Point of view: No Judicial fetters
Posted on December 4th, 2012

by Prof Sunanda Madduma Bandara – Courtesy The Daily News

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 “ƒ”¹…”Ravaya’ paper published a book entitled “ƒ”¹…”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.

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 “ƒ”¹…”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.

One Response to “Point of view: No Judicial fetters”

  1. lingamAndy Says:

    Prof Sunanda Madduma Bandara
    Impeachment Motion against a Chief Justice – nothing tio do with hers vedict against Divi Neguma Bill !!!
    only hers financial miscontact , can you believe ????

    when you are with them better be one of them !!!

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