udiciary Under Pressure
By Nirmala Kannangara
Prime Minister Ranil Wickremasinghe’s statement over the Supreme Court ruling on former Defence Secretary’s Fundamental Right (FR) application, it is now being questioned whether the politicians in the new government too are trying to influence the country’s judiciary like how the previous regime is accused of interfering with the judiciary.
It was one of the main election slogans of the then opposition that they will not interfere with the country’s judiciary and to bring the 19th Amendment to bring back the stalled independent commissions for good governance. Opposition Leader Nimal Siripala de Silva says that Prime Minister’s statement on the court ruling is a severe blow to the independence of the Judiciary.
Meanwhile Attorney-at-law Gomin Dayasiri said that Prime Minister Wickremesinghe is barking up the wrong tree and that he should peck at the proper bark.
“Why is the Prime Minister (PM) accusing the Supreme Court when they have made no error? Prime Minister Wickremesinghe should turn his guns on the Attorney General’s (AG) Department. Why are all the valid points made by the PM not made by the AG’s lads during the proceedings? If they fail to win judges with convincing submissions, Wickremesinghe should change state lawyers without impliedly blaming the judiciary. How can the judges be faulted on reaching a legitimate decision they were entitled to make, in the absence of making needy objections at the due time by the AG,” Dayasiri said.
Dayasiri said that if a long date was suggested why the AG was so droopy to fail in asking court to give an early date in view of urgency of the situation. “I kindly request the Prime Minister not to blame judges if the state lawyers are in the land of Rip Van Winkle! What they need is a kick on their back to wake them from deep slumber and get off the high horse which they can mount once again when they reach standards as in the old days when this was the glory department. It will continue to be a sad state, if the AG is entrusted with work of importance. Look at the state of the case against TRO filed long time ago? Once the pride of the state sector now is a dead duck because of feeble minds in high places. The PM is correct – if he blamed the AG department instead of the impliedly criticising the judges who played their role to perfection on the law,” Dayasiri added.
Dayasiri further said that if this government finds that matters are not placed on a fast track to tap the door of AGs’ department. “Saw the lame excuses trotted out by a senior member of the AG’s staff. What a weak kneed backbone less reply by the once sturdy show piece department. It showed spring – cleaning must start from the top without delay,” he said.
Although it is as such the former President of the Bar Association of Sri Lanka (BASL) Attorney-at-law Upul Jayasuriya said that there is no wrong in criticising a ruling given as the duty of the judges’ end after the order was delivered.
“In the famous Spy catcher’s case where inside details of the UK defence forces was revealed and criticised, the British Government wanted to ban this book from publication. As a result the House of Lords upheld the government’s decision and the UK media reported the news with publishing the Judges pictures upside down under the caption of ‘five fools’. When questions were raised from the Chairman of the Bench whether this action is contempt of court, the Chairman said that their duty ended with the ruling and it is up to the media to take up the matter. Likewise in this particular case too no one can say that criticising the order given is contempt of court,” Jayasuriya said.
According to Jayasuriya, the Judges should have the freedom to decide but added that the decision should be taken without any influence. “I am not saying for a moment that these Judges have been influenced. But there are certain inferences that can be drawn from the order. The order has open for a flood gate from preventing the former Defence Secretary being arrested for five months. Like in the Spycatcher case, once the order is given, the burden switch from Judges to the public domain for their comments,” Jayasuriya claimed.
He further said that the Judges can prevent such an arrest for about one week but queried how the bench prevents a person form being arrested for five long months.
“Legally two judges can hear a FR case but the practice is not to give an order to prevent an arrest for such a long period but maximum would be two to three days. Such a long time frame given has never heard in our legal system before,” Jayasuriya added.
The Opposition Leader meanwhile says that the judgment given was on par with the law as the former Defence Secretary filed the FR petition to challenge the operations of the Financial Crimes Investigation Division (FCID), to which the Court had given an interim order halting the arrest of Gotabaya Rajapaksa until October 6, 2015- the date the case is to be taken up next. “The Prime Minister has become unsettled by this verdict and is now demeaning the judiciary,” De Silva claims.
It is also reported that the Opposition Leader has informed Prime Minister Wickremesinghe that the Attorney General had not challenged the right of the Apex Court to issue an interim order during the petition’s proceedings according to Article 126 of the Constitution; as it is permissible for the Supreme Court to hear fundamental rights cases before a bench of two judges.
It is also stated that when Attorney at Law appearing for Gotabaya Rajapaksa, Romesh de Silva wanted the case to be taken up before the Chief Justice, it is reported that it was the Chief Justice himself who wanted to take up the case according to the normal procedure. So on May 13, the case was to be taken up before a bench of three judges Eva Wanasundara, Sarath de Abrew and Buwaneka Aluvihare. However Justice Aluvihare excused himself from the bench for personal reasons.
Meanwhile a legal luminary on condition of anonymity told The Sunday Leader that the ruling delivered by the two judges is in violation of section 132 of the constitution. “When it is a mandatory requirement to hear such cases before a bench of three judges, who gave authority to these two judges to flaw the supreme law of the country? Hence this not a valid ruling therefore we cannot accept it,” the sources said.
According to this legal luminary, the judges have infringed their legal limits to give an injunction order to prevent the former Defence Secretary being arrested when according to the constitutional provisions and the SC rules they can only determine whether permission can be granted for the FR application or not for its hearing but nothing more.
“The interim order given prohibiting the arrest of the former Defence Secretary is a flawed order. To my knowledge an interim order lasting 5 months is the first in the country’s judiciary history. Haven’t these two judges disregarded the SC rules? Isn’t it a gross violation of the sacred law?
He further accused the former Defence Secretary for having an alleged discussion with Justice Eva Wanasundera and Justice Sarath de Abrew the evening before the FR case was taken up on May 13 which he said was a disreputable conduct. “If the allegation levelled against the two judges prove true their conduct is disgraceful as they have pledged to respect and uphold the rule of law of the country. In such an instance this has to be probed and take action against those who have abused their powers. The conduct of the representatives of the Attorney General’s (AG) Department too has raised concern amongst many in the legal circle. When the case was taken up why couldn’t the lawyers representing the AG’s Department argue that the former Defence Secretary can be arrested as there are many allegations against him? Instead of taking these issues into consideration the lawyers spoke about the legality of the Financial Crimes Investigation Division (FCID) when the FR case was filed pleading an interim relief to prevent the former Defence Secretary being arrested,” sources alleged.
The sources further alleged that most of the officials at the AG’s Department are still supporting the previous regime. However he said that the Attorney General has stated that the order is not valid constitutionally.
Meanwhile, Secretary Bar Association of Sri Lanka, Attorney-at-law Ajith Pathirana said that according to SC rule 43(1)a, without notice to the adverse party, an interim relief could be granted for a limited period not exceeding 10 days. “A similar application was filed by MP Tiran Alles seeking an interim relief where the SC ordered to support the same with notice to all the parties who could be affected of the interim relief. This ruling was made by a three-judge bench including the Chief Justice,” Pathirana said.
Pathirana further said that under article 126(4) do not speak of a situation where adverse parties are not even noticed of the application filed. “In such an event the SC rules must be followed and in any event no one can justify the grant of interim relief until final determination of the application. Final result would be that the interim relief granted without hearing the other side will be operative till October,” Pathirana added.
When asked whether there were instances that a bench of two judges have given such orders in the past, Pathirana added that whether such thing has happened in the past or not is immaterial but what matters is that the provision of the constitution must be interpreted and followed along with the SC rule to make it meaningful and workable in a just manner.
“Rule 42 of SC provides that the SC can issue an interim order for a limited period only. However when there is no possibility of serving notices on the other parties such an injunctive order can be issued only for a limited period. At the same time under SC rule 44, two judges of the SC cannot be empowered to issue injunctive orders since the rule is silent over granting of interim relief,” Pathirana reiterated.
When asked whether an application be made to revise the order that has already made by the two judge bench, Pathirana said that although a decision made by the SC is final and conclusive, there have been instances where the SC has revised its own judgement and orders.
Pathirana further said that making an application to the Commonwealth Court against this controversial SC order would not ridicule and degrade the Sri Lanka judiciary.
“I have witnessed how citizens quite often make applications to the International Court of Justice (ICJ), the Commonwealth Court and even to Geneva. Hence it is always advisable to get guidance from the Commonwealth which will not ridicule or degrade the country,” he said.
Pathirana also said that commenting on the court ruling by a respondent is not contempt of court as the respondents are entitle to file the objections and seek a review of the interim order which is the usual practice.
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9 Comments for“Judiciary Under Pressure”
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- Alisten SydneyThe judges and AGA officer are at fault. Judges should have used the common sense before giving the dates considering the importance to both side. Already a judge left and Ranil correctly said breach of constitution by involving tow judges and SJ wants to finish quickly not to October and this has set a preceded to all the crooks of Lanka. Judges and AGM are definitely influenced and wonder the political came Ranil is doing in protecting Mahida and his group. Ranil did protected MahindA in a murder case according to former IGP
- LimaGOMIN DAYASIRI LAWYER IS MAHINDA CATCH , HE KNOWS THE TRUTH WHY EVAN AND ABREW GAVE THE RULING , THESE TWO JUDGES ARE STOOGES OF MAHINDA CLAN , SO THEY WERE AT STONE AND STRING PREMISES ON THE PREVIOUS DAY WITH MAHINDA , GOTA , ALI SABRY AND THE REST , MAHINDA HAD PROPSED THAT HE TRIES TO COME TO POWER AND APPOINT EVA AS THE CJ OF THE SUPREME COURT AND EVAN AND ABREW AGREE TO DO WHAT EVER THEY CAN TO TOPPLE THE CURRENT PRES MS IN ALL CIRCUMSTANCES , RANIL KNEW THE WHOLE EPISODE , READ LANKA E-NEWS FOR ALL DETAILS WHAT TOOK PLACE AT STONE N STRING PREMISES , HOW CAN YOU SAY THE JUDICIARY IS FAIR , IT IS ALL WITH RUBBISH APPOINTEES YET SINCE MAHINDA ERA , WHY NOT CLEAN UP FIRST BEFORE GIVING JUDGEMENT , THAT IS WHY GOTA TOOK ADVANTAGE , NOW BASIL ALSO TAKING ADVANTAGE , THEY KNOW THEY ROBBED SRI LANKA AND NOW THEY HAVE TO PAY THE PRICE , I THINK BETTER THE PUBLIC SHOULD STONE THEM TO FINISH OFF
- dharmathe two judges are stooges of mr Rakapaska,they must step down from the bench forth with. they want topple the government subject to investigating , take the two judges to compalassary leave. it very important to the srilanka judicial.
- rajI totally agree with the following statement:‘Meanwhile a legal luminary on condition of anonymity told The Sunday Leader that the ruling delivered by the two judges is in violation of section 132 of the constitution. “When it is a mandatory requirement to hear such cases before a bench of three judges, who gave authority to these two judges to flaw the supreme law of the country? Hence this not a valid ruling therefore we cannot accept it,” the sources said.’ (The Sunday Leader May 24, 2015)
- rajSince Rajapaksa ruled the country for a long time, their influence within judicial system should not be underestimated. Therefore, PM is absolutely right about court’s ruling by two judges instead of three judges. It should also be noted that preventing someone being arrested for a long period of 5 months is unusual. This should be investigated.
- dharmasrilanka BAR association should not appear for mr Gota he is a wanted criminal, killed 100 thousand people. president 100 day program fail to investigation before election.
