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  INDICTMENT AGAINST SRI LANKA
The Charge is Ethnic Cleansing
EVENTS AFFECTING THE JUDICIARY
A CHRONOLOGICAL ACCOUNT, 1977 to 1984
SRI LANKA CIVIL RIGHTS MOVEMENT,
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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