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If Sarath Fonseka can be trated this way then what could be the plight of ordinary Tamil or Sinh...

Oct 25, 2010 1:06:35 PM- transcurrents.com

by M.A. Sumanthiran

Hon. Deputy Chairman of Committees,

At the determinations of salaries for judges of superior court, when those salaries and allowance are being raised and right at the outset I wish to state that we agree with the motion for the determinations that have been placed before the house. The salaries of judges are an important component that ensures independence of the judiciary.

In any function in democracy independence of the judiciary is an important feature, and it is for that reason that even the rules of debate in this house, in terms of the standing order 78, has provided that the conduct of judges cannot be a subject matter of the debate except on a substantive motion. So the parliament which is supreme in the realm of law making has itself bound itself, provided fetters for itself, so that the other arm of the government namely the judiciary must be independent. But this standing order 78 is often misunderstood as can be seen; it’s only the conduct of judges, the conduct of the president that cannot be raised.

Judgments of courts do not fall under this standing order; Judgment of court can be criticized, not only within the confines of this house but also outside, because justice is not a cloistered virtue. It must suffer the scrutiny of men, it must stand the test that is applied to it, and so in any functioning democracy as I said, that is another feature that shows up the independence of the judiciary, The ability to subject judgments of court for fair scrutiny before the people, and today is an opportunity that we have to reflect upon the history or the performance of the independence of our judiciary. It’s an opportunity to evaluate how independent our judiciary has been.

That is not a matter that comes within the purview of conduct of any particular judge; it’s a judiciary as a whole. I agree with most of the government speakers as to how under the 1978 constitution, the independence of the judiciary was interfered with constantly by the Executive. It started with the promulgation with the constitution itself, Judges of the superior court were shut out, there could not even enter their chambers, and it a decided authority, in a decided case, Vishvalingam Vs. Liyanage – former chief justice Nevil Samarakone has hoped that such a dark day as what happened on that particular day will not happen in the future in this country, but that was not to be.

Very soon, houses of judges were stoned. Judges who have given judgment against the state on certain fundamental rights matters that came up before the supreme court was stoned, but that is not to say that this trend of the Executive interfering, threatening, seeking to subjugate, the supposedly independent arm of the government, that the judiciary ceases with the change of administration. No it doesn’t. We see that sad spectacle even today.

To this day, the Executive’s interference in the judiciary continues and that is there for all to see. Members of this house can trade allegations one against the other. Every time the main opposition UNP, points out to the government benches that the independence of the judiciary is been interfered with one sees the sad spectacle of government ministers and government members responding only with the history of what the UNP did.

What the UNP did is no justification for what happens today. What the UNP did is no yard stick by which one decides whether it’s right or wrong or to what degree the interference in the judiciary can be tolerated. If it was wrong for the UNP to have done that, it is wrong today for the UPFA to be doing the same thing. That is the test. By their own words they condemn themselves; by their own words when they respond and say “Well you did the same thing” they bring judgment on themselves, saying “We are doing the same thing. We are doing the unacceptable, we are doing what a democracy should not condone” and that is the Executive to be interfering with the judiciary.

Appointment of judges is an important aspect of the independence of the judiciary. I was sad to see the Hon. Susil Premajayantha justifying the 18th amendment that has taken away whatever independence that was brought in with the 17th amendment. The very fact that the Executive appoints without untrammeled powers, judges of the superior court itself is a severe blow to the independence of the judiciary. We have had this sad spectacle in this country, one were to look behind and evaluate under the Soulbury Constitution, there was a protective clause. Sec. 29(4) and 29(2), which prohibited any passage of legislation even in the legislature that conferred any benefit in one community that was not conferred on another community or subjected one community to some disability that the other community was not subjected to.

At the time the constitution was promulgated if anyone was to ask to give an example of what may have been in their minds, an easy example would have been given that the Sinhala language cannot be made the only official language. That could have been the example that could have been given under 29(2). But that very act was passed in 1956 and the judiciary could not do anything. There were legal challenges to that, at least two. That is the sad history of this country.

Not only that in 1972, when a new republican constitution was to be brought in, Mr. C. Sundaralingam, former member of this house, went before the supreme court to stop the promulgation of a new constitution the judgment that is reported says, “it’s too early, it has not happened yet. So you can’t challenge this”. As soon as the 1972 constitution, the first republican constitution was adopted by this house by the national state assembly then, Mr. Sundaralingam went back to the Supreme Court again and said ok now it has happened. He was told by the very same judges “now it is too late. Now that is the constitution under which we are selves derive the authority”.

Such a sad joke it was, when you seek to do it first you are told it’s too early, when you seek to do it just after, you are told it’s too late. In 1972 constitution, I agree entirely with what Hon. Susil Premajayantha said, the first several amendments were taking away the independence of the judiciary. Even the judiciary that functioned independently, their judgment was sought to be squashed by constitutional amendments utilizing the, as the Hon. Minister himself said, utilizing the Five fourth majority in this house.

But the situation is now no different. Using the majority, any majority beyond the 2/3s majority to achieve its own purposes and to stultify the judiciary form functioning independently is a negative step for any government. There was reference made to international law. When Mr. Sepala Ekanayaka highjacked the Alitalia Aircraft in Bangkok, this parliament hurriedly passed the air piracy act, and sought to make the Air piracy an offence retroactively. At the time when that was challenged that you can’t make the offence retroactive the argument was that this is already recognized, that the air piracy is already recognized as an offence by the international community of civilized nations and therefore it was an offence even though there is no enabling legislation that has been passed in this country.

When that was favorable, international law was self executing in this country. You didn’t even need an enabling Municipal law to have been passed by this legislature. Only to prescribe sentences subsequently it was said that an Act had to be passed, and that passed muster.

That is good law, but what has happened now?

Now there is so much worry about international law applying to this country. We boast and say that we are one of the senior members of the United Nations. We participate in the affairs of the United Nations most notably when a flotilla of boats was sent to Gaza strip and the State of Israel attacked it although white flags were raised in that ship, it was bombed. The UN investigation to that is led by our own ambassador Mr. Palitha Kohana.

We participate in that process to investigate into the conduct of another sovereign nation on the basis that we are a responsible member of the international community. That’s all well and good. That’s most welcome. But what is sauce for the goose must be sauce for the gander as well. International law has developed over the years, and if we don’t keep in step with the international law or we don’t keep step with those developments, we will be left behind.

We will not be able to claim that we are a part of that international community of civilized nations. If we are to proudly call ourselves a member of the International community of civilized nations, we must behave in that civilized fashion. When there was a massacre that happened in Ruanda, and if a journalist from Ruanda reported that massacre, the question is not whether such a thing happened or somebody said that such a thing happened. If there is a great violation of human rights and somebody says that, the question is not did somebody say that such a thing happened, no, the question ought to be did such a thing happen? Somebody saying that a great violation of human rights occurred is not so important as to find out whether in fact such a great violation of human rights occurred or not.

And if unless we change our mindset to that civilized conduct we cannot continue to boast that we are part of the international community of civilized nations. Our own supreme court has functioned independently to a great extent. Even this morning the Supreme Court granted bail and was disgusted and said we are becoming a bail court because they were granting bail to somebody who was in remand for seven years. So they step in to that lacuna. And that’s most welcome.

But I said that they have function independently to a great extent. To the extent that the Executive permits them to function, and we see more and more such permission being denied to the judiciary. So it is not enough merely to increase the salary of judges, conducive and independent atmosphere must be created for the judges to function independently. Last May 282,000 people were intern in camps in and around Vavuniya. To this day no judicial order was given for their detention. To this day not even a detention order given administratively given by the secretary defense was issued in respect in any one of those 282,000 people. Where is the rule of law?

There is a reported case HE Mahinda Rajapakse Vs Kudhaheti. That says an arrest is when a person is stopped from moving from one place to another. That is an arrest. That was decided in favor of the person whose complaint of his freedom of movement, Mahinda Rajapakse at the Katunayaka Air port. But here are people who have been consigned in camps without any judicial order, without even an administrative detention order. Not for a day, not for a week, not for a month, but now over one and a half years. Several of them have now been “Released” but still there are about 30,000 remaining.

It is not the numbers. Even if it was an individual, where is the rule of Law? Not that people didn’t have recourse to courts. A case was filed in the supreme courts SCFR 457/09, on the 18th of June last year, to this day no order has been made with regard to leave to proceed, where is the independence of the judiciary? To this day no order has been made. Ordinarily an order either granting leave to proceed or refusing that is given in the very first day of support. It doesn’t take more than a day. But when it concerns Tamil civilians, who in numbers exceeding 250,000 in force detention camps, even the highest court has not made an order. Now we are for increasing the salary of judges, but the judges must also perform their duties properly. That is the reciprocal duty of these judges.

Another Application was filed by Hon. Marve Senadhirajaha in 2007, SCFR 646/07 with regard to access to his house, no order with regard to leave to proceed has been made even to this day.

Take the case of General Sarath Fonseka. It is not the individuals who matter, but the principle. Not one citizen of this country believes that he would have been prosecuted, whether before military turbulence or otherwise if he had retired and gone home without contesting the presidential election. Not one single person in this country believes that. So where is the system of justice?

And if that can be done to General Sarath Fonseka, the ordinary Tamil civilians in this country shudder what their plight might be before such a judicial system. If the commander of the Sri Lankan Army who is hailed to be the one who led the Army to victory against Tamil terrorists is dealt with in this fashion, what is the plight of ordinary Tamil people and I dare say ordinary Sinhala person in this country.

Independence of the judiciary is an absolute essential for any democracy because it is a judiciary that not only arbiters the disputes between two private persons, but in today’s world more and more it is the judiciary that arbiters the disputes between the state and the citizen and the judiciary is expected to play a neutral role in that matter. Particularly, when we have entrenched provisions in the constitution, that accord with the international law it is the duty of the court that has been vested with that kind of jurisdiction to exercise that power to the fullest, so that we can continue to say that we are proud to be a member of the international community of the civilized nations.

Thank you

(Text of Speech made by TNA national list MP M.A.Sumanthiran in Parliament during motion on increase of salaries for Judges)