අශීලාචාර 18 පරාජය කිරීම
Following up the previous column, Ivan tests Sarath Silva’s argument against the constitution. Transitional provisions in Chapter XXI of the 1978 constitution, including Article 160, show how J.R. Jayewardene was specially made eligible, and the Eighteenth Amendment, rushed through on the wave of war victory, has a technical flaw that is not easily corrected. Seeking a favourable ruling from the Supreme Court would put the judges in a trap; opposing injustice is a human duty, and all who want change should unite to defeat the Eighteenth.
ව්යවස්ථා සම්පාදනය හා අධිකරණය (ව්යවස්ථාවක් හදාගැනීමේ ප්රශ්නය – 6)
Part 6 examines judicial review. Under Articles 120 to 124 of the 1978 constitution the Supreme Court can review bills only before they pass, so unconstitutional amendments can go through with a two-thirds majority. Parliament has ignored conventions, as in extending its own life by referendum. Contrasting Chief Justice Marshall’s establishment of judicial review in the United States and the Indian Supreme Court’s defence of the basic structure, Ivan argues that Sri Lanka’s courts have lacked the independence and creativity to protect a constitution, however good.
චෝගම් ආශ්රයෙන් උගත හැකි පාඩම්
CHOGM exposed the depth of Sri Lanka’s crisis, Ivan argues: foreign lawyers were refused visas for a Bar Association event, when Param Cumaraswamy had once come freely to criticise the judiciary. The government cannot investigate war-time abuses because it fears the armed forces it now leans on, and Gotabaya Rajapaksa would not welcome it. Every insurrection and its suppression was brutal; Ivan judges the army’s conduct against the LTTE less savage than in 1989 and rejects the 40,000 figure, yet accepts crimes such as the Trincomalee killings. Sirimavo Bandaranaike prosecuted Premawathie Manamperi’s killers; Mahinda Rajapaksa has shown no such courage.
රාජ්ය නිලධරතන්ත්රය
Politicians come and go but officials stay, Ivan argues, and a strong, law-bound bureaucracy is what has kept India’s democracy standing. Sri Lanka had one until the 1972 constitution weakened it and the 1978 constitution destroyed it. He traces the result through the forced resignation of Auditor General Wijesuriya, outsiders placed over the Elections Department, and Chief Justices chosen for loyalty from Wanasundera’s passing-over to Shirani Bandaranayake’s removal. Reviving the Seventeenth Amendment’s independent commissions is no cure, he says, because they had no power to punish a president who ignored them.
පක්ෂපාතභාවයට කප්පම් ගෙවන අපක්ෂපාතභාවයට දඬුවම් දෙන ක්රමයක්
Prompted by a reader’s tip, Ivan sets out how former Elections Commissioner Dayananda Dissanayake obtained a prime plot in Nuwara Eliya on President Kumaratunga’s recommendation for Rs. 30,000 in 1995 and sold most of it five months later for over Rs. 5.2 million. Such favours, he argues, are the bribe the executive presidency pays for loyalty, continuing the plunder of estate land after 1977. Those who uphold the law are punished instead: Auditor General Wijesuriya forced out, Justices Wanasundera and Mark Fernando passed over, B.C. Perera driven from the Treasury, and Shirani Bandaranayake impeached.
අධිකරණය හා නීතිඥයන්
When the Bar Association installed Upul Jayasuriya as president with the ousted Shirani Bandaranayake in the chair rather than Chief Justice Mohan Peiris, it signalled that lawyers still did not accept the new Chief Justice. Ivan welcomes the gesture but argues that judicial independence died with the executive presidency, not the impeachment, and that bench and bar share the blame: the referendum judgment, the Eighteenth Amendment, the Lenin Ratnayake scandal and a rapist High Court judge’s reinstatement show a profession unable to discipline itself. He sets out the English model of regulation.
ජේ.ආර්.ගෙන් ඉගෙන ගැනීම
Ivan argues that the government won the battle over the Chief Justice at a ruinous cost, leaving constitutional interpretation and the writ jurisdiction hollow. He faults the judges and lawyers for fighting like a political party, recalls the Supreme Court’s refusal to hear his own challenge to Sarath N. Silva’s appointment, and draws a close parallel between Mahinda Rajapaksa’s removal of Shirani Bandaranayake and J.R. Jayewardene’s stripping of Sirimavo Bandaranaike’s civic rights, warning that Jayewardene’s drive for unchangeable power ended in Black July, two insurrections and his own humiliation.
නීතියක් නැති රටකට!
With the impeachment of the Chief Justice reaching its climax, the paper sets aside ordinary reporting to list, in twelve numbered points, the consequences of pressing ahead in defiance of rulings by the Supreme Court and the Court of Appeal. It rejects the government’s comparisons with the Philippines and Westminster, warns that a new Chief Justice installed over a lawfully protected one would bring repression and chaos into the courts, and predicts damage as grave as the 1982 referendum and Black July.
අවිචාරය, උද්ධච්චකම හා අශීලාචාරත්වය
Ivan argues that by ignoring the judgments of the Supreme Court and the Court of Appeal in the impeachment of the Chief Justice, the government has done what no previous government dared, destroying both the courts’ legitimacy and its own. He traces the Supreme Court’s power to interpret the constitution and the ancient reach of the writ jurisdiction, recalls the Bracegirdle case under colonial rule and Sirimavo Bandaranaike’s certiorari against J.R. Jayewardene’s commission, and warns, with Musharraf’s Pakistan as the precedent, that two rival Chief Justices could now follow.
දෝෂාභියෝගයේ තවත් පැත්තක්
Ivan argues that the impeachment of Chief Justice Shirani Bandaranayake exposes a constitution built to keep the judiciary subservient: a judge who displeases the executive can be removed by a simple majority, while a president is all but unremovable. He sets her case beside Neville Samarakoon’s dignified stand against J.R. Jayewardene, reads the 1,575-page select committee report and finds the key charge unproven, yet holds that her part in buying a Trillium Residencies flat left her with a moral lapse of her own.