Hulftsdorp Hill

25th October 1998

Political gimmick of bashing judges, hailing Rule of Law

As SAARCLAW Conference ends today, an analysis of political behaviour in S. Asia vis a vis judiciary

By Mudliyar

The Justice Minister and all the President's counsel:From left Attorney General Sarath Silvs P.C.,MinisterG.L. Perise,Nihal Jayamanne,P.C.,,Ranjith Abeysuriya,P.C.,Presidential Sceretary K.Balapatabendi,p.c. at the SAARCLAW conference.

The 7th SAARCLaw Conference being held in Sri Lanka will come to an end today. President Chandrika Bandaranaike Kumaratunga was the chief guest and Attorney General Sarath Nanda Silva is the chairman of the Sri Lanka Chapter.

It is unfortunate that most politicians in the South Asian region are at cross purposes with the judiciary. Most politicians believe that they are destined to rule the country for ever and guide its destinies. For them the main opposition to their disruptive methods comes not from the opposition which the Government in power in most South Asian countries can subvert, subjugate and demoralize by various methods — legal, illegal and — undemocratic, as long as they hold fast and intensely to the seat of power.

But of late there rises from the distant horizon an unimaginable, unforeseen power, which according to these politicians is preventing them from exercising what they see as their moral right to govern. This unassailable power is the judiciary — the only saviour of people from tyranny.

Within the past two weeks, five members of the government Mulberry Group — which included a lawyer called Dilan Perera — and the formidable Minister Mangala Samaraweera castigated the judicial system and the judiciary of Sri Lanka.

Statements made by Mr. Perera against the judiciary were sufficient in my reckoning to issue a rule by the Supreme Court for his removal from the bar as they violate the code of conduct and etiquette for Attorneys-at-Law.

They lamented that the Judiciary prevented them from honouring one of their election pledges — to punish those who were responsible for disappearances, abductions and murder on the Galle Face Green.

Mr. Samaraweera was no better in casting aspersions on the judiciary.

But at the SAARCLAW Conference those very politicians or those from the same Government would exhort the value of the Rule of Law, and other clichés to please foreign delegates at the Conference. This is not only true of Sri Lanka but of most South Asian Countries. Perhaps India is the only country which has been nurtured in the traditions of the Nehrus and Gandhis and would at all times respect the judiciary, except for a brief period when Indira Gandhi ran amok with the notorious emergency rule.

The SAARCLAW Conference, whenever it is held in Sri Lanka is an outstanding success mainly due to the zeal of its most eminently efficient Secretary General, Dharani Shirantha Wijayatilaka.

When she was the Secretary to the Ministry of Justice for a brief period it was perhaps the most efficiently run Government Department. Efficiency, courage and honesty can never make one a good public servant in Sri Lanka as well as in most South Asian countries. Dishonesty, corruption, inefficiency, lethargy and absolute servile mentality of having no independent vision or thinking are the key ingredients of a good public servant.

Ms. Wijayatilaka after having organized the most successful SAARCLAW Conference and having contributed immensely to the success of the LAWASIA sessions in Sri Lanka was unceremoniously deposed as the Secretary Justice by the Minister of Justice. No one at Hulftsdorp knew or could give any reason for this change of heart of the good minister.

Sarath N. Silva, when questioned about the reason of removing Ms. Wijayatilaka, said the Minister had the power to remove or appoint the secretary of his choice.

The loss to the Ministry of Justice was a gain to SAARCLAW and I believe everyone would applaud the efficiency with which the sessions were conducted, and it would go to her personally and to the others who supported her like Rohan Sahabandu, former treasurer of the Bar Association, and others like Kamalini De Silva, Dinal Philips, Janaprith Fernando, Champaka Ladduwahetty and Nilathi Pieris. But if there were any omissions or failings, the blame would be taken solely by Ms. Wijeyatilaka — that's her character.

The public service in the entire country has fallen into such depths of degradation as no minister would tolerate any one other than a flunky fawner.

At these conferences, to improve their digestion if politicians resort to their favourite gimmick of exhorting the rule of law, then it is important to remember the speech made by Nawaz Shariff, Prime Minister of Pakistan at the 6th SAARCLAW conference.

It is an ominous sign, if they have not interfered with the Rule of Law, then, as Mr. Shariff would soon resort to it, otherwise it is a warning that they would continue to do so, in the future as they have done it in the past.

Mr. Shariff made the speech soon after his landslide victory. "I am happy to be here among this galaxy of the finest legal minds from South Asia. When you invited me to inaugurate the 6th SAARCLAW Conference I accepted it with a sense of gratitude as providing an opportunity for me to reiterate my Government's and my own regard and respect both for the Bench and the Bar. Together, they play a central role in consolidating and promoting the Rule of Law which is the essence of civil society and indeed of democracy.

"It has been and will continue to be the endeavour of my Government to protect and strengthen the independence of the judiciary and judicial institutions, and the new wave of judicial activism throws up new challenges in some countries of South Asia.

"I would seek your leave to suggest that during your deliberations at SAARCLAW as well as SAARCLAW Chief Justices' Conference, you may devote some time to review the whole set of questions arising out of the emerging tendency to promote a legal agenda.

"These questions, no doubt, are complex but they are so fundamental that any further delay in addressing them may lead to complications. Take for example a classical concept of separation of the legislature, the judiciary and the executive. This is postulated by the doctrine of the trichotomy of powers, which presupposes that each of the great constitutional departments of State plays a due and appropriate role in the governance of the country.

"While we welcome judicial activism, we also believe, as a matter of principle that the judiciary continue its activist march not in isolation but as an integral part of the constitutional system. What is required is evolution and not revolution. Due importance has to be given to Parliament's constitutional obligations to perform its primary and legitimate role as a law giver.

"The judiciary's power to interpret the law is unquestioned and unquestionable but the line of demarcation between interpretation and transformation should not be overlooked. This is not intended to be, and should not be taken, as a criticism of the judiciary".

It must be remembered that Mr. Shariff came to office when President Farooq Leghari dismissed the constitutionally elected Government of Benazhir Bhutto on allegations which included subverting the judiciary. Ms. Bhutto petitioned the Supreme Court challenging the order of the President and the Supreme Court dismissed her petition.

Ms. Bhutto's dismissal came amid a bitter political struggle with the Supreme Court which by then thwarted her attempt to appoint political loyalists as judges by ruling that judicial appointments were the prerogative of the president.

Ms. Bhutto was critical of the decision of the Supreme Court. Later her opponent Shariff came to power with a huge mandate from the people of Pakistan. The mistake the people of Pakistan did was to give Mr. Shariff two-thirds majority in Parliament which permitted him to amend the Constitution.

Like all politicians in the sub-continent his rhetoric and exhortations were directed at the supremacy of the Rule of Law and the important role the Supreme Court and the Judiciary played in maintaining the Rule of Law.

But he soon fell into the same abyss that Ms. Bhutto fell into and was engulfed by a frenzy that what the Supreme Court did to Bhutto would be done to him.

The then Chief Justice Sajjad Ali Shah started an investigation against Prime Minister Shariff on allegations that he had used his official position to pressurize Banks for out of court settlements of charges of default on re-payments of huge loans brought against an industrial group owned by Shariff's family and that he committed irregularities in awarding a wheat import contract that caused huge losses to the state.

As in the case of Ms. Bhutto where she tried to load the Supreme Court with political henchmen, the tussle between Shariff and the Supreme Court began when Shariff refused to appoint new judges proposed by Shah.

When armed with political power, many sub-continent politicians become so corrupt that only very few leaders have come out unscathed.

The allegations and counter-allegations and inquiries against politicians out of power are the order of the day. The governments unable to fulfill pledges given to the people tend to appoint commissions to soothe the nerves of the electorate to prevent them from revolting against the governments.

The commissions enact concocted dramas of ill-doings of political opponents to avert the crisis the voters are facing. The judicial activism is resented by these politicians and is equated to Judicial revolution. For them the mandate of the people which elect them to the seats of Government permits them to be corrupt to the core.

If not for the judiciary in South Asian countries which had earned the respect and is revered, the politicians would trample and oppress the people.

The people who have been misled time and again by politicians who promised to deliver them from untold misery have been let down umpteen times that they have virtually lost confidence in the democratic system. It is the judiciary that has helped maintain democracy, when other agencies and arms of the government have been crippled by corruption.

In Sri Lanka the judges are attacked over the media and television by junior politicians who have just come into parliament by sheer accident, and are emulating those at the highest seats of power.

From the time President Kumaratunga came over the television and attacked Supreme Court judges, attacks have continued up to date by other members. To dilute the judicial power the state machinery has even resorted to arrest a judge, who had given independent judgments by acquitting politicians in the opposition, on a belated complaint. But the police would under normal circumstances not venture to charge the most notorious criminal in the eyes of the Government, Sotthi Upali, the leader of a gang who refused to falsely testify against top ministers in the former government although he and his family were allegedly promised free passage to any Western European country with over a million rupees credited to his account

Dr. Amarasekera and 'Komisan Warthawa'

I was happy to receive a letter from Dr. Gunadasa Amarasekera, one of the foremost literary figures in Sri Lanka.

From his letter I gathered that this column is read not only by lawyers, Mudliyars and others connected with the legal profession but by many others who value the Rule of Law, truth, fairplay and justice.

I believe Dr. Amarasekera's response is an indication that I have succeeded in exorcising the monster created by J. R. Jayewardene — The Presidential Commissions of Inquiry Act which is a Judicial veil to cover the ruling government's façade of lies, damn lies.

Though the public at large has rejected the Commissions of Inquiry and their reports, it is indeed a naive paradox that the Bar Association has requested the Government to appoint a Commission of Inquiry to find out the truth about who was responsible for what they see as the illegal arrest of High Court Judge Mahanama Tilakeratne.

Published below is Dr. Amarasekara's letter:

"Dear Mudliyar

You may be rather surprised to receive this complimentary copy of my new collection of stories.

"I am sending this to you as a token of "debt". It was your writings that prompted me to write the last story in this collection "Komisan Warthawa'. The dramatic quality in some of these kindled my imagination.

Hope you will enjoy reading it. Your comments from a legal point of view would be most welcome.

- Gunadasa Amarasekera

As requested by Dr. Amarasekera, I will comment at least on the last short story called the "Komisan Warthawa" as soon as possible.

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