topic: Judicial independence

හිටපු අගවිනිසුරු සහ ජීඑස්පී ප්ලස් සහනය

The EU has suspended Sri Lanka’s GSP Plus concession, worth 78 million euros in 2008 against exports of 1.24 billion. Government, exporters and commentators alike have forgotten what caused it: two rulings by former Chief Justice Sarath Nanda Silva, the same man now lecturing the country on international law. Under the ICCPR, citizens could petition the UN Human Rights Committee where the highest court failed them, and most complaints heard concerned Silva’s own conduct — among them Tony Emmanuel Fernando, jailed a year for contempt on a false charge after suing over withheld case records, and assaulted in prison the day he was committed. Silva also barred a work-to-rule at the port, which the ILO found breached its convention, and then disparaged that convention in open court with an ILO representative present. Correcting those two wrongs would be enough to recover the concession.

අවලස්සණ ජනාධිපතිවරණයක්

Three weeks before the January 2010 presidential election, Ivan argues the contest between Mahinda Rajapaksa and Sarath Fonseka has taken the shape of a fight between two bazaar thugs rather than between democratic forces. Both camps breach the law on cutouts and posters, and neither the police nor the Elections Commissioner will enforce it. He traces the collapse to Chandrika Kumaratunga’s appointment of Sarath Nanda Silva as Chief Justice over the senior Mark Fernando, while corruption complaints against Silva were still before the court. Silva, once the target of a joint UNP–JVP impeachment motion, is now the opposition campaign’s constitutional spokesman. Ivan concludes that defeating a man will not change a system, and no party has said what should replace the executive presidency.

ජීඑස්පී ප්ලස් බදු සහනය ආරක්ෂා කරගත යුතුය

Whether Sri Lanka keeps GSP+ is a measure of its diplomatic sense, Ivan writes: a member of an organisation is bound by the rules it agreed to or should leave. He points out that nothing done during the war is what is at issue, and that releasing the displaced, withdrawing the Yaksihiran indictment, pardoning Tissainayagam and passing a short law making the covenants domestically enforceable would settle it.

විනිසුරුවරුන්ගේ සදාචාරය

Anonymous broadsheets about the conduct of judges are circulating among lawyers in Hulftsdorp at fifty rupees a copy, and Ivan treats them as a symptom rather than a source. Quoting H.L. de Silva on judicial integrity — that a judge’s moral honesty matters more than his legal skill — he sets out his own complaint against a district judge, the two inquiries that followed, and the protections that make a wayward judge almost untouchable.

හිටපු අගවිනිසුරු විත්තිකරුවකු වීම

Revision applications against the retired chief justice’s judgments are beginning to queue at the Supreme Court, and Ivan expects the queue to lengthen — though the poor who were punished without even a charge sheet are not in it. He argues that since the Supreme Court is the last place an error can be corrected, it is the institution that most needs to be under continuous scrutiny.

විශ්‍රාම යන අගවිනිසුරුතුමෙනි. ඔබට ආයුබෝවන්

On the retirement of Sarath N. Silva, Ivan sets out the record: cases of relatives heard and
relieved, enemies punished to the limit, orders issued to the executive and the legislature,
and an injunction obtained against the Speaker through friendly counsel and a friendly bench
to stop an impeachment reaching the House. He goes back to the district court case brought
by a chemical engineer over the judge’s relationship with his wife, and to the officer
promoted before his punishment had expired.

ව්‍යවස්ථා සභාව, උයන්ගොඩ හා විග්නේෂ්වරම්

The Jathika Hela Urumaya objects to Jayadeva Uyangoda’s nomination to the Constitutional
Council because he once served a twelve-year sentence, and the prime minister to C.V.
Wigneswaran’s. Ivan answers that the 1977 government repealed the law Uyangoda was sentenced
under and gazetted that it should not follow him, that Gandhi, Mandela and D.S. Senanayake
were all imprisoned men, and that being Tamil does not make a retired Supreme Court judge a
separatist. The deeper fault, he argues, is a constitution written to place the president
above itself.

2009 වසර හා දේශපාලන අංක ගණිතය

Ivan opens 2009 expecting the global collapse to hit Sri Lanka hard. The year begins with the Golden Key crisis dragging the rest of Ceylinco’s finance companies down, tea, cinnamon and rubber in unprecedented difficulty, and smallholders who once earned well unable to live. War spending for 2009 is 177 billion rupees, and the country must fight through an economic crisis it cannot abandon the war to escape. At Kilinochchi the army advances slowly through bunds, trenches and traps, its target the LTTE’s war machine rather than territory. Meanwhile a run of court rulings against the government, above all on fuel prices, had trapped it politically — until it escaped by cutting fuel, gas and official expenses in one package worth 16 billion rupees, and put the opposition on the defensive instead. Ranil is the better mathematician; Mahinda is the better political arithmetician.

Whither Justice?

A retired army commander and a respected engineer petitioned the Supreme Court over judicial appointments made without constitutional council approval. Victor Ivan records what happened: a bench including the Chief Justice heard the petition and then directed the Attorney General to establish whether the petitioners had abused the judiciary by bringing it. The message, as he reads it, is that nothing the President does may be questioned, and that asking is itself an offence. Neither man belonged to the UNP or sought party advantage; they went to the last place open to a citizen with a grievance about governance. The Court’s first duty is to defend the constitution against an executive assuming powers it does not have, and by making the protection of the President its duty instead it has annulled the constitution without replacing it — leaving the country, Ivan writes, with no fundamental law at all. Similar cases from the Organization of Professional Associations and the People’s Movement for Good Governance have met the same immunity ruling. What strikes him most is who is fighting: citizens who know they will lose, while the UNP, the JVP and the Jathika Hela Urumaya say nothing and parliament will not even debate it. A judiciary that abandons its supervision of the executive, he concludes, brings the country closer to Prabhakaran’s Reich, where no authority may investigate Prabhakaran.