Point of view:
No Judicial fetters
by Prof Sunanda Madduma Bandara
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Chief
Justice Dr. Shirani Bandaranayke |
Many assertions are being currently made that the first instance of
an Impeachment Motion against a Chief Justice was the one that was
brought against Neville Samarakoon, C.J. However, this is incorrect. An
impeachment motion had been brought, on 6th June 1966, against the then
Chief Justice M C Sansoni. The charge against him was that he went to
the Katunayake Airport to bid goodbye to the then Prime Minister Dudley
Senanayake, who was leaving on a foreign tour. It centered on the issue
that the Chief Justice, whilst presiding over a case involving the
Dedigama By-election, should not have gone to bid the PM goodbye.
In reference to the Writ Application filed in the Court of Appeal, to
prevent the Parliamentary Select Committee from inquiring into the
conduct of the Chief Justice, the UNP General Secretary had stated that
his party would not attend Court, if summoned, according to certain
newspaper reports.
Supreme Court
He had further stated that since the PSC is a Parliamentary process,
the UNP would do all it can to ensure the supremacy and independence of
Parliament would be safeguarded. As such, it would participate in the
Parliamentary Select Committee. Meanwhile, Leader of the Opposition,
Ranil Wickremasinghe stated on 19th November, that he had been the
greatest critic of the Supreme Court. He had done so to safeguard the
rights of the people, but the Supreme Court had not always safeguarded
the peoples’ rights. Wickremasinghe made these observations during the
3rd day of the Budget debate. He also stated that he is in Parliament to
safeguard the people’s rights and the UNP will participate to protect
the people’s rights. Independence of the Judiciary is part of the
peoples’ rights, and it is our duty to safeguard it, he said.
The stand of the UNP, in relation to the Impeachment Motion on the CJ
and the role of the Supreme Court in safeguarding the peoples’ rights
becomes obvious from these statements.
The role and responsibility of the Judiciary and its interaction with
the Executive and Legislature are the important issues being discussed
currently countrywide. The reason for this is the Impeachment Motion is
before Parliament, Courts and other Forums.
Judicial responsibility
Victor Ivan, editor of the ‘Ravaya’ paper published a book entitled
‘Adikaranaye Malagama’ (Death of the Judiciary). He has written a series
of reports and articles about the Chief Justice and other judges in his
newspaper. Yet, he was never questioned by Courts about his articles and
reports. He was never summoned to Courts.
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People protesting in support of the
impeachment motion at Hulftsdorp yesterday. Picture by
Wasitha Patabedige |
It is often stated that the three pillars of government are the
Executive, Legislature and the Judiciary, each with clearly defined
powers and responsibilities. The role of the legislature (Parliament) is
to legislate so as to ensure the smooth functioning of society. Judicial
responsibility is to ensure equitable justice for all. These three arms
of the state function independently, so as to ensure progress in
society.
Many issues have cropped up between the Executive and the Judiciary
in Sri Lanka, and many reasons have been attributed for this.
After the adoption of the 1978 J R Jayewardena Constitution, certain
Supreme Court judges were sent home. Thereafter, Mr. Neville Samarakoon,
a close friend and confidante of J R Jayewardena was appointed Chief
Justice. Many today talk of the independent decisions given by Chief
Justice Neville Samarakoon. It is also believed that since Neville
Samarakoon did not act according to the wishes of the wishes of JRJ, an
Impeachment Motion was brought against him.
However, when Neville Samarakoon was appointed, many people said that
the independence of the Judiciary had been compromised. The appointment
of a person to the position of Chief Justice, overlooking all the judges
of the Supreme Court and the Appeal Court was seen as a serious blow to
the independence of the Judiciary. Yet, Neville Samarakoon fearlessly
gave judgments even against the JRJ government and had also spoken out
against the government on many occasions.
Political interference
We have also seen many instances where the Executive had made biased
choices when appointing Chief Justices. The names of Neville Samarakoon,
Sarath N. Silva and Shirani Bandaranayake have raised eyebrows in
society.
There are allegations today that the Judiciary is subject to
political interference, and that the most politicized appointments have
been to the Supreme Court. The credibility of this is seen when some of
the decisions of the Supreme Court are examined.
Jaya Pathirana was the SLFP candidate for the Kurunegala seat in the
1961 By-election. He won and represented the Kurunegala seat from 1961
to 1965. He was appointed a judge of the Supreme Court in 1972 by Mrs.
Sirimavo Bandaranaike, in which position he functioned till 1978.In
addition to being a Supreme Court judge, Mr. Pathirana functioned as a
member of the Constitutional Court as well as a member of the Criminal
Justice Commission. It is obvious that those who talk about
politicization of the judicial system seem to have forgotten these
political appointments to the Judiciary in the past.
Poverty alleviation programmes
The Constitution itself has safeguards to ensure the independence of
the three arms of government. According to the Constitution, the
Legislature (Parliament) and the Executive (President) are elected
directly by the people. According to constitutional provisions, the
judicial power of the people is exercised by the Judiciary, through
Parliament. In all instances, the power of the people is supreme. The
Supreme Court has given a string of decisions and interpretations on the
relationship between the Legislature and the Executive.
The Divi Neguma Bill and its interpretation is a case in point. Two
aspects of this issue will be dealt with. One such aspect is that since
the said bill deals with subjects coming under the purview of Provincial
Councils, these councils have to approve the proposed bill. Since there
is no Northern Provincial Council, the bill needs to be ratified by a
2/3 majority. If it fails to obtain the 2/3 of the vote, the bill cannot
become law.
The other aspect refers to Section 4(a) of the proposed Divi Neguma
Bill which deals with poverty alleviation and social equality. However,
since these are part of the list of powers vested in the Provincial
Councils (items 2 and 10), the Central Government cannot interfere with
these powers. However, in 1991, the Janasaviya programme was
implemented, followed by the Samurdhi programme, in 1995.Both these
poverty alleviation programmes functioned under Central Government
control. Interpreting them as Provincial Council functions leads to
confusion. The question then arises as to how only the Divi Neguma Bill
could fall under the auspices of the Provincial Councils.
Certain items with regard to the funding of the Divi Neguma programme
was also analyzed by the Supreme Court, and clearer explanations were
sought. The other point that needs to be addressed is how the proposed
poverty alleviation programs that were hitherto handled, for 20 years,
by the Central Government suddenly became a function of the Provincial
councils1
After independence, different governments raised funds through
different means, sometimes without a nod from Parliament. Once funds are
allocated from the budget for certain expenditure, spending such funds
for something else, with Finance Ministry approval, is not uncommon.
These are done with the intention of ensuring continuance of good
governance.
The main factor to be considered is that whatever is done should be
done for the benefit of the people.The Supreme Court has a history of
giving judgments that can be construed as interfering with the
Legislature and the Executive. The government has now decided that
‘enough is enough’. If a government elected by the people cannot serve
the people due to interference it is an infringement of the peoples’
right to good governance. And, if the Judiciary’s intention is to thwart
the smooth functioning of the state, it can lead to the government
taking any and every step to ensure its smooth and effective
functioning.
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