By I. P. C. Mendis Courtesy The Island

July 31, 2016, 9:24 pm
The yahapalana administration, which sought to restore independence of the judiciary and the public service, having castigated the previous regime seems to have evolved a formula to ensure that while ostensibly it seeks to display a ‘hands-off’ stance in respect of these institutions, it has employed an ingenious method to undermine them through various committees, press briefings and platform antics.

The sub-judice Principle

Time was that when an issue was sub judice, it was not discussed even in Parliament and any attempt to do so would invite a howl of protests. An instance of this ethic being deliberately violated in Parliament was when President Premadasa, as Prime Minister of the then JRJ (UNP) government, disregarded the sub judice principle despite objections and bulldozed his way through to deprive Sirimavo Bandaranaike of her civic rights, on the premise that Parliament was supreme; a position which is directly opposed to the Westminster culture,

The present Prime Minister Ranil Wickremesinghe was the Deputy Minister of Foreign Affairs at the time. The ‘misconstruction’ seems to have now spread into the political and public domain where judgments are analysed, debated and even sometimes criticised at press briefings and other places openly or in subtle form, which in the days gone by, many would have thought twice about in the context of a possible contempt charge.

There are not many civic minded citizens who would move Court to impose contempt charges; S.B. Dissanayake’s case was a flash in the pan. It is certainly time for the Courts to be given the power to initiate action if there is no provision at present. It will be an impetus for strengthening the independence of the judiciary. The trend tends to weaken the judicial system and public confidence in it. It is a travesty of justice to appoint committees, ostensibly to examine some ancillary aspects of a judgment, paving the way with masked innocence to review, albeit impliedly, issues which could mischievously cast doubts on a judgment at issue. If suspicion is gaining ground that committees (composed of pro-government members) are generally expected to whitewash those in the dock, the government has itself to blame.

Coal Power Tender

The coal power tender is one such instance. One can see how some ministers strain their muscle and sinew at press briefings pouring out loads of figures, statistics and arguments, which are incapable of being challenged instantly by viewers or audiences. Their modus operandi is to create doubts. The recorded loss to government on the tender is being challenged when the proper forum would have been the Supreme Court, when it was hearing the case. The gravity surrounding the issue has been emphasised in the few words which convey that the SC is shocked! What more? Minister Ranawake seeks to stretch any probe back to 2009. Indeed, confusion has its advantages. The three (or four) ministers who are said to have some involvement in the relevant cabinet papers seem to indulge in the age-old parlour game––”Who Sir, You Sir, Not I Sir, Who then Sir”––hoping and praying that some committee will shout, ‘Rajapaksa’!

Demonstrations & Press Interviews

Demonstrations and press interviews of suspects, (including those remanded), within court premises and their immediate vicinity are a common sight now. This practice portends the exertion of some pressure on the judiciary via public opinion being moulded one way or the other. The Bar Association of Sri Lanka, which should ensure discipline and decorum, is silent as it is itself guilty of violating the code by giving leadership for many of its members to demonstrate against ex CJ Mohan Peiris – an instance where the respected ‘black-coated gentry’ descended to the level of the rabble! If the impeachment of CJ Shiranee Bandaranayake is to be strongly condemned despite the process being to all appearances constitutional, the outrageous way ex-CJ Mohan Peiris is witout any word in the lexicon to describe it.  The government which pledged good governance is not without legal/constitutional instruments to achieve its goals rightly or wrongly. It has opened a can of worms in its declaration (sans judicial process) that Justice Peiris had not properly been appointed. It has laid bare the obvious inference that all judgments and appointments by him through the Judicial Service Commission are in fact invalid? It follows that decisions made by the “questionable appointees” could also be irregular. Any victims must, therefore, have the remedy of having the relevant judgments or decisions invalidated with compensation.

The Auditor-General’s Dilemma

The authority and independence of the Auditor-General is reportedly being indirectly brought to ridicule by certain government institutions and departments by non-cooperation, and sometimes refusal to respond to his queries. The reported Central Bank stance on the Bond issue which necessitated the intervention of COPE is one such instance. The AG holds a constitutional position and such conduct needs to be considered as an act of indiscipline, sabotage and a ‘snub’ at the constitutional safeguards afforded to his independence.

The concept of democracy is also brought to ridicule if the majority in Parliament is used wantonly without good reason if only to convince the people that an officer who enjoys safeguards enshrined in the constitution is being penalised sans proved culpability. A bad precedent created again by the 1977 UNP government was the impeachment motion (moved by Cyril Mathew) which was passed against the then Acting Auditor-General (Siriwardene) who was purportedly believed to have been ‘inconvenient’ to the Mahaveli Ministry. As if in proof of history repeating itself, we now have the ugly spectacle of the present AG being subtly pressured into visiting the Finance Ministry for discussions on his comments relating to exceeding borrowing limits and steps being reportedly taken to have a Select Committee also examine his findings on the Treasury Bond issue. The AG has sent a report marked “Confidential” which it appears has not been circulated among MPs taking cover under this marking. Such and approach is incapable of reconciliation considering that Supreme Court opinions are also so marked, yet read and tabled in Parliament.

The AG’s comment on this issue has been canvassed belatedy by the Finance Ministry which really should have been done, if at all, when the AG’s draft report was sent to it for observations as is usually the practice.

The government cannot afford to pay lip-service to the concept of good governance and very brazenly violate it through dubious, questionable or subtle methods which erode the confidence of the people (even its own supporters), and far more the civil society outfits, which strained every muscle and sinew purportedly to install ‘good overnance’.

The Sword of Damocles

Indeed, it takes a lot of extra gut for the AG to stand his ground vis-a-vis a seemingly hostile government, which, while posing as a champion of democracy, justice, fairplay and the assured ‘Change’ in its peak, professes the right to information, independence to the judiciary/public service,media freedom etc., does use everything in its power to signal its own intentions to jeopardise independent judgments.