Victimisation of Judges
The hall-mark of the present U.N.P. Government has been the most wide-ranging and systematic victimisation of opponents our country has ever known. Beyond lies only the torture chamber and the concentration camp. There is no guarantee in what is happening that these too will not come. All that is needed is that the present state of growing mass discontent is sharpened into open hostility. When that happens-as it will-this regime will come out in its true colours. Repression of opposition will be the logical outcome of the steadily mounting onslaught on democratic rights and freedoms which has characterised this Government. That logic can be disrupted only by the dialectics of revolutionary mass action. That logic can be disrupted only by the dialectics of revolutionary mass action. Therein lies the task of the Left in Sri Lanka politics.
The forms of victimisation employed by this Government and the forces behind and around it-at the head of them all is the U.N.P.- are as varied as the victims. They range from petty pinching and personal humiliation to plain murder and the other horrors, mentionable and unmentionable, which we witnessed during the post-elections period of utter lawlessness. As for the victims, they range from the humblest to the highest in the land in their well-nigh countless multitude. Today the reach of victimisation has extended to that holiest of holies of dharmishta hypocrisy- the upper echelons of the judiciary. On September 7th, when the new Constitution is due to come into operation, the Judges of the Supreme Court and High Court will stand dismissed from office. The instrument of victimisation is the new Constitution itself. Is there one outside the Left to protest?
Where are the bourgeois liberals of yesteryear? Gone to seed or hibernation under this regime which they mightily helped to bring into being and to which they cling in their class interests because the spectre of revolutionary socialism still looms despite the greatest electoral defeat the Left has suffered since Leftism itself emerged as a force in Sri Lanka? Certainly, the broad public protest has come from the Left and not from the Liberals who were so vociferous in the days of the Samagi Peramuna in power. Such liberalism as is discernible has been reduced to a thin stream of roneoed analyses whose studied spirit of appeal to ‘their’ government separates them sharply from the turbulence of mass protest. The pained surprise of whatever is vocal in liberalism in Sri Lanka today contrasts painfully with the pained realisation of the masses that they were most grossly deceived and taken in by the U.N.P. when they voted in 1977. Will bourgeois liberalism go with the masses or, as is inevitable in a situation of sharpened mass struggle, will it just fade away? It certainly cannot both run with the hare and hunt with the hounds.
Let us return to the U.N.P.’s victimisation course. As noted in the paragraph before the last, the U.N.P. victimisation has already overflowed into the upper echelons of the Judiciary. That overflow has resulted in some further disturbing occurrences.
The judiciary of this country, even under British imperialism, has been a protected preserve into which even justified and permissible criticism has been permitted to intrude only under conditions of strict legal and conventional control. This is part of the British tradition and, in Sri Lanka, an inheritance from that tradition. Not every thing that is British is bad. On the contrary there is much that is British that is good. One strand in that goodness is the attitude to the judiciary which has been developed in the interests of judicial independence.
The attitude is distilled into the aphorism that there have been bad judges, there will be bad judges, but there never are bad judges. There of course are bad judges; otherwise, there could not have been and bad judges. The point of the aphorism is that there are certain definite ways of investigating such badness, and of bringing it home to the wrong-doer and punishing him, without undue damage to the courts as an institution.
There must have been many who looked askance at the startling headline on the front page of the Government – controlled newspaper, the ‘Ceylon Daily News,’ of Friday, August 11, 1978, which read: ‘Justice Pathirana Acted Illegally.’ Below, with no less prominence, was the double headline; ‘Felix’s political stooge in Supreme Court-Counsel.’ Justice Pathirana was a functioning judge of the Supreme Court at the time.
We know of no precedent in our country to cover or match this occurrence and this situation. According to the news note below, the headlines are quotes from the Address of ‘Counsel of State’ at the Presidential Commission. The even is unique in our history and will go down to history. It should not pass into history unnoted by contemporary publicists and without comment within the limits set by law, inter alia, in relation to the Presidential Commission of inquiry. In fact, the presidential Commission or its proceedings are not in issue or the subject of comment here. What is in issue is the President’s course of action in laying down the terms of reference of the Presidential Commission.
Amongst the subjects of inquiry are:-
"(3) the administration of justice in Sri Lanka…………..
"(4) the conduct of any public officer as defined in the aforesaid Law No.7 of 1978."
Under the Law, "public officer" includes:
"(11) any State officer."
Under the Constitution, a Supreme Court Judge is a State officer.``
Presumably, the President knew what he was doing when he authorised the terms of reference with his signature.
The president is, of course, not a know-all. He is usually advised on matters legal even if he be a lawyer. One must assume, therefore, that he was advised of the bearing of the Constitution on the terms of reference of the Presidential Commission.
In the event, the President would have had under his notice the sections "in Chapter XIV – Administration of Justice," of the Constitution and especially sections 127, 128 and 122 which are headed ‘Dismissal and Disciplinary Control of Judges and other State Officers administering justice." We draw attention to the following provisions:-
"127 (1). There shall be a Judicial Services Disciplinary Board to exercise the powers and disciplinary control over the judges and other state officers referred to in section 124’. (Section 124 includes Supreme Court Judges.)"
The J.S.D.B. consists of the chief Justice (who is president) and two other Supreme Court Judges. The provision ensures that a Supreme Court Judge is ‘tried’ by his peers, that is to say, the C.J. and other S.C.judges. the provision also ensures that all other judges that S.C. judges also are ‘tried’ by judges at the highest level, namely, the C.J. and S.C. judges.
The J.S.D.B. follows certain rules of procedure. It is well known that it does not conduct its disciplinary inquiries in public. Where it decides on dismissal of a judge, it resorts t the Cabinet of Ministers with copy to the Speaker.
Under section 128, a judge found guilty of misconduct ‘shall be removed from office.’ To act ‘illegally’ and or as a ‘stooge’ would indubitably be misconduct in any judge.
By section 129(1), a judge may be removed fro misconduct "by the President on an address of the National State Assembly."
29 (3) provides that ‘no motion for such removal shall be plac3d on the agenda of the National State Assembly until the Speaker has obtained a report (on the allegations in the motion) from the J.S.D.B. the findings of the J.S.D.B. are final for the N.S.A., which cannot debate them.
It is in the face of all these provisions of the Constitution that the President’s terms of reference of the Commission have been made. The course of action that the President has adopted amounts to displacing the J.S.D.B. in respects of its exclusive constitutional functions and vesting them in the Presidential Commission of Inquiry in the case of at least one S.C. Judge, one High Court Judge, one District Judge and one Magistrate, in regard to alleged acts of theirs during the period beginning May 28, 1970 and ending July 23, 1977. The Commission consists of two S.C. Judges and the highest District Judge in our land.
Has the President violated the Constitution? It is a fateful question which cannot be evaded. It is also a question which links up with the two laws passed by the N..S.A. by which certain people, in respect of alleged acts in the Local Government field, have been subjected to serious civic disabilities. The constitutional Court expressly advised the Speaker that the material provisions of those two laws were ‘inconsistent’ with the Constitution, actually infringing the constitution’s provisions which expressly denied to the N.S.A. the right or power directly to exercise judicial power except in the matter of its own privileges. But they were nevertheless passed by the use of the U.N.P Government’s in-built two-thirds majority in Parliament. No amount of U.N.P. argument will erase the sense of legislative victimisation aroused by the course of ‘constitutional’ action followed by the Government.
The terms of reference of the Presidential Commission of Inquiry, unlike those of the Commissioners who looked into Local government matters, expressly direct the Commission ‘to make recommendation as to whether any person should, in terms of section 9 of the aforesaid Law No.7 1978, in accordance with the report referred to therein, be made subject to civic disability.’
What will be the fate of any such recommendation in respect of any of the judges who come under the Commission’s scrutiny? How will the President act in respect of such recommendation?
Sri Lanka seems to have got on to a road with many an unexpected turning, including blind corners. Where will the road end?
Not only legal questions are involved but also political questions. The President may have to reconsider his position. Perhaps he should – right now.
August, 1978
