Judiciary desecrated: ‘darkest day’ in Parliamentary democracy
13 October 2015 06:01 am
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Sirimavo -35th year of enforced exile and 15th death anniversary
October 16, 1980, the ‘darkest day’ represented yet another blow to parliamentary democracy in Sri Lanka when Madam Sirimavo Bandaranaike, the world’s first head of state who made a tremendous contribution for the development of international relations by hosting the then powerful 86-nation NAM’s Summit, was deprived of her civic rights and unceremoniously expelled from Parliament. It was seen by the international community as the beginning of declining of good parliamentary governance and desecration of hallowed precincts of judiciary in Sri Lanka.
‘Judiciary’s capability’
Prime Minister Ranil Wickremesinghe, noted in his address to the National Management Conference a couple of weeks ago, on placing an international judicial mechanism above the domestic judicial process with the involvement of foreign judges, foreign prosecutors and lawyers to address the accountability issues during and after the last stage of the war, said that it was the independence of Sri Lanka’s judiciary and not its military that the international community was concerned about. He emphasised,that the problem that kept haunting repetitively in Geneva, of war crimes leveled against us was not the atrocities of the armed forces, but the Judiciary’s capability to hold an unbiased domestic hearing.
Interference or undermining the position of judiciary progressed unabated for 40 years since Felix Dias Bandaranaike became Minister of Justice in Sirimavo’s ‘70-’77 Cabinet. He attempted to introduce politically committed judges to highest courts, especially during its final three years in office, thereby the first seeds were sewn. President J R Jayewardene took over the reigns from Sirimavo in 1977, and continued what Felix started and struck the foundation of the rule of law and the independence of the judiciary; coincidentally, both were sons of honourable Judges of the Supreme Court.
JR, in early 1978, introduced a paper titled Special Presidential Commissions of Inquiry Bill, and subsequently placed a proposal to deprive Sirimavo of her civic rights which was passed in Parliament on October 16, 1980. On both occasions uncle Dickey required his 28 year-old nephew and fresher in the House, Ranil to raise his ‘innocent hand’, who was ignorant of the future repercussions and the adverse consequences on international community’s assessment of our ‘human rights’ status; reputation on non-interference in Judiciary and our ‘Judiciary’s capabilities’.
For the benefit of the new generation; here we discuss the distasteful saga of ‘JRJ vs Sirimavo-1980’, and the process of judicial manoeuvering and political manipulations practiced in carrying out the political faux pas of post-independent Sri Lanka.
The fear factor
With his years of experience, JR knew that in the future people would rally round Sirimavo, who was gifted with the charisma that he totally lacked: a fear, somewhat similar to the leaders endure in the current scenario. This most influential and dangerous opponent had to be distanced from the political arena if the UNP rule was to be continued unobstructed; JR concluded. Further, removing Sirimavo from political activity, the divisions within the SLFP would be aggravated. The old-fox in his own incomparable style planned out his strategy and started working on it. Accordingly, within a few months of assuming office the UNP drafted the Special Presidential Commissions of Inquiry Law No. 7 of 1978 and got it passed apparently to guarantee cleanliness in public life. The sole objective of this cowardly, post facto legislation was the removal of Sirimavo Bandaranaike from the political landscape. On March 29, 1978, the President appointed a Special Presidential Commission consisting of two Supreme Court judges and a member of the lower judiciary to inquire and report on several matters stated in a warrant that covered the Sirimavo headed United Front government of 1970-77.
The new Constitution drafted single-handedly by his brother HW and adopted on 7th September 1978, provided a valuable opportunity to the President to manipulate the judiciary as per his whims and fancies.
Sirimavo was indicted, and was summoned before the Commission installed at Queen’s Club, Bullers Road, to answer charges of abuse and misuse of power and corruption. Her lawyers challenged the jurisdiction of the Commission on several grounds seeking a Writ of Prohibition from Appeal Court. Sirimavo attended the sittings but did not remain there. Withdrawing from the proceedings of the Commission she made a lengthy statement saying that she had rational grounds to believe that no practical purpose would be served by appearing in it and that she honestly believed it would not be a fair trial. The SPC continued proceedings ex parte.
The team of lawyers that prosecuted Sirimavo before the Commission was led by A.C. De Zoysa, whose opening address was more of a vituperative speech fitting for a political platform than for a commission of inquiry. He made accusations against Sirimavo Bandaranaike, but failed to lead evidence. Government’s media machinery gave wide publicity to it through the state controlled newspapers and the only electronic media, the SLBC; the idea was to create a public antipathy against her in preparation for an impending cause of action. A superior Courts may invalidate the laws and rules of the legislature, if found incompatible with a higher norm. Accordingly, the Court of Appeal granted a Writ against the Commission that the SPC inquiry Law was not retrospective in its function. Therefore an inquiry of a period before the enactment of the law was beyond its jurisdiction.
The Appeal court decision did not in any way deter the fortitude of JR. He came back with characteristic viciousness and speed. Two bills labelled as being “Urgent” were swiftly presented and hurried through Parliament; the first nullifying the Court of Appeal verdict and the second for an amendment to the new Constitution. The amendment, the first of its kind was made retroactive from 7th September 1978, deprived the higher Courts of its jurisdiction in any future writ applications! A. Amirthalingam, Leader of the Opposition, speaking on the two bills said, “…it is deplorable, the amendment has retrospective effect and, worse still, annulled a decision of the Appeal Court; in doing so government was setting Parliament up as a court above Supreme Court.” – Hansard; Nov 10. 1978
In September 1980, the Commission found Sirimavo guilty of abuse or misuse of power in of six of the ten counts made against her. The Special Presidential Commissions of Inquiry in terms of Section 9 of the Act recommended imposition of civic disability and consequent expulsion from the Parliament. At the cabinet meeting, Gamini Dissanayake, Ananda Tissa de Alwis and S Thondaman spoke against imposing civic disabilities on Sirimavo. Sir John Kotalawala, the 85 year-old ailing ex-Prime Minister, personally made representations on behalf of her; but JR was adamant.
The President was engaged in an exercise of demoting, promoting and even discontinuing Judges of SC and the High Court; he taught a lesson to the Court of Appeal bench who allowed Sirimavo’s writ application, by nullifying their verdict through the Parliament. JR also conveyed an indirect but clear message to the rest of the gentlemen of judiciary when good fortune awaited the three members of the Special Presidential Commission, who recommended Sirimavo’s exit from politics. Justice Weeraratne was placed 5th in the hierarchy, a jump of 4 places, and Justice Sharvananda leapt from fourteenth to sixth position that helped him to become CJ before his retirement, which did not end there; he was made the Governor of Western Province on retirement. The other, the DC judge was honoured with a Court of Appeal posting, a ‘hop-step-and-jump’ over many senior colleagues in High Courts.
Participating in the debate on expulsion, Mr. Amirthalingam, leader of the Opposition and TULF stated that, “…the only forum before which political offences of this type can be agitated is the forum of the hustings. The people have given the verdict. People have returned Mrs. Sirimavo Bandaranaike to this House. You must respect the judgment passed by the masses of Attanagalla. You have no right now to sit in judgment on what the voters of Attanagalla have done. Retrospectively and retro-actively you are creating offences and are meting out punishment which are not in keeping with the fundamental rights you have guaranteed and which are a violation of the Universal Charter of Human Rights”.
One of the core values of the justice system, the ‘Principle of Judicial Independence’, has been subjected to vandalism. Two presidents driven by unquenchable thirst for power and backed by Parliamentary 2/3 majority, JR and MR continued their disrespect for the independence of the Judiciary and rule of law tampering and tinkering with Constitutional procedures. They manoeuvered legislator, judiciary, and Constitution, especially during the first 17 and the last 11 years from 1978 to 2014. Sirimavo took oaths as the PM of Sri Lanka in 1994, when the SLFP led People’s Alliance was back in the saddle, and this happened during the lifetime of J. R. Jayewardene, proving that no political movement with a mass base and charismatic leadership can be destroyed by attacking a leader; a lesson our politicos will never learn.
Ranil Wickremesinghe, the well-read politician
It is an irony of fate that, Prime Minister Ranil Wickremasinghe, who voted in favour of interference with judiciary at 28 years happens to be the only legislator who remains in the present Parliament out of the 139 who voted with him. [R Sampanthan, Leader of Opposition, who voted against the resolution is the only other MP present today] PM Ranil is an internationally recognized mature politician, who tells us about the international community’s poor assessment of our Judiciary. Could he convert the hallowing precincts of our judiciary back into its glorious times? A new judiciary guided by norms and principles which are above the reach of statute and legislature [the politician], and judges entrusted with formal, dignified authority and duty previously denied. It was Rosalie Silberman Abella, Justice, Court of Appeal for Ontario, who said, “People elect legislators who enact the laws they think the majority of their constituents want them to enact, and appoint judges who are expected to be independent from those legislators and impartial in determining whether the legislature’s actions meet constitutional standards. When the legislature’s decision to entrench rights and extend a constitutionally guaranteed invitation to the courts to intervene when legislative conduct is not demonstrably justified in a democratic society. In enforcing the Charter, therefore, the courts are not trespassing on legislative authority; they are fulfilling their assigned democratic duty to prevent legislative trespass on constitutional rights.”—In her Keynote Address-- Osgoode Hall, Law School York University- April 7, 2000.
On the ‘darkest day’ she faced with bravery and equanimity the ‘unjust, unfair, and revengeful’ act by her opponent. Sirimavo made a short farewell speech and left her seat amidst cat-calls and indecent remarks from some government members; the expelled world’s first woman Head of State was leaving the chamber unaccompanied as the other six SLFP MPs boycotted the sittings; it was S Sivasithamparam and A. Amirthalingam, the two gentlemen parliamentarians who rose from their seats to escort her out of the floor of the House.
Sirimavo Ratwatte Bandaranaike, who survived a Coup d’e `tat and imminent death in 1962, and was politically murdered by the Government on 16th October 1980, passed away peacefully on 10th October 2000, after casting her vote at Nittambuwa.