C. Wijeyawickrema, LL.B., Ph.D.

Balu Theendu!

The difference between S. B. Dissanayaka and Albert Gore, who won the US Presidential election by popular vote, but denied it by the US Supreme Court is that Al Gore did not use the words Balu Theendu to express his resent to the court’s deliberate and politically bias decision. Subsequently, one of the conservative judges, Antonin Scalia, admitted the erroneous ruling made by the court in the name of maintaining the ‘sanity’ of the US system of governance (or to avoid a constitutional crisis wrongly perceived by the court).

Judges are human, and the judges and lawyers are a fraternity like the policemen, firefighters or trade unions with their own open and implied rules, customs and habits of scratching each other’s back. In America hundreds of court decisions must be unfair and unjust on a daily basis with the strange system prevailing in the country, to elect most judges by popular elections.  How can a judge resist the temptation to ignore favoring, even slightly, a party before him who voted for him at the last election, even if the judge is not going to contest again!

An elites’ club

One could get a glimpse of the Sri Lanka’s notorious history of misuse and abuse of power and influence by the judiciary and politicians as individuals and as an elite class from the book written by the late S. L. Gunasekara, a prominent lawyer of a Supreme Court judge (Lore of the law and other memories). Even foreign embassies take part in this game. The documentary, Court is Silent by Victor Ivan is a world record on the courage of a reporter to lay naked an entire branch of government aka, independence of the judiciary. No other country has the record of SC CJ’s opposed, ridiculed, punished or sued or disgraced as in Sri Lanka. The only CJ in recent times to save the dignity of the office was Victor Tennekoon who confronted that constitutional dictator JRJ.

Bad judges could manipulate the justice system, because decisions are taken on the basis of facts presented before them, and the potential that exist in each case to interpret the facts for or against a particular law (Thus, in America, the segregation of blacks and whites in public schools under an interpretation, separate but equal (in funds and resources), was overturned by a new interpretation in 1954, that a separation based on race under any circumstances was inherently harmful to student’s mind). This is true irrespective of the situation that the lawyers arguing the case are competent or not even though usually more money means better skills available on behalf of a client. In America or in any other country with a western system of jurisprudence if a client is rich more research can be done to collect more facts, select favorable jury’s or even to buy potential witnesses. In the third world countries run by black-whites even bribing a judge is a possibility. Sometimes even an innocent impartial judge after giving his decision could receive an unexpected offer of ‘recognition’ from a ruler who benefitted from that decision. There was a case of Mrs. B and her brother and the judge S.A. Kulatilaka, who was given ministerial post (cultural affairs) as a delayed gratitude.

White Man’s Law

The historical fact that the law in Sri Lanka is a White Man’s law (suddage neethiya) complicates the picture completely. One aspect of this law, apart from using it for the economic exploitation of the colony, was its use for the expressed and implied purpose of sabotaging the Sinhala Buddhist civilizational foundation in Sinhale. The operational aspect of this was to create disorder in the Sangha fraternity and damage the link between the Sangha and the laymen and women. A simple example was the law that prohibited a new school close to another school, which helped Christian schools to gain a larger service area. The rule that existed that anybody working as an officer of the education department if transferred to Colombo has a right to admit his children to a Colombo school (Royal/Ananda??) is a funny but not stupid law in the final analysis! Sri Lanka’s black-white politicians have failed to change this White Man’s law, because they thrive under it fooling the masses of Sinhala Buddhists.  They all damage the civilizational Trinity in the island, the village-water tank-temple. Today, laws of an evil triangle, -politician-officer-NGO- is crushing this Trinity with crocodile tears by way Gama Naguma, Gam Udava, Gamperaliya etc.

Continuing Education (CE) for Judges

If one re-examines the British colonial history of Sinhale (Ceylon came from the sound Sinhale), as a history of a clash between the white rulers (later black-whites) and the temple, no court or judge could deny the historical role the monks in this island played in the socio-economic-political affairs of the nation. Even if a judge is a non-Buddhist, he/she ought to know this. This is why in other countries judges have compulsory continued education programs conducted by experts in different fields relevant to judges’ performance of their public duties. For example, what I learned as a student of jurisprudence for the past 40 years on applied law (legal geography) in three different countries is good for a two-days CE course for all levels of judges in Sri Lanka. They avoid it at the risk of destroying their own system within as well as justifying extra-judicial inroads (the likes of Ranjan Ramanayakas) to sabotage it from outside.

http://www.colombotoday.com/54927-23/

Bodu Bala Sena Movement

Judges must understand (and read literature) that since 1948, several commission reports, including the Press Commission Report of 1964 and the Kandyan Peasantry (Rehabilitation) Commission Report of 1951, signaled successive black-white ruling parties in no uncertain terms that the Sinhala Buddhists in this country has had a long list of grievances, first such report in 1954-56 and the last in 2002. DS Senanayaka, the first black-white PM sarcastically tried to dismiss the spirit leading to the first report interpreting his white master Ivor Jennings’ advice that there is no such Precept/Refuge in Buddhism called, Anduwa Saranan Gachchami.” The last, a commission appointed by Mrs. Chandrika as a delaying tactics to the Movement floated by the late Ven. Gangodawila Soma, submitted its report in 2002, which was ignored by her, MahindaR and MaithripalaS. The 2005 razor thin election victory of MR was a result of him benefitting from the Ven. Soma dowry. These are social science evidence a court must consider, in the same manner the USSC did so in 1954 for the first time in US legal history.

Bodu Bala Sena (BBS) started in May 2012, had its meteoric rise due to neglect of Buddhist grievances by politicians in power since 1948. BBS did not say a new story, it was the same old message. It was not another failed JHU which was infected with enemies within who destroyed it. The unique difference was that for the first time, reminiscent of the days of Anagaraka Dharmapala in the 1940s, BBS brought open to the public arena the fact that Sinhala Buddhists have no political leader, and that politicians have been habitually treating Sinhala Buddhists as if they were like the proverbial kind-hearted woman. The black-white political machine tolerates any monk who operates within the parameters of the system. When Ven. Soma exhibited signs of going beyond, he had to face an untimely suspicious exit. From the very beginning the BBS cow did not confine itself to the pasture traditionally allowed by the length of the black-white given rope. It broke the rope and jumped over the fence. This made the entire black-white establishment to come after BBS leader’s head, making all kinds of false allegations against him. So many crook politician spades, got branded as spades by BBS. Not a single allegation against BBS has been investigated so far, and not a single act or demand made by BBS could be identified as undemocratic or illegal.

The position of BBS has been that we have grievances and we want discussions with the parties involved to resolve these issues. The last of this, the BBS discussion with the Maharagama Magistrate, on the subject of wholesale harassment of war heroes in the country by a political party perceived as agents of foreign powers trying to divide Sri Lanka, was a dialogue and not a confrontation. In fact, the Magistrate mentioned the role of the parliament in this regard, despite the common knowledge of all that parliament is a dud agency. The You tube video clip attached and a previous video clip of the actual dialogue tells this story making the law and fact issues found by the Court of Appeal look irrational and odd. The Supreme Court now has an opportunity to examine the evidence (facts submitted) and prevent the courts of Sri Lanka being perceived as an agency biased against the Sinhala Buddhist nation of this island. It was Governor North, who first noted the need to tame the monks, and during the last world war in the 1940s Admiral Layton had an alternative plan to take all Buddhist monks into war prison camps, just like what president Rossevelt did to the Japanese residents in USA.

Any reasonable person watching the video clip attached cannot help but have doubts about the way the Court of Appeal handled the BBS case, and the SC has a moral and a legal duty to show the country that not only justice is done, but it appears to be so done. The unusually harsh action by CA looks as if the judges got carried away by a long-awaited conspiracy by some anti-BBS entity to trap the monk capitalizing human weakness, in this case the monk’s emotional anger due to helplessness (The late Ven. Soma also succumbed to such human weakness, when he secretly decided to go to Russia to get a worthless Ph.D. certificate).  The SC cannot inspire public trust and confidence as promised by its motto if judges have tunnel vision and display ignorance and possible selfish future interests. When the last SCCJ  Siripavan said that appointment of national list MPs is not a national issue, what comes to my mind is what Shakespeare said, The first thing we do, let’s kill all the lawyers [judges].”  Public interest lawyer, presidential candidate Nagananda Kodituwakku, should appear in this case as a friend of the court, and educate the judges on the facts beyond the facts in the case file. The sooner we go to a system of Buddhist Jurisprudence (practiced by the Sanga society before it got corrupted by English rules), Sri Lankans will be a less litigious and more contended society, saving time, money and energy for more meaningful ventures.

Unfortunately, I do not have an e-mail address to send this opinion to the SC in Colombo.