information about a judge who had taken bribes and that she had a file full of documents to support her claim. She also reportedly said the judge in question had helped LTTE sympathisers.

The remarks were not made in a public statement but they were reported in the media. Since the President or the Presidential Secretariat had so far failed to refute these reports, it can be presumed that the reports are correct.

According to the President herself, the judge's matter was brought to her notice during the presidential election. If that is the case, analysts asked why the President has not taken any action till now. The President should have told PA leaders to raise the matter in parliament and got a select committee appointed to probe the judge concerned. In a serious charge like bribery, the President should act fast in accordance with the provisions of law. Such a procedure will prevent misunderstandings between the judiciary and the executive.

Beside this, a show of strength by a section of the Maha Sangha last week in protest against any government-LTTE talks has also caused concern in many circles. The Maha Sangha who assembled at the Borella YMBA declared seven principles as non-negotiable conditions when enacting the proposed new constitution. The Maha Sangha resolved as follows:-

"Whereas for over 2000 years, Sri Lanka has been a sovereign unitary state under the control of one central authority, and whereas the Sinhala people have during this period formed the overwhelming majority of the population, and whereas the Theravada Buddhism has been the religion of the Sinhala people and nation from the time of its official introduction by Arahat Mahinda in the 3rd century B.C. and whereas moves are afoot to introduce a new Constitution which is to be the fundamental law of the country. We declare that, having regard to the ineluctable and historic facts and circumstances set out above, any such constitution should be grounded on the following principles which we regard as non-negotiable.

(1) The Nature of the State.

Sri Lanka should continue to be a unitary state and the legislative supremacy of Parliament and the independence of the Judiciary shall be maintained.

(2) National flag, National Anthem and Buddhism

The provisions in the present Constitution relating to the National flag, National Anthem and the Buddha Savanna shall remain inviolate.

(3) Division of the Country

There shall be no division of the country for political or administrative purposes on the basis of ethnicity.

(4) Traditional Homeland Concept

The whole of Sri Lanka constitutes the homeland of all its citizens. Hence, the claim the Northern and Eastern provinces are the traditional homeland of the Tamils is rejected.

(5) The Thirteenth Amendment to the (1978) Constitution

The 13th Amendment to the present Constitution was foisted on the people of this country, under duress, by the Government of India. It should therefore be treated as having no validity and repealed, and all legislative action taken under that Amendment should also be treated as null and void. In the circumstance, the Provincial Council system should be abolished and the temporarily merged Northern and Eastern Provinces should be de-merged without any further delay.

(6) Devolution of Power

Devolution of Power shall not be used as a means to the resolution of a non-existing ethnic problem.

(7) The Executive Presidency

The Executive Presidency shall be abolished.

While we consider that any new Constitution should be grounded on the above mentioned principles, we are of the view that the present adversarial Westminster system which is the cause of many of our current ills should be replaced by the Executive Committee System with suitable modifications as recommended by the Sinhala Commission.

These non-negotiable principles spelt out by the Maha Sangha render it difficult for the government to come to a settlement acceptable to all warring parties. The LTTE is not prepared to budge an inch from the principles that evolved at the talks in Thimpu with the then UNP government. This is a condition for talks set by the LTTE, meaning the government would have to accept the existence of a Tamil homeland in Sri Lanka before they sit for talks with the LTTE.

Observers say the seven conditions if the government accedes to them will only lead to a stalemate situation as far as the peace talks are concerned.

The hardline position taken by an influential section of the Sangha Sabha is mounting pressure on the government. Adding to the pressure is a decision taken by the Buddhist prelates to decline President Kumaratunga's invitation to meet her last Monday to discuss the proposed constitutional reforms.

The prelates of the Malwatte and Asgiriya chapters have, however, indicated to the President that they were willing to meet her if she gave them a convenient time on a future date.

Some reports said the meeting did not take place because the prelates were perturbed over meeting the President at Temple Trees whereas the tradition says the ruler visits the prelates at their temples.

According to these reports, the prelates have dismissed citing of security concerns for the presidential residence as a lame excuse and pointed out that the President has visited many places including Matara and Anuradhapura during the past few weeks.

Meanwhile a flag-burning incident during the April 7 protest march by Buddhist monks has been criticised by a section of the Sangha who described it as showing disrespect to a country's flag. It is true that in 1815, the heroic Wariyapola hamuduruwo burnt down the British flag and trampled it. But the recent incident was something different. Here is a case of another nation trying to help Sri Lanka find a solution to the ethnic problem. It is up to a democratically-elected government to decide whether it should accept the good offices of a foreign country or not.

In this backdrop, the European Union had chosen to write to the government of Sri Lanka as to how it should conduct its affairs. The Sri Lankans have been compelled to accept this kind of veiled threats since we are depending on the generosity of western donors due to our own follies and failures to improve the country's economy and to settle our internal problems by ourselves. The tone of this so-called demarche is totally unacceptable to any citizen of Sri Lanka whether they live under the PA or the UNP administration.

The EU's attitude towards Sri Lanka cannot be accepted just because it helped this country by way of aid. If the richer nations attempt to browbeat or dictate terms to poor countries like Sri Lanka then what is guaranteed in the UN Charter will be devalued.

Meanwhile, the UNP is facing the threat of another crisis due to internal bickering within the party. The latest crisis involves the ongoing battle between the Colombo Mayor Omar Kamil and Colombo Central chief organiser Mohamed Maharoof who at a recent meeting alleged that the administration of the Colombo Municipal Council had failed to render any service to the people of Colombo.

He also criticised the Council for privatising its services. The benefits of this privatisation was derived by a UNP politician from the Gampaha district by way of getting stages erected whenever he needs and obtaining travellers cheques to travel abroad, he charged.

Many party stalwarts asked whether Mr. Maharoof had attempted to question the honesty and integrity of Karu Jayasuriya, former Mayor of Colombo and UNP chairman who is the party's chief Gampaha organiser.

Many UNPers see it as an attempt by Mr. Maharoof to take the party chairman head on. It is learnt now that Mr. Jayasuriya is perturbed over these utterances and party supporters say Mr. Maharoof should be disciplined.

On the other hand, by attacking the Municipal Council which is the main local government body held by the UNP, the party supporters say that Mr. Maharoof is indulging in an attempt to disrupt and de-stabilise the UNP administration there.

Internal bickering would, however, not do any good to the UNP which has languished in the opposition for six long years.

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