Anarchy and the Judiciary

The Judiciary seems to be making a concerted effort to protect its independence and dignity, in contrast to all other 

institutions in the country which are on the verge of collapse without any attempt being made to rescue them 

– Pic by Shehan Gunasekara 

It is evident that the Podu Peramuna Government led by Gotabaya Rajapaksa, the new President, wants desperately to withdraw the cases filed during the Yahapalana regime against corruption and criminal acts alleged to have committed during the previous regime of Mahinda Rajapaksa. However, in the absence of the support of the Judiciary, it appears clearly that a cold war situation has arisen between the Government and the Judiciary. 

Some of them involved in those lawsuits publicly supported Gotabaya Rajapaksa at the Presidential Election while presidential candidate Gotabaya Rajapaksa also defended them vigorously on election platforms.

The new President, soon after assuming office, appointed a three-member Presidential Commission to look into the alleged political reprisals during the Yahapalana regime. Perhaps he might have thought that it would be an easy way to rescue all those involved in litigation.

The Presidential Commission, in response to a complaint made by Wasantha Karannagoda, a former Navy Commander and D.P.K. Dissanayake, a former Navy Spokesman, issued a directive to the Attorney General to suspend the case relating to the abduction and disappearance of 11 youths until the Commission completes its investigation. The Commission may have believed that the Attorney General would disregard the law and accept the directive issued by them on behalf of the new Government which had assumed office after a huge electoral victory.

But the Attorney General refused to accept the order issued by the Commission and informed it that it is only a Commission of Inquiry, and as such the Commission had no power to issue such an order to the Attorney General who is empowered by the Constitution to pursue the case; moreover, the Attorney General informed the Commission that his department had filed the case merely on the basis of evidence presented at the inquiry and not on any other grounds. The Commission could not challenge the Attorney General’s position. This can be considered the first conflict the new Government has created with the Judiciary.

Udayanga and Karannagoda

The next incident pertaining to the Judiciary occurred when Udayanga Weeratunga, ex-Sri Lankan Ambassador to Russia and a close relative of the Rajapaksa family, who stayed out of the country for a long time, evading the Judiciary, was produced before the Fort Magistrate’s Court upon his return to Sri Lanka following the Presidential Election victory. Apparently the Criminal Investigation Department (CID) had made all possible arrangements to ensure that Udayanga Weeratunga would be released on bail without any difficulty.

However, Magistrate Ranga Dissanayake not only questioned the Police officers vehemently about the arrangements made by the Criminal Investigation Department to secure bail for the defendant, but also refused to grant bail. Thereafter, when the case was taken for hearing on day two, he further stated that the defendant would be remanded until the conclusion of the case as a Magistrate’s Court does not have the power to grant bail for offences committed against the Public Property Act.

This case had been presented to the Court by a Police officer who had nothing to do with the investigation. The two Police officers who had conducted the investigation of this case for over five years had been transferred. As there was no record that the fiscal notice issued on the two Police officers to join the case had been handed over to them, the Magistrate issued an order to the Acting Inspector General of Police to reinstate them to the investigation process of the case. 

The next significant incident occurred on 24 February when the case on the abduction and disappearance of 11 youth in 2008 and 2009 was taken for hearing in High Court before a three-member panel of judges. This can be considered a case in which the Presidential Commission tried to intervene. The Police had failed for the third time to produce Wasantha Karannagoda, former Navy Commander, who was a defendant in the case, before the Court.

Justice Champa Janaki Rajaratne, the Chairperson of the three-member panel of judges, said before open Court that the 14th accused who had held the highest rank in the Navy evading the Judiciary cannot be considered a simple matter. The Chairperson further stated that the Police should be ashamed of their inability to hand over the relevant summons to the accused and stressed that the Court expressed its deep displeasure on it and emphasised that the law should be enforced equally on everybody. 

The Senior Additional Solicitor General who leads the case pointed out that the investigation file which was in the custody of the Criminal Investigation Department had been handed over to the Presidential Commission by order of the Presidential Commission and consequently the proceedings of this case are completely hindered. The three-member panel ordered the Director CID to take the investigation file into his custody immediately and also to send a copy of the order to the Chairman of the Presidential Commission.

Silver lining in the Judiciary

Just because a new government has come to power, it does not mean that there can be a system in the law to expedite proceedings of cases being heard against certain individuals connected with the Government. If the Attorney General and the judges had adopted a demeaning policy in these three incidents outlined above to satisfy the Government, it would certainly have become a phenomenon that signifies the demise of the Judiciary. 

Taking these three events together, the Judiciary seems to be making a concerted effort to protect its independence and dignity, in contrast to all other institutions in the country which are on the verge of collapse without any attempt being made to rescue them. 

It was the Criminal Investigation Department (CID) that handled most of the controversial cases. They can be considered massive investigations carried out in the field of criminal investigation. Some investigations were influenced by the former President and other political powers; yet the investigation process continued without being succumbed to their pressure. The new Government soon after it came to power bulldozed the Criminal Investigation Department completely, notwithstanding the fact that there was a Police Commission.

The ability of the Judiciary of Sri Lanka to prove that it has not fallen into a demeaning level that would force itself to dismiss cases of public interest can be compared to a silver lining flashing in the middle of the darkness. The country is in a historical moment at which it is fast moving towards complete anarchy. Although not understood by the public, the entire system of Sri Lanka is in a state of collapse. A complete collapse may occur at the same time when parliamentary election is on or soon after the Parliamentary Election. As a result, the country might be plunged into an anarchic situation. 

If the Judiciary in Sri Lanka will be able to safeguard and strengthen its independence, impartiality, and dignity in the face of this crisis without falling prey to the impending collapse, it will certainly be able to perform a pioneering role in minimising the damage caused to the public under anarchic situation whilst at the same time dispelling the darkness of anarchy. 

In the event of a complete collapse of the country, the responsibility of rebuilding the government and the entire institutional system into a democratic system rests upon the people and not on the politicians. If the Judiciary will be able to strengthen its existence without being a victim of the crisis, invariably it will be able to play a pioneering role in guiding the public in the process of recreation and reconstruction of the institutional system.

The evolution of the Judiciary

It was due to Colebrook Cameron Reforms implemented during the British rule in 1833 that Sri Lanka inherited a modern judicial system. There was no one common judicial system prior to that. There were several systems, one system exclusively for Europeans and many more for natives. The Governor or the Chief Executive of the country at that time also held great judicial power. 

The Colebrook Reforms abolished the judicial powers of the Governor and the right of the Chief Justice to represent the main Executive Council and instead established a Supreme Court comprised of the Chief Justice and two other junior judges. All Lower Courts were brought under a uniform system of justice under the control of the Supreme Court.

Along with this, all people, regardless of race, caste, creed or class, were treated equal before the law. Therefore, Sri Lanka got a modern and optimum judicial system. At the same time, a judicial system which would not hesitate to take decisions against even the Governor who could be considered the most powerful person of the country was established. The decision reached by a panel of judges headed by the Chief Justice that the order issued by the Governor to deport Bracegirdle, a European Radical in Sri Lanka.in Bracegirdle case was contrary to the law, is a good example that can be cited to show the independence of the Judiciary at the time.

The decline of the Judiciary

Prior to independence, the majority of judges in judicial service comprised Europeans, while the majority of native judges in judicial service were Burghers. Both factions can be regarded as a group fostered by liberal thought and had a deep understanding of the role of the Judiciary in a modern democratic state. At the same time, they were well aware of the role of the Judiciary in a modern democratic state.

But since independence, not only Europeans but also the Burghers who constituted an indigenous ethnic group, left Sri Lanka, and the Judiciary became an institution comprised almost of indigenous judges. But the indigenous judges did not comprise of a team inspired and fostered by liberal thinking. They did not have a proper understanding of the role of the Judiciary in a democratic political system. Consequently, a judicial tradition that supported the policies of the governments in power, irrespective of whether they are right or wrong came into being. 

The emptiness or the unsubstantial nature of freedom that Sri Lanka gained also had an impact on it. The Indian independence struggle functioned as a movement that spread basic concepts of democracy among the masses. Such a thing didn’t happen as far as the independence movement of Sri Lanka was concerned. 

The Indian Freedom Movement caused a major change in social psyche. But, the independence movement in Sri Lanka failed to make such a far reaching impact on the social consciousness. So much so, India did not carry forward the judicial system that it inherited from Britain as it is. India, having studies all the important judicial systems in the world developed a new judicial system to suit the needs of the country.

The Constituent Assembly of India regarded the new judicial system formulated by itself as the custodian of the ongoing program of social revolution unleashed by the independence struggle. The Indian Independence Movement and the Constitution making program that created a new constitution for India gave the Indian Judiciary an advanced perspective on the social role of the Judiciary.

However, neither the independence movement of Sri Lanka nor the independence gained was able to give such an advanced vision to the Sri Lankan Judiciary. Therefore, the Judiciary of Sri Lanka always tended to function as a prosecuting body and not as an institution that shed light on the governance process. For example, on the language issue that arose in 1956, the Judiciary of Sri Lanka functioned only as a defender of the ideology of the ruling party, the triumphant political stream and failed to guide the country and the government in the right path.

It was only after 1977 that the stagnant character of the Judiciary changed to a certain extent. It can be considered a dark period in which the ruling party which had a five-sixth parliamentary power interfered with the Judiciary in a very ugly manner and attacked it brutally. However, the Judiciary was able to play a leading role in protecting and expanding human rights while safeguarding its autonomy to some extent and without being a political cat’s- paw for the ruling party. President J. R. Jayewardene appointed Neville Samarakoon, a personal friend of him as chief justice, may be with the hope that he would have been able to persuade the Judiciary to function as a political cat’s paw of the government.

Nevertheless, Neville Samarakoon, from the time he was appointed Chief Justice, chose to act in a manner that protected the independence of the Judiciary and public rights rather than defending President Jayewardene or his Government. Despite the fact that the Judiciary was under severe attack by the Government, this era can be considered the golden age of the Judiciary in Sri Lanka after independence. 

Restore the dignity 

The Judiciary was on a forward journey safeguarding its independence and dignity until its custody was assigned to Chief Justice Sarath Nanda Silva, during the regime of Chandrika Bandaranaike. Sarath Nanda Silva can be regarded as the leader of the Judiciary who completely reversed the forward march of the Judiciary. Chief Justice Sarath Nanda Silva can be considered the one who has completely ruined the reputation of the Judiciary.

Almost all the professions in Sri Lanka have lost their dignity to some extent. The dignity lost cannot be regained arbitrarily. It can be restored not by force, but by dignified conduct. All professional institutions do not enforce the law against their professional colleagues when they breach professional discipline. In that sense, the Judicial Service Commission can be considered the foremost agency among them.

Despite shortcomings, there seems to be a mechanism operative in the Judicial Service Commission for investigating complaints against judges who commit offences. The Judicial Service Commission took stern action against High Court Judge Gihan Pilapitiya. Recently, it was in the news that a High Court judge had passed a 16-year jail sentence on a District Judge for taking a bribe of Rs. 300,000 to pass a favourable judgment in a case heard by him. 

If there are corrupt judges in the Judiciary, it is imperative that they are removed from service. In the days of Sarath Nanda Silva, the Judicial Service Commission followed a policy of protecting even judges who committed serious offences. The policy adopted in regard to Magistrate Lenin Ratnayake and District Judge Upali Abeyratne are two good examples that can be cited to illustrate this. Sarath Nanda Silva during his tenure as Chief Justice had maintained close contacts with underworld criminals. 

Noufur, who assassinated Justice Sarath Ambepitiya, acted as a close supporter who defrayed the cost of functions held in the judges’ training institute. The Mahinda Rajapaksa regime that came after the reign of Chandrika Kumaratunga also can be described as an era of brutal attacks on the Judiciary.