So the United National Party led this time by its very honorable members A. H. M. Azwer and Wijeyapala Mendis, has taken upon itself, the role of defenders of the independence of the judiciary.
The matter under debate was of course the famous of now more infamous Fernandopulle case. The UNP was reacting to comments made by Deputy Chairman of Committees Rauf Hakeem on the case. A Parliamentarian of temperate language, Mr. Hakeem was unburdening himself to the House when he remarked that "this matter has been troubling me a great deal."
At issue was the decision of a divided bench of the Supreme Court to allow certain remarks made by Deputy Minister of National Integration and Planning Jeyaraj Fernandopulle in Parliament to be used to contradict an affidavit made by him in court. As a result, the Deputy Minister was found guilty of violating the fundamental rights of the petitioners, members of pro-opposition taxi drivers at the Bandaranaike International Airport taxi stand.
The matter did not end there. A different bench of the Supreme Court later upheld the earlier decision and severely chastised acting chief Justice Tissa Dias Bandaranaike for referring the matter to a different bench without consulting or including members of the original bench which heard the case.
"This is a judgment that has very serious implications for the freedom of speech within the well of the House," emphasized Mr. Hakeem, and called for the House to move a Motion and discuss the decision in the Committee of Privileges.
Heckled by opposition members all at once eager to defend the Supreme Court, the judges and the judiciary, Mr. Hakeem requested the members to look at the matter impartially. "This affects Parliament as an institution and not Jeyaraj Fernandopulle as an individual only," he said.
This recent fracas in Parliament is another indication of the manner in which the Fernandopulle case is bringing the judiciary and Parliament in direct juxtaposition to each other, a development that might have appalled the original judges who heard Fernandopulle case if they had the gift of foresight. The case has had a political fallout too with increasing violence being manifest in the Katunayake-Negombo areas, leading to several deaths not so long ago.
Since the PA Government took office in 1994, perhaps the most celebrated cases given against the Government by our superior courts have been the Fernandopulle case and, the Provincial Councils' governors case. Apt normally to take refuge behind technical legal reasoning whenever events bring it into direct confrontation with the Government (The Referendum case, the Thirteenth Amendment case, the Expulsion case), the superior courts this time locked horns with the Executive.
It was only last week that the Supreme Court upheld the decision of the Court of Appeal that the dissolution of the North-Central and Sabaragamuwa Provincial Councils by their respective governors acting on advice of the President was bad in law. The governors are bound by the advice of their Chief Ministers, the Courts said. This decision has been of considerable negative propaganda effect to the Kumaratunga Government in the provinces.
In turn, the Government has been making some not very healthy noises. It was last year that President Kumaratunga took a particular Supreme Court judge to task for giving allegedly discriminatory orders against her government in the liquor licenses cases. Incorrect as her accusation was it was nevertheless a sign that Hulftsdorp was to beware.
Now there is further cause for concern with the latest constitutional reform proposals by the government containing some astonishing clauses that directly concern the independence of the judiciary. These suggested provisions specify that Parliament may by law determine the jurisdiction and powers of the Supreme Court and the Court of Appeal. Until Parliament so determines, the Supreme Court and the Court of Appeal may exercise such jurisdiction and powers as were given to them by the 1978 Constitution. In other words, this means that the jurisdiction and powers of our superior courts will not be guaranteed by the Constitution but will be decided by Parliament who can then change its mind as well by ordinary legislation.
Uneasy shades of 1978 indeed when constitutional monkeying around with the judiciary led to the Jayewardene Government radically "reconstituting" the higher courts, offices of judges being barred to them in the courts complex, houses of judges being stoned and vulgar abuse, shouted at them by thugs.
Interestingly, it is only the latest draft released recently by the Ministry of Justice that contains these clauses. The earlier constitutional reform proposals were silent on the matter.
Be that as it may, the Fernandopulle case has given rise to a storm of debate about the independence of the judiciary, the accountability of the judiciary and related matters. In a workshop organized recently by the Center for Policy Research and Analysis of the University of Colombo, a small number of leading legal practitioners, academics and retired judges discussed recent developments affecting the judiciary. The workshop was remarkable for the highly diverse and often quite openly antagonistic views expressed by its participants.
While the Fernandopulle case was dissected in detail, the questions asked were these. Is the present position that a matter decided by one bench cannot be reviewed by another bench except in the most exception at circumstance healthy? Will not the cause of justice be better served if judgments of the Supreme Court are allowed to be reversed by other judges acting independently and without pressure to defend their own judgments? Will the strict rule as set out in the Fernandopulle case, that applications for review must always be heard by the same bench result in the abuse of power of the court by runaway benches confident that no one else can review their orders?
The other side of the coin is of course, as emphasized by the Supreme Court in the second Fernandopulle case, the need for finality at the level of the Supreme Court which is the highest court in the land.
"The danger is that otherwise, this might become a court of judges and not of justice," the Supreme Court said.
The question however now becomes a different one. "Where does an ordinary citizen obtain relief when a decision of the highest court of the land is wrong?"
It is to be noted that in the second Fernandopulle case, the court stated that merely because an earlier decision of itself is wrong, it cannot be heard again. This is itself, is not a sufficient reason. It is only where a decision has been given in ignorance of a Statute of Case Law, where there has been clerical errors or omissions, ambiguous language requiring clarification or new evidence of importance not available when judgment was delivered, that a decision can be re-canvassed. In any instance, the decision can be reviewed only by the same bench that heard the original petition unless any of its members are unavailable owing to ill-health or absence from the country and so on.
At the CEPCA workshop these questions were discussed in the most passionate manner.
"Can we be content with the law as it is?" asked President's Counsel K. Kanag-Eswaran.
"We must have a mechanism whereby ordinary citizens can complain of the conduct of judges, even of superior judges if this is warranted," he said. Identifying himself not as a legal technocrat but as a member of the general public, the senior lawyer saw the recent tensions involving the judiciary as being counterproductive.
"Perhaps, it is time we stopped talking of judicial independence. The pendulum has swung. We should talk of judicial accountability," he added.
Earlier, well known fundamental rights lawyer R. K. W. Goonesekera had outlined provisions relating to the independence of the judiciary in England, pointing out that in that country there existed a judicial Ombudsman or a Judicial Performances Committee to which citizens can go to complain of judicial action. "Of course, this should not be even seem to compromise judicial independence," he commented.
Mr. Goonesekera who appeared as counsel for the petitioner in the Fernandopulle case emphasized that a possible solution to the crisis might have been if the question on the admissibility of the Hansard might have been referred for reargument before judgment was given when it was known that the bench was going to be divided. The Attorney General could have spoken for Parliament in this respect.
Incidentally, the same point was made by Deputy Chairman of Committees Rauf Hakeem in Parliament in the recent speech that he made.
"The Attorney General should have been specifically called upon by their Lordships to see whether the speeches of Members of Parliament, are admissible against them," he said, adding that this is the normal practice in the Commonwealth when situations like this arise.
As arguments and counter-arguments rage, and tempers become ruffled within Parliament and without one fact appears certain. We have not heard the last of the Fernandopulle case, destined most certainly to go down in Sri Lankan judicial history as a decision unique in more senses than one.
AJR: Morning madam. Madam, my driver and two of his brothers have been abducted around midnight yesterday.
Ms B: Where?
AJR: In the Angoda area. I told the president as well.
Ms B: He is living at Angoda?
AJR: Yes, Angoda, he is innocent. He got married recently..
Ms B: Who else you said?
AJR: Driver and two of his brothers.
Ms B: From the same house?
AJR: Yes, they had come around midnight.
Ms B: They came in a vehicle?
AJR: Yes, they said they are from the army.
Ms B: Some JVP fellows also would say that they are from the army.
AJR: Yes, they had taken them to the Angoda junction and some persons with masks had looked at them and they told them to go. They came back at 12.15, again around 2 am they were taken away.
Ms B: Where were they told to go ?
AJR: First they were taken to the junction and the people in masks were trying to identify them. Then they came back and were taken away around 2 .00.
Ms B: Did the people at home recognize anyone?
AJR: No, they said they are from the army and took them
Ms B: May be from the army, they can't be JVP fellows because of the curfew they cant be on the road with masks.
AJR: That's the thing. Madam, your name was mentioned in the JOC intelligence report. I go to the JOC daily. It says they are trying to attack you.
Ms B: The JOC report?
AJR: Yes, they give a daily report.
Ms B: Yes, what are they saying?
AJR: They are now trying to get at you.
Ms B: To do what?
AJR: To assassinate.
Ms B: Ah.
AJR: Must be to assassinate no?
Ms B: Really?
AJR: So be careful.
Ms B: What is the reason to say that?
AJR: We get a daily report when we meet, now yesterday's report said that they are going to attack the Rupavahini and SLBC. They are going to attack the Bank, then they are also going to assassinate you.
Ms B: Why, they had even dropped a letter near my gate and gone.
AJR: Only yesterday they said, so be very careful.
Ms B: That's from the JVP?
AJR: Yes, from the JVP, so be careful.
Ms B: This letter came to me. The earlier letter came to Anura and we said that they are not serious in calling for the IPKF withdrawal. The day before when I went for the All party conference [APC] , somebody came on a bike and dropped a letter . This letter said we have joined the EPRLF and the United Socialist Alliance and are attending the APC in support of the Indians. They have threatened me, that's correct.
AJR: That's the thing.
Ms B: Did they find that person from the Rupavahini?
AJR: The army has taken him.
Ms B: Why ?
AJR: To find out something. I told not to harm him. I told the commander himself. He is living close by.
Ms B: We thought he was taken by the JVP.
AJR: He is with the army.
Ms B: If he is alive, it is OK. He is the person who came and recorded my speech during the Presidential election. That's why they telephoned me.
AJR: I also thought they were from the JVP. He is in the Athurugiriya camp.
Ms B: Why should the army take a person from the Rupavahini. They are scaring the people.
AJR: Even if someone sends a petition they take you.
Ms B: There are threats from both sides, from the JVP and army. Tell the president they are carrying out their duties with great difficulty and not to do this.
AJR: When somebody sends a petition, they take them for questioning.
Ms B: But just because a petition comes, they must not take them. Even on unsigned petitions, they take them. Even people who are angry, are sending petitions.
AJR: Yes, not only against people with whom they are angry people, but even on love affairs, they send petitions.
Ms B: UNPers are sending petitions against us. Our supporters are sending petitions against UNPers. Some petitions are to get the JVP out of the area.
AJR: Yes for various reasons people send petitions. Madam, you went yesterday. Was it satisfactory?
Ms B: Yes
AJR: Even last evening, I told him. I said not to listen to any body's tales. He said whatever he does, even dissolving the government, he would ask you. In consultation with you, that is good. I said to speak to you direct. Some are trying to sabotage this, specially some UNPers.
Ms B. Yes.
AJR: Some UNP fellows, the communists, the Samasamaja chaps are trying to sabotage this. I don't know how the MEP is.
Ms B: He (MEP leader Dinesh Gunewardene) is unpredictable, he is vacillating. Do you think he was afraid to go with us yesterday?
AJR: He is an unpredictable person.
Ms B: Ashraff was not there, as he had gone to India and returned only yesterday. United Socialist Alliance said they can't come., but they signed it. They said they had decided not to go. Athauda Seneviratne is not there. Vasudeva has been refusing to come from the beginning. They did not have an MP to send Without telling that they say they are not coming. Then Dinesh backed out. The letter had mentioned that the EPRLF had also been threatened So he got scared. His driver had seen the letter being dropped near the gate. So he also avoided.
AJR: But the president and you had no fear
Ms B: Five of us from the SLFP went there. The others were not needed but, because the president was there, we wanted to take them. They had gone earlier also no? Dinesh went on the previous day. Ashraff's party and we, are not coming out from there. They have all signed no? They said that they are not needed, since we were there. Dinesh is scared.
AJR: Dinesh is scared. It is difficult to judge that man, you can't have faith in him. .
Ms B: I will take up the matter about the driver.
AJR: Yes madam, these are innocent people, they are expecting a child. I am almost helpless and I am very sorry about him.
Ms B: Find out where he is, and do it before he dies.
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