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To follow a person from inside a High Security Zone (HSZ), wait for him to park his car and assault him mercilessly requires close surveillance for some time.

Those words came from former Commander of the Army and onetime General Sarath Fonseka, credited with leading ground troops for the military defeat of Tiger guerrillas more than three years ago. Then, he won plaudits from UPFA leaders as the “best Army Commander in the World.”

Last Sunday, he made the remarks to the media after coming out of the Merchants Ward of the Colombo National Hospital. He had rushed there to see Manjula Tilakaratne, Secretary of the Judicial Service Commission (JSC), the latest victim of a mysterious gang attack.

Winston Churchill once remarked that even a joke is a serious thing. Fonseka’s words ring true to this axiom. It was reminiscent of leading British actor, late Peter Sellers. The legendary Inspector Jacques Clouseau declared many a time that “whoever threw this stone is only a stone’s throw away.” That was in his highly popular Pink Panther series where he played the role of a conceited French detective. Saying the obvious was a forte of Clouseau.

Yet, what Fonseka said cannot be dismissed light heartedly. The comments came from a battle-hardened soldier who knew about covert and overt operations, perhaps more than many others in the security establishment. Often, he himself has been the subject of accusations for mounting these covert operations on those critical of him and the military when in uniform.
However, for him, the roles are reversed these days.

As a politician set to embark on Thursday on a new odyssey to abolish the executive presidency, he has to cry loud for the victims of such gang assaults. He wants to be among the first to visit hospitals and see those who have shed blood to protect democratic ideals and independence of the judiciary.

As Fonseka was walking out that forenoon, entering the Merchant’s Ward was Justice Minister Rauff Hakeem. Moments earlier, he had received a telephone call from President Mahinda Rajapaksa to immediately visit Tilakaratne in hospital. Hakeem found many others by Tilakaratne’s bedside. They included Wijayadasa Rajapaksha, President of the Bar Association of Sri Lanka (BASL), and a few judges. The Justice Minister told the wounded JSC Secretary that President Rajapaksa had asked him to assure him that all measures would be taken to find the culprits behind the attack. A week on, the culprits are yet to be arrested.
Hakeem told the media outside the hospital, “Vested interests are behind this attack. It was carried out to bolster their campaign against the government that there is a culture of impunity in Sri Lanka. We are very transparent. The government is committed to get to the bottom of this.”

Similar sentiments were expressed by his ministerial colleagues. National Integration Minister Vasudeva Nanayakkara said he believed there was an “international conspiracy” behind the attack. Construction Minister Wimal Weerawansa, known for his anti-western rhetoric, theorised rather studiously that the attack could have been instigated by Tilakaratna himself. But none of them gave any clues to the Colombo Crime Division (CCD) operatives probing the matter so they could get a breakthrough and make arrests. Hence most of the rhetoric or expert opinions ended only with some media publicity.

Tilakaratne related to Hakeem how the attack on him came about. He had dropped his wife and daughter at S. Thomas’ College, Mount Lavinia last Sunday morning. The daughter has been going for table tennis practices. Thereafter, he drove out of the school premises to Galle Road. There he purchased a copy of the Sunday Times from a vendor. He returned to Hotel Road and parked his vehicle. He was reading the newspaper seated in his Jaguar, part of a fleet given as official vehicles to judges. Suddenly, he saw on his rear-view mirror some four persons walking towards his car. One of them knocked at the window. When he lowered it, he was asked in Sinhala whether he was the Secretary of the JSC.

He was pulled out and assaulted. One of the assailants hit him hard with a pistol butt causing him to bleed from his face. His lips were split. Another hit him with an iron rod. They broke his pair of spectacles. The assailants picked up Tilakaratne’s mobile phone and escaped.

Tilakaratne had a second mobile phone in his car. It had not been noticed by the assailants. With difficulty, he had used it to call his wife. She rushed in and the Police were alerted. He was taken in a police vehicle to the Accident Service of the Colombo National Hospital. He was later transferred to the Merchants Ward. For weeks, Tilakaratne had feared that his life was in danger. This was after he was directed by the JSC to issue a three-page statement in Sinhala. It spoke of alleged interference in the judiciary and claimed there was strong evidence to prove it. He told the Sunday Times (Political Commentary) of September 30 “…..I deny the vicious accusations hurled against me. They are false. This has only led to serious concerns for my safety as well as those of others in the judiciary.”

As has been the case in most instances when gang attacks, some leading to murder, occur, the Police have still not arrested Tilakaratne’s assailants. The incident comes as further proof that armed gangs are still able to get away leaving a crime scene to enter Police records as “unsolved crimes”. The situation was compounded because the Police officer assigned to protect Tilakaratne had gone on leave the previous day. However, the JSC Secretary had also not sought a replacement.
Work in courts countrywide, barring the Supreme Court and the Court of Appeal, came to a standstill on Monday and Tuesday. Both judges and lawyers joined in protests over the gang assault. With Sri Lanka’s human rights record coming up for review at the upcoming Universal Periodic Review (UPR), the incident drew the close attention of Colombo-based diplomatic missions. Though the attack itself will not come up for discussion at the Geenva-based UN Human Rights Council sessions which will discuss Sri Lanka’s human rights record from 2.30 p.m. to 6 p.m. on November 1, it is likely to surface at the Council’s next sessions in March 2013. Towards this end, many diplomatic missions, particularly those in the West, have shown keen interest in the on-going developments.

Of particular significance was the meeting by the Judicial Service Association of Sri Lanka. An official statement said the JSA members met at the Colombo District Court at a special general meeting on Tuesday. It unequivocally condemned the attack on JSC Secretary Tilakaratne. The statement said the judges also discussed the need for the rule of law and the independence of the judiciary. Towards this, the statement said, proposals were unanimously approved. It was decided that they should resume work on Wednesday and prevent further inconvenience to the people.

Legal sources close to the judiciary said that among the measures discussed were the need to bring the Attorney General’s Department under the Ministry of Justice (it is currently under the President) and the Police Department under the Home Ministry (it is currently under the Ministry of Defence).

Even before the judges discussed the issue, a transfer of the Attorney General’s Department, to the Justice Ministry was under “active consideration”. As for bringing the police under the Home Ministry, a recommendation has also been made by the Lessons Learnt and Reconciliation Commission (LLRC) in its final report. There were also heated exchanges between sections who said that the attack on the JSC had been carried out by groups which wanted to discredit the government. Others disputed the claim.
A query in Parliament on the cold war between the Executive and the Judiciary became the subject of discussion among ruling party MPs. It was when the Government Parliamentary Group met on Tuesday morning with President Rajapaksa in the chair. He said that a response had to be given to what Janatha Vimukthi Peramuna (JVP) MP Anura Kumara Dissanayake would say. A day earlier, Dissanayake had given Speaker Chamal Rajapaksa the text of a statement he would make on the current issue. The President tasked the Leader of the House, Minister Nimal Siripala de Silva, to respond. The issue with the judiciary was to become the subject of a lengthy discussion. Environment Minister Anura Priyadarshana Yapa was to point out that JSC Secretary Tilakaratne was only an official and had acted on the instructions of the Commission (which is headed by the Chief Justice) when he issued a statement. External Affairs Minister G.L. Peiris was to comment on what he called, “the impropriety” of the JSC statement. Public Relations Minister Mervyn Silva was more vociferous demanding tough action.
Anura Kumara Dissanayake complained that Speaker Rajapaksa had deleted some important parts of his statement. The Speaker explained that he could not but help doing it. This is the text Dissanayake read out in Parliament: “There is a strong threat to judicial independence in the country today.

This has been highlighted by several incidents that are detrimental to the independence of the judiciary. It will lead to people’s confidence in the judicial system being eroded. The sovereignty of the people is vested with the Executive, the Judiciary and the Legislature in the country in terms of the Constitution. Democracy can only be protected if these three pillars work in harmony. Today, our society is facing a troubling scenario.

“The Secretary of the Judicial Service Commission (JSC) Manjula Tilakaratne was attacked by an unidentified gang. He is a responsible officer working for an institution that upholds the judicial independence in the country. The attack on him came soon after he went public about attempts being made by persons from different levels to intimidate the JSC members. Because of the attacks on the JSC Secretary, other members of the judiciary carried out a work stoppage in his support. This kind of threat has never been faced by the JSC. Today members of the judiciary have spoken out against such attacks.
I want the minister in charge of the subject to reveal to the House if the investigation into the attack on Mr. Tilakaratne has yielded any results and if any of the perpetrators has been arrested or identified.”

Minister Nimal Siripala de Silva, as directed by President Rajapaksa at the government parliamentary group meeting, responded. Here are edited excerpts which set out the UPFA government’s position: “I wish to respond on behalf of the government to an issue raised by Member of Parliament Anura Kumara Dissanayake, under Standing Order 23-2 regarding the attack on Judicial Services Commission Secretary Manjula Tilakaratne and thereby the reported threats on the judiciary.
“The government wishes to strongly condemn the attack on the JSC Secretary. Justice Minister Rauff Hakeem visited the National Hospital and inquired about the health of Mr. Tilakaratne and directed that steps be taken for his speedy recovery. We wish to emphasise, that it is the government which wishes to get to the truth of this incident, than the opposition. The public may not forget on how the government was implicated in the assassination of MP T. Maheshwaran when it was very well known the LTTE was responsible for the killing. Those responsible for the murder have been produced before courts and sentenced. Today, it has turned out to be a trend of the opposition, some political parties and persons to sling mud at the leader of the country and the government.

“Blaming the government for any offence is an attempt to achieve narrow political gains. The government wishes to reject any assumptions about serious threats to the judiciary and the independence of the judiciary. The government condemns such assumptions as well.

“MP Anura Kumara Dissanayake drew reference to a statement issued by the JSC Secretary. The government has no necessity to interfere into the activities of the JSC which deals with transfers of certain category of judges, promotions and administrative activities. The government also wishes to emphasise that it has not interfered in their work. Since Mr. Dissanayake raised false allegations it is the duty of the government to respond to such allegations. The government regrets to say that the invitation extended to the President of the JSC — the Chief Justice — and two other Supreme Court judges was for a discussion that has been misinterpreted. There have been previous occasions where discussions have been held with the President on improvements to the judiciary. The government’s cooperation towards this has been discussed. Even the Chief Justice too has met with the President and the President’s Secretary and discussed about the requirements of the judiciary. There was no influence or any issues related to the independence of judiciary discussed.

“During the preparation of the budget the President has held a range of discussions with relevant officials. In this case he thought it was appropriate to discuss with the Chief Justice and JSC members about training abroad for judges and other such requirements. There is no interference in the judiciary from the government. The government has no necessity to have a clash with the judiciary. There have been various attempts to inconvenience the government. Under these circumstances it is reasonable to analyse this incident (attack on JSC Secretary). Particularly when there were a large number of foreign journalists covering the T-20 Cricket World Cup and the attention was on Sri Lanka it should be investigated whether there was a conspiracy to tarnish the image of the government by this incident. I wish to read out a report on this matter which has been submitted by the Police headquarters. It answers two questions raised by Mr. Dissanayake.

“The JSC Secretary Herath Mudiyanselage Ruvinda Manjula Tilakaratne, who resides at No 48, Gregory’s Road, Colombo 07 on 07.10.2012, accompanied by his wife and daughter had travelled in the official vehicle WP KG 5005 to S. Thomas, Mt Lavinia where his daughter was taking part in a table tennis competition. He had dropped them near the sports complex. He had thereafter parked his car along Hotel Road and was reading a newspaper. At about 8.15 a.m. four unknown persons pointed a pistol at him and threatened him. They assaulted him and hit him with the pistol and had stolen his spectacles costing Rs. 19,000 and the Nokia mobile phone costing Rs. 22,000. One of them was armed with a club. On the instructions of the IGP the Colombo Crime Division (CCD) has opened inquiries. As a result of the assault injuries have been caused to the lips, caused a swelling on the face and a bump on the head.

“Soon after the incident the Mt Lavina HQI had admitted Mr Manjula Tilakaratne to the Colombo National Hospital. Mt Lavinia ASP I, HQI and a team from the Crime Division had visited the place and recorded their observations. On the instructions of the IGP, investigations were handed over to the CCD. Two finger prints have been found on the vehicle of Mr. Tilakaratne by the Finger Print division which visited the place. A court order has been taken to obtain the details of the telephone calls taken by Mr. Tilakaratne and calls received by him between 6.00 am and 9.00 am on 07.10.2012 on his mobile.
“Security guards at the courts complex, vendors and those who were present at the time of the incident have given statements to the police. A case in this regard has been filed under No. B 2355/12 and the case will be called again on 10.10.2012. Mr. Tilakaratne who was admitted to the National Hospital under Bed Head Ticket 851327 was discharged on 08.10.2012. The JSC Secretary is entitled to the following security arrangements under circular 2323/2011 issued by the IGP with the concurrence of the JSC on 03.12.2011;

1. The services of a Police Sergeant or Police constable for security.
2. Obtaining a police guard for the residence effective for 24 hours per day.
“Accordingly on the request of Mr. Tilakaratne Polce Sgt 53133 B.K. Ratnasiri of the Keselwatte Police has been assigned for his personal security. He has been duty on week days, weekends as well as on public holidays. On some days with the permission of Mr. Tilakaratne he had taken leave or off days. On days of his absence Mr. Tilakarate is entitled to call for the services of a standby officer. However, according to the OIC of the Keselwatte Police station, on this day, 07.10.2012 Police Sgt Thilakasiri had been on leave, but since Mr. Tilakaratne had not sought the services of a replacement no replacement had been given. Mr. Tilakaratne had travelled on his own on this day. Maximum efforts are being made to resolve this crime and a detailed investigation is underway. So far (until October 9) no suspects have been arrested.”

In this backdrop, Speaker Chamal Rajapaksa made a 65-minute statement in Parliament on Tuesday on the “supremacy of Parliament” vis-à-vis issues related to the Judiciary as this column said he would do last week. Opposition Leader Ranil Wickremesinghe who followed with a brief response suggested that the government appoint a committee to look into issues. He had said that such a committee should include representatives of SAARC (South Asian Association for Regional Co-operation) countries. Though the government was not in favour of foreign participation, it accepted his proposal to appoint a parliamentary committee to go into these issues. At a news conference on Wednesday, Minister Maithripala Sirisena made the formal announcement. “As the government we agree to the proposal. It is good to appoint such a committee through Parliament,” he said. He noted that there was “an attempt by hidden forces to create instability and added that “some NGO’s which get money from overseas” might be involved. A more assertive remark was made by Minister de Silva at the news conference. He was asked “Is there a move to bring an impeachment motion against the Chief Justice?”

His reply: “No. There is no such idea. These are reports by various media or hidden forces trying to set one against the other and destabilise the country by spreading rumours or publishing reports on websites. Attempts are made to create conflicts between the Executive, Legislature and the Judiciary.

Minister Dullas Allahapperuma: Besides, this report has been published on a website by those who tried to bring an impeachment against a former Chief Justice.

The appointment of a Committee and the assertion that there would be no impeachment made clear that the Executive is seeking to avoid a head on confrontation with the Judiciary. This is despite the government now acting in concert with the main opposition UNP on the appointment of a committee to probe deeper issues.

Yet, a 19-page statement on Tuesday by Speaker Chamal Rajapaksa was a shot across the bow on the Supreme Court by the Legislature. He observed that “the determination of the Supreme Court of a Bill titled ‘Divineguma’ contains a disturbing feature where functions attributed to the Speaker by the Constitution have been assigned to the Secretary General of Parliament. This, in my understanding, is inconsistent with the provisions of Article 121 (1) of the Constitution relating to the office of the Speaker and also amounts to an amendment of the relevant provisions of the Constitution. At the time the determination was read in Parliament, I became conscious of a predicament that Parliament may be faced with, by the determination of the Supreme Court. Your Speaker felt it was prudent before making a decision, to refer the matter to the attention of the Party Leaders and seek their guidance because of their rich experience in parliamentary affairs. I am grateful to the Party Leaders for maintaining the high traditions and customs of our Parliament and in offering me their fullest assistance……..”

Here are more edited excerpts: “……. I was especially inspired by the brilliant exposition of parliamentary practices made by Hon. Speaker the late Hon. Anura Bandaranaike – a ruling striking down a judgement where three judges of the Supreme Court attempted to issue a stay order restraining the Speaker from appointing a Select Committee to inquire into the conduct of a former Chief Justice consequent to a motion of impeachment against him forwarded to the Speaker in terms of the Constitution and the Standing Orders, and courageously upheld the supremacy of Parliament against encroachment by the Supreme Court…..

“…. In the determination of the Supreme Court, the aforesaid article (the petition filed in the Supreme Court challenging the Divineguma Bill) has been construed to mean, instead of delivering a copy to the Speaker as envisaged in the Constitution, it would be sufficient to send it to the Secretary General of Parliament thereby substituting the “Secretary General of Parliament” for the “Speaker.” If that is permitted to stand either the President on making a reference or a citizen submitting a petition to the Supreme Court on a Bill placed in the order paper of Parliament under Article 121(1) of the Constitution can do so without giving notice to the Speaker by sending a copy of the petition to the Speaker – a mandatory requirement under the Constitution. The Supreme Court has determined that delivering the petition to the Speaker is mandatory, but the delivery is satisfied if the document is instead sent to the Secretary General of Parliament that carries no guarantee of reaching the Speaker at the same time as the petition addressed to the Supreme Court. It takes away the element of certainty guaranteed in the Constitution by delivering it to the designated authority…….”

“…..In the year 1991 in a determination made by the Supreme Court in the matter of the Sri Lanka Telecommunications Bill (Justices G.R.T.D. Bandaranayake, K.M.M.B. Kulatunga and S.W.B. Wadugodapitiya SCD 5/91 and 7/91 – conveyed to Parliament on 23.04.1991) foresaw that Article 121 of the Constitution had elements which “…..could in our opinion lead to mischief and even a possible confrontation between the Parliament and the Court which needless to say must be avoided. That could be the possible result of non-compliance with the scheme of the provision.”

“……….A sequence of events of a somewhat similar – but not exact nature – has arisen again that need be sorted out amicably eliminating any possible injustice to citizens. In doing so, I am following the decision of the Sri Lanka Telecommunication Bill, which decided that Article 121 of the Constitution is of mandatory nature, which has also been followed in the present determination, to arrive at common ground….”

“……I make a decision on this 9th day of October 2012 that in terms of Article 121 (1) of the Constitution a copy of a reference made by the President or petition by a Citizen to the Supreme Court shall at the same time be delivered to the Speaker and not to the Secretary General of Parliament. Such a delivery to the Secretary General of Parliament shall not be treated by Parliament as due compliance with the terms of Article 121 (1) of the Constitution.” The Speaker directed that his determination be sent to the President as well as the Judges of the Supreme Court.

The two-to-one cold war – the Executive and the Legislature on one side and the Judiciary on the other – may continue despite the government’s keenness to go soft now. Moving swiftly to garner support from the legal fraternity, President Rajapaksa quickly appointed as many as twenty one (21) new President’s Counsel, the Sri Lankan equivalent of Queen’s Counsel in the United Kingdom. Among them were a Working Committee member of the opposition UNP and the senior counsel of Sarath Fonseka, though some others who were Fonseka’s lawyers were kept out.

Legal circles were agog with stories that a team of pro-government lawyers, some of whom were this week appointed as President’s Counsel, were advising the President on the procedure to be adopted to impeach the Chief Justice. At Hulftsdorp, these rumours were not ignored. Questions were being asked on what grounds the Chief Justice could be impeached (by Parliament), while others argued that it was a mere show of hands by MPs that was required, and the government had the majority – whatever the facts, to oust the Chief Justice.

Tomorrow a three-judge bench of the Supreme Court will sit to hear a determination sought by the Court of Appeal. It will be headed by Chief Justice Shirani Bandaranayake and includes Justice K. Sripavan and Chandra Ekanayake. It is in a case filed by Mavai Senathirajah MP and Secretary of the Tamil National Alliance (TNA). The Court of Appeal has sought a determination or interpretation on an application filed by Senathirajah to prohibit the Northern Province Governor G.A. Chandrasiri from giving approval to the Divineguma Bill (on behalf of the Northern Provincial Council). The petition argues that the Governor cannot represent the views of a non-existent Council.

Representing the UNP’s National Lawyers Association, Upul Jayasuriya was among those who addressed a news conference outside the Supreme Court premises on Wednesday. It was arranged by Sunil Watagala of the Janatha Lawyers Society. Jayasuirya said, “When the Mannar courthouse was attacked by goons, the entire legal profession stood up. I am sad this was not the case when the JSC Secretary was attacked. The JSC is the heart of the judiciary. When an official of that body is attacked, it is an attack on the judiciary.”

His remarks underscore the numbing effect the on-going cold war has had on the private bar and even among judges. The government had both, supporters and detractors in the private bar and among judges. It was uncertain how far its support base extended. During the week, the International Commission of Jurists fired a salvo from Geneva blaming the government and the state-controlled media for whipping displeasure among the public of the judiciary, and especially the Secretary of the JSC prior to the attack on him.

On Friday, the UNP’s Working Committee met and issued a statement that was critical of the judiciary, not present, but past. It said that in the past 15 years (since President Chandrika Kumaratunga came to office), the judiciary has been influenced by political pressure from the government and the UNP has been facing the brunt of it. It was probably alluding to a string of decisions that prevented the UNP from even sacking those who left the party and joined the government in what was seen as farcical. The statement called for a committee to go into the conduct of the judiciary, but insisted that it be independent of the government. Last morning, the Bar Council of the Bar Association of Sri Lanka (BASL) met and passed resolutions condemning the attack on the JSC Secretary.

Noteworthy for the government would be the fact that this government hopes to host the Commonwealth Heads of Government Meeting (CHOGM) next year in Sri Lanka and is bound by the ‘Affirmation of Commonwealth Values and Principles’ which clearly refer to the adherence to the principles of Separation of Powers between the Executive, Legislature and the Judiciary and the connection with the Rule of Law. It has also agreed to abide by the Agreement on Commonwealth Law Ministers regarding these three branches of government known as the Latimer House Guidelines for the Commonwealth. Understandably, the magnitude of the issues is not only volatile but sensitive. Only the coming weeks will show how the events will play out.

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