Hulftsdorp Hill

The judiciary and a president's wrath

By Mudliyar

Professor K.N.O. Dharmadasa, Dean of the Faculty of Arts University of Peradeniya has pointed out (see letter on page) how important it is for us to support an independent Judiciary for the sustenance of democracy. He also makes reference to what Lord Buddha has said about the fate of a corrupt and dishonest Judge. 

Even in the Holy Koran it is stated that there is a special hell for dishonest Judges. 

In the meantime Chandrika Kumaratunga, has for the second time this year lashed out at the Judiciary. 

It is ironical that she made a reference to a Judge who had been appointed from a Village Council.

The Wayamba election became an election not of political parties vying to capture power of the Provincial Council, but a process by which the voters were kept out and goons were let in to stuff the ballot boxes. 

The only recourse the people of this country have against such acts is to go before the only place untouched by repeated acts of fascism - the Courts of this country.

The most recent outburst against the administration of justice and the rule of law was when the LTTE ordered all Courts to be closed in Jaffna when human rights activists were keen to exhume bodies from the Chemmani mass graves. 

When the President referred to a Judge who had been appointed to the Judiciary from a Village Tribunal I believe she was referring to Justice A.S. Wijetunga. What the President would not have known was that Justice Wijetunga was appointed as a Magistrate in 1970. He functioned with distinction as a Magistrate during the regime of Mrs. Sirimavo Bandaranaike from 1970 to 1977. 

Felix Dias Bandaranaike who was the then Minister of Justice introduced the Administration of Justice Law in 1973 and for the first time made the original Courts start functioning in Sinhala.

Mr. Wijetunga took to recording proceedings in Sinhala like a duck taking to water. His Sinhala was impeccable and his writing was beautiful. 

There was no difficulty in reading his journal entries in Sinhala. 

He had to struggle for 21 years to become a Judge of the Supreme Court. Other than Justice L.G.H. Weerasekera, he is the only other career Judge in the Supreme Court. I believe, Justice Wijetunga would have to go in search of a rented house. 

Starting his career as a Magistrate the only thing he earned, was the love and the affection of the Bar and the respect of everyone who knew him. 

Recently he met with a small accident and had to walk about with the aid of a walking stick. The day he came to work after the accident there were streams of lawyers outside his chambers waiting to wish him good health. A large number of them came from the Attorney-General's Department. Justice Wijetunga is virtually at the end of his illustrious career. 

It is indeed sad that at this juncture the highest of the land has disparaged him. The public who have short memories would conclude that the UNP appointed a President of a Village Council overnight to the Supreme Court. Is it fair or morally right to cast aspersions on Judges who have no way of defending themselves? If this was said by a lesser mortal, I am sure some right thinking person would file papers in the Supreme Court for a ruling against it.

But the President of this country is immune from such proceedings. 

Yet we must not forget that the Supreme Court has recently determined the limitations of Presidential immunity. 

After the Wayamba fiasco in compliance with the order of the Supreme Court elections to the other Provincial Councils are to be held in April. The President went to Anuradhapura to launch the PA election campaign.

After having offered flowers to the Sri Maha Bodhi, Chandrika Kumaratunga lashed out at the Judiciary again. 

This time she said some of the Judges on Presidential Commissions had been appointed by the UNP and proceedings on the Commissions had been prolonged due to this. 

She said that another Commission was looking into the allegations against a former minister but has not yet concluded findings. 

"There is no end to the sittings as some of the Judges were appointed by the UNP" she added. 

The Commission inquiring into the alleged malpractice of government institutions is a Special Presidential Commission headed by Justice Priyantha Perera. The other Judges are Justice H.S. Yapa and Justice F.N.D. Jayasuriya.

Of the three Judges Justice Priyantha Perera and Justice Hector Yapa were appointed to the Judiciary from the Attorney-General's Department.

When there are vacancies for Judges, they are filled by the President by promoting the seniormost Judge or an officer from the Attorney-General's Department. 

This had been the tradition and, Justice Priyantha Perera who joined the Attorney-General's Department as a State Counsel and became the Director of Public Prosecutions was appointed to the Court of Appeal on February 10, 1986. 

When he was appointed he was the next in line to be appointed to the Court of Appeal from the Attorney-General's Department. Similarly Hecor Yapa who was a Deputy Solicitor General was appointed to the Court of Appeal on January 21, 1994. Justice F.N.D. Jayasuriya joined the Judiciary as a Magistrate in 1973. 

His first appointment was as the Juvenile Magistrate Colombo. What the President did not tell the public and what her advisors did not tell her was that Justice F.N.D. Jayasuriya was appointed as a Magistrate during the time when Mrs. Sirimavo Bandaranaike was in power and the Minister of Justice was that formidable Minister Felix Dias. 

In fact Justice Jayasuriya was not promoted to the Court of Appeal by the UNP for some reason and another Judge who entered the Judiciary with him was appointed over and above him. This happened after the demise of President Premadasa. 

Justice Jayasuriya was finally appointed to the Court of Appeal on December 5, 1995 by no less a person than President Chandrika Bandaranaike Kumaratunga herself. 

She has forgotten that it is the President who appoints Judges to the Special Presidential Commissions. This procedure has been roundly condemned by all those who cherish human rights and the rule of law. 

Though people have grave doubts about Special Presidential Commissions, and most right thinking people want this Act repealed from the Statute Book others say the President should appoint Judges to the Special Presidential Commissions only on the recommendation of the Chief Justice. 

I believe this statement would clearly show that the President is unhappy with the attitude of the Commissioners inquiring into malpractices. The President must be at a loss to find out why the Commissioners cannot make their findings in the same manner as in a recent instance.

The Supreme Court has been asserting its independence and the latest order for compensation made by the Supreme Court in the Anura Bandaranaike case must have jolted her. 

It seems that Justice Shirani Bandaranayake whom she appointed amidst speculation and uproar by the Bar has been fearlessly acting according to her conscience and the public demand for justice. 

In the USA the appointment of judges are political appointments. But once appointed to the Supreme Court they quickly shed their political leanings and become independent and assertive. 

Bar Elections 

Even Dr. Jayawardene, Q.C. who was considered the Leader of the Bar and till his demise was considered as the President Emeritus of the Bar Association and had a tough time contesting P. Ramanathan, former President of the Incorporated Law Society of Ceylon. 

There was so much enthusiasm that the election to this prestigious post was considered a unique and a singular honour. 

After that, at every single election there was active participation of the members and there were queues of lawyers outside the Colombo Law Library waiting to cast their votes, as Colombo is the largest judicial zone in the country. 

The election this year was exceptional as there was no voter interest in the election compared to the previous years. 

Of the total number of Colombo district voters which totals 3,019 only 1,677 cast their votes i.e. nearly 44% of the voters in Colombo did not think it was worth their while to proceed to the Colombo Law Library to cast their votes and of the votes cast 33 were spoilt.

In the outstations of all the judicial zones of the 1,816 members only 1288 cast their votes. Nearly 30% of the voters did not vote and there were eight spoilt votes. 

Upali A. Gunaratne was elected the President of the Bar Association of Sri Lanka defeating his rival Vernon Botheju by a margin of 2,167 votes.

The total number of members eligible to vote in the entire island was 4,835 and only 2,965 cast their votes to elect the President of the Bar Association. 

Public outcry in Orissa 

The Chief Minister was apparently a good buddy of the Advocate General and stood bail for him.

The Chief Minister is accused of being the master mind behind the rape committed to pressurize Mrs Mishra to withdraw the complaint against the Advocate General. The people were so angry that they targeted the official residence of the Chief Minister and angry mobs thronged the airport and the Chief Minister had to be whisked away by security men and driven home later. After the complaint the Advocate General resigned from office.

Now not only the Advocate General but the Chief Minister is also under investigation.

Jungle Telegraph

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