Columns

• President livid over Speaker’s letter to Chief Justice, seeking opinion on performance of judges
• SC judgment: Opposition proposes move to strip civic rights of Rajapaksas and others
• Opposition leader asks President to appoint special commission to act on the verdict

By Our Political Editor

The Presidency and the Constitutional Council are locked in a serious controversy over filling vacancies in the Supreme Court and the Court of Appeal.

President Ranil Wickremesinghe recommended the appointment of Court of Appeal President Justice Nissanka Bandula Karunaratne to the Supreme Court. That is to fill the vacancy created by the retirement of Justice Buwaneka Aluwihare. He also recommended the appointment of Justice Sobitha Rajakaruna as the President of the Court of Appeal to fill the vacancy due to the elevation of Justice Karunaratne to the SC.

Until Friday, the Constitutional Council had not decided on the recommendation. What has now irked the Presidency is a letter Speaker Mahinda Yapa Abeywardena wrote on November 14 to Chief Justice Jayantha Jayasuriya seeking his views on the judges nominated regarding:

Performance of the Judge concerned in terms of the number of judgments delivered and pending delivery for the last few years.

The number of judgments overruled by the Superior Court and any observations by the Superior Court in respect of same.

The conduct of the judge concerned and any notable contribution to the development of legal jurisprudence etc.

There is some ambiguity in the letter since the names of the judges in question have not been mentioned. Whilst it has become clear to President Wickremesinghe, a well-informed source said, it was the result of the latest recommendations he made.

A source familiar with the subject said yesterday that it was “both obligatory and even courtesy” if the query was directed to President Wickremesinghe or the Presidential Secretariat. “After all,” the source said, it was he who had made the recommendation to the Constitutional Council. The source revealed that President Wickremesinghe was livid that it was not done. Moreover, the source added that it was wholly wrong to determine the promotion of a judge based on the number of judgments he or she has delivered or those overruled by a Superior Court because they go against the very principles of natural justice.

Constitutional Council members declined to identify themselves or comment on the issue except conceding that the matter was discussed before a letter was addressed to Chief Justice Jayantha Jayasuriya. The CC was due to meet yesterday. Since a reply was awaited, it is unlikely it would discuss the matter.

Here is the full text of Speaker Mahinda Yapa Abeywardana’s letter:

Hon. Jayantha Jayasuriya PC

Chief Justice

Chief Justice’s Chambers

Supreme Court

Colombo 12

Dear Chief Justice

Granting Approval for the Appointment of Judges to Superior Courts under Article 41C of the Constitution

The Constitutional Council considers its mandate to grant approval for the appointment of judges of the Superior Courts under Article 41C of the Constitution as a matter of great responsibility and is of the view that it needs necessary information to carry out its duty in an effective and efficient manner. The Constitutional Council, having taken into cognizance that Article 41C (4) provides for the seeking of views of the appointment of Judges of the Supreme Court, and the President and Judges of the Court of Appeal, decided to ask from you whether it would be possible to provide information in relation to the following aspects of the Judges nominated, when your views are requested by the Constitutional Council;

a) Performance of the Judge concerned in terms of the number of Judgments delivered and pending delivery for the last few years.

b) The number of Judgments overruled by the Supreme Court and any observations by the Superior Court in respect of same.

c) The conduct of the Judge concerned, and any notable contribution for the development of the legal jurisprudence etc.

I would very much appreciate if you could assist the Council in this regard.

Mahinda Yapa Abeywardana

Speaker

The issue comes at a time when last week’s Supreme Court ruling that three members of the Rajapaksa family, including two former Presidents and a coterie of their close officials were responsible for the country’s worst economic crisis that ended in bankruptcy is resonating in many quarters in Sri Lanka and abroad.

Impact on Parliamentary Select Committee

A main area is a Parliamentary Select Committee solely representing members of the ruling Sri Lanka Podujana Peramuna  (SLPP). Whilst representatives of other political parties in Parliament kept away for good reasons, this Committee became the only formal probe of any sort into how the economic crisis came about. Another area is how the SC judgment would become a vital chapter in the ongoing investigations by a special secretariat of the UN Human Rights Council (UNHRC) over human rights violations during the economic crisis. The third is the move by opposition groups and rights bodies to pursue further action based on the judgment.

This is amidst a call by Opposition Leader Sajith Premadasa on Friday for the appointment of a Presidential Commission of Inquiry to examine the withdrawal of civic rights of those against whom indictments have been made. He told Parliament that the powers for such an appointment lay only with the President. Earlier, opposition frontliner Harsha de Silva also made the same call.

By a majority judgment the Court on November 14 ruled that the three Rajapaksas and five former top officials who held key positions “by the actions, omissions, decisions and conduct” had “demonstrably contributed to the economic crisis.”  The SC observed that “Public trust is an inherent responsibility bestowed on all officers who exercise powers which emanate from the sovereignty of the people. Therefore, as public officers, the respondents were obliged, at all times, to act in a manner which honour the trust imposed in them.”

The majority judgment was delivered by Chief Justice Jayantha Jayasuriya, PC together with Justice Buwaneka Aluvihare, P.C,, Justice Vijith K. Malalgoda, PC and Justice Murdu Fernando, PC.  In a dissenting judgment, Justice Priyantha Jayawardena noted that a “critical analysis of the averments in both petitions shows that the petitioners did not invoke the jurisdiction of this court within one month of the alleged violations that have been pleaded.” He held that the petitioners have not established a balance of probability that the respondents have infringed the Fundamental Rights of the petitioners.”

The SC named former presidents Mahinda Rajapaksa, Gotabaya Rajapaksa, former Finance Minister Basil Rajapaksa, former Central Bank Governors Ajith Nivard Cabraal and W.D. Lakshman, former Treasury Secretary S.R. Attygalle, the Monetary Board’s former member Samantha Kumarasinghe, and former Finance Ministry Secretary and Presidential Secretary P.B. Jayasundera.

Of particular significance in the majority judgment is the reference to a tax revision carried out by then President Gotabaya Rajapaksa in December 2019 leaving a cascading effect that ruined the economy. This was widely known to be the beginning of the economic crisis. Noting that “we are mindful of one of the arguments of the petitioners that the purported imprudent decision brought about a domino effect and led to a series of events to which we paid serious attention. Such an event being the tax revision introduced in December 2019, which resulted in downgrading by rating agencies, depletion of foreign reserves, losing access to double digits. Additionally, the continued maintenance of an artificial exchange rate and the failure to reverse tax reliefs and seek assistance from the IMF in a timely manner collectively, contributed towards the rapid deterioration of the economy. The cumulative effect of the conduct of the respondents, in our view, is what contributed to the ultimate debacle. Gross Official Reserves which stood at US$ 7,642 million by the end of 2019 had depleted to US$ 155 million by August 2021. The scarcity of foreign exchange with the Government and the Central Bank brought about severe hardships to the people.”

The majority judgment of the SC poses questions on the Parliamentary Select Committee that is now probing some limited aspects of how the economic crisis evolved. Other than the SLPP members, those named from political parties are not taking part in the proceedings. Some of them alleged that the exercise of the PSC was for the sole purpose of clearing Basil Rajapaksa from any responsibility for the economic crisis when he was the Minister of Finance. In fact, they claimed that the terms of reference have been structured to elicit answers to most issues surrounding it. The PSC itself is headed by Sagara Kariyawasam, General Secretary of the SLPP and a close confidant of Basil Rajapaksa.

A review of the PSC terms of reference underscores this factor. One is the preambular reference to:  “And whereas it is the responsibility of the Parliament to investigate whether this economic crime was committed with a plan by Monetary Board failing to provide to the Minister in charge of the subject of Finance analytical reports with forecasts on economic indices such as the cost of living, inflation, money supply and the international balance of payment which should have been provided to him as required by sections 64(2), 65, and 68(1) of the Monetary Law Act No. 58 of 1949 or by the Cabinet of Ministers or Officers neglecting their duties;

“And whereas the country’s economic deterioration was caused due to factors such as providing tax relief, non-payment of loan instalments, imposition of import restrictions, allowing for a rapid depreciation of the rupee, the decline in official remittances from migrants, the increase in inflation to a high inflation level and the increase in the cost of living.

“This Parliament resolves that a Select Committee of Parliament be appointed to investigate and report to Parliament, and submit its proposals and recommendations on the following matters:

“(a) the fact whether the country experienced an unprecedented economic crisis as a result of those in the positions of responsibility during the times of concern failing to perform their duties properly.

“(b) the fact whether the relevant authorities took adequate measures to prevent and/or minimize the effect of the economic crisis.

(c)  the fact whether there were shortcomings in the state machinery that caused it to fail to prevent and/or minimize the effect of the economic crisis.

(d) the fact whether there were other factors that contributed to such economic crisis.

(e) the fact whether there are other factors which may cause the country to undergo such an economic crisis in the future; and

(f)  the course of action that should be taken to minimize such economic deterioration in the future.

(d) make interim reports from time to time and to sit notwithstanding any adjournment or prorogation of Parliament.

The majority judgment of the SC has provided answers to some of the aspects the PSC is probing. One is over the economic deterioration being caused because of tax revisions. More importantly, the judgment has placed responsibility with then Finance Minister Basil Rajapaksa among the eight persons named. The judgment notes that “the entire citizenry had to undergo hardships which could have been avoided.”

Sumanthiran’s revelation

Speaking on the SC judgment a day after it was delivered, Jaffna district parliamentarian Abraham Sumanthiran gave some context. He told Parliament on Thursday, “The Supreme Court delivered a judgment yesterday – 265 pages. Unfortunately, it is a majority judgment. One judge, for reasons that he has stated has dissented. That’s four to one judgment holding the then President, ministers of finance who held that portfolio, governors of the Central Bank: the successive governors, secretary to Treasury, advisor to the President, one member of the monetary board and the monetary board itself, responsible for the collapse of the economy.

“I want to recount a particular series of events. The advisor to the President, Dr. P.B. Jayasundara, was found guilty by the Supreme Court in the case of Vasudeva Nanayakkara Vs. K.N. Choksy and I must disclose my interest in this matter because I was the counsel who appeared for Nanayakkara. He was found guilty and fined Rs.500,000/- at that time by the Supreme Court. He paid the fine. He was told that he cannot hold public office thereafter. He gave an affidavit to the court stating that he will not hold any public office. Then there was a change in the office of the Chief Justice. And the new Chief Justice …(Interruption).. the Minister of Justice in asking to name the person, I will tell, it’s not wrong to name him.

“The new Chief Justice Asoka de Silva constituted a court to which Dr P.B. Jayasundara made an application to withdraw his affidavit. Why? because then President Mahinda Rajapaksa insisted that P.B. Jayasundara and P.B. Jayasundera  alone must be appointed Secretary to the Treasury. As counsel for Vasudeva Nanayakkara, I objected to this. One day the full court sat – ten judges sat; one judge was unavailable. And then a seven-judge bench allowed it, with one dissenter. Shiranee Tilakawardane wrote a dissenting judgment, a dissenting order whilst others allowed it. And he was appointed Secretary to the Treasury. The Chief Justice at that time who allowed it, the day after his retirement, became the legal advisor to the then President!

“So, corruption in high places is demonstrated by just this example. And now the Supreme Court again finds that (then) President, his two brothers, Dr. P.B. Jayasundara and others are responsible for the collapse of the economy.

“There is one thing that they have not done, and that they should have done.  In the Easter bombing case, for failure to prevent the attack the former President, and several others were asked to pay hundreds of millions in compensation. But in yesterday’s judgment those who have been found guilty – found responsible for the economy collapsing in this country – don’t have to pay any compensation. The Court says the petitioners did not ask for compensation.”

The majority judgment will become a chapter in the probe now underway by a special secretariat at the United Nations Human Rights Council (UNHRC) in Geneva. At its 54th session in September, it urged member countries to support the investigation of economic crimes that have an impact on human rights and in the tracing, recovery and return of stolen assets, and in ensuring that returned assets are allocated in an accountable, transparent, and participatory manner that contributes to the realization of human rights.

After the Israel-Hamas war, President Ranil Wickremesinghe tasked Attorney General Sanjay Rajaratnam to spearhead a group to formulate a new approach at the 55th UNHRC sessions next year. This is to point out that alleged war crimes or violations of humanitarian law are only blamed on smaller countries like Sri Lanka but in the ongoing war such crime is being committed at a higher degree with impunity. However, such a move will not lead to any change in the resolution Sri Lanka will be compelled to face. The new teeth it will assume would include strong strictures made in the majority judgment. It is also bound to influence member countries to unilaterally take their own action. As a result of action by the secretariat on the Sri Lanka accountability project (SLAP), Canada has already sanctioned two former presidents, Mahinda Rajapaksa and Gotabaya Rajapaksa.

Former President Mahinda Rajapaksa has reacted cautiously to the judgment saying one has to respect the verdict of the Supreme Court. That has not calmed the mood of opposition political parties and even civil rights groups. Their responses are yet to come.

Gold-smuggling MP goes to court to save his seat Ali Sabry Raheem Smuggler parliamentarian Ali Sabry Raheem has gone to District Courts to stall the beginning of a move that would have ended in his ouster from Parliament. Colombo District Judge Sandun Vithana has issued an injunction on November 13 on All-Ceylon Makkal Congress (ACMC) leader Rishad Bathiuddin Bathiuddin, its General Secretary Shaibdeen Suberideen, and Muslim National Alliance (now known as United National Organisation) leader Mazihudeen Naimulla from removing him from membership. Such a move, with the Secretary General of Parliament being informed, would have led to the loss of his parliament seat. The petition to the court is in the name of Mohamed Abdul Raheem Ali Sabry. He is, however, identified in Parliament as Ali Sabry Raheem. The injunction order prevents those named or their agents from acting based on the documents issued to him until the hearing of the petition is concluded within two weeks. He was represented by Aslam Alawdeen, Harshana M. de Silva, Pulasthi Rupasinghe, Shaheed Barrie and Faizer Musthapha on the instructions of Sanjeewa Kaluarachchi. Ali Sabry Raheem, a Puttalam district MP was detected by Customs attempting to smuggle through the VIP Lounge of the Bandaranaike International Airport gold and mobile phones. He was a member of the All-Ceylon Makkal Congress. He was removed on the grounds that he brought disrepute to his party. The ACMC joined the Sri Lanka Muslim Congress (SLMC) under the name of Muslim National Alliance (MNA) to contest the last parliamentary elections. It was under the lamp symbol.

Water ministry secretary in hot water over NAAM 200: Clarification raises more questions than answers The Ministry of Water Supply and Estate Infrastructure Development has responded to the political commentary in the Sunday Times of November 5 about the event held at the Sugathadasa Indoor Stadium to mark two centenaries of the advent of Indian-origin plantation labour in Sri Lanka. A letter signed by R.M,W.S. Samaradiwakara, the Ministry Secretary, we were informed of, was on the instructions of Minister Arumugam Thondaman. An edited account of the issues raised is reproduced below, with responses by the Political Editor to each point raised. Secretary Samaradiwakara says, “I am writing to clarify certain queries and concerns raised in the recent article published in the Sunday Times of November 5, 2023 on the NAAM 200 event. While we value the freedom of the press and appreciate your coverage of significant events, there are certain inaccuracies and misconceptions in the article that we would like to address. Guest of Honour vs. Chief Guest: It should be clarified that Nirmala Sitharaman, the Indian Finance Minister, was the Guest of Honour at the NAAM200 event, not the Chief Guest. The Chief Guest was His Excellency, President Ranil Wickremesinghe. Political Editor:  This is nothing more than a deliberate attempt to hide the truth particularly after the exposures made in the political commentary. However, that it is a lie that cannot be buried on mere claims made in a letter by a Ministry Secretary who vows to “value the freedom of the press” is beyond any doubt. A montage of the official programme, published today, clearly shows that the Indian Finance Minister, Nirmala Sitharaman, is listed as the chief guest. Though the name of President Ranil Wickremesinghe is mentioned, there is no status given to him. Does that not mean he was only a guest? They seem wanting to honour the President of Sri Lanka only in a communication to the Sunday Times and not at a national event. That is not all. Both Minister Thondaman and Secretary Samaradiwakara seem to have no knowledge of the well-known Tamil adage often used by Tamil speaking plantation workers – poiyya sonnalum, porunda sollu or when uttering a lie, at least make it appear convincing. Minister’s Speech: The portrayal of Minister Jeevan Thondaman “cutting a very sorry figure” is not reflective of the reality. The Minister delivered a moving speech on the historical injustices committed against the plantation community and the steps needed to redress the past whilst looking forward to a more equitable future. The speech was well received by an audience exceeding 5000 persons. I will not contest Secretary Samaradiwakara, who gave the vote of thanks at the November 5 event, fawning before his own Minister. That is the public service today.  I do not expect him to share the well-known view that Minister Jeevan Thondaman cut a very sorry figure. He may be forced to face a disciplinary inquiry if he said that. What I have said is based on facts and is after speaking to those who took part in the event and those who did not attend. How Secretary Samaradiwakara concluded that 5000 “well received” his Minister’s speech is laughable. Secretary Samaradiwakara sounds more like Minister Thondaman’s Propaganda Secretary. Ministry’s role: The Ministry of Water Supply and Estate Infrastructure Development was entrusted with the responsibility of organizing the NAAM 200 event by the Cabinet of Ministers, pursuant to a Cabinet decision. It is a common practice for different Ministries in Sri Lanka to organize and host events related to their subject matter. The Ministry of Buddha Sasana, Religious and Cultural Affairs, as suggested in the article, would not have been the appropriate Ministry for an event of this nature, considering the subject matter and the community involved. I cannot comment on a Cabinet decision. I am unaware of the date on which such a decision has been made and whether the minutes in question have recorded it. It is also not clear how they authorised funds. Secretary Samaradiwakara confirms the moot point I have made when he says it is the “the common practice of different Ministries in Sri Lanka to organise and host events related to their subject matter.” How true!! What has the Ministry of Water Supply and Estate Infrastructure Development got to do with marking two centenaries of plantation labour of Indian origin? Their remit, in this field, is only for  “estate infrastructure development.” Here is another untruth. There was no mention of the Ministry of Buddha Sasana, Religious and Cultural Affairs in the political commentary. The NAAM 200 event was a national event with a foreign dignitary taking part. Which other Ministry has hosted similar events? Event Organisation and Funding: The event was meticulously organised by Ministry officials to ensure the comfort and enjoyment of all attendees. It should also be noted that the event was primarily funded by private sponsors. These remarks seek to cloud the real issue. Secretary Samaradiwakara pats himself on the back for “meticulously” organising the event. How much of public funds from the Ministry of Water Supply and Estate Infrastructure Development was utilised “for the enjoyment of all attendees.” What was the quantum funded by the private sponsors? Did the Cabinet of Ministers grant approval for spending funds from the Ministry of Water Supply and Estate Infrastructure Development? The people of Sri Lanka have a right to know. After all it is they who will be called upon to pay when water rates go up? It is still not too late to come out clean on this. Invitations to Parliamentarians: All Parliamentarians were invited to the event. Efforts were made to ensure that invitations were extended to all relevant individuals, and several calls were made to invitees to ensure participation. As is customary for any event organised by a Ministry, the invitation was by the Minister. Any refusal or inability to attend by any invitee is a matter of their personal choice and does not reflect the Ministry’s commitment to include all relevant persons at an event of this nature. Here again, an attempt is being made by none other than a responsible government official – a Ministry Secretary – to cloud the issue. There is no dispute over a Minister extending invitations or an issue over the inability of those invited to take part. The real issue is over several Tamil parliamentarians not being invited. We quoted Mano Ganesan, leader of the Tamil Progressive Alliance (TPA). We also reported that President Ranil Wickremesinghe, who heard about this, was embarrassed. He offered to send Ganesan a personal invitation. As we reported, he politely declined it. Is this, therefore, an attempt to mislead Sri Lankans? TPA leader Ganesan said again yesterday “If it was a state function it should have been organised by the Ministry of Public Administration or the Ministry of Cultural Affairs and not the duty of  the Ministry of Water Supply and Estate Infrastructure Development. Besides, his claims that all the MPs were invited for the event is false. I never received an invitation. Even President Wickremesinghe knows this.” After all, this is NOT a personal event of Minister Thondaman. Public funds were being utilised. The response is nothing more than a bigger embarrassment for  Minister Thondaman and his Secretary Samaradiwakara.