Lest we forget, how the UNP robbed Sirimavo's Civic Rights
 

BY D. G. de L. Karunaratne

THE 46th anniversary of assassination of S. W. R. D. Bandaranaike falls on September 26 this year. Coincidentally or by an act of deliberate meanness, it is also the day on which Mrs. Sirimavo Bandaranaike was robbed of her civic rights by the UNP leadership twenty five years ago.

The present leader of the UNP and his followers have taken on the dubious role of doughty defenders of the sovereignty of the people, democracy, fundamental rights, human rights and other rights.

But how many of them articulated even a whisper or a whimper when the Special Presidential Commissions of Inquiry Law (S.P.C.) was enacted and used most foully against Mrs. Bandaranaike, the leader of the Sri Lanka Freedom Party and the world's first woman Prime Minister.

I think the particular circumstances in which the SPC law was enacted and enforced are worth recounting for the benefit of those who may be carried away by the sanctimonious humbuggery of the UNP and its print and electronic media apologists.

With his long experience, spanning over three decades, at the hustings J. R. Jayewardene knew too well how fickle the electorate was - the UNP and the SLFP being voted to power alternately.

He also knew it was a matter of time when the opposition political parties would rally round Mrs. Sirimavo Bandaranaike who was endowed with the charisma that he lacked.

He considered her his most powerful and dangerous political adversary and therefore her elimination from the political field was a sine quo non, if UNP rule was to go on unhindered. In his inimitable style he planned out his strategy and started moving the pieces on the political chess-board.

locked up

He showed more finesse than Zia Ul Haq or the leader of the Janatha Party in India. Everything he did was under cover of laws which his parliamentarians were always ready to enact at his bidding.

It may be pertinent here to quote what he stated in parliament on 21.10.77 on the occasion of the repeal of the Criminal Justice Commission Act: "The Janatha Party in India has temporarily locked up Mrs. Gandhi. It is not for me to comment on what some other government should do. But I will not do it."

Within a few months of the UNP assuming office the Special Presidential Commissions of Inquiry Law No. 7 of 1978 was passed ostensibly to ensure purity in public life.

But to anyone who cared to look beyond its facade of legality it was obvious that the sole object of this law was the removal of Mrs. Bandaranaike from the political scene. It was a piece of cowardly ad hominem legislation, targeting the world's first woman Prime Minister.

By Warrant dated March 29, 1978 President J. R. Jayewardene appointed a Special Presidential Commission consisting of two judges of the Supreme Court (Justice Sharvananda and Justice J. G. T. Weeraratne) and a member of the minor judiciary (K. C. E. de Alwis) to inquire into and report on the matters specified in the said Warrant covering the period May 1970 to July 1977.

The President had been making various accusations against Mrs. Bandaranaike at public meetings and on the floor of the National State Assembly (Parliament) before the appointment of the Commission.

With its appointment the campaign of vilification and calumny gathered momentum and National State Assembly meetings, public meetings, pro-government newspapers and radio were unabashedly availed of for this purpose.

The Daily News of August 7, 1978 carried the report of a UNP rally held on August 5, 1978 at Kotahena on which occasion the President was reported to have said:

"There was no law and order during her regime. One had only to read or listen over the radio to Mr. A. C. de Zoysa's address to the Presidential Commission to realise what injustices had been committed during that period."

In this cowardly campaign the President had the unstinted support of his chief lieutenant R. Premadasa who revelled in vituperative language and often mistook smut for wit.

The UNP Government showed its blatant disregard for fairness and impartiality and ignored the time - honoured and most salutary principle that "Justice should not only be done, but should manifestly and undoubtedly be seen to be done."

The team of Government lawyers leading evidence before the Commission was headed by A.C. de Zoysa, who was a member of the Working Committee of the UNP and had actively campaigned for his party.

His opening address was a speech more suited for the hustings than for a Commission of Inquiry and was charged with all manner of accusations against Mrs. Bandaranaike, but on many of which no evidence was led before the Commission. It was evidently a speech directed at the masses and the government gave wide publicity to it through the newspapers and the radio.

In the words of Mrs. Bandaranaike "the entire proceedings before the Commission became an extravaganza of political propaganda against me and the Sri Lanka Freedom Party".

The second Republican Constitution was adopted on September 7, 1978. This provided a welcome opportunity to President Jayewardene to reconstitute, or to be more precise, to manipulate the judiciary according to his whims and fancies.

In the course of this exercise he promoted, demoted and even discontinued judges of the Supreme Court and the High Court, the highest Courts in the land.

Challenged

Mrs. Bandaranaike was noticed by the Special Presidential Commission to appear before it to answer ten charges of abuse or misuse of power, corruption etc. She however challenged the jurisdiction of the SPC before the Court of Appeal on several grounds and sought a Writ of Prohibition against it.

To digress, some time before the case began newspapers, including the government controlled, reported a statement made by President Jayewardene at a public function that he would abide by the verdict of the Court.

He was confident that there were no loopholes in the SPC law which had been so carefully crafted to rope in his chief political adversary.

The Court of Appeal comprising Justices Wimalaratne (President), Vythialingam and Colin Thome granted a Writ of Prohibition against the Commission upholding the contention of Mrs. Bandaranaike's counsel that the Special Presidential Commissions of Inquiry Law No. 7 of 1978 was not retrospective in its operation and did not authorise an inquiry in respect of a period prior to the enactment of the law.

But President Jayewardene was not going to be balked by a Court decision. He could not allow the judiciary to thwart his implacable desire to disfranchise his chief political opponent and banish her from the political arena. He riposted with typical ferocity and haste.

Two Bills endorsed by the Cabinet as being 'urgent in the national interest' were rushed through Parliament. Both were patently intended to subserve the government's purely partisan objectives.

By the first Bill - the Special Presidential Commissions of Inquiry (Special Provisions) Act No. 4 of 1978 Parliament took the unprecedented step of specifically declaring null and void the judgement of the Court of Appeal in Mrs. Bandaranaike's case. Section 10 of the Act stated:

"Any such judgement, decree or writ issued by the Court including the judgement pronounced and writ issued by the Court of Appeal in Application No. 1/78 are hereby declared null and void and of no force or effect whatsoever."

The second Bill was the UNP government's First Amendment to their brand new constitution. As if to put them in their proper places the amendment deprived the Court of Appeal of its 'jurisdiction in similar Writ applications. The amendment was made retroactive from September 7, 1978.

The President showed little respect for the Rule of Law and the independence of the judiciary. He was prepared to resort to any legal legerdemain and political chicanery including tampering with judicial and constitutional processes in his unrelenting pursuit of his arch political opponent.

The sordid events that preceded and followed the enactment of this legislation are best described by Mrs. Bandaranaike in the statement she read before the SPC on May 7, 1980.

"This was the first time in the history of this country when Parliament declared void a judgement of one of the Superior Courts of this country.

In the result I was deprived of the right of prosecuting my appeal before the Supreme Court. Not only did the Government nullify the judgement, it went on to take away from the Court of Appeal any jurisdiction to deal with such an application, as if to intimidate the Court, in future cases.

In view of the transfer of this jurisdiction to the Supreme Court, I filed a second application for a Writ of Prohibition on the other grounds which had been decided against me by the Court of Appeal on the very day the amending law was being debated in Parliament."

"The strange events that followed show the implacable desire of the Government to secure my enforced exile from politics.

Perhaps the people of this country do not know that the amending Bill which the Government brought before Parliament and which was referred to the Supreme Court for its opinion on November 16, 1978, under Article 122 (1) (b) of the 1978 Constitution was not the same Bill which finally received the Speaker's certificate as the Special Presidential Commissions of Inquiry (Special Provisions) Act No. 4 of 1978.

The Bill that was placed before the Supreme Court did not contain a vital and material clause which now appears in the Act, as Section 21A which was to all intents and purposes a legislative direction to the Supreme Court as to the interpretation of the law.

It provided that the provisions of the law and the warrant issued under it shall be so interpreted as to give the Commission jurisdiction to inquire into my conduct as Prime Minister notwithstanding that the conferment of such jurisdiction may be constructed to be or to have been inconsistent with the provisions of the Section 46 (1) of the Constitution Order-in Council of 1946 or Section 92 or Section 106 (5) or any other Section of the Constitution of Sri Lanka of 1972.

It was a legislative judgement given in advance of the Court hearing. This clause which was expressly and specifically designed to meet the grounds of attack on the law, that were being urged by me in my second application for a Writ of Prohibition, then pending before the Supreme Court, did not appear in the Bill that was placed before the Supreme Court for its opinion."

"So the Supreme Court which was specifically invited to consider the question whether the amending Bill was one which required the approval of the people at a Referendum and compliance with Article 83 of the Constitution, gave its opinion on a Bill which did not contain the all important Section 21A that violated Articles 4 (c) and 3, the amendment of which would have required a Referendum.

This is no accident as the Government would not have dared to place this issue before the people at a Referendum which the Supreme Court would have held was necessary, had Section 21A been included in the Bill on which it gave its opinion."

The amending Bill on which the Supreme Court had given its opinion was debated and passed by parliament and certified by the Speaker. Hey presto! there was now a new clause - Section 21A - which had been smuggled into the Bill. A feat of prestidigitation worthy of a Keselwatte crook!

In the course of her lengthy statement Mrs. Bandaranaike stated that she had reasonable grounds to believe that no useful purpose would be served by participating in the proceedings and that she did not honestly believe it would be possible to have a fair trial and a fair opportunity of exonerating herself.

Accordingly she withdrew from the proceedings of the Commission. The SPC continued with the inquiry ex parte.

On September 25, 1980, which was the 21st anniversary of the assassination of her husband S.W.R.D. Bandaranaike. (was it a mere coincidence or an act of deliberate meanness?) the SPC found Mrs. Bandaranaike guilty of abuse or misuse of power in respect of six of the allegations made against her.

Accordingly in terms Section 9 of the Special Presidential Commissions of Inquiry Law No. 7 of 1978 the Commission recommended that she be subject to civic disability.

The Civil Rights Movement which had been monitoring these developments reminded the Government of its obligations under the International Covenant of Civil and Political Rights which it had signed early that year (1980).

Under this Covenant Sri Lanka had undertaken not to create offences with retrospective effect and not to impose penalties with retrospective effect. Therefore the Government would be violating its obligations under the Covenant. But these arguments fell on deaf ears.

In an article titled, 'Deprivation of Mrs. Bandaranaike's Civic Rights - Review of S.C. Decision', A.C. Alles former Solicitor General and Judge of the Supreme Court states: "As far as one can recollect never before in the history of democratic institutions has such a disgraceful exercise been carried out and it is regrettable that even two Supreme Court Judges have lent themselves to the performance of this exercise and thereby tarnished the good name and image of the Supreme Court". (Daily News of July 26, 1996).

Sympathy

Meanwhile Mrs. Bandaranaike applied to the Supreme Court for a Writ of Certiorari quashing the findings of the Commission. The Supreme Court issued notice on the Respondents. The Commission was given time till October 31, 1980 to file objections and the matter was fixed for hearing on November 7, 1980. (Bandaranaike v Weeraratne and others SC 4 and 5 of 1980).

The Commission had as expected, accomplished its task to the satisfaction of its creator, President Jayewardene, and it was now left to him to deliver the coup de grace to his chief political opponent.

However he was aware that there was widespread sympathy for Mrs. Bandaranaike among the public. He could not allow the Opposition to use the situation to stage protests and whip up opposition against the Government. He therefore banned public meetings - he was not going to take his chances with them.

A Resolution endorsed by the Cabinet as "Urgent in the National interest" (the Government considered anything intended to suppress the opposition as urgent in the national interest) was introduced in Parliament for the imposition of civic disability on Mrs. Bandaranaike for a period of seven years and for her expulsion from Parliament. The Government took up the Resolution notwithstanding the order issued by the Supreme Court barely 24 hours earlier.

The Opposition parties opposed the resolution vehemently and urged the Government to await the decision of the Supreme Court on Mrs. Bandaranaike's Writ Application. However the Government was in no mood to do what the Opposition suggested.

Instead the Prime Minister insisted, "even if the Supreme Court rejects the Report and the recommendations of the Commission, we shall not withdraw the Resolution that we are going to pass today" (Hansard Vol II - 16.10.80).

A. Amirthalingam, the then Leader of the Opposition, pointed out that to proceed with the Resolution would be clear violation of Standing Order 84 (vi) which stated that: "No member shall refer to any matter which is under adjudication by a court of law or to any matter on which a judicial decision is pending".

It was left to M. Sivasithamparam MP for Nallur to expose the whole purpose of this exercise. He said, "Sir, there is no point in speaking of the independence of the judiciary being sacred and kept in the Constitution if you are not going to respect the opinion of the Judiciary.

If the Supreme Court of this country is going to hold that the Commission has acted against the rules of natural justice, if the Supreme Court was going to hold that there was bias, I ask you on what basis can you pass this Resolution?...... That is why we say that the whole purpose of this exercise is to deprive a political opponent of her civic rights", (hansard Vol II 16.10.80).

The Resolution was passed notwithstanding the arguments, pleas and pleadings of the Opposition and Mrs. Bandaranaike was made subject to civic disability for 7 years and expelled from Parliament, to which she had been duly elected by a majority of over 10,000 votes.

The October 16, 1980 was a dark day for the 9th Parliament of Sri Lanka. On this fateful day it had struck at the very foundation of the Rule of Law and the Independence of the Judiciary.

Protest

The SLFP decided to protest against this iniquitous decision of the UNP Government and assembled in their thousands before the SLFP Headquarters at T.B. Jayah Mawatha, Maradana. The UNP had made their plans to 'welcome' them in their own typical style.

With the cold-blooded thoroughness for which by now they were notorious thousands of UNP thugs, armed with cycle-chains, knives an clubs, descended on the unarmed protesters, attacked them mercilessly and robbed whatever they could lay their hands on.

Panic reigned; those who managed to escape took refuge in nearby buildings; hundreds were injured and the precincts soaked with the blood of victims.

All this took place while the guardians of the law, the police, were present in large numbers. By this time they had become compliant tools in the hands of UNP politicians.

Let Prins Gunasekera, no friend of the Bandaranaike family, recount the last scene of this drama as it shows to what extent moral degeneration had overtaken the UNP leadership.

"That evening a representative group of persons from the Colombo electorates saw President Jayewardene in his Ward Place residence. These able-bodied men carried with them two silver trays which they respectfully handed over to their party leader".

"The silver trays contained all the gold jewellery and other valuables snatched and plundered by them in their 'anti-veedi satan' operations before the SLFP Headquarters.

It was like the commanders of marauding armies during the bad old days returning with their loot to the King and Emperor to pay their respects and homage, to offer the spoils of war at the feet of their supreme commander". (A Lost Generation - the Untold Story).

To get back to the subject proper, Mrs. Bandaranaike's Writ Application was refused by the Supreme Court on the ground that Article 81 (3) of the Constitution precluded it from inquiring into the validity of such Resolutions after the Speaker had endorsed on it a certificate that it has been duly passed by Parliament. In the newspaper article referred to earlier A.C. Alles, retired Supreme Court judge states:

"It is clear that the Presidential Commission which heard the charges lacked jurisdiction. This is the effect of the judgement of the Court of Appeal, endorsed by Government by the subsequent legislation which amended the law retrospectively to give effect to the findings of the Commission of Inquiry. Where there is want of jurisdiction it does not prevent the courts from exercising supervisory jurisdiction."

".... and it is submitted with due deference to the Supreme Court that this is essentially a case where, in spite of the strong language of the preclusive clause Section 81 (3), called for the exercise of the supervisory jurisdiction of the court."

"If it was done it was very likely that the Supreme Court would have entertained her application for a Writ of Certiorari, granted her relief and prevented her from being exiled to the political wilderness for a period of 7 years."

It was Mrs. Bandaranaike's misfortune that she was denied the benefit of supervisory jurisdiction or judicial activism which is very much in vogue today.

Although he had been successful in overcoming legal and constitutional impediments to the passing of the Resolution President Jayewardene was not satisfied that he had effectively disabled his chief political opponent.

He realised that as the leader of the SLFP, Mrs. Bandaranaike posed a real threat to the UNP's administration. He wanted to see her totally disarmed and disabled and treated as a leper in the political arena.

Humiliation

Some time afterwards the Parliamentary Elections Act No. 1 of 1981 and the Presidential Elections Act No. 15 of 1981 were enacted by Parliament and these contained provisions imposing further disabilities on the already 'disabled'.

The relevant Sections in both Acts prohibited a person on whom civic disability had been imposed from participating in any way in an election.

Any person found guilty of contravening these Sections was made liable to a fine not exceeding Rs. 1,000 or to imprisonment for a term not exceeding 6 months or to both such fine and imprisonment.

The relevant Sections in the two Acts also contained provisions for the election of a candidate to be declared void on an election petition on the ground that he personally engaged as a canvasser or agent or to speak on his behalf a person on whom civic disability had been imposed by Parliament and the period of such civic disability had not expired.

Prior to the above legislation a candidate was debarred from engaging as a canvasser or agent or to speak on his behalf any person who had been found guilty of a corrupt practice (such as personation, treating, undue influence, bribery etc.) within 7 years previous to such engagement.

Murderers, robbers and rapists and others who had been found guilty of grave crimes were permitted to participate in canvassing or campaigning at elections. Apparently in President Jayewardene's view abuse or misuse of power was a graver and more heinous crime.

As V. P. Vittachchi remarks, "All this for fear of Mrs. Bandaranaike's charisma! It was ad hominem legislation." (Sri Lanka - What went wrong).

Not content with all the humiliation, indignities and punishments they had imposed on Mrs. Bandaranaike the UNP leadership manipulated and engineered dissension and division in her party and even in her family.

President Jayewardene dealt the final blow when undercover of the Public Security Ordinance he took over the Headquarters of the SLFP in August 1981.

If one may be excused for digressing again, it is worth recalling here an incident which was reported in the Forum of May 15, 1985. A group of monks led by Kosgoda Dhammawansa Maha Nayaka Thera of Amarapura Sect and Lecturer at Jayewardenapura University, met President Jayawardene to plead for the restoration of Mrs. Bandaranaike's civic rights.

They were sternly reminded by him that her government had been responsible for the arrest of his only son during the JVP insurrection in 1971 and that his son had been served meals in a 'belek pigana' (tin plate) while in custody. the President gave no answer to the Maha Nayake Thera's query whether the deprivation of civic rights was to avenge this action of the ex-prime minister's Government.

The UNP which pledged to establish a Dharmista (Righteous) society made a mockery of the hallowed concept. Driven by an insatiable thirst for power and revenge they manipulated and prostituted legal, judicial, and constitutional processes for 17 long years.

Undoubtedly their greatest victim was Mrs. Bandaranaike who was most grievously wronged by them. They robbed seven years of her political life. It would do well for us to remember that those who joined in this despicable robbery are today in the front ranks of the UNP.