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When sycophancy
June 1996 Vol. 3 issue
 

Seasons justice

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Piliyandala Pitakotte Ratmalama Thimbirigasyaya WellaWatte
EMBLIPITIYA GALLE
GAMPAHA
GAMPOLA HAPUTALE HORANA HKKADUVVA KADUGANNAWA KALUTARA KANDY
KULYAPITIYA KURUNEGALA MATARA MATALE
MONERAGALA
N'ELYA NEGAMEBO
NIT TAMBUWA PANADURA PILIMATALAWA PUT TALAM RATNAPURA TRINCOMALEE VAWUNIYA VEYAN,GODA WARAKAPOLA WELLAWAYA YAKKALA
New City
Pothgula Thusitha Book Shop Missaka Book Shop Windsor Book Shop Rohana Book Shop Vivian Traders Queens Hotel New Aradhana Traders Vijitha Yapa Book Shop Thaksala Nalanda Book Shop Hema's Book Shop Udaya Stores Davasa Centre Mallikarachchi & Co. Jayathu Hotel Coral Garden Hotel Daya Traders New Owen Joseph Book Shop Guneratne Distributors Seevali Book Shop Vijitha Yapa Book Shop Sithumina Book Shop Malson Book Shop Central Book Shop Sastrodaya Book Shop Sampath Traders Nilmini Stores Malaka TraderS Gamage Stores Sumedha Book Shop Sri Ramya Stores Shop No. 3, (Opposite Municipal Council) Nayana Book Shop, Kandana British Book Center Negambo Printers Co-operative Sales Center Ganga Cool House Fernando's Jayasekera Traders Lucky NeWSpaper Agency Pradeepa Book Shop 470, Navy Camp Road
Somagiri Ranjith Book Shop Suhanda Traders Vidyodaya

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June 1996
COVER STORY 4.
Counterpointexposes thestate of theart of the judiciary inthecountry, paying particularattention to the dangerous
internal politics within the service.
POLITICS 32
Our columnist provides a pithy account of the vicissitudes and volte faces of Lankan politics in the past few months,
20
SPORTS 38
 
 
 

Vol: 3 Issue:7
BATTLE LINESO 22
The story behind the Government offensives, Riviresa 1 & 2, and the cost of this unwinnable and tragic War are documented in this piece.
Dr Hoole analyses the Ways in which a crisisridden ruling elite have Sacrificed their moral legitimacy to govern this country by the use repressive measures of domination and control.
Cover Cartoon KW..Janaranjana
When sycop

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The Tunnela the L
THE country has just come out of the crippling Electricity Board strike, and before that the GMOA held everyone to ransom for a week. Counterpoint holds that legitimate trade union activity is a sine qua non of a vibrant democracy and must therefore be protectedatwhatever cost. Yet, thepast month has seen trade unionism being given a bad name, with the relatively privileged GMOA flexing its collective muscle at the expense of the ordinary people of the land.
Trades union should be permitted to exercise the right to strike as a last resort, and this right cannot be denied even to doctors though it may cost innocent lives. It is crucial for a just democracy, however, that this right is exercised precisely as a last resort when all else has failed. Even with trade union action there is and must be due process, especially if the consequences are so dire. Just as in war there are rules and conventions that should be respected, so too with the legitimate agitation of a group of workers who have a grievance. The GMOA won the day not on the merits of its case, but, rather, on the "terrorism" it exercised under the camouflage of trade union action. In fact, the very legitimacy of its
Victor van WarunaKarunatilake i Dharshini Senerwirathne Charitha Dissanayake KWJanaranjana Dexter Cruez , Daya Kaluarachchi . .
Anuru Graphics, Mount Lavinia Ravaya Publishers (Guarantee) Ltd.
248fantemlm8 hıne 1996
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

it the End of ight
grievance was vitiated by the arbitrariness and intransigence of its behaviour. Even the rekindling of anti-Muslim communalism becamegrist to its millinthesingle-mindedness of achieving its objective. What, really, did the GMOA set out to achieve? Surely not the mere reinstatement on the merit list of the poor "private medical college" graduate(post) interns whom it had fought so hard against in the past? There was also always recourse to the legal system.
No, it is our view that the GMOA wanted to send out a clear and unequivocal message to the Government and the people, sooner rather than later, and on a relatively unimportantissue at that, so there would be no confusion in the future. The message is simply this: anyone who messes with the GMOA, whether it be an individual or the entire Cabinet, will be brought unceremoniously to its knees. What's more, having "won" its demands unconditionally, the GMOA has shown that it needs also to
Unfortunately, the GMOA's victory was a defeat for trade unionism on the one hand, and for democracy on the other. It was only a
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Page 6
ancy
When sycoph
THE judicial system in Sri Lanka has come through a harrowing period. President J. R. Jayewardene who was the undisputed villain of the piece, manipulated the judiciary to accede to his every whim and fancy. When judges did not toe the line, "spontaneous" public opposition was orchestrated and, no doubt, paid for, in order to give them the most chilling of messages. That J. R. Jayewardene
vagaries of successive regimes without the stark exposure of his ruthlessness and all-round perfidy, remains a sad indictment of the complicity of the different power-blocs that control the destiny of this country.
If Jayewardene's was a hard
Premadasa was in a league of his own! His innovativeness and indefatigability led to amazing new methods of stifling and stunting thejudiciary. Though the main themes were the same - Reward and Punish-its variations were virtually infinite, but, of course, subtlety was not his strong point. Thus, it was that the Attorney General's Department became the plaything of Government, some judges and state counsel, appendages of political parties.
The People's Alliance rode in to power on the crest of a wave of public resentment and anger against these and other acts of corruption, nepotism and greed by the UNP in 17-years of misrule.
Their election manifesto included
the promise of sweeping changes in the Constitution in order to make it more democratic. The Presidential System was to be abolished as the first and most important step. Judicial review of legislation was to be introduced. Acts and Clauses that were
inimical to the
fundamental ri; were to be rep sections of the
Ordinance, the P. and the Parliam Act that impir freedom were t( these promises realised. Some,
ceased even to be of the possible.
Interference within
Though the Bench comprise two are career j risen from the ra One of the Anandacoomara held judicial post but is themostju on the Supreme
 

easons justice...
rotection of the ghts of citizens aled. Offensive Public Security ress Councils Act ntary Privileges ged on media be deleted. All have yet to be it appears, have within the realm
the Judicial Service
Supreme Court 11 judges, only udges who have nks, so to speak. e is Justice swamy who has sfor over 35 years hior of the judges Court and who
will have only a few more months to serve. The other is Justice Wijetunge who was originally the President of a Village Counciland became the Secretary of theudicial Services Commission. From there it was one small step to the Appeals Court.
Mostcareerjudgesbegin at the primary courts or serve as Presidents of Rural Courts or as Magistrates. They spendalifetime moving their families right round the country, only to retire virtually where they began. On today's SupremeCourtbench, ninejudges have been taken either from the Attorney General's Departmentor the unofficial Bar. It is important that the Supreme Court has a fair blend of career judges, academics and attorneys, no the overloading that it now contains. The difficulty is that singling out persons from "outside" to serve on the Bench is

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always fraught withdanger. It has been said that either they were writing books appreciative of the family members of some Presidents or they were in the business of drafting the constitutions of political parties, and they have reaped the whirlwind. Instances where judges accepted promotions over their senior colleagues are legion. The contrast between two brothers is a striking illustration of the "system" of promotions in the judiciary which defies any rational logic or precedent. Dr Asoka de Z Gunawardena who serves on the Court of Appeal and his brother Mr. Upali de Z Gunawardena, sixyears his senior at the Bar, provide an interesting COntra St. Justice . Upali Gunawardena who joined the judiciary a quarter of a century ago is still a High Court Judge, while his brother Justice Asoka Gunawardena is soon to be the President of the Court of Appeal. If merit be the sole criterion, thisis certainly wonderful, and a signal exception in the entire public service, but the basis of this assessment must surely be transparent.
Thealegations of irregularities and favouritsm by the Judicial ServiceCommissionareextensive. Among these are claims that promotions areawarded to judges in an arbitrary and indiscriminate manner. Counterpoint has a list of over 30 such appointments which are allegedly irregular. In many cases, very junior magistrateshave been appointed as District Judges, while more suitable senior judges await-their turn and are informed that no vacancies exist. Occasions on which the two memberquorum of the Commission has been violated have even been raised in Parliament. There is an instance where a judge was appointed as a magistrate as soon as she completed her training period whichgoesagainstdueprocedure. There are also some of the more
favoured judge have to leave instance, one ju the Juvenile Cou Fort Magistri Gampaha and be Another begana worked her way Colombo Port, to thence to Gango There are ove the District Judg which cannot be thoseservinginti as District Judg inexperienced a There is no rat scheme by whic promotions an placements ar explained. In suc not unusual for a has 8 or 9 years ex in the wings occupies his/he The other side of that many Dist. reduced to Servin in the lower cour the same reason.
Many of til practices and an their legitimacy made by the Ju Commission (JSC 112 subsectio) Constitution and Gazette on Januar experts have p problems and contained in thes most troubling i. holds that any o Lanka Judicial Se a President of a II can be transferre any court in the District, Magistri Surely, this vests Service Com overwhelming c. power to favoura and against who is no recourseofa It is crucial til such as thejudicia due procedure ar

Cover Story
who don't ever Colombo. For ge moved from to the Colombo es Court to kto Hulftsdorp. Hulftsdorp and rom there to the raffic Court and awila.
10 vacancies in : Grade II cadre illed as many of e District Courts s are relatively djunior officers. onale or merit these arbitrary d preferential justified or h a context, it is magistrate who perience to wait while another rightful place. the same coin is ict Judges are gas Magistrates ts, no doubt for
nese dubious omalies derive from the rules dicial Service ) under Article 8 of the published in the y24, 1992. Many ointed to the on tradictions 2 rules, but the Rule 9 which ficer of the Sri vice other than abour Tribunal | by the JSC to country be it te or Primary. in the Judicial mission al !ntralisation of ddiscriminate, dictates there peal orredress? ut in a service y, impartiality, | transparency
must prevail. Otherwise, the very fabric of the legal system in this country will fray and tatter. The Ministerof Justice, G. L. Pieris who had so much to say about transparency and propriety must realise that justice, like charity, begins at home! The solution is not, of course to dispense with the JSC, nor to have the Minister interfering, but to broaden the Judicial Service Commission, to create a consultative process and to foster transparency.
Many other issues remain, perhaps more mundane, but yet vital for a healthy service. The accounts of the Judges' TrustFund, the (mis)allocation of official residences, thesale of landbought at concessionary prices from the state, the role of the Judges Institute, and so on. Unless and until thejudicial servicehealsitself with a little help from the Government, those seeking justice in Sri Lankamay beforced to seek other venues than the courts, and this tragic path we have trodden too often in this country to remain apathetic while history repeats itself once more.
In this issue of Counterpoint we examine the state of the art of the judiciary in respect of some of the most recent developments that have taken place under the new dispensation of Chandrika Kumaratunga. Notable among these are the appointment of Sarath Silva as Attorney General, the proliferation of Presidential Commissions and their alleged antics, the Jeyaraj Fernandopulle affair and its ramifications of the independence of the judiciary, the alleged favouritism in judicial appointments, as well as a poignant account of the proliferation of defamation and criminal defamation suits by politicians and its impacton media freedom. In addition, our contributors examine the draft constitution as well as the Indian experience for dangers to be averted and lessons to be learnt.
lune 19960Confermalnf84

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The followingjudgementshows theSriLankan Judici far-reaching ruling which held that a listener's fun sudden decision to closedown the Non-Formal Edu architect,Justice Mark Fernando, may be one of tho
Press Rel frce McGia N
The Free Media Movement welcomes th Sri Lanka announced today (May 30, listener in acknowledgment of the fa been violated by the Sri Lanka Broad the Non-Formal Education Programı Adhyapana Sevaya".
In thislandmarkjudgement, Justice Mar three-member Bench, states, "it is \ asserts, and does not hesitate to ex institutions and persons holding pul criticism must be deplored when it i make and publish legitimate critici denied." Not only was it clear to the which the 2nd Respondent (The Cha the stoppage was not bona fide", Jus greater injustice has been done to t these programmes.
inahard-hitting indictment of the entire Fernando writes, "I hold that the suc NFEP (Non-Formal Education Prog done without the consent of those res have amounted to an infringement c being inconsistent with Governmen
The Free Media Movement wishes to dra the Government to this ruling and it structural changes in the SLBC. The C resumption of theNFEP only becausec made such a direction "inappropriate', Supportsthedemocratizationprocessa and nourished by its then Director, Ti.
60Counterpaint-June 1996
 

ary in its Strongest light. This pathbreaking and damental rights were violated by the SLBC's Cation Service, is all the more significantas its Se being marginalised by this administration.
Ascbv Movect
e decision of the Supreme Court of 1996) to award compensation to a ct that his fundamental rights had lcasting Corporation's stoppage of me, popularly known as the "Nava
kFernando writingonbehalf of the Avell to rennember that the media ercise the right to criticise public iblic office; while, of course, such S without justification, the right to sm is too deeply ingrained to be Court that the "undue haste with irman, SLBC) acted suggested that stice Fernando indicates that even he persons who were working on
systemat work at the SLBC, Justice lden and arbitrary stoppage of the ramme was not justified, and, if ponsible for its production, would if their freedom of speech, besides
policy on Media Freedom."
w the attention of the Minister and s clear implications, which call for ourt has not explicitly asked for the f the delayinhearing this case which but the Substance of the judgement ndparticipatorypracticesintroduced ak Jayaratne.

Page 9
The Fernandopu independence
THE application to revise the Supreme Court decision in the Jeyaraj Fernandopulle Case has extremely dangerousinplications for the independence of the judiciary. Why?
Article 126 of the Constitution gives the Supreme Court sole and exclusive jurisdiction in the area of fundamental rights. The court is also the final court of appeal in thecountry. It consists ofbetween six and ten judges. The work of the courtisdivided. All the judges do not hear all the cases. In most instances a bench of the Supreme Court consists of 3 judges.
In certain special circumstances, the Chief Justice or two judges hearing the case, may feel that a larger bench should hear the case. A party to the proceedings may also apply for such a larger bench, and if the RFChiefJusticeissatisfied thatinhisopinion thequestion involved is one of general and public importance, he may direct that a bench of five or more judges hear the case.
This is usually done before the case is heard or during the proceedings if an important or controversial issue were to arise. In any event, the convention has also developed that if a five judge benchistobeconstituted the three judgeshearing the case are consulted and appointed to the largerbench. This is to ensure that applicants and their lawyers do not engage in "bench fixing".
For example, in 1994, in Hettiarachchi v 8&&tူမျိုဝှိပ္y:ို proceed with the application was initially refused. The petitioner sought to have the matter heard by a bench of five judges to enable further submissions to be made. The Chief Justice referred the case to the judges who had made the initial order. They granted the petitioner leave to proceed.
In 1995, in the case of All Ceylon Commercial and Industrial Workers Union v The Petroleum Corporation after the judgement was delivered, the petitioner sought to have the judgment revised. The
 

Cover Story
le Case and the of the judiciary
matter was considered by the same bench which had heard the case earlier and the application for revision was rejected.
These practices are adopted inter alia to prevent independent judges from having their judgments reversed without their participation, by other judges on the court, who may be less impartial. Cases such as this will only consolidate perceptions of division on the Supreme Court between "pro-government" and "anti-government"judges, which, in turn, can only resultinerosion of public confidence in the judiciary.
The application for revision in the Fernandopulle Case is disturbing for several reasons.
It seems as if the application was made when the Chief Justice P was out of the country, and the matter speedily disposed of by the Acting Chief Justice, the controversial Tissa Dias Bandaranayake, during theChristmasholidays, before the Chief Justice returned. Why couldn't the matter have been left for consideration by the Chief Justice on his return?
The judges who decided the case, Justices A.S. Wijetunga, Mark Fernando and Priyantha Perera, who dissented, were neither consulted - the matter was not referred to them for consideration - nor were they appointed to the five judge bench which is due to hear the case in June. What necessitated this departure from established practice?
There is considerable pressure on the Bar ASSociation to intervene in this matter, which is seen as an attempt by sections of the executive and the judiciary to intimidate independent judges. Junior members of the Bar Association are perturbed by the lackofstrong leadership at the helm of theassociation. R.K.W. Goonesekere who appeared for Mr. Fernandopulle in the earlier case has declined to appear for him in the controversial revision application. The conduct of the bench and the bar and the Government will be closely watched as this controversial case commences in June.

Page 10
šix 鄒
雛 & ర్గ
: کس سے۔
* *NS*27& 2 ***274
雛
Alaw untot
WHILE it is vital that the Constitution and laws of the country protect the independence of the judiciary, it is also important that judges do not think of themselves as supermen.
The judges' attitude to criticism of their judgments and performance is old fashioned and inconsistent with more liberal trends throughout the world. A Committee chaired by R.K.W. Goonesekere, appointed to recommend reform to the media laws of the country, has proposed the enactment of a Contempt of Court Act modelled on British and Indian legislation, in an attempt to liberalise and clarify the law on the subject. The controversial Supreme Court decision of Justices Mark Fernando and Dr. A.R.B. Amerasinghe in In re Garumunige Tillekeratne (the Divaina Case) which reflected a conservative attitude that has been abandoned in
most modern democracies, made it
clear to human rights activists and
academics that the Sri Lankan
judiciary left to itself would not
s follow a more liberal trend.
Last year, some judges who
attended a conference on the Environment had walked out when a
young State Counsel was about to address the gathering. The judges
 
 
 

hemselves?
considered it infra dig to listen to a lawyer who appeared before them in court. The logic of this argument is that a judge can never listen to a talk given by an Attorney at Law Can judges only learn from other judges? This attitude is one of the reasons for the failure of the Judges Institute which has no links with the Faculty of Law or the Law College. In other countries, judges, lawyers and academics often meet together to discuss issues and new trends in the law. It is not surprising that given the attitude of judges in Sri Lanka, this hardly happens.
Retired judges have carried this insular and pompous attitude even further. They have decided that they should not serve on Commissions or Committees unless they preside over them. What is the reason for this attitude? Following this decision, former Supreme Court judge Justice M. Jameel resigned from the Official Languages Commission because Charles Abeysekere, and not he, was the Chairperson. Sixty years ago, Lord Atkin observed that
Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, eventhoughoutspoken, comments of ordinary men (sic).

Page 11
The draft Con the independenc
Rohan EdriSinha
AS the Select Committee on Constitutional Reform flounders on, and public attention focuses on devolution, fundamental rights and the Executive Presidency, it is important not to forget other, less dramatic, but equally vital constitutional provisions. The protection of the independence of thejudiciary, theinstitution which ultimately is the guardian of constitutionalism, must be a key objective of any good constitution. It is, therefore, disappointing that the Government's draft provisions released so far, fail to overcome the numerous defects in the present constitution, that have been highlighted by commentators and constitutional lawyers since 1978. Indeed, apart from a few improvements, it seems as if the Government has merely reproduced the present provisions on the independence of the judiciary.
There are three cardinal areas which need to be focused upon: 1. The appointment process. 2. Security of tenure. 3. Freedom from Executive interference and control.
The Appointment Process
The main shortcoming in the present Constitutionis thatjudges of the Supreme Court and Court of Appeal are appointed at the sole and exclusive discretion of the President. There is no
ratification pro United States appointment recommendation or group of per Constitution prov Justice to be a present, but requ to consult the C regard to the app. judges of the Sup Court of Appeal. It is surprisin Constitution doe the appointment court judges to President on the Constitutional rationale for the Council was thatk should be filled b or, at least, a bi consisting of p important posit Judges of the S should surely ha the obvious class appointed on ther of the Council. where the i Constitutional Co judges are app Council.
The Draft provisions in tl inadequate. Inde argued that the be retrogressiv requirement that be consulted, co incentive to app Chief Justice fi Attorney General the unofficial Bar Another way
 

Cover Story
stitution and e of the judiciary
ess like in the
nor is the made on the ofanyinstitution Sons. The Draft ides for the Chief ppointed as at res the President hief justice with intmer of other reme Court and
g that the Draft s not provide for
of all superior pe made by the 2 advice of the Council. The Constitutional (ey public offices ya non-partisan -partisan body, arsons holding ons ex-officio. uperior courts ve been one of of persons to be ecommendation in Nepal, from dea of the uncil originated, pinted by the
onstitution's is respect are ed, it could be roposals could in that the he Chief Justice ld Serve as an nt a "friendly" om either the Departmentor
of curtailing
sitting
political interference at the appointment stage, is to specify basic qualifications for judges appointed to the Superior courts. The present Constitution merely declares that
The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand. (Article 107 (1)). The trend in a number of modern constitutions is to lay down basic qualifications. The Draft Final Constitution of South Africa, released in November 1995, provides for two options for the appointment of judges, both of which curtail the discretion vested in the President.
Option 1 focuses on constituting an independent and representative group to nominate the judges. It provides for the President to appoint judges on the advice of a Judicial Service Commission that consists of, inter alia, the Chief Justice, the President of the Constitutional Court, the Minister of Justice, two nominees of the advocates' profession, two nominees of the attorney's profession, a professor of law designated by the deans of law faculties, and foursenators elected by a two-thirds majority of its membership.
Option 2 focuses on the qualifications of those selected. Judges of the Constitutional Court must be selected from among judges, attorneys, advocates or lecturers in law with

Page 12
at least 10 years experience, or persons"who by reason of training cr experience" have expertise in the field of constitutional law. Judges of the Supreme Court should have ten years experience as either an attorney, advocate or lecturer in law at a university.
TheConstitution of Nepal 1990, which was drafted with the assistanceofseveralconstitutional experts from across the world, including Dr. Neelan Tiruchelvam, in addition to providing that appointments should be made on the recommendation of the Constitutional Council, also specifies qualifications for judicial nominees. Article 87 (2) of the NepaliConstitution provides that "a person who has worked as a judge of the Supreme Court for at least five years is eligible for appointment as Chief Justice." Article 87 (3) provides that Any person who has worked as a judge of an appellate court or in any equivalent post of the judicial servicefor at least ten years; or has
practised law f years as a lawg or Senior advo, distinguished uvorked for atle thejudicial or le for appointmen Supreme Court Another way un trammelled d President with appointment of provide for the ra appointment by institution like a
The draft provisions with appointment of improved.
Security C
A Surprising Government's c relates to the gro procedure by wł be removed from J.R. Jayewarder harassed judges
 

or at least fifteen raduate, advocate Cate; or who is a jurist who has ast fifteen years in galfield, is eligible t as a judge of the
of curtailing the iscretion of the regard to the judges, is to ification of such an independent Senate. Constitution's regard to the udges must be
fTenure
Omission in the raft proposals (nds for and the ich judges may office. Since the e Government who withstood
executive pressure by hauling them before Select Committees of Parliament, and by allowing Members of Parliament to sit in judgmenton the conductof judges and even interpret the Constitution, one would have expected a new Constitution to preventsuchasorry spectacle from being repeated.
There is a powerful argument that a Select Committee of Parliament exercising what amounts to judicial power is unconstitutional. Though there is a certain amount of ambiguity in Article 4 (c), the interpretation which promotes the values of constitutionalism, is that the only exception to the principle that judicial power has to be exercised through courts and other institutions, is when Parliament may exercise judicial power directly with regard to its own powers and privileges.(Even this exception is controversial).
Justices Wimalaratne and Colin-Thome were subject to the indignity of having to persuade a

Page 13
committee of Members of Parliament that they were not "anti-UNP." Later, Chief Justice Samarakoon's alleged misbehaviour was investigated by a Select Committee. The Chief Justice questioned the constitutionality of a Select Committee of Parliament inquiring into the conduct of a Supreme Court Judge. This highlighted the absurdity and dangers of such an exercise. The Select Committee rejected the argument based on the constitutionality of the Select Committee! The Members of Parliament adjudicated upon a difficult question of constitutional interpretation with regard to the meaning of Article 4. This was done notwithstanding Article 125 of the Constitution which declares that the Supreme Courtshall have sole and exclusive jurisdiction with regard to constitutional interpretation.
It is totally unsatisfactory to have MPs usurping the role of the judiciary in the important area of constitutional interpretation and sittinginjudgmenton the conduct of judges. The draft Constitution, regrettably, will allow this to continue.
Freedom from Executive Interference
and Control
Several provisions in the present Constitution whichenable the Executive to interfere with or pressurise the judiciary are reproduced in the draft Constitution.
It has been pointed out by several commentators that having different ages of retirement for judges of the Supreme Court and Court of Appeal may compromise judicial independence. The draft Constitution reproduces the present provision which declares the age of retirement of judges of the Supreme Court to be sixty five years and judges of the Court of
Appeal tobesixty the hint of execut must be ruled ou that a Court of approaching reti who would nati crown his career apex court of the susceptible to exc warrants conside The age of r judges of the a should be sixty f Article 99 (1) draft Constit reproduces Artic of the present C also serve to independence of The paragr follows: 99 (1) A judge of t or Court of App by the Presiden perform or dis appropriate di under any wri (2) No judge of the Court of Appea other office (wl or accept any emolument, ex by the Constit law or with the the President. These prov subjected to abus and should there The Preside require a judge functions can President to in judiciary in Seve a) "friendly" appointed Commission fostering the there are pr anti-executiv b) "hostile" judg are perceived by the Govc convenien til appointing th Commission ensuring that on the court

Cove Story
three. Sinceeven ive intimidation ut, the argument Appeal judge rement age, and urally desire to with a seat on the a land, might be acutive pressure, ration. etirement of all ppellate courts ive years. ) and (2) of the ution, which le 110 (1) and (2) onstitution, can undermine the
the judiciary. aphs read as
he Supreme Court eal maybe required it of the Republic to scharge any other uties or functions tten law.
Supreme Court or lshallperformany hether paid or not) place of profit or cept as authorised ution or by written written consent of
isions may be eby the Executive forebeamended. 2nt's ability to to perform other be used by a terfere with the ral ways: judges can be to various nS, thereby impression that o-executive and e judges. es orjudges who as independent rnment, can be y sidelined by em to innocuous ns, thereby t they cannot sit for a period of
time. To take an extreme example, if JusticeXis"hostile", s/he can be appointed to a Commission to investigate sightings of UFOs in Moneragala and be asked to submit his/ her report in 3 months. This will effectively preclude him from hearing cases on the court for that period. c) The granting of the power to permit, or bar, a judge from performingany other function, to the President also opens up the possibility of the application of subtle pressure. If, as is rumoured to be the case at present, judgeshave to apply to the President for permission to leave the country, this too is inimical to a judiciary which is free from fear and favour. Judges should not be liable to be called upon by the President to perform other functions. At the very least, the Chief Justice's concurrence should first be obtained.The Chief Justiceshould be entrusted with monitoring the acceptance of other offices and foreign travel, if such monitoring is considered necessary.
Another staggering omission, which must surelybean oversight, isthedeletion of thepresent Article 106 which provides that the norm, subject to a few exceptions, is that all judicial proceedings are open to the public.
The provisions on the independence of the judiciary demonstrate the sad pattern that has unfortunately marked the IPA Government's draft constitution in general. It contains marginal improvementsin several areas, but no more. The promise of a radical departure, a totally new constitutional ethos compatible with the values of constitutionalism, a Third Republican Constitution which is a major improvement on the first two Republican Constitutions, looks set to be one of the major broken promises of the People's Alliance Government.
June 19960Counterpointell

Page 14
Omission of CON
THE Special Presidential Commission of G
Inquiry Act of 1978, a legacy from the F Jayewardene Government, has aroused S renewed concern. Not only are its al provisions controversial, but the C
appointment of the Commissioners and the th operation of the Act have been criticised as H
undermining the administration of justice, al the independence of the judiciary and the E; Rule of Law. th It got off to a "flying start" when invoked cc to carry out proceedings against Sirimavo cc
Bandaranaike, Felix Dias Bandaranaike, C | Nihal Jayawickrema and other key rth personalities of the United Front h; Government of 1970-77. The unfair Lá measures adopted by Parliament to deprive he these persons of their civic rights were hi eloquently recounted by Minister G.L. C
Peiris, in Parliament recently.
Quite besides, the merits of the Act itself, he
there is a powerful argument that the fu appointment of sitting judges as a. Commissioners, apart from having serious S.
repercussions for the administration of justice also serves to undermine the independence of the judiciary and cause confusion in the mind of the average citizen for whom the legal system is intended to function. The confusion is further confounded when sitting judges are called
upon to act as Commissioners into matters S having a chiefly, if not solely, political in flavour. Such proceedings will enmesh the A judge in emotive political issues or create r the impression that certain judges are the in "political favourites" of the Government in E power, a most unfortunate and unenviable th position for a judge to be placed in. This is St. more so when the appointment is made at in the sole discretion of the Executive and no Sc specific procedure is spelt out for 毅 tO nominating or appointing a particular judge, ca whatever conventions are claimed to be D followed. 畿 C
Desmond Fernando, President's Counsel and former President of the Bar Association, ac in an address to the Inter-Parliamentary S
120 coursepoint0 June 1996
 

missions in law
roup reported in the Sunday Times of 18 bruary 1996, advocated both the repeal of the pecial Presidential Commissions of Inquiry Act nd a prohibition on sitting judges serving as ommissioners. His argument is that it tarnishes e reputation of those who accept appointment. e also states that in the first Commission pointed by the present Government, the cecutive first made the appointment and ereafter the Chief Justice was a proforma insultant. The appointment was not after onsultation with or on the recommendation of the hief Justice. Mr. Fernando also alludes to the fact at after the Vijaya Kumaratunga Commission ad commenced sittings, the President of Sri anka had publicly declared that she knew who ld killed the late Mr. Vijaya Kumaratunga, thus ghlighting the unhappy situation in which the ommissioners could find themselves.
While praising the fact that the Supreme Court as in recent years been strong in the area of ndamental rights litigation as in the Janagosha ld Wadduwa Cases, he decried sitting judges rving on Commissions stating that
the general point to be made is that it divides judges into two categories those who pickup crumbs from the executive andwag their tails are clearly the pet poodles of the Government. The others are watchdogs of the rule of law. The standing of the judiciary has been very seriously affected. Nihal Jayawickrema, another "victim" of the pecial Presidential Commissions of Inquiry Act, an article published in the Sunday Times of 14 pril 1996, calls for the repeal of the Act. He also fers to the Commissioners who carried out the quiry against him as being handpicked by the cecutive and granted special favours. Two of the ree Commissioners were appointed to the new preme Court and found themselves way ahead Seniority and with extended terms of office. me members of the Supreme Court sitting prior its "reconstitution" lost their position without use or compensation. The third Commissioner, a istrict Judge secured a "double promotion" to the purt of Appeal.
Recently ripples have been caused by the 33.3::::::::::::: tivities of some of the new Commissions. There concern at the delay in the publication of the

Page 15
report of the Vijaya Kumaratunga Commission. The Commission of Inquiry into various malpractices, consisting of Justices Priyantha Perera, F.N.D. Jayasuriya and Hector Yapa has been accused of breaching parliamentary privilege by making certain pronouncements against parliamentarians. This arose as a result of a Commissioner stating that the Commission would not be intimidated by
juvenile chirpings emanating from Parliamentarians hiding behind the cloak of parliamentary privilege, This led to several Members of Parliament raising the issue of a breach of Parliamentary privilege with the Speaker.
Controversy was also sparked off when it was reported that one of the Commissioners on the Kobbekaduwa Commission, Justice D.P.S. Gunasekera, a highly respected judge had భ resigned. A report in The Leader of 10 March 1996 stated that the Additional Solicitor General's passport had been impounded by the Commission Justice Gunasekera who had still not resigned at the time was apparently unaware of such an order. The Sunday Times of 10 March 1996, in its lead story, reported a fiery exchange between Justice Gunasekera and the Chairman of the Commission, Supreme Court Judge Tissa Dias Bandaranayake. The one man show continued when Chairman Bandaranayake read out an order of the Commission explaining Justice Gunasekera's resignation, which had not been shown to the third Commissioner, High Court Judge Gamini Amaratunga. This prompted a walk out by Commissioner Amaratunga and his resignation from the Commission. There was great difficulty ir finding a replacement.
The impounding of Upawansa Yapa's passport caused a stir in the Bar Association of Sri Lanka. Younger members of the Association were perturbed that the President, Mr. Daluwatte and his committee were not objecting more vigorously, and threatened to breakaway from the association There was also mention of the matter being taken up with the Commonwealth Secretariat. Subsequently, High Court Judge Edussuriya was appointed to sit with Justice Bandaranayake on the Commission and the order impounding the passport of Upawansa Yapa revoked. There is speculation that the fact that lawyers and academics were to raise these issues both locally and internationally, scared the Government into relenting.  ́ို ့့့့်််် ့်် .. `:့် ် .
However, the damage has been done. To the

Cover Story
average layman, all these reports and expose's, at the very least, create discomfort. Are judges being unreasonably exposed to political controversies creating an impression of partisan thinking, and does the executive do justice to the system of justice by appointing sitting judges? Does not the role of a judge become quite confusing when Commission proceedings are conducted within court rooms or court complexes? What of a situation where judges on Commissions are provided additional vehicles and even back-up vehicles and security? Who pays the Commission and the Commissioners
The present Government must be commended for permitting a degree of press freedom and public criticism, unlike in the past. Yet there is much that has to be done to ensure a fair administration of justice and the independence of the judiciary, especially by preventing political or other interference.
The Minister of Justice, Professor G.L. Peiris with his characteristic grandiloquence in public speeches regularly upheld the importance of the independence of the judiciary. His speech denouncing the deprivation of Mrs. Bandaranaike's civic rights was also hailed for its erudition. The Daily News reported recently that his address to the Commonwealth Law Ministers' Conference had received accolades from the participants and that he had been invited to prepare an international code of conduct for the judiciary. For the eloquence of speeches and professed intentions to be meaningful, practical and positive measures should be implemented first at home, in our little island. The logical consequence of Professor Peiris' eloquent speech on the deprivation of Mrs. Bandaranaike's civic rights must surely have been the repeal of the obnoxious legislation that enabled such action. The logical consequence of declaiming purple passages on the importance of the independence of the judiciary, must surely be to ensure that the judiciary is protected from interference from an executive in which one is the Minister of Justice.
Talk, even of the politically correct variety, is cheap. Minister Pieris' penchant for basking in the borrowed glory of fine speeches is well-known. What he needs to establish is that he has the courage of others' convictions
June 19960Counterpain.913

Page 16
The Ju (
The need to the Indian
Kishali Adhikari
INHulftsdorp, a certain subtle tension underlies casual conversation. Much is said, much remains unsaid and ominous comparisons are made with a darker past.
Indeed, thereis reason for such disquiet. Warning signals of tension between the Government and the judiciary has been present for some time. It was not so long ago that President Chandrika Kumaratunga somewhat rashly accused a particular Justice of the Supreme Court of giving discriminatory orders against her Government in the famous liquor licences cases. Theallegation were factually incorrectasnotonejudge but the entirety of Supreme Court judges, excepting one who had been on leave at that time, had made the orders in question.
Hulftsdorp pondered over these remarks and braced itself for the storm that was to follow. It did not have to wait long. In the month of November 1995, a majority of the Supreme Court ruled that certain remarks made by the Deputy Minister of Plan Implementation and National IntegrationJeyarajFernandopulle in Parliament could be used as evidence in a fundamental rights case against him. Justices AS Wijesingha and Mark Fernando gave the majority decision against Fernandopulle while Justice Priyantha Perera dissented on the basis that Fernandopulle's
COmentS Were reply" tojibes th opposition memb By that time, J had been subjected personal criticis Minister Fern Parliament. The II then filed an app for a revision of h a fuller bench C Court. Jus Bandaranayake v Chief Justice at th the revision appl consulting memb{ bench who were to sit on the revis
Acrimonious on these issues bc Court Justices Ma Tissa Bandaranay opensecretin Hul time. The lette: animosity which curiosity but ha inspire public cc judiciary.
Further dispu courts were app. commissioners Kobbekaduwa resigned ov disagreement Bandaranaike. T senior law offic Additional Sol Upawansa Yapa by Justice F reportedly concurrence of commissioners. that this was Commission wis
140 counterpoint June 1996

iciary
learn from Xperience
erely a "fighting own at him by EerS. ustice Fernando l to unrestrained m by Deputy andopulle in Deputy Minister lication seeking is judgement by f the Supreme tice Tissa who was acting at time allowed lication without ers of the original also not invited ion bench. correspondence 'tween Supreme rk Fernando and take has been an ftsdorp forsome is revealed an titillated general rdly served to infidence in the
tesin the higher arent when two of the Denzil
Commission 2r personal with Justice he passport of a er of the land, icitor General was impounded andarana yake without the the other two It was explained because the hed to interview
Mr Yapa. Rumour mills began working overtime and even though Mr Yapa's passport was returned to him and he was appointed as Solicitor General, the damage had allegedly been done. Judicial dissent of this nature does not spring forth unaided. Such bitter public carping over petty issuesis nota normal part of the judicial process. For such a situation to occur in the functioning of our courts, executive interference in the judiciary is unavoidably pressured to a greater or lesser extent. This, Sri Lanka has seen in the past. Wheneveragovernments felt that the judiciary was asserting itself too strongly against the legislature or executive, it has acted swiftly and most often unscrupulously. Political manipulation of the judiciary has had along history in Sri Lanka. Under the United Front Government in the seventies, relations between the court and Justice Minister Felix Dias Bandaranaike became strained when overtly political appointments were made to high judicial office. Parliament and the Constitutional Court clashed head on over the PressCouncil Bill when the legislature decreed that the courthad no discretion to liberally interpret a specified time limit within which to determine the constitutionality of the Bill. The entire court resigned and the Government was compelled to appoint a fresh court.
Come 1978 and subjugation of the judiciary to the executive

Page 17
reached a new low when the higher courts were "radically reconstituted" by the UNP governmentindefiance of normal constitutional traditions. Eight former Supreme Court judges weredropped from thenew Court and three of their erstwhile colleagues demoted to the COurt of appeal. Subsequent developments were not for the better. The UNIP Government delighted in showing open contempt for the Supreme Courtbypromoting police officers responsible for the violation of fundamental rights and paying their damages and costs. Procedural difficulties in judicial officers taking the oath of allegiance under the sixth amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal and refusing entry to judges who reported for work. Houses of judges were stoned and vulgar abuse shouted at them by thugs.
"The judiciary would pose difficulties for the executive if they are wholly outside anyone's control", said former President JR.Jayawardene, commenting on these incidents. Inevitably, political violence against the judiciary had an effect on the robustness of judicial decisions. Conscious of its constitutional responsibility to prevent abuse of power, the Supreme Court has however been even more conscious of the dangers of confronting a Government determined togetits own way. In many instances of bla tant subversion of the democratic process, therefore, the Supreme Court has preferred to rake refuge behind tortuous legal reasoning and ignore the real issues involved. Thus it was that
in 1982, wh
government ma with time-hon traditions and referendum for a that was then d Court upheld th Government. In
Vilak Karu
Thirteenth Amen Court was againp in refusing to en; on the substant demerits of de approving theam technical basis th violate the unita state. More recer Expulsion Case upheld the UNP members involve impeachment mc then President R expelled UNP frontliners Lalith and Gamini
complained that
 
 

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in the UNP e a rude break ured electoral substituted a general election le, the Supreme decision of the the subsequent
expelled unfairly, without any charges being served on them and without a hearing being given to them. The Supreme Court preferred to state that the Working Committee had no choice but to act with speed and take disciplinary action against the petitioners. The rules of naturaljustice were held not to be applicable in the instant case.
Apart from these three politically important decisions, the generalmannerinwhich the Supreme Court exercised its fundamental rights jurisprudence also revealed its innate reluctance to get embroiled in controversial political disputes. While the Court showed occasional bursts of sympathy in individual cases, on the whole its attitude was shaped by somewhat excessive caution and restraint.
The Nineteen Nineties, however, saw a gradual change, with the judiciary taking a
maratime MMA2
diment Case, the olitically correct gage in a debate ive merits and
olution while
endments on the at they did not y nature of the t times saw the where the Court lecision to expel d in the abortive tion against the Premadasa. The rs including Athulathmudali
Dissanayake they had been
firmerstandon issues of democratic governance. In 1993, the Provincial
Governers Case decided that the
appointment of a Chief Minister by a Governer was not a purely political matter and therefore immune from judicial review. The court claimed the power to decide whether the Governer's action was reasonable and stated that in the instant case, the appointments should be set aside and fresh appointments made. This case in particular, is interesting as the court could have taken the easy way out and pleaded political discretion as a reason for noninterference.
Similarly, in the Thilak Karunaratne Case, the Supreme
June 19960 counsepoint 15

Page 18
Court declared that a member of a political party is nota merecogin the party machine. The Court emphasized a fairbalance between maintaining party discipline and thefreedomofanindividual party member to exercise his freedom of expression. This right should be allowed to him specially whenitis used to call for democratic reform of his own party, the Supreme Court said, and ruled that the expulsion of SLFP MP Thilak Karunaratne from his party consequent to him giving a controversial pressinterview was not valid. It should be remembered, however, that this case involved a dispute within a Opposition party and not the Government unlike in the potentially explosive Expulsion Case.
In general, the Ninetiens saw the Supreme Court exercising a more activist fundamental rights jurisprudence. It showed itself more willing to hold the executive responsible forabuseofpower. Several instances of judicial boldness in challenging the Governmentillustrates this point.
In Mohamed Faiz vs. The Attorney General, a Wild Life Dept. ranger obtained relief from the Supreme Court against two members of
non-violent c Government. M of torturecoming thejudicial attitu neutrality to gra in theabsenceof. The State was he suspect was pro assaulted while even if it could established as to the injuries.
The IPA gover into power at a higher courts wi free themselves fi and embark on decision-making lines of the Indiar In that sense, it is conflict between and the Judiciary in such an obvio also quite unnece and a half yearso judicial activis
Both this case a Fernandopule revis due to COme upbe Court in the middle Way the Sri Lankan
Only time
Parliament, a Provincial Council Member and three police officers. The Court pointed out that the assault, arrest and detention of the petitioner took placeasaresult of the policebeing pressurized by the politicians and held that they should all be held accountable. Evenprivatecitizens canbeliableundertheconstitution if it is shown that they instigatedofficers of the State to violate the rights of citizens, the Court stated. In another landmark judgement, the Jana Gosha case saw the Supreme Court admonishing police officers for interfering in
apparent only Fernandopule ca Theliquorlice negligible interm effect while the worthy of note decided Pro vir Dissolution Case. of Appeal ru dissolution of th and Sabaragam Councils by th Governers acting President was b Constitution sp Governersarebou
160 counterpain June 1996

ticism of the inwhile, in cases pefore the Court, le changed from ting relief even edical evidence. d liable where a ed to have been police custody
not clearly be tho had inflicted
ment thus came time when the re struggling to om pastlegacies, vibrant judicial , much on the Supreme Court. unfortunate that he Government should surface us manner. It is ssary. In the one f IPA rule, strong m is arguably
of the Chief Ministersindissolving Provincial Councils, stated the Court of Appeal.
Within days of dissolution, it had become apparent that this was a particularly ill-judged move by the Government. Some of the foremost lawyers and legal academics in the country had pointed out that the Constitution specified a clear procedure for dissolution of a council which had not been followed in the instant CaSe.
In the face of such a clear consensus on the constitutional position, the judgement of the Court of Appeal cannot be described as startlingly activist to say the very least. Both this case and the Jeyaraj Fernandopulle revision application are due to comeupbefore theSupreme Court in the middle of this year. Which way the Sri Lankan judiciary will turn, only time will tell. The position in which Sri Lankan judges find themselves is in a stark
nd the Jeyaraj iOn application are fore the Supreme of this year. Which
contrast to their fellow judges in India.
Judicial history in India has had its dark moments. But executive manipulations of the
Indianjudiciaryhasin the judiciary Will turn, main backfired on the Will tell. Government. The Indian
in the Jeyaraj SC.
ices orders were of real political other decision s the recentlycial Councils Here, the Court ed that the North Central wa Provincial ir respective in advice of the d in law. The ifies that the !d by theadvice
Supreme Courtisamajor force in the political process and the conflicts that it has had with the Government over the past thirty years are legion.
The court possesses the power of overturning decisions of the Parliamentand Cabinet which our court does not have. This power has been effectively used by the Indian Judges to curtail Governmental abuse of authority. In the Folaknarh case, the court ruled that Parliamentary power to amend the constitution was limited and in the later case of Kesavananda Bharathi, asserted that Parliament could not touch

Page 19
what was referred to as the "basic features" of the Constitution.
Aspioneer of judicial activism, Justice.PNBhagwatiobserved this decision was obviously due to judicial fears that Prime Minister Indira Gandhi might use her monolithic majority in Parliament totamper with the Constitution. Soon after this decision, three senior Supreme Court judges who constituted a part of the bench that heard the case were superseded and another judge appointed as Chief Justice. Subsequently, in 1975, an obscurejudge of the Allahabad High Court, Justice JMD Sinhar ruled that Mrs Indira Gandhi was guilty of corruptelection practices which disqualified her from holding public office for the next six years. The national uproar this decision generated led to the imposition of emergency rule by the Government thirteen days later. The Prime Minister appealed to the Supreme Court. On the very day that the appeal was to have been heard, Parliament passed legislation meant to put Mrs Gandhi's election beyond challenge. In an unprecedented show of judicial strength, the Supreme Court struck down a particular part of the legislation that directed the Supreme Court to allow Mrs Gandhi's appeal and to dismiss the cross-appeal of her rival.
During the emergency that followed, the Government embarkedona systematic process of stifling legitimate criticism of its rule. Strict censorship was imposed on the reporting of judicial and parliamentary proceedings. Preventive detention and the Maintenance of Internal Security Act (MISA) were calculated to terrorize the governmental opponents. But arbitrary detentionand censorship was challenged by several High
Court judgemen fifty six unpopu High Court w without their
But executive ma Indian judiciary backfired on the Indian Supreme CO
in the political
conflicts that it GOVernment OVE
years all
Supreme Court threat witl constitutional a suggested the cre body superior Court.
The combine acts of political te too much. The gave way before in the Habeas Co the Supreme C Justices Bhagwat ruled that no citi to challenge ano on the ground t mala fide. Parlial laws which constitutional ar beyond judicia indeed was India hour.
Matters, hov after the Janata powerin 1977. Th position of the Su restored and in t case, the Suprem its authority Parliamentary fundamental features.Judicial a temporary setb Case when gove of transferring I was upheld by th but, ingeneral,th for itself a new a

Cover Story
S. Consequently, lar judges of the ere transferred
consent. The
nipulations of the has in the main Government. The urt is a majOro force process and the
jurisprudence.
Innovative decision-making brought the Government to order in many areas of Socio-economic reform. Public interest litigation made the Supreme Courtin trutha forum to which the poor and the disadvantaged could come for relief. Judicial action was taken merely on thestrength of a letter being addressed
has had With the to court. Judges.
appointed a commission r the past thirty of inquiry to gather facts Pe legi0n. on matters that come up
also came under proposed mendments that !ation of a judicial to the Supreme
d effect of these arror proves to be Supreme Court the Government orpus Case. Here, ourt, including iand Chanrachid Zen has standing rder of detention hat it is illegal or ment then passed specified that nendments were ll review. This 's darkestjudicial
wever, changed Party came to le pre-emergency preme Court was he Minerva Mills Court reasserted by limiting lower to amen, constitutional activism received ack in the Judges 'rnmental policy ebellious judges eSupreme Court Court fashioned nd revolutionary
before them in a unique departure from tradition. The legitimacy of the Supreme Court among the Indian people grew in stature and has now reached its zenith with the Court decisively intervening in investigation into the"jainhawala" corruption scandal. In a controversial move, the Supreme Court ordered that the scandal which has implicated several major political and business figures should not beinvestigated under the authority of the then Prime Minister, Narasimha Rao.
The Central Bureau of Investigation (CBI) which had been dragging its feet on the inquiries for some time was taken to task by the court. The head of the CBI was ordered to report regularly to court on the progress of theinvestigations and was made personally accountable. Judicial attitudes in this issueshashowever come in for sustained criticism by some who feel that this time, the Supreme Court has gone too far.
Looking back at the past, the Indian Supreme Court can justifiably feel proud of itself in the manner in which it has
responded to executive and
legislative displays of political arrogance.
Perhaps Sri Lanka may be as fortunate at some point, even in the distant future.
June 19960 counterpoint 17

Page 20
The A. G.'s D
Another ( the Presid
THE politicisation of the Attorney A General's Department was one of the issues f highlighted by the People's Alliance during h the 1994 election campaign. Sunil de Silva's C controversial advice to President Premadasa a during the Impeachment crisis and Tilak S Marapana's close links with President a. Wijetunga underscored the unfortunate trend, which commenced in the 1970s, of the Attorney General functioning as the chief legal advisor of the Government and not of the State. Worse still, individuals in power became personal patrons and the AG's department their lackeys. Infact, it is alleged that the AG's Dept. even helped pick candidates for the General Elections under Marapone's tenure, thereby functing as an extension of the UNP.
The top echelons of the Department were viewed as so pro-UNP and responsible for justifying so many undemocratic acts of the Governments of 1977-1994, that the People's Y Alliance Government sought desperately for d a "clean" person to accept the post of Р Attorney General. The Number 2 person in th
Former Attorney Ge
the Department, Shibly Aziz, apart from t being considered part of the pro-UNP h hierarchy in the Department, was tainted by fi his conduct as a virtual employee of a:
180counterpoint0 June 1996
 

2 partmant
aseosali nt’s men?
irlanka and his role in the violation of the undamental rights of a young executive which ad earned him a stern rebuke from the Supreme ourt. Douglas Premaratne was viewed as weak nd ineffectual. Efforts were made to persuade rinath Perera to accept the post, but to no avail, in n institution where the principle of seniority is
firmly entrenched. ~
Sarath Silva, then a judge of the Court of Appeal, R.K.W. Goonesekere and Nihal Jayamanne were asked but they all refused. Finally, Shibly Aziz, after a long stint as Acting Attorney General, was confirmed in the post.
But as the People's Alliance grew accustomed to power and began to forget the principles it talked so much about when in opposition, the need for a person more personally loyal and beholden to the President at the helm of the Attorney General's Department was felt more acutely. No one doubted Shibly Aziz's qualifications and competence. In this context, he was perhaps too independent. the was sidelined as the debacle over the ssolution of the NCP and Sabaragamuwa ovinces revealed. A powerful Cabinet Minister en pressurised him to resign. The Government's atment of Mr. Aziz was unfair. He should not ve been appointed at all because of the Airlanka sco, but once he was he should not have been ked to resign as he had functioned effectively.
7era/SAhfb/yAzñz

Page 21
The Government's next step was also unprincipled and confusing. A sitting judge of the Supreme Court, who controversially, sits on a Commission to investigate the assassination of the President's husband, is appointed Attorney General. This is done at the same time as the Government proposes a salutary constitutional provision to bar ex-judges of the appellate courts from practising as Attorneys at Law.
Section 99(3) of the First Working Draft of the Constitution provides that No person who had (sic) held office as a permanent judg of the Supreme Court or of the Court of Appeal ma appear, plead, actor practise in any court, tribunal C institution as an attorney at law at any time. The PA Government, therefore, by appointing Sarath Silva as Attorney General has violated its own new principle incorporated in Article 99(3). Hulftsdorp circles are bewildered by Sarath Silva's actions since the change of Government. He was one of the most respected judges on the Court of Appeal and his refusal of the post of Attorney General was seen as evincing a desire to climax his career as a possible Chief Justice. He had been appointed as President of the Court of Appeal despite the opposition of certain narrow minded, puritanical judges of the Supreme Court, who had tried to block his appointment due to various factors which had nothing whatsoever to do with his judicial competence.
His decision to accept appointment to the Commission investigating the assassination of Vijaya Kumaranatunga was the beginning of the decline. Justice Tissa Dias Bandaranayake was of the view that Justice Gunasekera should not sit on the Kobbekaduwa Commission as he had been a classmate of Denzil Kobbekaduwa for a period at school. If Justice Bandaranayake's dubious standard is accepted as correct, then Sarath Silva should never have sat on the Kumaranatunga, Commission, as he and Vijaya Kumaranatunga grew up together in the same village in Katana.
There is speculation that the Chief Justice stake too have a bearing on the appointment of the new
Wew Attorney
*
 
 

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Attorney General. Though Chief Justice G.P.S. de Silva has several more years to serve, rumour was rife recently that he was offered a diplomatic appointment to induce an early retirement so that Bandaranayake J. could become Bandaranayake C.J. even for a few months. Thankfully, the Chief Justice withstood such pressure. When he reaches retirementage, however, the next in line in terms of seniority will be Justice Mark Fernando. Though his record on the bench clearly shows otherwise, powerful groups within the PA perceive him as pro-UNP. There is concern in legal circles that Sarath Silva will be elevated to the post of Chief Justice on G.P.S. de Silva's retirement, thereby pre-empting Mark Fernando.
Sarath Silva seems set to be made a pawn in a pathetic attempt to intimidate judges who have the integrity to withstand executive pressure. Are President
Kumaratunga and Minister Peiris trying to emulate the monkeying with the judiciary that President Jayewwardene and his brother, H.W. Jayewardene engaged in in the late seventies?
The Constitutional Council was heralded by Minister Peiris as the mechanism by which the politicisation of important offices would be ended. The politicisation of the Attorney General's Department featured prominently in the election campaign.Surely the office H) of Attorney General is one enera/Sarath Silva that should be filled on the
recommendation of the Council. Why has this office been deleted from the list of offices to be appointed by the Council? If transparency is not to become blatant transgression of judicial norms, Minister Pieris must begin to put his money where his mouth is, and soon. Over to you Mr. Pieris?

Page 22
War-Weary, yet a
JournalistS were flown into the Jaffna Peninsula, for a day in mid-May where they were given a "guided tour" of the area. The return of civilians to their war-ravaged homes was hardly the triumph or renewal of faith in the military that it was touted to be. Just as the LTTE Inade much of the people leaving the peninsula in
恩、”、
 

fraid to hope . . .
December, as having "voted with their feet", the Government echoed the same refrain on their return in May. Neither of the protagonists in this bloody war appear to have any real respect or concern for the people, and are using them as pawns in their deadly power-play.

Page 23

४%×
4 mm / A 4o . A - a

Page 24
Morale boost at a
Waruna Karunatilake
FOR the Tamils, the Jaffna peninsula is the citadel of Tamil civilisation and power. In recapturing the Peninsula for the first time in over six years, the Army has denied the Tiger rebels their prime psychological and strategic procession seriously denting Velupilai Prabhakaran's dreams of a separate Tamilnation.
It took two major operations to recapture the peninsula and cut it off from the northern mainland. The first, Riviresa One, launched in early October last year took 50 days to recapture the Valikamam area of the peninsula, including Jaffna town. The casualties onboth sides were the biggest ever in a single military operation. The Army used the policy of maximum fire-power to overcome heavy Tiger resistance using six million rounds of small-arms fire and 87,000 rounds of artillery mortar and tank-gun shells.
The financial cost of that operation was staggering, but was
a major morale troops. The Go lucky in more thai the massive pow LTTE had not for to flee ahead of number of civili been killed in the ( to the killings of C launched by the 1987. Theheavy ci in Operation Paw around 6000, population in thc the IPKF never that allowing the onceagain as thep The other majors the failure of t monsoon allowii use the its armou the monSoon ra: then the armour v useless, forcing th without the help c and the armou carriers which pla in breaking th fortified Tiger de By the yards One, Riviresa Tv
??4h, statsreffâs hina 100K
 

Stronomical Cost
booster for the
Vernet WaS honeSense. With ver used, if the ced the civilians the Army, large ans could have operation similar )peration Pawan Indian troops in ivilian casualties 'an, estimated at aliena ted the peninsula, and recovered from LTTE to be seen eople's Saviours. roke of luck was he North-East ng the Army to ur all the way. If ins had broken would have been e Soldiers to fight f the battle tanks red personnel yed a major role rough heavily fences.
tick of Riviresa vo launched on
April 19th, the first anniversary since the rebels broke off a 100day ceasefire and peace talks with President Chandrika Bandaranaike Kumaratunga's government, was a cakewalk for the military. What was controversial was the timing. With the Indian General Elections just two weeks away it would have been prudent to postpone the operation. The Foreign Ministry did bring up the issue but was overruled by General Ratwatte. It appears that prudent statecraft had to be overlooked in favour of astrological advice. However, at the end of the day the Government's luck held.
An estimated 20,000 troops moved into the rebel-held areas of the peninsula from four different directions. Two columns brokeout from positions captured during Riviresa One and moved Southwards towards Chavakachcheri, the main town in the Tennamarachchi division of the peninsula. Another column moved in a northern direction from the Elephant Pass Army

Page 25
Camp whichis situated at theneck of the peninsula, cutting off the main Jaffna -- Colombo road. The fourth column moved South-East from the sprawling Palali air and army base towards the Vadamarachchi region, aiming to capture Sea Tiger bases in the coastal towns of Valvettithurai and Point Pedro. But the main thrust was to capture Kilali, to cutoff the Peninsula from the mainland.
It is from Kilali that both the rebels and the civilians have been crossing the Jaffna lagoon to and from themainland since the Army established a camp in Pooneryn andcutoff the Pooneryn causeway five years ago. A week after the offensive was launched Kilali was captured, effectively cutting off the LTTE'S withdrawal line. The LTTE appears to have decided against putting up resistance as it did during Riviresa One in a bid save its cadres. Most of its military hardware was pulled out of the area before the operation was launched, but still the fall of the peninsula is a major military setback. The LTTE lost half a dozen training camps and a number of weapons factories as well as a major part of its transportation fleet. The Army also captured a major food storage facility. The Army suffered only six dead and 27 injured while claiming that it had killed 250 rebels. However, the LTTE admits to only nine deaths.
For the Government the real battle has just started - wining over, or more to the point, not alienating the population. The Sri Lankan Army has come a long way since the war started 13 years ago. It is now a more disciplined, battle hardened force which does not go on the rampage at the slightest provocation. By all accounts the Army maintained its recently acquired reputation as a clean fighting force. The civilian casualties, as far one can figure out, have been withina singledigit. The only blemish was a single
report of Chavakachcheri commanding immediately ar. but also parade reassure the civ the real test of th when the Tigers the Army withi There is no way off thepeninsula will infiltrate a their pre-1985 warfare and amb places to provol harassing the civ The Army woul Station new Orne in the peninsu constraints of 1 massacre of civ enough to chang of the Tamil ci Government wo recover from suc The unimagir the part of establishment is after Riviresa Tw suspected ofbein lifted to Colomb This has created a the people, c notorious reputi Detention Camp the Tamils and these youth coul in the peninsula families allowe logic. At least th their mistake qui damage was do more suspectedy were cancelled, be well advised Colombo back immediately. It decision-making at the repercussic the credibility Government anc The Army als come to the misi that the civilians the Army. The tri further than that. that the civiliar

Battlenes
rape Ιη Ga I Here again, the fficer not only ested the soldier i him publicly to ilians. However, e Soldiers will be pegin ambushing In the peninsula. he Army can cut otally.TheTigers nd re-introduce actics: landmine ushesin crowded ce the Army into ilian population. d be Smart not to arly-new soldiers la, despite the manpower. One ilians would be ge the perception vilians, and the uld take years to h a Setback. lative thinking on the military S baffling. Soon o,72 Tamilyouth grebels were airbo for detention. backlash among onsidering the ation the Boossa has among both Sinhalese. Why d not be detained itself and their d access defies e Army realised ckly before more he. Plans to shift outh to Colombo and they would to shift those in o the peninsula is this kind of without looking ins that will dent of both the the Army. o seems to have aken conclusion tre thrilled to see th cannot beany There is no doubt s are happy to
return to their homes but the fact is that, after 13 years of bloodshed, they are sick and tired of the uniformed kind. The best the Army can do in this situation is to give the people as little trouble as possible, and for the Government the best option is to move into the rehabilitation phase immediately despite the constraints. Until the Army opens a land route to the peninsula, which appears to be its nextpriority, majorreconstruction work will be impossible. There is no way the necessary hardware can be moved to the peninsula by sea alone. The shortage of skilled labour and professionals will also hamper such work. The Government would be making a major mistake if it takes Sinhalese workers to fill the vacuum. The Tamils would fear any such move as another attempt by the Sinhala government to colonise their areas.
However, what is importantis the perception that progress is being made in this sector. The Army's handling of Vavuniyaafter 1990 would be an excellent example of how to go about rehabilitatinga war-tornarea.The late General Kobbekaduwa and his "Hearts and Minds" expert Brigadier Devinda Kalupahana transformed the area from a ghost town to the thriving trading post it is now. The plus point of the Army initially handling redevelopmentis thatitdoes it much much more efficiently that theredtape bound bureaucracy. However, it is equally important that the administration is handed overgradually to the civilians as it was done in Vavuniya. It would be a disaster if the Army tries to reinvent the wheel in Jaffna where there is a strategy already successfully implemented . The key to this is to post the right officers in the peninsula assoon as the security situationallowsit. The Government should realise that there some army officers who are good at fighting but are not good at the second phase of such a war
June 19960 Counterpainr-23

Page 26
- which is the rehabilitation and hearts and minds phase. The proven incompetence of the
current government would be the
major drawback on this issue and it may take the Army many years before it can let go of the civilian administration.
For the LTTE the loss of the peninsula is perhaps the biggest setback since the IPKF drove them into the Mulaitivu jungles in the late 1980s. The rebels re-took control of the Jaffna Peninsula and most of the Northern province after the Indian Peace Keeping Force (IPKF) withdrew from the North and East of Sri Lanka in March 1990. The Government of President Ranasinghe Premadasa which was holding peace talks with therebels at the time handed over control of the two areas to the rebels withoutabullet being fired. In June 1990 the rebels withdrew from the talks and re-started the war. The Army had to painstakingly regain every inch of the North and East. The Army concentrated on taking control of the politically important Eastern region giving the rebels freedom to setup a virtual mini-state in the North with the Jaffna Peninsula being its crown jewel. The LTTE set up a parallel administrative service to that of the Government and an LTTE police force handled civilcrimes while LTTE-appointed judges manned the courts. A widespread and highly efficient tax system was introduced earning the rebels millions of rupees a month to sustain their war machinery. No outsider could enter the North withouta visa from the LTTE.
The Peninsula also contained a substantial part of its training facilities as well as manufacturing plants for war material such as mortarsandanti-personnel mines. With free access to Jaffna hospital, it had good medical facilities for its cadres and diversion of food supplied by the Government to the civilians gave them more than
enough food for t
free of charge.
The loss of
completes a " A
for Prabhakaran.
He has not or precious possessic number of battle-l The LTTE lostcloS cadres in two abC year. The Army cla more during Riv Navy with the he blew up a ship off carrying a large c ammunition and ( rebels. To add toh the sympathy of community when off the peace talks and re-started the last year.
Then it looked Prabhakaran's s were going for t their battle t independentstate East of the island, breakdown of th caught the milit for war and the series of Success the military an establishment. Le after informin President Bandaranaike Ku they were pulling process the rebc the Eastern Tril harbour and ble vessels. Just thre rebels stunned shooting down transportaircraft using anti-aircraf first time, killingc soldiers in the pri ten days of the w destroyed three two aircraft.
However, appears to haveb reaction of Kumaratunga a minded commit Ratwatte. The
240 counterpaint June 1996

heir cadres. Both
the peninsula nnus Horibalis"
hly lost his most on but also a large hardened cadres. eto one thousand frtive attacks last aimsitkilled 2500 firesa One. The lp of the Indians the Eastern coast Juantity of arms, 2xplosives for the is troubleshe lost the international the rebels broke and the ceasefire, waron April 19th
i as if Velupillai suicide fighters he final push in o Set up an ein the Northand The unexpected le peace process ary ill-prepared rebels scored a es rattling both d the political SS than one hour g Sri Lankan Chandrika umaratunga that gout of the peace els Sneaked into incomalee naval w up two naval e days later, the the country by two Air Force within 24 hours, it missiles for the lose to a hundred ocess. In the first ar the LTTE had naval craft and
Prabhakaran adly misread the President nd the Singlement of General Government
reacted with the biggest arms buying spree in the history of the country. Hundreds of millions of dollars were spent on new attack aircraft, helicopter gunships and naval vessels. The Army was supplied with new artillery and thousands of new recruits as the intensity of the war increased dramatically. However, the biggest change was in tactics. For the last 12 years the Government has given priority to stabilizing the Eastern Trincomalee Batticaloa and Amparai districts, arguing that by depriving therebels of the control of the Eastern Province, their claim for a separatestate can be undermined. However, this tacticallowed therebelsa freehand in the Northern Province allowing the rebels the freedom to recruit and train cadres, unload shipments of weapons and collect millions of rupees through taxing goods and services. The new Deputy Minister of Defence Colonel Anuruddha Ratwatte argued successfully that the war must taken to the North even at the cost of the destabilisation of the East. Moreover, he used persuasion and threats to push a reluctant army to carry out his plan. The rebels' only success for theyear wasa spate of spectacular attacks on the capital. The main Oil storage facilities just outside the city were set ablaze in a midnight commando style attack, and the Central Bank was destroyed with a massive 400pound lorry bomb killing 89 people and injuring a mammoth one thousand others.
Both sides have had to pay a heavily for a year of intense fighting. The military says it has killed over 3500 rebels and injured thousands more. The military lost 2019 men, and over 5000 Soldiers have been injured. 173 policemen were also killed in rebel attacks. Civilians of all communities continued pay a high price. At least 1013 Civilians are officially known to have been killed in rebel attacks and military strikes.

Page 27
Victor Man
IMAGINE that you are the editorofaresponsiblenewspaper. If you receive sufficient factual information about a great wrong committed by a powerful person what should you do as the responsibleeditor? If this question isdeirected at Societyatlargethere is no doubt that they will expect you to placeall the facts before the public.
Yet, this is not such an easy matter. Even though it is the duty and responsibility of an editor to place such facts before the public, the legal situation that he has to deal with will undoubtedly strike fear in him. You will surely ask why one should be afraid of the law if one has 8 sufficient evidence to prove that what has been written is the unvarnished
. How the lav
silence
Industries.
Minister of CC Indradasa Het running a Hous with the help political stooges. the President of He was in th purchasirig land Rehabilitation CC
of J.R. Jayeward into smaller blo the lots for a According to
land had to be Housing Cooper. to thereal Constit who did not poss right to purchas
I am not saying that
truth. biased. But neither can Iam not saying thatour impartial. The verdictid court systemisbiased. But of the judge. It will ( neither can I say that i' favour if the judge is W always impartial. The verdict depends on the and abides by its rules
nature of the judge. It will certainly beinyour favour if the judge is well versed in the law and abides by its rules. But if the judge is lured by the influence of a contending party, then you are sure to be in
redress in the higher courts if justiceis notmetedoutinthelower ones. But you have to have the wherewithal to do so.
Here's one of my encounters with a former Minister of Coconut
person could pC block of land, the was also prohibit
But while followers had pu the name of all members, most ( sold it for exorbit
It was requirec purchased landth
 
 
 
 

conut Industries iarachchi was ng Cooperative of some of his The Minister was he Cooperative. e business of from the Land mmission foran ice with the help ene, dividing it :ks, and selling
higher price. the concocted e who purchased members of the ative. According ution, only those ess land had the e it. While one
Our Court system is
aside from the money for the land, a certainamount to a development fund being run by the Minister. In the first phase of land sales, each purchaser had to contribute Rs 1000 to the Development Fund, in the second phase, the amount was Rs 5000. In the third phase, it was 25% of the value of the land, and in the fourthphase, it was 33% of the value of the land. The Minister's Development Fund had collected Rs 39 Lakhs in this manner.
Based on thisinformation Ihad received, I published a lead story under the heading "Coconut Minister in Land Offence"dealing with the corruptionin the Housing Cooperative under the Presidentship of the Minister.
The Minister then took action against the Ravaya not only on the basis of parliamentaryprivilegebut went on to file a criminal defamation case against the
Isay that it is always paper. epends on the nature I gave a statement on ertainly be in your the matter to two officers
s from the Criminal ell versed in the law
ssess only one sale of the block d.
he Minister's 'chased land in their family f them had reint profits. of all those who it they also paid,
Investigation Bureau who came to the Ravaya office. It was clear that they were more interested in collectingevidence against methanin finding out facts about the incident.
Even after the CID documents had been sent to the Attorney General, it was clear that there was no investigationasto whether the CID had conducted a fair inquiry into the matter. And, in the spirit of the Minister, the Attorney General also filed a case of criminal defamation against me
June 19960 countepoln25

Page 28
in the High Courts.
The Ravaya is not a rich newspaper, so we had to seek the support of alegal aid organization to appearonour behalfin the case. Idiscovered through this incident that though there were many legal aid organizations, what they were doing was not providing a competent lawyer who is able to conduct a case successfully, but one who was merely complying with certain principles dictated by another. The lawyer they provided us with was not incompetent, but he wasn't astute enough to grasp the complexities of the case.
The first witness to be called forward in the case that was heard before Shirani Thilakawardena of the High Court was the Minister himself. It was evident that my lawyer was not making optimum use of a host of evidence he possessed against the Minister. Realizing that I would beintrouble if the case went on this tack, I requested my lawyer to step down the very next day. As he was a senior lawyer, it was difficult to bring forward anew lawyer at this juncture, and Irepresented myself in court for a few days.
It was clear from the beginning that the judge was partial towards the Minister. Even though she had no wish to make me the guilty party, it was obvious that she didn't want to get the Minister into trouble.
She refused to admit that it was a crime to take money for a development fund from those who had purchased land from the Minister, and pointed out all the good services the Minister had rendered to the public through the fund.
Even if all the Minister had done was good deeds through the money he had collected from the Fund, it is contradictory to all Cooperative laws and all other laws of the country to charge
money for a fund Housing Coopera from thoseinvolve Housing Coop Furthermore, the used the money f boost his politica sense, it was use gain, it was a cor was illegal. It was judge was trying the case away fro issues.
After a few another lawyer, a the judge's partia Minister and her i out justice, I also the case be he beginning before My lawyer, after the case reports, that the judge hac We discussed prominent lawye He told us that it win a case in the the basis that the partial, howevert be, and that onej go against anothe it was wiser to
We discussed the cas lawyer in the Country.) difficult to win a casei the basis that the jud however true the case judge will never go aga
technical point
Actually, my law founda point whi for an appeal. Du in which I had nol had procured admission which whole case. Bas appeal for a fresh another judge w
260 counterpoint0 June 1996
 
 

external to the tive operations edin purchasing erative land. Minister had rom the fund to l image. In that ed for personal rupt act, and it evident that the her best to keep m these central
days, l hired und considering lity towards the nability to mete requested that ard from the another judge. gong through also concluded i been partial.
the case with a r in the country. was difficult to High Courts on judge had been ruethecasemay udge will never rjudge. He said use Some other
e with a prominent He told us that it was in the High Courts on ge had been partial, may be, and that One inst another judge.
for an appeal. yer had by then ch could be used uring the period awyer, the judge from me a an could affect the ad on this, the hearing before as rejected. We
were compelled to challenge the decision of the Court of Appeal and take thecaseuptotheSupreme Courts. It was the conclusion of the Supreme Courts that the High . Court inquiry had been unconstitutional. It was concluded that the judges had failed to mete outjustice in the Court of Appeal, and that it was not done to inconvenience the accused for Something he was not to blame. Hence, I was cleared of the charges of criminal defamation. So it is true that justice won after a long process. But what would the outcome of the case have been if I hadn't had the perseverance to go through this process?
While the case was in the Court of Appeal, the Commissioner for Cooperative Development was conducting a special inquiry into the Horana Housing Cooperative on the instructions of the Minister of Cooperatives. The outcome of the inquiry was that the Horana Housing Cooperative had not abided by Cooperative rules and regulations in the utilization of land and funds. The Commissioner concluded that land had been sold under un constitutional conditions and that the Development Fund that had been conducted outside the Housing Cooperative activity was illegal. I had said the same thing in my newspaper report a long time before this. But I had to facea case of criminal defamation for the sin of presenting facts to the public. And, until afteralonglegalrigmarole, I never received fair treatment even from the courts.
This second experience I am going to relate is graver. It is also unpleasant. It happened during the time when President's Counsel Thilak Marapone was Attorney General.
Our attention had been directed towards the former

Page 29
Railway GeneralManager W.A.K. Silva (now out of the country) by stories of illegal activity carried out by him at the Department of Railways. Even though W.A.K. Silva was a very corrupt official, he was very powerful and had close connections with former Presidents R. Premadasa and D.B. Wijetunge. There was no obstruction tO his unscrupulous activity because he was a close
an Opposition M issue in Parlian Minister of Trans out to the Speak was already befo that discussion C not be allowed.
Mr. Silva, not defamation cas
associate of these Hetold methat no government heads and also because bribes were seeing by him to the girl
their way into the pockets of the Minister of Transport and high officials at the Ministry.
The Railway Department had a joint project with the Australian John Holland Company for producing concrete sleepers. A dispute arose between the company and the Railway GMonastatement made by him that John Holland owed him a 25% commission if payment for the concrete sleepersproduced up to then was to be completed, and that a payment of Rs 30 per sleeper would be charged by him for each sleeper produced thereafter. We were able to get hold of a fax communicated to the local group of the John Holland company by a group affiliated to John Holland in Australia. The fax included startling information pertaining to theamount of money John Holland had been paying the Railway GM as commissions for dealings between the Railway Department and John Holland. With the information included in the fax, we published a detailed article in the Ravaya under the heading "Railway Boss asks for Womenalong with Commissions". The GM Railway, upset by the disclosure, and to prevent the case being brought up in Parliament, filed a case of defamation against meat the Colombo District Courts with a request for compensation amounting to Rs 50 lakhs. When
character and th examination had proof of rape.
towards a crimi case. As customal procured a state Even though the A had received the showed no enthu the case on.
After the appc Thilak Marapon General, I had through a certain We had publi feature in Ravaya approves the Rap the Powerful" b gathered by us where a case again Senior Police Supc had raped a 11-y girl had been ca intervention of General inspite of abundant evider guilty party. requested our rea to the Attorney Ge their disapproval AS Soon as the Mr. Thilak Mara me by 'phone. Fir me ofan old asso us when I had app COurts aS an acCul
 
 

Cover Story
hister raised the 2nt, it was the ortwhopointed r that the case the courts and
the issue must
Satisfied with a , also worked
insurrection. Thilak Marapone had then been in the Bar Association of Colin Thome who conducted the inquiry. Among others in that Bar Association were
Ranjith Abeysooriya and the
present Attorney General Sarath Silva. I told him that bygone incidents were of no importance in this matter, and that I hadn't written the story because of a personal grudge, but because of
Trong had been dome that she had a bad ut evem a medical failed to ascertain
theinjusticedealt against the 11-year old girl.
He told me that no wrong had been done by him to the girl, that she
nal defamation y, a CID officer ment from me. ttorney General CID report, he Isiasm to bring
intment of Mr. e as Attorney angered him incident. shed a special titled "The Law of Children by ased on facts of an incident sta 65-yearold rintendent who lar old servant led off by the the Attorney the existence of Ce against the We had also lers to write in eral expressing if this decision. paper was out, one contacted t, he reminded ation between ared before the ed in the 1971
had a bad character and that even a medical examination had failed to ascertain proof of rape.
When I told him that I was not ready to believe that she was guilty, and that the said medical reports were in front of meat that moment, thenoiseon the other side subsided at once.
That Ravaya articlesucceeded in creating public outrage and persistent publicactionagainstithe Attorney General. The Attorney General was also compelled to reconsider the case of the 11-year old girl. vs.
Either because of the Attorney General's grudge against me regarding this matter, or the friendship between the GMR and the Attorney General, or because of the President's influence, the Attorney General brought a case of criminal defamation againstme based on evidence that had so far been put aside.
But before filing the case, the Attorney General had to take off the records certain evidence that could work against him in the inquiry. By this time, an inquiry was being conducted into the assets of W.A.K. Silva before the Bribery Commissioner. If, at that juncture, the Attorney General had broughtforward a case of criminal defamation against me to theeffect that I had accused the GM
trn - f0MK 40 AnimferrumfaMà 77

Page 30
Railways of bribery, it could itself haveproved that the he was guilty. Whatever the reason, the Attorney General needed to call off the inquiry now before the Bribery Commissioner. It is clear that Presidentalso D.B.Wijetunge wanted this.
Sothepresidentand the Attorney General spoke about the case against W.A.K. Silva with the
off the case on t
according to arti
of the Penal Code General's approv for filing a case, approval was no legal document certificate was inc
The Magistrate was
Bribery Commissioner, the conduct of the A She was also requested to inform in writing to this matter. In W.A.K.Silva that there was Magistrate Condemn no evidence for the case to Attorney General, a be continued. e
This coercion didn't pay for his forthrigl please the Bribery
Commissioner. She called for the papers on W.A.K. Silva's case and stated as follows on page 29: "The President and the Attorney General have on several occasions inquired verbally about this case from me, and they have also asked me whether there was any possibility of closing the case, and have also requested me to inform the accused in writing that there was no evidence against him. Please present a certified copy of these documents to me as I have to investigate all the documents." -Nelum Gamage, 12.11.93.
It is because of this note that the Bribery Commissioner was sacked and posted as an Additional Secretary in the Ministry of Justice. She was removed from the post of Bribery Commissioner on the 21st or 22nd of December. It was on the 23rd of December that the case against me on the criminal defamation of W.A.K. Silva, of which the documents had been rotting in the AG's Department for So long, was approved for hearing.
Suranjith Hewamanne who appeared for me before the Maligakanda Magistrate on the 20th of May 1995 presented objections against the case on two COuntS.
He requested the courts to call
a case in such a which the court
accepta case and The prosecu written instruc received from General, and t reached the Ar because there wa against the accus
As neither Board Act, no General's appr presented in cou stipulated a submission. He evidence woulc only on subn documents.
The next day, the bag. Aside the Attorney Ge the prosecutors statement by the dated 27th May that indictme presented again the High Courts When the Att presented indict Courts, the Mag not authorized inquiry on the sa By the rule of
 
 

he grounds that :les 480 and 481
all was essential und that Such an t included in the s, that a clear 'cessary for such
not pleased with
Board Certificates is required before an inquiry can be made into such a complaint. The Attorney General was in trouble because he had violated this vital condition in bringing forward the case. So it was essential for him at this juncture to bring forward a trump card such as this to exploit his powers. Even though the prosecutors stated that the case had
ttorney General O been presented tΟ High
O Courts by then against the
accused, we later
ed the action of the discovered that such a case
nd he had to later had not been filed by that
date.
tneSS. The Magistrate was not
es
a court, without had no power to issue subpoenas. tors stated that tions had been the Attorney hat it had not bitration Board sample evidence sed. the Arbitration r the Attorney oval had been rt, the magistrate da te for their stated that initial be considered hission of the
the cat was out of from presenting neral's approval, also presented a Attorney General 1994 to the effect ints had been st the accused in
orney General has ments to the High strate Courts are to carry out an IMO C&SC,
law, a Arbitration
pleased with the conduct of the Attorney General on this matter. In his verdict, the Magistratecondemned the action of the Attorney General, and he had to later pay for his forthrightness.
The Magistratedn this occasion was Mr. E.A.P.R. Amarasekara, the then additional Magistrate of
the Maligakanda Magistrate
Courts. A lawyer in the Judicial Service later told me that Mr. Amarasckara had been transferred to Kabethigolewa after his verdict condemning the Attorney General. Mr. Amarasekara was not partial to me in the case. He was merely a law abiding magistrate. But the Attorney General exploited his powers because he was angered by this verdict, and Mr. Amarasekara was posted to remote Kabethigollewa. The lawyer who related this story to me said finally, "Don't write anything about the fact that Mr. Amarasekara was transferred to Kabethigollwewa. If you do so, it is you who will be affected, not him. If this incident gets publicized,anyjudge will be wary of giving a verdict in your favour, however much evidence there is".
It need not be said that Mr. Thilak Marapone's mode of action does not befit one in his position, or even that of an average lawyer.

Page 31
I created a public awareness on the matter of the 11-year old girl who had been raped by the65year old retired police officer not because I had a personal grudge against Thilak Marapone but because I had toactasaresponsible newspaper editor. But it may be that Mr. Thilak Marapone cultivated ananimosity against me because of this. So it is clear that he brought the case of a well-known crook forward as a means of revenge against me. He knew well enough that he was assisting an officer who was known to be corrupt and had been charged with allegations of bribery. The basis of the charges against me was my newspaper report that W.A.K. Silva took bribes. Mr. Thilak Marapone also knew that an inquiry was being conducted against him by the Bribery Commissioner. But Mr. Thilak Maraponedid all he could to close the case against the General Manager, Railways so he could
(1) Upali Sarath Amarasiri
bring forward th I wouldn't k punishment sho to an Attorney C to protect such the expense of a who attempted awareness on th
I feel justice
out on this matte somewhere one ( in the face of i inquired from lawyers whether can be taken ag Maraponeon this was that Mr. Thila a high post whil the crime, and tha against him now action against hi not himself persc not ready to acce been subject to should be a form c necessary, this considered a pu brought forwar
M.P. (UNP), and son of Former Trade Minister & Chief Minister,
(2) W.A.K. Silva
Ex-General Manager Railways. Currently in hiding abroad to avoi
(3) Gamini Fonseka
Former M.P., Deputy Speaker (UNP). Presently, Governor for No1
(4) Tilak Karunaratne
M.P. (Former SLFP M.P.). Presently, M.P. (UNP)
(5) Ronnie de Mel
Former Finance Minister (UNP). Presently, M.P. (u
(6) B. Sirisena Cooray
Former Housing Minister (LINP) & General Secretar (7) Dr. Rajitha Senaratna M.P. (UINP)
(8) B.C.S.N. de Silva
Former Chairman, National Film Corporation
(9) Dr. Oliver Fernando (10) Dr. Reginald Perera (11) Dr. Amal Harsha de Silva (12) Somaratna Kariyawasam
Former Commissioner of Dept. of Buddha Sasana
(13) Y. Kasturiarachchi
New Proprietor, Ruhunu Cement Company (14) H.M. Sirisena Herath D.I.G. of Police (15) General Hamilton Wanasinglhe
Former Commander of Army & Secretary to the Mini
(16) Dr. Prathap Ramanujan
(17) P. Weerasekara Director General, Sri Lanka Custon (18) Jagath Abesinghe Red Cross Movement
 

Cover Story
case against me. )w what sort of ld be meted out neral who seeks n individual at wspapereditor o create public 1SSUC.
as to be meted There has to be un go for redress justice. I have many senior any legal action inst Mr. Thilak SSue. Their reply K Maraponeheld he committed any legalaction
would be legal
S position, and nally. But I am pt this. If I have injustice, there frelief for me. If article can be blic complaint d by me and
presented to the Chief Justice. Also, this article can be used by the Bar ASSociation to take a decision on Thilak Marapone. I am going to observe keenly how legal organizations are going to act on this matter.
It is only government political heavyweights and state officials who are able to use the criminal defamation law as a weapon against journalists. Many powerful people outside these two arenas also use defamation law as a weapon against newspaper exposes against them.
Ravaya has only a short sixyear history as a newspaper. During this short span a large number of persons have been stung by Ravaya's exposes, issuing "demands for compensation' on the grounds of defamation. The complete list of suits and the amounts demanded are given below:
Southern Provincial Council, M.S. Amarasiri Rs. 50 lakhs
|Curruption charges in local courts.
thern & Eastern Provinces
WP)
, UNP
ry of Defence
RS. 250 lakhs
Rs.50 lakhs
Rs. 250 lakhs
Rs... 50 lakhs
Rs... 1000 lakhs RS. 50 lakhs
RS. 500 lakhs Rs... 50 lakhs RS. 50 lakhs Rs. 100 lakhs
Rs... 100 lakhs
RS. 250 lakhs RS. 50 lakhs
RS. 500 lakhs, Rs... 50 lakhs RS. 500 lakhs Rs.50 lakhs
luna 10QK 8 s ́nIrwformMlaÁ4h?0

Page 32
(19) J.C. Alawathuwala M.P. (UNP)
(20) Miss S.P. Alawathuwala
Daughter of Former Deputy Minister, Late Mr. S. V
(20) Dr. S.M. Panagoda (21) U.S. Alahakoon
(22) Douglas Peiris S.S.P. of Police
(23) Esther Wickramaratne
(24) Y. Kasturiarachchi Neuv Proprietor, Ruhunu Cem
(25) Dr. Nath Amarakoon (26) Nailaka Athukorale
Minister for Food, Co-operatives & Rehabilitation, (27) Dr. Seevali Ratwatte Chairman, Upali Newspape
Total
Even though a journalist's report may be both accurate and fair, the powerful person who has been so exposed is entitled to take the editor of the newspaper to court. By this means alone the politicianorbureaucratconcerned can "show" the world that he has been wronged and that the claims against him are false. In addition, if the newspaper that the editor representsisnotrich, thenitcannot afford to retain high-powered lawyers and is, therefore, handicapped since its inexperienced legal team has to stand against the big guns of the opposition. This inequality certainly influences the outcome of thecase.Tomakematters worse, such cases take so long to be resolved that the editor has to wastea great deal of his time in the courthouse. Therefore,even though an editor has before him sufficient authenticated
encountered Su
recently:
The Ravaya 1993 published headline "Mir Openly Embezz about the violat Council circul regulations by th Provincial CC Athukorala, the Cooperatives a and his wife.
Ravaya had tomake a case ag at the time Moreover, the Provincial Government an had already beer
Therefore, even thoug him sufficient aut consideration of the fa
data, in consideration of of facing along and tort the fact that he runs the he may refrain from p risk of facing a long and
tortuous period of he has against the pow
pressure, he may refrain from publishing the evidencehehasagainst the powers-that-be.
There are also certain weaknesses and loopholes in the conventional legal system which the powerful are able to manipulate on these occasions. I
these charges.
Based on t contained in Ra members in the brought forwarc
300 Countercoinf0 lune 1996
 
 
 

V. Alauvathuuvala (lINP)
ent Company
Sabaragamuwa Province rs Company Ltd.
h a case in point
of December 05 an article with the lister and Wife zle Public Funds" tion of Provincial ars and tender heSabaragamuwa uncil's Nalaka Minister of Food, ind Rehabilitation
enough evidence gainst the Minister of publication. attention of the Council, the
d the Opposition hdirected towards
h an editor has before henticated data, in
RS. 50 lakhs
Rs. 10 lakhs RS. 30 lakhs RS. 10 lakhs RS. 100 lakhs RS. 10 lakhs RS. 2000 lakhs RS. 100 lakhs
Rs. 100 lakhs RS. 3000 lakhs
Rs.9910 lakhs
motionagainst the Ministersigned by 14 MPs. Even though Nalaka Athukorala had promised Opposition Leader Ranil Wickremasinghe and the Chief Minister of the Provincial Council Jayathilake Podinilame to resign from the posts he held while the inquiry was being conducted by the Chief Minister, he failed to do so. The Chief Minister therefore took over his powers in December 1995.
After the publication of the news item, the Minister filed a
against the Ravaya Editor and the Printer before the Colombo District Courts. The case was filed againstusby theohn Wilson Legal Company on December 15 1993.
If the accused fail to appear in court in a civil case, the court has the authority to hear the case
Ct that he S the risk ΘX parte, and to give a uous periodofpressure, verdict based on that
evidence. Furthermore, if ublishing the evidence the accused hears that there ers-that-be,
he information
vaya, opposition 'rovincial Council il a no-confidence
is an ex parte case being conducted in court against him, there is no means for him to intervene until the verdict has been delivered. The accused should come to court only on a formal subpoena served by the fiscal. So all that a crooked person has to do is to prevent the fiscal serving the subpoena to the

Page 33
accused and get him to make a statementin court that the accused was avoiding receiving the subpoena. Itseems that this simple procedure has been conducted in the instance of Nalaka Athukorala's case against me.
The Ravaya office was then situated in Ratmalana. The duty of serving the subpoena therefore fell on the fiscal of the Mount Lavinia Courts, but for some mysterious reason, theservingofthesubpoena for this special case was assigned to the fiscal of the
avoid being Serv building canno subpoena had atl on the door, I wo I had been Summ Even though the on the 28th of Ap been served wi subpoena.
The case was 26th of July 1995
It is here that the
Moratuwa Courts. revolting incident be
It is easy to find the Even though a pe office of a well-known served a subpoena, a newspaper. But the If the subpoena had a Moratuwa fiscal had the door, I would har informed the courts that summoned by courts.
the accused was not traceable according to the address given to him.
On 26 January 1995, a affidavit was presented on a motion brought forward by the prosecuting lawyers stating that a substitute subpoena be served as the accused was avoiding the subpoena. This substitute means pasting the subpoena on the door of the accused residence/office.
The Court allowed a substitute subpoena on February 3rd, 1995. Thecourthas theauthority to issue a substitute subpoena only in an instance where thereissubstantial evidence that theaccusedistrying to avoid receiving it. Only once is itstated in the "courtservicenotes" that the fiscal went to the Ravaya office with theintention of serving the subpoena. The courts had not considered whether an Editor of a well-known newspaper would attempt to avoid a subpoena. Neither had the courts contemplated why the subpoena
which should have been served
by the Mt. Lavinia Courts was served by the Moratuwa Courts instead.
It is here that the second phase of this revolting incident begins.
Even though a person can
had not been ser
subpoena.
By that time, known fact that office of Ravaya to Maharagama. informed of this through a public of July 1995 stating office will b Maharagama wit 7th of August, 1 also carried a directions to the impossible that th the case didn't kr On the 9th O exactly two days, office had shiftec case was to responsibility subpoena, which on the Moratu assigned to the M Strangely, fro) everything beg quickly. The Mi pasted the subp office of the Rava on the 11th of Oc reported it. Whe
 
 

Cover Story
2d a subpoena, a do so. If the east been pasted uld have known oned by courts. case was called il 1994, I had not th a substitute
recalled on the Even by then, I
called on the 17th of November, 1995, the Mt. Lavinia fiscal
- reported to court that the
substitute subpoena had been served.
Then, the court, taking the case on an ex parte basis, ordered the accused to pay the sum of Rs 50 lakhs demanded by the prosecutor.
Those responsible for the law must be fair and act in a way that reflects this fairness. But all this shows
second phase of this only the reverse.
ins. In most civilized countries, when a rson can avoid being newspaper exposes building cannot do so. corrupt practices, those t least been pasted on accused resign from their
we known I had been
ved a substitute
it was a well
the Ratmalana
was to be shifted The public was change of venue notice on the 3rd g that the Ravaya e shifted to h effect from the 995. The notice sketch with new office. It is he prosecutorsin how all this. f August, 1995, after the Ravaya i, and when the pe called, the of serving had so far fallen wa fiscal, was Mt. Lavinia fiscal. m then onwards, ;an happening t. Lavinia fiscal oena on the old ya in Ratmalana :tober, 1995, and 2n the case was
posts and allow for a fair inquiry. If those accused do not resign, they are temporarily requested to leave their duties while the inquiryisconducted. Legal actionistaken againstnewspapers only where defamation has occurred.
On the other hand, in most other countries, it is the bounden duty of heads of institutions to provideinformation requested by journalists. There is no such tradition in Sri Lanka. In other countries,thecomplainantisgiven the responsibility of proving that court reports are false. But in Sri Lanka, the journalists have the responsibility of verifying the reports. In other countries, the court has the ability to investigate the truth or falsehood of a newspaper report. But in Sri Lanka, the courts only have the right to conduct the inquiry, not theright to investigate the truthin a wider sense.
Prof. G.L. Peiris, who can be considered a legal scholar, promised journalists that a new court procedure would becreated to circumvent the weaknesses in our current courtsystem. Now, he is the Minister of Justice, but there are no signs of him keeping his promises.
June 19960Counterpoint03

Page 34
Vyasa
BETWEEN Riviresa 1 and Riviresa 2, or alternatively, between the hoisting of the flag in Jaffna and the threat of total blackout, there was the Central Bank bomb, the Thawakkal disclosures, strikes involving the doctors and the plantation workers, the prospect
inquorate. Devo stale So much as anywhere.
Too much i confirm that g governance are apart and that command, communication beset thisgoverni are O neare
of no-confidence motions against two Cabinet ministers engineered by two Cabinet ministers, the reimposition of islandwide emergency followed by the postponement of local government elections, censorship and the curious case of the Secretary to the Ministry of Information who cannot decide on his own date of birth
The cost of living is soaring and in the North, the people are voting with their feet to return home as the Army seals off the peninsula. The commissions confirm the popular belief that, for a time, a crass and cruel Mafia constituted the power centre of the government of the day. As for the Select Committee, there have been reports that at times it has been
320 counterpoint June 1996
 
 

ation is not going simply not going
happening to bvernment and moving further he problems of fontrol and that seemed to nentat the outset, r a solution.
Disappointmentand despairhave infected the ranks of the PA and its supporters and the belief in the charisma of the President, always, ultimately winning the day when the chips aredown,is also wearing thin.
Her lackadaisical style and undergraduate approach which mixes naivete with arrogance and even paranoia, has been
catalogued, criticised and derided on numerous occasions. Perhapsitis thesevery qualities that have ensured that no remedial action canor will be initiated.
The President appearsto beas much a part of the problem as she has to be of the solution. We have come to the point at which the defence of the President, which concedes the inefficiency of her administration and attempts to mitigate it by reference to her sincerity and commitment, is becomingincreasingly difficult. As a consequence, the characterization of the Government aS having its heart in the rightplace and therest of it at sixes and sevens, is, in the face of its demonstrable record and the

Page 35
challenges ahead, a charitableone. On all fronts, this government has to get its act together. The opposition and the rest of us too, but more of that later.
Who runs this government so unsatisfactorily?Isit the President alone, with the Cabinet, with key Cabinet ministers and officials or with an unofficial kitchen Cabinet ? Where is the real locus of authority and power?
Enough has been brought to light in the last months to indicate that some very odd anomalies abound in the process of decisionmaking. Either this lot are a lot less efficient in bad government than their predecessors or just as unconcerned and ill-equipped for good government as they were.
Take the case of Mr. Jeyaraj Fernandopulle which has been dealt with elsewhere in this issue. It said too much that is damning about this president's commitment to good governance. According to media reports, Mr. Fernandopulle threatened resignation yet again and complained of police harassment of his supporters. One of the conditions he apparently laid down for his continuation in office was the transfer of thepolice
Presidentswiftly complied and the police officer, who by most accounts was doing his job and no more, was removed forthwith from Mr. Fernandopulle's stomping ground.
The Thawakkal fiasco, debated in the press and in parliament, left most questions about that shoddy episode unanswered. We were treated toexplanations thatranged from the technicallegal distinction between what is voidable' and what is void' to the pathetic admission of a bad filing system in the Cabinet office. It was this bad filing system that resulted in the highly respected and popular Foreign Minister Lakshman Kadirgamar, being misled into writing a letter which stands as
the reference enduring perce government also practice in the privatization.
Thawakkal w With its allegat Cabinet papers appeared to co decisions that remember, it reputation of the also the Ministe Cabinetandeven who took the hig all toobriefly. Fu allegations of in be dismissed as i the explanati happened accep still begs the ( competence of t After all, if all it was to make g predecessor had it got ensnared i ownmaking? Sur is not a trap?
The revelatio Jayasinghe, a for Director-Genera Affairs in the F Censor, and Secretary to the M Aviation and To of Air Lanka and House, has falsi birth to the High of Parliament, i. for a passport as application for shocking illustra of person that car service undergov parties.
Whatisespec this government that he has sp support from President's offic employed to Rupavahini ne sacking, over t relevant minis Senanayake. It is quarters that th powerful thatitw

Polics
point for the ption that this condones sharp programme of
asasordidaffair.
ions of bribery,
that suddenly onfirm Cabinet few seemed to tarnished the President who is r of Finance, the Mr. Kadirgamar, h moral ground, urthermore, if the propriety are to insubstantial and Ons for what oted, Thawakkal question of the he Government. was trying to do ood the bad its done, how come in a Scandal of its 'ely, transparency
ns that Edmond merambassador, al for Economic oreign Ministry, until recently, finistry of Media, urism, a director Chairman of Lake ified his date of Posts Committee h his application
Denmark, is a tion of the calibre rise in our public fernments of both
ially damning for t are the reports onsorship and within the 2 and that it was withdraw the ws story of his he head of the ter, Dharmasiri believed in some is support is So vill guarantee him
a position in government.
Clearly, within the President's office there are those who are assured of acting with impunity in support of their friends and regardless of the adverse impact of their actions on the government's reputation. Is Mr. Sanath Gunatileke, thePresident's Media Advisor and the official in question, so abundantly competent that he can beforgiven yet again for embarrassing his President and her government in thearea of hispurported expertise? Whether it be the President, officialsclosely associated withher or Cabinet ministers who were hailed as pillars of rectitude, competence and vision, reputations are being swiftly dented and undone in government.
Minister Peiris's reputation has suffered over the Hilton case, his battle with A.S. Jayawardene and his stewardship of the constitutional reform process; Kadirgarmar over Thawakkal, Ashraff over the Galle Port and the Mulberry Group of the PA has decided to launch its own investigation into Nimal Siripala deSilva's ministry and allegations that he is in cahoots with Mr. Sirisena Cooray. Minister Wickremanayake is in bad odour over his role in influencing the election of the Basnayake Nilame of the Kataragama Devaleand was for a moment the target of a CWC no-confidence motion over his handling of the plantation strike. Minister Thondaman, always a political animal in a class of his own, in turn, was to be the target of a retaliatory no -confidence motion threatened by his Cabinet colleague Srimani Athulathmudali. Were these two motions to have been debated, it would have been amatter of record that the number of such motions brought by the Government against itself would have been equal to that which the opposition has thought fit to moot. It should
June 19960 counterpoint033

Page 36
also be noted that whilst the CWC motion wasanopposition motion, there is no evidence to indicate that MinisterThondaman actually discouraged it or canvassed against it.
It is common knowledge that Minister Athulathmudali is more than just piqued at the way she is treated by the President and that on devolution, she and her DUNLFers are passionately committed to the unitary state. Minister Rajapakse, on no lesser authority than that of the President's, should be best known asa`reporter". Andas for the leftist members of the ruling coalition, they are notin agreement with the Governmentover the uni tary state, privatization and the islandwide emergency.
Minister Ratwatte whose stock is high after Riviresa 1 and 2, is directly responsible for the management of the two crises facing the country - the ethnic conflict and the acute power shortage. Both these issues are of fundamental importance to the futurepeaceand prosperity of this country and inboth cases, the light at the end of the tunnel cannot be detected easily or clearly.
It is difficult to ascertain what the ministerintends to do to avert the threatened black-out and its repetitionin the future, apart from praying for rain and playing with time. There was advance warning that we could come to such a ridiculous situation and nothing seems to have been done about it. Perhaps, theminister has been and is still over-burdened by his contribution to conflict resolution in the Northeast. Perhaps he should berelieved of one ministry on the grounds that howevergood the general, directing operations
on two vital frontsisjust too much
to expect.
As for the ethnic conflict postRiviresa1 and 2, precisely because of the military success of those two offensives, the threat of going back to the futureisa very real one
indeed.
There is ever military successh space for a politic the lines of meani and powershar Committee seem andoneishard pr sources of lever
1 harinessed on beh
beyond the -commitment of th a handful at no lieutenants. And and commitment the arena of consti notably the ab Executive Pre hesitates to rely ex primarily, on the chief executive.
On the crucial party consensus given her in tem about the UNP parties, includin dishonesty level latter, one cannot thinking that at or wrecking job consensus buildir chief exe Cut preoccupation.
Assuming this a view and assu President is keel deadlock in the Se and advance devolution, what ( have 2
An obvious breaking a stal legislature is to g and obtain a ver that parliament wo to ignore. This ent contestin the form election, a Gener. Consultative Re devolution, the r would not be bind be outside th procedure for reform.
However, government's ex postponing
340counterpoint-June 1996

indication that is narrowed the lSolution along gful devolution ng. The Select to bein atrophy 'ssed to identify ge that can be lf of devolution incerity and e President and st of her close given promises s in the past in utional reform, plition of the sidency, one lusivelyoreven good faith of the
issue of an allon devolution, perate remarks and the Tamil g a charge of ed against the be blamed for Le stage, it was a rather than ng that was the ive's chief
to be too cynical ming that the to break the lect Committee he cause of ptions does she
method of emate in the to the people lict from them uld findunwise ils an electoral of a Presidential | Election or a ferendum on Isult of which ng, as it would stipulated onstitutional
given the planation for the
local
Government elections on the grounds of insufficient security personnel -- an explanation given, despite the fact that the Government knew a year ago that these elections had to be held in 1996 because it had postponed them in 1995 -- one wonders whether the availability of security personnel and the security situation, would allow for the conduct of any islandwide electoral con test in what remains of this year. Moreover, there is the danger that in all of these contests, the issue will not be devolution alone and whilst the Government will win, it will not, in all probability, win convincingly enough to claim a mandate to restructure the state.
What is clear is that there is a crisis of leadership and a desperate need for competence in government. That the UNP will inherit as the IPA self -- destructs, will be no more than a testimony to thestranglehold of the two party system on our political psyche. Thereislittle substantive evidence to show that the UNP is seriously transforming itself into an outfit the people will enthusiastically accept as being well prepared for efficient government and good governance. The UNP will have to clean itself up convincingly and openly admit pasterrorand terror, before it can be embraced again as the party of government.
Many more messy monthslike these and the people will have to lookelsewhereforsalvation.There has got to be an alternative that is credibly democratic, non-violent and competent, with a radical agenda to reformulate the social contract in this country. The politicians are giving themselves a bad name and it is approaching the time when, we the people, will have to do more than watch, wait and See.
Is this the governance we deserve?

Page 37
law, Media andld of Degr
Rajan Hoole
THEmanner in which power is wielded in a society is the most revealing of its character. Two important reflections of it are the system of laws and their operation, and the functioning of the media. The two have a close relation to economic power, and more or less codify the dominant ideology of the ruling class along with whom and which interests they seek to protect. In and through legality the ruling interests seek to legitimise and fortify their position. When the ruling class is confident and its ideology unchallenged, its legal articulation is mature and refined. The opposite is nearly always true when the ruling class is in crisis.
Take the highly dubious Citizenship Acts of 1948/49 that made more than a tenth of the population of this country, who were of Indian origin, stateless and voteless vagrants, but who still continued to earn more than 70% of this country'sforeignexchange.The departing British conveniently left behind a constitution that failed to define citizenship and the first Parliament of independent Ceylon defined it to suit the dominant interests. When challenged, the Lords of the Privy Council in London simply held that is was the proper function of the Parliament to define citizenship. It was all polished and decorous. That was theearly50s when therulingclasses in London and Colombo were confident. By the 80s the strains were clearly showing.
In pursuit of the interests of quick profits for its financial sector, British industry was brought low.
In an attempt top British governmc policy of sellin, respect for p principles or thc While Saddam ordered a geno attack on Iraqi Ministers Mellor slinking in rand helping Saddam arsenal. Britain, W acting as chief pi War against Iraq thus a cruclfarce, inquiry into the a Sir Richard incriminating ir suggested tha ministers acted good faith". Form Margaret That orchestrator in th was barely touch There were no credibility of Br wearing thin.The imposed on the Gulf War was a S
The Pri
It is invariab concentration of in a particular cl. the country'slaw of the media. example which o egalitarian image changes have ta ironically, the tw governments ( Keating. Followir policy of der dependenceonur
| so-called Nairu
inflation rate of

Tam View
!ology in the Spirit adation
lug the holes, the nt launched on a 2 arms with no ublicly stated country's laws. Hussein in 1988 cidal poison gas Kurds, British and Newton were out of Baghdad to build up his ith US and France, rotagonists in the in early 1991 was The report of the arming of Iraq by Scott, while its detail, also t the Cabinet "honestly and in er Prime Minister cher, the chief his shoddy affair, ed by the inquiry. resignations. The itish justice was draconian control media during the ign of the times.
vileged
ly the case that economic power ass is reflected in ; andin thenature in Australia for nce boasted of an 2, Some alarming cen place under, "o recent Labour of Hawke and gon an economic egulation and employment (the Non accelerating unemployment),
the Labour years have seen the proportion of wealth controlled by the richer 1% double to 20%. The last vestigesofmedia diversity have been ended with 70% of the metropolitan press coming under the control of Rupert Murdoch. Abroad, the Australiangovernment became deeply involved with Indonesia's Suharto regime that was implicated in a campaign of genocidal terror against the people of East Timor. Australian companies were potential beneficiaries of oil exploration deals signed. Not surprisingly, last year, Australian Foreign Minister Gareth Evans proposed a secrecy law that threatenedjournalists whoexposed the villainy of the country's spy agencies with up to seven years in prison.
In Ceylon, on the other hand, thelevelofcrudity rosemuch more
sharply from thelate70s witnessing
the fact that theruling class and its ideology felt more threatened than their economic peers abroad.
Justice, Impunity and Culture
During the 80s, summary killings by the security forces and the practice of impunity became so much the norm that the law of the land assumed largely a vestigial role, primarily serving thefunction of upholding the canard that the security forces were striving to maintain law and order. The Prevention of Terrorism Act (PTA) and the new Emergency Regulations made confessions elicited under duress admissiblein courts of law, and enabled the disposal of bodies withoutinquest. As we shallsee, this led to the legal
June 19960 coursepoln-35

Page 38
process becoming tangled in contradictions and being subject to ridicule.
Underlying this is a society that tries to cling desperately to thecosy assumptions of chauvinist ideology. It has lost the ability for critical appraisal. Anyone who is seen as a threat to the status quo or the system could suffer systematic persecution, long periods of detention withoutjustification and be slandered withinpunity. There is, in the press, for instance, the regular presumption that any Tamil picked up is a suspected hard-core terrorist.Theresultingalienationis not addressed.
Three women were arrested in connection with the JOC bomb explosion of June 1991 assuspected accomplices of the mastermind Varathan. Between police sources, the Sunday Observer, Daily News (30-/6-1/7/91) and Lankapuwath, the following claims were made: 1) None of those detained had any
academic qualifications; 2) Varathan had three mistresses in Colombo, all of them werehardcore LTTE cadres; 3) Two of them were married, and the third an attractive 20 year old girl" was unmarried. It was a clear attempt to play on theprejudices of acredulous public, paint a picture of Varathan as a common criminal, and to divert attention from the glaring faults of a very corrupt state.
Varathan was in the business of transporting goods from Colombo to Jaffna at a time when, even as the press readily claimed, sections of huge bribes werepaid to selections of the security establishment. Varathan was evidently very comfortable about his dealings in Colombo. From what I know of Varathan, he was a charismaticand disciplined person. The unmarried girl was his fiancee. All three girls were released by the end of 1993 either as innocent or by pleading guilty (by arrangement for early release) to the IPTA offence of withholding information. In the meantime, the husband of one of the girls, a very innocent girl, had
committed Suicid the obloquy heap
On the other most objectionabl was just what t driven elite a (champions of V admired. He had to bring brainwas from Jaffna, condi them, and then se deathas suicidebc then the Colombo publicity to form who proposed fo suicide Squads convicts servingp - the same categor sent to drive Tam Aru and turnitin
These are all picture of disinte say, in Central journalists and acti persecution, atten the drifthere have What we have somnolent uni metropolitan instit duantities of pape the humanities, touching on the de this country's trag
The Ridic
There are man around for a count to stay united, wh ridiculous. The eli debased that peo conscious of this, a it. What sort of a co themainline so-cal press campaigns to of law and gives th crowing in triu succeeds? Is not th cornerstone of a un
Soon after then came to power in , moves to set up inquire into gross v security forces w leading sections of
accused in such te:
Dracula-like prope old graves. For a
360 counterpoint0 June 1996

, unable to bear d on his wife.
and, what was about Varathan
e ideologically
ld the press "eli Oya) most he ruthlessness ned young boys ion and manage ld them to their mbers.Now and ress have given r army officers rming counterusing willing ison sentences - 7 of persons first ls out of Manal o Weli Oya. art of the same gration. Unlike, America, where vists faceregular pts to question peen very feeble. are mostly versities and utes turning out r in law and in
hardly ever epestrealities of edy.
ulous
7 contradictions ry that is at war ich tend to the te culture is so ple are hardly dindeed accept untry is it where edindependent oppose the rule e impression of mph when it rule of law the ited nation? w government ugust 1994, its ommissions to olations by the S ridiculed by he press. It was ms as having a sity to disinter pparently not
disinterestedreasons the campaign wasjoined by the UNPleader Ranil Wickremasinghe. In August last year several security operatives, including STF personnel, were detained over the corpses-in-lakesaffair. The Island in a lead item suggested that the security of Colombo was beingjeopardised.
In January this year President Kumaratunga ordered the Army Commander to place on compulsory leave a number of security personnel, including brigadiers, implicated with gross violations in commissionhearings. Following a purposeful leak, there were again suggestions in thepress that military operations against the LTTE in the North wereimperilled. No credit is given to the political leadership of the new government that has been the crucial elementin creating problems for the LTTE. The Army officers concerned have of course been around for a long timedoing littlebetter thancreating a bloody mess. Shamindra Fernando in the Island's lead item of 16th April, could not suppress a note of triumph when two brigadiers implicated, instead of being sent on compulsory leave, werepromoted to therank of MajorGeneral.
The following quote from the Islandlead item of 19th February is a sad commentary of how the elite of an 'independent and sovereign nation'view their own people. "The forces launch artillery strikes in Valvettithurai every so often. The Forces are careful... as misguided shells can hit places occupied by foreigners" (i.e. ICRC and MSF in Pt. Pedro, six miles East. Civilians, including the large refugee population in the area, did not apparently matter).
The Batalanda Commission sittings recently brought out the absurdity of the legal process. A key event concerns the disappearance of police subinspector Rohitha Priyadharshana, who was allegedly murdered in February 1990 by his superior officers. The counsel for SSP Douglas Peiris attempted to

Page 39
implicate Rohitha as a JVP sympathiser. In the crossexamining Rohitha's brother, Peiris' counsel revealed that according to a confession made by Piyadasa, an alleged JVP leader for Gampaha, Rohitha and another sub-inspector Ajith Jayasinghe (a key witness before the commission) had aided and abetted JVP violence. He further revealed that the alleged confession to the police, admissible as evidence under the IPTA, was accepted as voluntarily made by the High Courts of Gampaha and Colombo.
In his re-examination of the brother, a counsel assisting the commission revealed that in both cases the suspect Piyadasa was not present in court, and that the conviction had been passed in absentia. Further, the prosecution witnesses in the Gampaha High Court were ASP Raja Dias and SSP Douglas Peiris, both implicated in harrowing deeds by the witness as appearing before the commission. It has been clear for more than a decade that repressive laws introduced toprotect eliteinterests had led to the criminalisation of the police, with senior officers during thelate80s allegedly collectinghuge payments from the police reward fund, based on claims to head counts of JVPers disposed of. What does one do with judgements of guilt based on confessions made to police officers later found to be criminals of the worst sort? What does one do with such confessions accepted by court as voluntary and later submitted as evidence against someone else? How is an ordinary member of the public to respect the law and the poor judges who operate this system?
The Crucial Challenge
A challenge before persons concerned with the future of this country is highlighted by the Batalanda Commission. It involves more than charges against a couple of privates, captains and brigadiers of humbler origins. A name that has come up before the commission a
number of times Wickremasinghe, li the country's government. Whil according to witn the Fertiliser Batalanda sche allocated to select at his request, on Douglas Peiris. O. was used as a to Wickremasinghe office in the scheme regularly, and po Merril Gunaratne who have been as: workings of the according to the te every sign of bei Wickremasinghe. still going on and conclusions. But th of unease.
Unlike the re) Ranasinghe Prem Sirisena Coorays thrown to the wo much disco Wickremasinghe challenges the wor have been very c him. Hence, the c from thepressand of Colombo Societ To begin, the honourable optic have gone public defence of their and refuted the ver This would also large number of diverse walks of malignant slande they could have p confidence in theil him to stand down cleared. Their silo party that is low ( Not the least silence of the institutes, scholar
Correction
Asenienceini
are victims of circu
 
 
 

Tam Wew
is that of Ranil !ader of the UNP, alternative e he held office, 2sses, houses in Corporation's me had been ld police officers e of whom was he of the houses rture camp; Mr. himself had an which he visited ice officers DIG and SSP Peiris ociated with the torture camp stimony showed ng close to Mr. The hearings are it is too early for ere is a great deal
putations of the adasas and the which could be lves without too mfort, Mr. 's discom fiture ld of the elite who omfortable with leafening silence nearly all sections
y.
UNP had two ons. They could with a forceful cader's integrity ySerious charges. mean accusing a witnesses from life of collective, r. Alternatively, olitely expressed leader and asked until his name is nce is typical of a in principles.
alarming is the Colombo-based ly establishments
O the same writer's piece in the March is
curbing Police State Impulses. elast section whereamisprinthas given the
noliberation for the Tamils in which thousands of LTTE ad, ristances, end up as ashes of military defeat
and human rights groups. They remained silent when the press campaigned (successfully as it turned out) against the President's order to send army officers implicated in violations on compulsory leave. The accepted wisdom in all these matters seems to be, "Do not touch them'. It is a sad commentary on the lack of convictions.
In an important sense, no longserving member of the post-1977 UNP Cabinets is innocent of some of the most horrific crimes of this country's post-independence history. The July 1983 violence and in particular the massacre of Tamil prisoners at Welikada Prison stronglypoint to Cabinet complicity, not least because they were never investigated. The official who was in charge of the prison, and those whose actions then are said to have been fairly creditable, today heads the Human Rights Task Force. There is no doubtagood deal of testimony lying around Colombo with various organisations. Why has the matter not been investigated? It is far from enough to say'Weare trulyashamed of what happened during those times' and feel good about it. The poison is still very visible with us.
The only promising course open to us is greater radicalism and the application of constant pressure to ensure that the present commissions fulfil their allotted task. The burden should not be placed entirely on the judges. If others lack conviction, nothing would change. The Government too needs to be challenged to repeal the repressive legislation that paved the way for the tragedies these same commissions are looking into. If the Government does not, its sincerity and also the character of the Presidential Commissions will be placed in doubt.
ten the opposite,
June 19960 counterpaint 37

Page 40
Aussie Cance highlights ICC
twixt slip & gully
THE Australians have finally decided that they are too busy to honour a two-test commitment to Sri Lanka in July and have announced their intention of participating only in the one-day Singer tournament to be held in September (after, of course another review of security!).
What is baffling is the news that there was no firm commitment for the two tests scheduled for July, and we are led to believe that the earlier commitment was just in the minds of the previous Cricket Board.
Ever since the refusal of the Australians to play in Colombo in the World Cup, citing security fears there was much speculation in the international media that the test tour in July was injeopardy. This topic was discussed many times all over the world and no mention was made that the two tests were actually not even confirmed commitments as the ACB would like us to believe now.
The Australian volte face is typical of the
way some of the major cricketing nations have bullied their way around thanks to a very impotent International Cricket Council.
The ICC has a sacred duty to perform in administering the sport and popularising the game among its asSociate member countries and the rest of the world. The ICC sadly is toothless today and, happily enough for the sport, the minnows of yesteryear are now the game's leading exponents and they now must be heard as it is on their shoulders that the future of cricket rests.
The ICC must immediately ensure an EQUITABLE distribution of tests among all countries. Whilst the traditional "Ashes" series may have five or six tests, no test playing country should suffer the
380 counterpain June 1996
 

Sports
|lation of tour 's impotence
ignominy of being granted anything less than a THREE test Series.
All the test playing countries should be ranked every four years and an undisputed world champion will clearly emerge, as during this period all countries should have played each other TWICE in a minimum of SIX tests on a home and away basis.
This would mean each side would have to play an average of a dozen tests a year which is quite reasonable. All games will be supervised by the ICC who will calendarise the fixtures every four years. Any side failing to honour its commitments should be severely penalised. •
Except for England, Australia and New Zealand most of the other test playing
countries can host games right throughout the year and so logistics should not be too much of a problem for the ICC.
Additionally, two sides can play an entire three-test series on "neutral" venues. This summer both India and Pakistan are due to play three tests each against England in England-imagine the prospect of an IndiaPakistan series in England! The two teams would probably draw more crowds than the Englishmen playing at home
Equally fascinating would be West Indies playing South Africa in Colombo and Sri Lanka taking on Australia in Eden Gardens, Calcutta.
A similar programme should be conducted among the associate members of the ICC where the sides are ranked and then ensured an equal distribution of unofficial tests against each other.
This is how the ICC can improve its image and gain respect amongst the other members -- it must take over the running of the entire cricket programme. The time to start is NOW!

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