President Maithripala Sirisena reiterated many times over that the guiding principles of his national government would be restoration of the Rule-of-Law, a corruption-free administration and good governance.
A recent news item that received wide attention stated, on the advice tendered by the Attorney General, the Avant Garde and Kumaran Pathmanathan’s cases were withdrawn. Further, in a remarkable coincidence, the cases filed by the then government and the then Opposition against Governors of CB, present and his predecessor on alleged multibillion rupee corruption in issue of Bonds have been withdrawn by respective parties. The UPFA filed action while in Opposition, against UNP interim rule appointed CB Governor, which prompted the UNP to go to courts alleging Rajapaksa’s man over similar charges. Losses of billions mentioned in the charge sheets were dumped as they mutually agreed to share the cabinet portfolios!
Avant Garde and Kumaran Pathmanathan
The reasons given for not proceeding with case against one time head of procurement of arms to the Liberation Tigers of Tamil Eelam, K Pathmanathan [KP] were lapses and inaction on the part of prosecution. AG in his response to the Avant Garde case put the blame on Criminal Investigation Department saying they acted on the facts submitted by the CID without disclosing the offence under the Explosives Act, Firearms Ordinance, or the Prevention of Terrorism Act [PTA], though the officer, who initially handled investigations declared, that there is ample material for prosecution under any of the above three enactments. On KP’s matter, AG says that State lawyers had not disclosed Pathmanathan’s involvement, but only reported to court regarding police investigations into some incidents. These lame excuses have caused extreme public suspicion. Speculation rife in KP’s case, that the pressure exerted by West to prevent KP revealing details in a confession to courts on funding resources, arms supplies and intelligence support where they can get viciously exposed, has caused the ‘duty bound’ government to safeguard the interests of Western masters.
‘good old days’ of Dudley and Sirimavo
The tampering with judiciary by the rulers dates back to the good old days of Dudley and Sirimavo in 1960s and 70s. An Indian businessman who was unsuccessful in obtaining citizenship in [60-64] was used against Dr Mackie Rattwatte, private secretary to PM, Sirimavo, by Dudley Senanayake’s government 1965-70. Then Attorney General, Victor Tennakoon disagreed, saying there is no prima facie case: Tennakoon was immediately removed, rather promoted to the SC [kicked upstairs] and a party man ACM Ameer QC from the private Bar and the brother-in-law of the person who contested Balangoda electorate against Clifford Rattwatte, brother of Sirimavo and Mackie, was made the AG. Obviously the appointee obliged the master and prosecuted Dr Mackie on a trump-up-charge of accepting a bribe from the businessman. The UNP friendly Bar Association of Sri Lanka (BASL) turned a blind eye. However, the District Court Judge dismissed the case without even calling on the defense. –Ref. Bradman Weerakoonpp155
Felix Dias Bandaranaike, the senior minister and trusted lieutenant of Sirimavo Bandaranaike became infamous for quite few acts of interference with the affairs of hallowed precincts of Hulftsdorp during 1970-77 government. He abused Bribery Commissioner’s office in Ian Wickramanayake era using his favorite Manohara, a Judge of the District court, which prompted Gamini Fonseka to produce the film ‘Sagarayak Meda’.
The bedrock of our democracy is the rule-of-law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds
that are blowing. –Caroline Kennedy
In 1977, JRJ had appointed Neville Samarakoon QC, his personal lawyer, counting agent and UNP’s Executive Committee member, as Chief Justice overlooking GT Samarawickrema, the most senior Judge serving at the time. The BASL was headed by his brother, Harry Jayewardene QC; there were no protests. The two brothers presented the 1978 draft constitution introducing a unique clause unprecedented in the history of state constitutions, [article 163], which says,
‘…all judges of the Supreme Courts and the High Courts…holding office on the day immediately before the commencement of the constitution shall, on the commencement of the constitution, cease to hold office.’
It was a calculated move by JRJ to restructure the SC by eliminating judges who were not in good-books of the regime and fill the vacancies with their men. The CJ, Neville Samarakoon in his address at the induction remarked,
“…we have gathered together to usher in the new SC in the traditional manner known to bench and bar. I and my brothers have been members of the old SC could have wished for it an honorable demise and a decent burial, but that was not to be. Words have been uttered and aspersions cast in another place which seemingly affects its hallowed name. What more is in store I do not know?”
As correctly predicted by him, shameful developments were ‘lying in store’. Then in June 1983, Ratwatte J, Colin-Thome J and Soza J held that Vivienne Gunawardena, a former MP and Junior Minister who had been detained on the instance of International Women’s Day parade created a breach of her FR, accordingly SC endorsed compensation to the victim. The police inspector responsible was commended by the government for ‘good work’ and promoted within 24 hours. A couple of days later the houses of the three Judges were stoned by a bus [CTB] load of thugs sponsored by a government politician. President JRJ interviewed by a scribe said, it is a right enjoyed by every citizen to demonstrate in protest.
The controversial Superintendent of Police, Udugampola seized 20,000 leaflets [Pavidi Handa] printed opposing the infamous referendum of 1982 by a Buddhist priest in February 1983. In a FR violation plea filed by the priest, the SC granted damages ordering the SP to pay it out of his private money. A few days later the SP was promoted and the damages were paid out of the State funds. Government big wigs openly declared, ‘public officers should do their jobs and follow orders without fear of consequences from adverse court decisions’.–-‘Sri Lanka Serendipity Under Siege’- Patricia Hynderman ( Lawasia); pp 122/3
Private practice for State Counsel
Based on the English rule laid down in the 19th century, the AG was not allowed to engage in private practice. This was a valuable rule in the interests of the Justice itself. Violating the tradition, in July 1980, the AG and the legal officers of his Department were granted permission to engage in private practice. Siva Pasupathi, the AG appeared in the Court of Appeal in 1981at a case and marked his appearance as private counsel for the LRC was disallowed by the Two-Judge Bench of the Court of Appeal; later it was endorsed by the SC.
Shirani Bandaranayake, appointed a SC judge by Chandrika Bandaranaike Kumaratunga and promoted Chief Justice by Rajapaksa Regime, declared 18th Amendment, which scraped the vital clause restricting the incumbent from seeking a third term, and doing away with the provisions of appointing several commissions as consistent with the constitution if passed by a two-thirds majority without holding a referendum.