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Home > Tamils - a Trans State Nation > Struggle for Tamil Eelam > Indictment against Sri Lanka: Introduction & Index > Indictment against Sri Lanka - the Record Speaks

The Charge is Ethnic Cleansing

Internal Information Note, May 1984
Ref E X/5/84

The position of the judiciary in Sri Lanka was far from satisfactory under the previous government, which was in power from 1971 to 1977. The present government came to power promising to set such matters right and to re-establish the rule of law. Indeed this is reflected in many admirable provisions of the 1978 Constitution.

The present account acknowledges, but does not seek to recount, the erosion of the independence of the judiciary that took place during the previous period. It describes developments relevant to the independence of the judiciary since 1977. These include

- aspersions cast on judges during the proceedings of the Special Presidential Commission of Inquiry while they continued to sit as judges of The Supreme Court.

- the "reconstitution" of the courts after the 1978 Constitution which resulted in a number of judges being removed from office thus contravening the principle of security of tenure.

- the appointment of a Select Committee of members of Parliament to inquire into a complaint made to the President against two Supreme Court Judges in respect of a case decided by them alleging inter alia, mala fides (the "K.C.E.de Alwis" affair).

- the finding by the Supreme Court that the publication of the said allegations in the newspaper was a contempt of court (the Daily News case), and the subsequent passage of legislation to change the law in this respect.

- the rewarding of the Executive, on two separate occasions, of police officers as result of the Supreme Court having found that they unlawfully infringed a fundamental right of a citizen (the Pavidi Handa case and the Vivienne Goonewardene case).

- the attempt to intimidate the Supreme Court by thugs creating a disturbance and shouting obscenities outside the houses of the judges who decided the last mentioned case, the mysterious failure of attempts to call the police, and the failure of the authorities to prosecute anyone to date.

- the suggestion that judges had vacated their office due to a failure to take an oath in a particular way by a particular time, and the consequent locking of the judges out of the court premises. (The Supreme Court later held that they had not vacated office).

- the setting up of a select committee of Parliament to inquire into the propriety of a speech made by the Chief Justice at a prize giving ceremony.

- the passing of standing orders providing that the inquiry envisaged by Article 107 of the Constitution preliminary to the removal of a judge for proved misbehaviour or incapacity shall be held not by a tribunal of judges or ex judges, as under the Judges Inquiry Act of India, but by members of Parliament themselves, resulting in the exercise of judicial power by members of Parliament.

The following is a chronological account covering the period July 1977 to May 1984. It sets out the sequence in which the various stages of these developments unfolded.

1. In July 1977, a change of government took place after the general election. The government headed by Mrs. Sirima Bandaranaike was defeated, and replaced by one led by Mr. J.R. Jayewardene.

2. In February 1978 a new law provided for a special tribunal (Special Presidential Commission of Inquiry - SPCI) to inquire Into "abuse of power" and "misuse of power" by members of the former government. The Commission to be composed of judges of the. higher courts (District Court and above) selected by the President.

3. Civil liberties bodies, while approving the principle of exposure of misdeeds of those who have wielded power, severely criticised this particular law on a number of grounds. These include (a) no rules of evidence (b) no right of appeal (c) "misuse" & "abuse" of power vague and not known to the law (d) retro-activity ie. penalisation for acts not illegal at time of alleged commission (e) punishment" of deprivation of civic rights recommended by the Commission imposed not by a judicial body but by majority vote in Parliament, i.e. political victors wreak vengeance on the vanquished.

4.A Special Presidential Commission of Inquiry (SPCI) was appointed under the new law consisting of J.C.T.Weeraratne (Supreme Court Judge), S. Sharvananda (Supreme Court Judge) and K.C.E. de Alwis (then a District Judge).

5.The SPCI started preliminary bearings in the course of which allegations were made, inter alia, against judge who were continuing to sit on the bench. These were given prominence in the press. The allegations were not later pursued. Chief Justice later publicly deprecated this casting of aspersions on judges (vide his speech on inauguration of new Supreme Court quoted below).

6.In 1978 a new constitution was promulgated. Despite one grave defect, referred to in the next paragraph, it contained important provisions for the protection of the independence of the judiciary. In this it was a distinct improvement on the 1972 Constitution. One chapter is specifically entitled "independence of the Judiciary". It restored the independent Judicial Service Commission for the appointment, transfer and disciplinary control of judges of the lower courts (District Court and below). .It provided that. Judges of the higher courts could be removed only for "proved incapacity or misconduct" after an inquiry at which the judge is entitled to a hearing (Article 107). Parliament may create the appropriate machinery for such an inquiry. The Constitution further provides that this process of removal can only be initiated by a motion signed by not less than one third the members of Parliament and, after the inquiry, eventual removal needs a majority vote of the total number of members of Parliament (including those not present).

7.The defect of the 1978 Constitution as regards the judiciary was that it provided that all judges of the superior courts automatically went out of office and needed. to be re appointed. In the "re-constituting" of the courts that followed, the government got rid of judges it did not like, appointed others, and gave preferential treatment to some. This was severely criticised by the Civil Rights Movement (CRM) and others as interference with security of tenure of judges, and therefore Interfering with the independence of the judiciary. Among those who received preferential treatment in this process is K.C.E. de Alwis, the District Judge who had been appointed to serve on the "Special Presidential Commission of Inquiry" (See para 4. above).

He received a "double promotion" from the District Court to the Court of Appeal over the heads of the entire High Court. On this see CRM document "the new judicial appointments" and explanatory chart published elsewhere in this dossier.

8.At the formal inauguration of the new Supreme Court in 1978 the Chief Justice Neville Samarakoone, himself appointed direct from the bar by the present government soon after the 1977 elections made the following observation, referring to both the manner in which the reconstitution had taken place and the aspersions made against judges made before the Special Presidential Commission of Inquiry.

"We have gathered together to usher in the New Supreme Court in the traditional manner known to Bench and Bar. I and my brothers have been members of the Old Supreme Court and would have wished for it an honourable demise and a decent burial, but that was not to be. Words have been uttered and aspersions cast in another place which seemingly affects its hallowed name. What more is in store I do not know."

9.In 1980 the Special Presidential Commission of Inquiry (see paras 3 to 6 above) investigated allegations against, inter alia, former Prime Minister Mrs. Sirima RD. Bandaranaike & former Minister of Justice, Mr. Felix R.Dias Bandaranaike.

10. Mrs. Sirima R.D. Bandaranaike and Felix Dias Bandaranaike were both found guilty and the findings together with a recommendation for deprivation of civic rights were reported to Parliament. Parliament accordingly passed a resolution in October 1980 depriving both of civic rights for seven years and expelling Mrs. Bandaranaike from Parliament. (Felix Dias Bandaranaike was not then in Parliament, having failed to secure re-election in 1977).

11. In 1982 Mr. Felix Dias Bandaranaike filed an application in Court against Mr. K.C.E. do Alwis alleging that de Alwis was guilty of misconduct in that he had entered into a financial transaction with a person in respect of whom and inquiry was pending before the Commission. Felix bias Bandaranaike sought an order restraining de Alwis from functioning as a member of the SPCI.

12. In October 1982 three judge bench of the Supreme Court Neville Samarakoone, D. Wimalaratne and Colin Thome upheld Felix Dias Bandaranaike's claim. They delivered 3 separate judgements. The Chief Justice (Samarakoone) held de Alwis was not guilty of misconduct as such, but that members of the public were now likely to "look askance" at the other decisions of the Commission. (This is a very significant observation as it raises some doubt re the findings against Mrs Sirima Bandaranaike and Felix bias Bandaranaike which is politically explosive and most embarrassing to the government). Wimalaratne J and Cohn Thome held that de Alwis was guilty of actual misconduct.

13. Some time thereafter K.C.E. de Alwis wrote to the President complaining that the finding against him was unfair, that Supreme Court judges Cohn Thome and Wimalaratne were prejudiced against him, and so on and so forth. He appears to have made all manner of serious allegations including that Mr. Felix Dias Bandaranaike's pleadings were drafted in one of the judges' chambers.

14. There were reports that the appointment of a Special Presidential Commission of Inquiry to investigate these allegations was being contemplated. A statement issued on behalf of the Bar Council strongly opposed this as an interference with the independence of the judiciary.

15. On 8 February 1983 a five judge bench of the Supreme Court delivered judgment in a very important fundamental rights case which had been instituted at the height of the referendum campaign of December 1980. This was the Pavidi Handa ("Voice of C1ergy"))case and the judges were D. Wimalaratne, Percy Colin Thome, M.N. Abdul Cader and H.Rodrigo.
Pavidi Handa had published an appeal calling for the holding of the genera1 election due in 1983 and asking people to vote "no" to the proposal to extend the life of the present Parliament for a further six years. The Supreme Court held unanimously that the seizure by the Suptdt of Police Gampah, Mr.P.Udugampola, of the pamphlets reproducing this appeal, was an illegal infringement of the right of expression and publication, and awarded Rs.10,000 costs and 2,000/- damages to the Secretary of Pavidi Handa, the Buddhist priest the Ven.Daramitipola Ratanasara.

16. On 2 March the Cabinet decided to promote SP Udugampola, and also to pay the damages and costs awarded to Ven. Ratanasara out of state funds. The state controlled Daily News reported that the decision had been made "in order to ensure that public officers should do their jobs and follow orders without fear of consequences from. adverse court decisions." CRM stated that the step amounts to a governmental, endorsement of the illegal action of the SP who was found guilty by the Supreme Court, throws further doubt on the fairness of the referendum, acts as an encouragement to similar breaches of the fundamental rights of the people by police officers, and has the effect of undermining the role of the judiciary in protecting the rights of the people.

17. On the same day, 2 March 1983, at the same meeting, the Cabinet decided to set up a Select Committee of Parliament to inquire, into the allegations made by Mr. De Alwis against two Supreme Court judges. (The President, who presides at Cabinet meetings, had laid Mr. de Alwis's complaint before the Cabinet.)

18. On 8 March 1983, budget day, Standing Orders were suspended and the motion to set up the Select Committee was rushed through, in the face of strenuous criticism from the opposition. Even at this stage De Alwis's was never tabled or placed before Parliament. Its contents have to gleaned from the allegations to be inquired into which are listed in the text of the resolution. (See Ceylon Daily News of 7 March 1983).

19. The press had published the Order Paper of Parliament containing the resolution to set up the Select Committee of Parliament, which lists the allegations against these two judges.

20. A citizen and a lawyer, S.R.K. Hevamanne, petitioned the Supreme Court in respect of the news item in the government controlled Daily News (a more striking headline than the others). He complained that this is contempt of court. The Supreme Court issued a rule asking the Editor and proprietor to show cause why they should not be punished. The petitioner's argument was that though members of Parliament enjoy immunity under the law, no such immunity attaches to the publication in a newspaper of material which amounts to contempt of court even if it is something that transpires in the course of parliamentary proceedings.

21. On 8 June 1983 the Supreme Court delivered judgment in another very important fundamental rights case arising out of an International Women's Day demonstration.
Again by unanimous decision ( Percy Colin Thome J, J.F.de. Soza J, Rawatte J) it held that former MP Mrs. Vivienne Goonewardene, who had been unlawfully arrested by SI Ganeshanathan of the Kollupitiya police. She was awarded damages Rs.2000/-. (The court said that due to limitations of time imposed by the Constitution it was come to unable to a finding on Mrs. Goonewardene's allegations of having been thrown on the ground and kicked within the police station by another police officer, but recommended that the police investigate these allegations.)

22. The day after this judgment, on 9th June 1983, an official communiqué issued by the Secretary to the Ministry of Defence announced as follows:

"The work done by Sub Inspector V.Ganeshanathan of Kollupitiya Police Station in dispersing a procession conducted by Mrs. Vivienne Goonewardene on 8.3.83 has been gone into and it has been decided that he should be given a special promotion. Accordingly, the acting Inspector General of Police Mr.S.S. Joseph has ordered the promotion of sub inspector V. Ganeshanathan to the rank of Inspector Class II with immediate effect.'

(NB. Mr.Paul Sieghart, Q.C, of the International Commission of Jurists, in a report published in April 1984, states that at an interview with him the President stated that both this and the previous promotion of Superintendent Udugampola were on his instructions.)

23.This press communiqué was published in the newspapers on 10 June 1984. On the following day gangs of thugs created disturbances and shouted obscenities outside the residences of two of the. judges who had delivered this verdict, and the former residence of the third. They were reported to have been transported in buses belonging to the state owned Ceylon Transport Board. Numerous attempts to contact the police by the judges and by neighbours were mysteriously unsuccessful, and no police arrived on the scene till well after the gangs had gone. This despite the fact that by this time the country was under emergency rule and any form of demonstration without permission was illegal unlike at the time of Mrs. Goonewardene's demonstration. The hooligans' placards and slogans all referred to the judgment in the Vivienne Goonewardene case.

24. A public outcry and condemnation by many organisations swiftly followed, and spokesmen for the government promised action against the culprits. But to date no action has been taken.

25. On 28 July 1983 judgment in the contempt ease against the Daily News was delivered. By a three to two verdict (Wanasundere J, Abdul Cader J. and Rodrigo J for, Victor Perera J and Parinda Ranasinghe J dissenting) the court held that the publication was contempt. Rodrigo J observed that it was "self evident" that the publication "is not productive of any public benefit but on the contrary destructive beyond remedy of an almost religious faith that the community holds in the integrity of this institution and its capacity to grant relief. It is this faith that averts civil disorder and resort to extra judicial remedies." In view of mitigatory circumstances no punishment was imposed.

2b In September 1983 it was suggested that the judges of the Supreme Court and the Court of Appeal had failed to duly take the oath against separatism required by the recent Sixth Amendment to the Constitution. The Court House was locked and armed guards placed outside it; the government taking the view the judges had vacated office. It was feared the opportunity would be taken to reconstitute the court with judges more acceptable to the government. However saner counsel prevailed, and the judges was "reappointed". Thereafter, a nine judge bench of the Supreme Court (by a seven to two majority) held that they had in fact duly taken the oath and had never ceased to hold office. The Chief Justice said "there is no doubt that Judges had been denied access to the Courts and chambers by a show of force. There is also no gainsaying that this act has polluted the hallowed portals of these Courts and that stain can never be erased." The seven judges were Neville Samarakoone (Chief Justice), S. Sharvanamda, Rajah Wanasundere, D.Wimalaratne, B.S.C.Ratwatte, J.F.A. Sosa and M.K.Abdul Cader. The two dissentients were Parinda Ranasinghe and H. Rodrigo.

27.In March l984 the Chief Justice Neville Samarakoone made a speech at an award giving ceremony of a commercial tutory which trains typists and stenographers. In it he spoke of the July 1983 ethnic violence, the cost of living, the discrepancy between salaries like the President's and his on the one hand and the lower rungs of the government service on the other, the "job bank" system of recruitment, difficulties encountered in recruiting competent staff for the courts, and other matters. A newspaper report of his speech is reproduced elsewhere in this dossier.

28. On 3 April 1984 Parliament by majority vote appointed a select committee to look into the propriety of the Chief Justice's speech. and to recommend what action if any should be taken in respect of it.

29. On 17 April 1984 the Bar Council of Sri Lanka, by a majority of 62 to 14, expressed grave concern at the decision to appoint a select committee of Parliament to investigate the conduct of the Chief Justice, and called upon Parliament to review the Constitutionality of this move.

30. The Civil Rights Movement has taken the position that the appointment of this select committee, as also the earlier select committee investigating the allegations against Colin Thome J and Wimalaratne J, is unconstitutional. It violates the concept of the independence of the judiciary which is part of the basic structure of the constitution. The actions of such a select committee are outside the scope of the powers of Parliament as they are not ancillary to the exercise of the legislative power. Parliament has no judicial power (except in relation to its own privileges). Under the Constitution, Parliament exercises no supervisory function over judges, in respect of whom its power is limited to removal from office for proved misbehaviour or incapacity. Such misbehaviour or incapacity has to be proved by proper procedure as envisaged by Article 107 of the Constitution. The investigation being conducted by these two select committees is something quite different, for which there is no constitutional provision.

31. As the proceedings of a Parliamentary select committee are held in private, it is not known at the time of compiling this note (May 1984) what has transpired; in neither case has the Select Committee reported to Parliament.

32.In April 1984, at the same time that it appointed the Select Committee to inquire into the affair of the Chief Justice's speech, Parliament also adopted a procedure for the removal of judges under Article 107 of the Constitution. One would have wished it had provided by an Act of Parliament for an inquiry by judges or retired judges, as was done under the identical provision of the Indian Constitution, where the legislature enacted the Judges Inquiry Act of 1968. Instead, Parliament provided, by standing orders, for allegations (if misbehaviour or incapacity to be inquired Into by a Select Committee of Parliament itself. The question arises as to whether this is compatible with the Constitution, in particular with the independence of the judiciary. The provision is open to question in that the inquiry is to be held by members of Parliament themselves. Members of Parliament will thus be acting in a judicial capacity, though the Constitution provides that Parliament shall not exercise any judicial function itself directly (save for the one exception of matters relating to its own privileges which has no application here).

33. In May 1984 Parliament also passed a law seeking to nullify the effect of the Daily News contempt case (see para above). This was the Parliament (Powers nod Privileges) (Amendment) Act. CRM had criticised this proposal pointing out that in this instance the need to protect the courts from political pressure must prevail over the public right to know. Judges need special protection because their role is special. They have a function different from any other public officers. They arbiters not merely between citizen and citizen but also between citizen and State. Under our Constitution, they further have the specific task of upholding the citizen's fundamental rights against encroachment by the State. They cannot be expected to perform these functions effectively in a manner so as to maintain public confidence if an attack in Parliament on their conduct and integrity as judges is given publicity in the press. The proposed legislation would be contrary to the independence of the judiciary which is guaranteed by our Constitution. (CRM document - 01/03/84).

34. However, the constitutionality of this law cannot now be challenged in the courts. Such challenge is possible in Sri Lanka only within a very brief period before a draft law is passed by Parliament.

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