So the cat is out of the bag. The Sri Lanka Broadcasting Authority Bill was first mulled over by the UNP regime when Dingiri Banda Wijetunga was the President, Ranil Wickremesinghe was the Prime Minister and Tyronne Fernando was the Information Minister.
I have often repeated in this column that we Sri Lankans have short memories. The present Media Minister, Dharmasiri Senanayake, had to remind the UNP and everyone else that the father of the Bill was the UNP. He goes on on to say that Shan Wickremesinghe was a member of the Committee chaired by Chandra Wickramasinghe which looked into the question of regulating the electronic media. It is interesting to note that the UNP Bill had the same number as the Bill presented by the PA.
The UNP, according to Tyronne Fernando, MP, has accepted the setting up of an authority in principle and like the present Bill it envisaged a system where the Government would issue licence to applicants for Broadcasting stations.
Mr. Fernando says it was not as pernicious as the present Bill as it did not envisage a renewal of licence once a year. So the Broadcasting Bill was an illegitimate child sired by the UNP and when it was threatening to be born with more power, the lawyers of the UNP went before the Supreme Court and aborted it. Is it because the mother had abandoned the putative father and eloped with the PA?
R.K.W. Gunasekera, one of the most respected lawyers in the country, was retained by a group which challenged the present Bill in the Supreme Court. Mr. Gunasekera remarked that regardless of whether the Bill came from the PA or the UNP, he would have opposed it. At that time, everything was done to prevent the ETv from televising very popular programmes (like BBC News, Star Sports, etc.). Then it was contended that the ETv was pirating programmes and broadcasting it to TV viewers without paying any royalty. Nahil Wijesuriya of ETv took up the position that there were no provisions in our intellectual property law which prevented TV Stations from televising signals received from the satellites and re-broadcasting it. Mr. Wijesuriya retained Lakshman Kadirgamar to battle with TNL and the MTV.
Some persons are casting aspersions on the role played by the UNP and say, it took such a strong and committed stand that it would affect their favourite stations like the TNL and programmes which includes puppet shows like ‘Always Breakdown’. The question is if the UNP is committed to the media freedom why did it present any Bill concerning broadcasting or TV stations. Whatever excuses that Tyronne Fernando & Co., give about the introduction of the Broadcasting Authority Bill, similar excuses are also given by the PA for introducing the Bill in a different form.
Dharmasiri Senanayake, an attorney-at-law and Minister of Media, has stated that he introduced a Bill initially formulated by the UNP. Therefore according to his logic the UNP as the father of the Bill has no right to oppose it. Mr. Senanayake and others who support the Bill should be ashamed to tell the public that they are going to legitimise a child fathered by Satan, i.e., the UNP. The PA came to office with a solemn promise to undo what the UNP has done for the last 17 years and one of the foremost pledges given to the people is media freedom. The birth of the Free Media Movement was supposed to have taken place on the restrictions placed by the UNP on the free media. The UNP on the other hand has now become the champion of the free media, but has fathered a Bill which they say has taken a draconian shape under the PA. The people of this country must be firm in their resolve to reject these exhortations by the politicians. They in the opposition are the champions not only of press freedom, but also all other freedoms which affect the citizens, but, in the Government they are tyrants who want to rule the country devoid of any criticism from the media.
The Members of Parliament and ordinary members of parties who genuinely feel for the freedom of the media should get together and firmly resolve to implement proposals which would free the media from political interference. If the ordinary members get together and urge their leaders to accept freedom of thought, and freedom of speech as inalienable rights of the people and bring in legislation or even amendment to the Constitution to prevent any despot from interfering when in office, only then could lasting media freedom be achieved.
Like all politicians the PA in opposition made a hue and cry over the killing of Richard De Zoysa. This was mainly because he was killed when the UNP Government was in office. It is suspected that the Government or its agents snuffed the life out of Richard De Zoysa. I do not know whether this love for Richard De Zoysa emanates from a deep rooted hatred against the former Government.
Those who cry foul of the murder of Richard De Zoysa, have very little to say about the killing of a large number of media men by the JVP. They are strangely silent about the death of Premakirthi De Alwis. Is it because he did not come from the same class as Richard De Zoysa? Is it because he was not born to a family with connections to politicians and lawyers? Is it because he did not go to a Missionary School? Is it because he did not become a member of an Anglicised Club where the elitist young intellectuals gather?
Yet Premakirthi De Alwis was the most popular broadcaster who lived after the late Karunaratne Abeysekera. His programmes were extremely popular with the Sinhala people. His Iyrics in Sinhala songs haunted the Sinhala intelligentsia of this country. Ranjit Abesuriya, PC, was a great fan of Premakeerthi De Alwis. To ensure that he did not miss Premakeerthi’s lottery show, he had a TV in his consultation room carefully hidden under a curtain. Such was his popularity even amongst busy practising lawyers. Premakeerthi was an innocent young intellectual with exemplary talents. Nonetheless, he was brutally gunned down by the JVP. The media highlighted the death of Premakirthi, but all the agitation ended a few days after his death. Similarly no one speaks of the death of Thevis Guruge and the news broadcaster Sagarika Gomes. Nor do they speak about the killing of three members of the Rupavahini TV camera crew who went to Jaffna to film the aftermath of JRJ’s Peace Accord. They were killed by the LTTE and their bodies were burnt. Even I have forgotten their names. No one speaks about them. This is a clear indication that the killing of the media people is accepted and granted when it is suspected or said to be done by the terrorists in the South or North.
Similarly the publicity given, and the opposition to, the suppression of a News paper or a media institution is proportional to the class that paper or the media institution represent. There was a huge protest when the Prevention of Terrorism Act was used by the Government against Ishini Wickremesinghe and the TNL, but this Act was first used by the Government to remand Thilak Vehalle, the editor of ‘Thri Sinhale’, on the day of the Presidential Election. Then the editor and the staff of "Satana" tabloid were remanded when they were pasting posters advertising another paper called "HU". Without any reason they were kept in remand for two weeks.
The suppression of such media men and remanding of them were ignored by various movements. No demonstrations, no meetings even behind closed doors at Siri Kotha. The killing of Richard De Zoysa is bad if done by the Government, but had he been killed by the JVP the reaction would have been lukewarm. This is the hypocrisy that prevails in this country. That is why the media personnel and the institutions are battered by the Government. The media men have lost their credibility by their own seeking.
When Justice Ramanathan retires on September 1 this year, there will be a vacancy in the Supreme Court. Justice Ananda Kumarasamy was appointed to the Supreme Court on April 10, 1996. Justice Dr. A. De Z. Gunawardene was appointed to the Supreme Court on the December 10, 1996. H.W. Senanayake retired from the Court of Appeal on March 10 this year. The earliest vacancy in the Court of Appeal occurred on April 10, 1996 with the promotion of Justice Kumarasamy to the Supreme Court. For the last one year, though on several occasions, the media have brought to the notice of the public that vacancies in the Court of Appeal have not been filled, the Government has not even moved a finger to fill the vacancies.
Upali De Z. Gunawardene, Shirani Thilakewardene, T.B. Weerasuriya, P.H.K. Kulathilake and D. Jayawickrama are the most senior High Court Judges in the country. Under normal circumstances Mr. Upali Gunawardene would have been promoted to the Court of Appeal after the 10th of April 1996. Ms. Thilakewardene would have been promoted to the High Court after the promotion of Dr. Asoka Gunawardene to the Supreme Court and T.B. Weerasuriya could have been appointed to the Court of Appeal after the retirement of H.W. Senanayake.
Whenever a vacancy occurs in the superior courts there are rumours afloat at Hulftsdorp about the candidates from the unofficial Bar who aspire to be appointed to this esteemed office. This became such a malady that names of various persons who are lawyers by the mere fact that they don a black coat and sip a cup of tea in the Canteen, and strongly committed to the Government, are named to be appointed to fill these vacancies. When these names are discussed there is much consternation and bewilderment of the other members who were shocked at the very thought of appearing before these persons to obtain justice. Even today various names are being discussed, and it is said that a number of lawyers who are in the SLFP Lawyers Association are tracking down supporters of the Government with some seniority to be appointed as Judges of the Court of Appeal.
To my knowledge there is no agitation by the unofficial Bar to appoint any member as a Judge of the Court of Appeal. Most lawyers whether they are from the PA or from any other political party who could even be remotely considered to be fit enough to be appointed as Judges of the Court of Appeal are members with a lucrative practice. They have earned their position in life by hard work, commitment and excellent forensic skills. A good advocate is a rare commodity. They are men of the world and have innumerable commitments financial and otherwise. The lawyers are like daily paid workers. In anticipation of what they would earn they do their spending. This is why when they fall ill most of their savings are drained.
With these high commitments, it is impossible to believe that any lawyer with a fairly good practice, unless he has other income from other sources would step in to a Judge’s garb to dispense justice.
But there are a few from the inception who want to become Judges, and within a very short stint at the Bar they apply to the Judicial Service Commission and become Magistrates. They become career Judges and get used to the secluded life they lead and their expenses are a minimum, and therefore they are able to cut their coat according to their cloth.
Most members of the public, litigants or the lawyers do not fully comprehend the tremendous sacrifice they make in the administration of justice and to keep the judicial machinery working in proper order. When all other institutions, whether Government or non-governmental, have become the subject of controversy, with bribery, corruption and undue influence becoming the order of the day, the Judges of this country are so far held in high esteem by the public of this country.
Even when a Judge makes a mistake and gives the wrong order, no accusations are made against him and they accept the fact that the Judge has genuinely made a mistake. The Judges have thus done an extremely useful service and sacrificed their whole life for the cause of justice and thus have indirectly supported the preservation of democracy.
So when the Government disregards the services rendered by the Judges and goes in search of political henchmen to fill the vacancies in the High Court, the Court of Appeal and the Supreme Court, then justice becomes a mockery. The very fact that the Government is trying to promote members of the unofficial Bar to be appointed to the High Court and the Superior Courts at the expense of Judges who has to be promoted according to seniority, is nothing but an unwarranted interference with the independence of the judiciary.
The only conclusion is that these are Judges who have acted fearlessly and independently. Can anyone complain that the present Judges of the High Court have acted less independently than their predecessors? The answer is clear and unambiguous ‘no’.
The politicians always appear sensitive to judgements pronounced by Courts, as much as they are sensitive when they are criticised by the media.
I would like to refer to a paper read by one of the most respected Presidents of the Bar Association, H.L. De Silva, PC, at the first ever Annual Sessions and National Law Conference of the Bar Association on September 1, 1990. The title of the paper was ‘Judges and the World of Politics’. "The dissenting minority led by Justice Wanasundara on the other hand were actually sensitive to the political environment in which the 13th Amendment was proposed and greatly apprehensive of the dangers or separatism in the context of an amalgamation of the Northern and Eastern Provinces and the threat to national and territorial integrity and not merely to a unitary form of Government. Were their fears for the security of the majority community in the country who were a minority within the amalgamated Province unrealistic in the context of subsequent events? Had there been a Muslim Judge on that Bench he might have given expression to the fears of the other ethnic minority in the Province and the decision would have been the other way. The political aftermath of that decision and the carnage that eventually followed has likewise cast a pall of gloom over the viability of the whole Constitutional experiment. This decision raises the fundamental question whether such crucial political decisions for the future of this country can be left to lawyers and Judges.
The Government in office was able to survive through a wafer thin majority of one in favour of its enactment without prior approval at a Referendum of the people. President Jayewardene soon afterwards impliedly castigated the dissenting minority when he commented on Judicial pronouncements in a subsequent speech which cast doubt on the Government’s own commitment to judicial independence. Justice Wanasundara who was the most Senior Judge next to the Chief Justice was by-passed in the appointment of a successor to the retiring Chief Justice. The suppression of Judges whose judgements were politically unacceptable was of course nothing new. It did occur on a wider scale a decade earlier in 1978 with the new Constitution when appointments were made to the Supreme Court.
The Constitution professedly sought to provide for an independent Judiciary, but ironically enough by Article 163 of the same document it also wrote its epitaph. If there is a moral to be drawn from episodes of this kind it is that the Judges who, unmindful of the words of Chief Justice Marshall, are sometimes obliged to enter the political thicket must at least beware of the denizens of the jungle of predatory habits."
In discussing the proposed Constitution, can the BASL decide to go into the questions that affect only the Administration of Justice and leave the balance to the politicians ?
The Constitution is the most important piece of document. Though to some politicians it is only a mere piece of paper, it affects the entire population. All laws flow from it. If the Bar decides to discuss and make recommendations to the Government only on those provisions that affect the profession, then the BASL can be compared to a selfish lawyer who is only concerned about himself and the fees he can extract from his client.
The BASL has now been regarded by the people of this country as the defender of their rights.
In 1989 when the Government and the terrorists were killing innocent people it was the Bar that stood like a monolith against such brutal attacks on justice. It was no secret that the then Government or their agents like the anti- JVP unit called "PRA" had Hemantha Warnakulasuriya, Secretary of the BASL, on their hit list.
But the BASL never gave in. It fought to preserve the rights of the people to the bitter end. They wrote to all international organisations protesting at the killing of lawyers. The Amnesty International played a very important role.
The members of the Amnesty International from all over the world wrote letters denouncing extra judicial killings. Hundreds of letters were posted by many human rights organisations to the Head of State. A large number of lawyers who were threatened by these marauding gangs were found asylum abroad. The Bar Association became the most powerful independent organisation. Deputy Defence Minister Ranjan Wijeratne who virtually had the power of life and death, relented after calling the Bar a terrorist organisation, and apologised to the Bar. The President of the county in order to diffuse a confrontation with the Bar, agreed to get Mr. Wijeratne to apologise to the Bar publicly. The apology was dictated by Desmond Fernando PC to the Presidential Secretariat over the phone at the request of President Premadasa. Mr. Fernando was undoubtedly the best President the BASL had. The apology as drafted by Mr. Fernando was eventually read by Ranjan Wijeratne over the national television.. Such was the influence and the prestige the Bar wielded. It did not relent or shirk its responsibility though there were death threats. Following the BASL initiative, there was local and international agitation against violation of rule of law by the Government. Therefore, the days when the Bar and the Council consisted of an elitist self serving clique are over. The Constitution and the package must be discussed and the Bar must decide on it, not piecemeal but as a whole.
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