In Memory of Justice Kulatunga

(June 04, Colombo, Sri Lanka Guardian) Former Supreme Court judge K.M.M.B Kulatunga passed away yesterday. During his retirement he often wrote critically about what he called “disorder in Sri Lanka”. We reproduce one of his articles below as tribute to him. - Eds.

FUNCTIONING OF THE JUDICAL SYSTEM (ADMINISTRATION OF JUSTICE) IN SRI LANKA

by K.M.M.B. Kulatunga

[This article was first published in 2000 And reproduced in his book DISORDERS IN SRILANKA published in 2005)

Point of view

Last March, following a statement by a Cabinet Minister that in order to facilitate the enactment of a new Constitution the Parliament and the Court should be closed and that any judge who cannot agree will be sent home there was a discussion in the State media as to whether our court system has fulfilled public aspirations. On that occasion I contributed an article to a newspaper on the causes of decline in our judicial system, in its historical setting. This article is a repetition of that analysis with appropriate amendments in the current context.

Courts are the medium of administering justice. However it is not a function which is in the exclusive domain of individual judges; for public justice can be assured only if it has the cooperation of the legislature, the executive including the police and the assistance of the official and the private bar.

During the colonial era there was a period when executive and judicial functions were combined. Lenard Wolf’s Diaries illustrate how in the morning he functioned as the Government Agent and later in the day heard causes both criminal and civil maintaining a high standard. Until independence the separation of judicial power from the executive did not occur but the law reports show that justice was administered without fear or favour and without doing violence to the rule of law. Thus in Bracegirdle case in 1937 the Supreme Court held that the Governor’s order for deporting Bracegirdle was invalid as the precondition for such order namely, a state of emergency did not exist.

I also recall that Village Tribunal Presidents who were highly respected by the people adjudicated minor disputes. Justice Sans oni who later became Chief Justice was long ago Magistrate Kegalle. Even then he had the stature and the image of a present day judge of the Superior Courts.

During the period of the Soulbury Constitution administration of justice continued to be satisfactory Police department was highly skilled in criminal investigation. Officers of the Attorney-General’s Department conducted cases with competence and fairness. Consequently we have on record many famous trials such as the White House murder, Kadugannawa bomb case, Bandaranaike assassination case, Kalattewa case, Four lakhs murder case, Ada line Yitlzarana ease, Thenuwara case and Pauline de Croose ease; later on there was Mathew Peiris case.

The Original Court judges who exercisedboth civil and criminal jurisdiction from the time of their first appointment were highly competent when they received appointments in the Supreme Court. Many of the appointees to the Supreme Court were from the Attorney General’s Department whilst some members of the Private Bar also accepted judicial appointments after sacrfficing a lucrative practice. Judges were highly respected and independent.

Soulbury Commissioners in recommending the establishment of the Justice Ministry said that this was without prejudice to the performance of the duties of the Attorney General and the Solicitor General. There was no interference of the functioning of the duties of the judges; and the Judicial Service Conuxilssion consisting of the Chief Justice and the next two senior most judges were in charge of the appointment and the disciplinary control of Original Court Judges. However, during a period of over 50 years of independence, there has occurred a decline in the administration of justice mainly due to the progressive and total poilticisation of the life of the community Illustrations of this situation follows:

In 1947 Sir Alan Rose (Legal Secretary under the Donoughmore Constitution) was made Attorney General on the recommendation of Prime Minister D.S. Senanayake. At the same time the Attorney General was placed next to the Chief Justice on the table of precedence. In 1951 Alan Rose was appointed as Chief Justice. In 1948 Basnayake who was in the Attorney General’s Department was appointed to the Supreme Court from where he returned to the Department as Attorney General.

In 1955 Basnayake was appointed Chief Justice on Prime Minister Sir John Kotalawala’s recommendation. The same year Sir John IKotalawala overlooked T.S. Fernando Q.C. who was Solicitor General and procured the appointment of FLN.G.Fernando Legal Draftsman to the Supreme Court. T.S. Fernando was appointed to the Supreme Court during the Bandaranaike Government.

In 1966 A.C.M. Ameer was appointed as Attorney General overlooking Victor Tennakoon Q,C. Solicitor General. It is said that this was a decision influenced by J.R. Jayawardena. Tennekoon was appointed to the Supreme Court, a position below the Attorney General on the precedence table. The new Government in 1970 appointed Tenekoon as Attorney General overlooking the claims of L.B.T. Premaratna Q.C. Solicitor General, Acting Attorney
Genetral.

From 1972-1974 several persons who were associated with pro-government political parties were appointed to the Supreme Court. Appointment of judicial officers and public officers was vested in the Cabinet of Ministers and its delegates. Appointments of Crown Counsels and the Solicitor General were taken over by the Secretary Justice. I was a Crown Counsel in 1970, when Felix Bandaranayake Justice Minister visited the Department and directed that henceforth law officers should assist in implementing government policy While other officers were silent, I remarked that our duty had always been to assist in implementing the policy of the law

The new Government elected in 1978 established a Supreme Court and a Court of Appeal and reappointed some of the then judges to the Supreme Court, demoted some to the Court of Appeal. Some were retired. New judges were appointed to the Supreme Court from different sources including conservative judges. Samarakoon Q.C. was appointed Chief Justice over the most senior judge Samarawickrema Acting Chief Justice. As Mario Goixils comments in his book “In The Public Interest” judges were generally pro executive and conservative.

When I was Acting Attorney General in 1988 I was consulted by the Secretary Cabinet of Ministers, probably on the directions of the President Jayawardena, on the question whether the Supreme Court in giving relief to nurses in a fundamental rights case was competent to declare a Cabinet decision invalid or to admit as evidence such decision which was”confidential”. Irepliedthat the courthad the jurisdictidn to do so.

The tradition during that period was not to appoint to the Supreme Court law officers who were not prepared to give opinions favourable to the Government. My own appointment to that court in 1989 was due to the policy of President Premadasa to give appointments to the workaholics.

Yet it appeared that even subject to constraints, the judiciary was performing satisfactorily. However, every Government expected the judgements to be issued in favour of the Government. But the court gave judgments for and against the Government. Thus in Gamini Dissanayake Expulsion case the court dismissed the petition in the public [interest whilst in the Sarvodaya case the court gave judgment against the State upholding the fundamental rights of the petitioner. I wrote the judgment in each case. I experienced no hostile reaction in either situation.

I have observed a gradual decline in the independence of the officers of the Attorney General’s Department. They are unable to tender correct advice to the State for fear of incurring the displeasure of the executive. State officers do not appear to accept Attorney General’s advice. The cause of this situation is the fear psychosis created by politicisation. Police officers are subject to political interference. They are not being trained in scientific methods of criminal investigation. Some of them are skilled in unlawfully detaining suspects and torturing them. Recently the police applied to be given the power to detain a suspect for 72 hours. To my knowledge no police officer who has been ordered by the Supreme.Court to pay compensation for torture has been punished. On the other hand, a recent judgment of the Supreme Court has approved promotion of such officers.

Sri Lanka has acceded to the Torture Convention and an Act of Parliament has been enacted making torture an indictable offence. Consistently with the Constitutional guarantee of freedom from torture (Article 11 of the Constitution) provision was included in thc Establishments Code prohibiting the Attorney General from appearing for public officers against whom violation of Article 11 of the Constitution is alleged. The police have recently complained against this provision. Every person charged with torture has to arrange for his defence. If so, why should public officers be privileged to have State Counsel to appear for them. The rule is that if the officer succeeds in his defence his legal expenses are reimbursed. Hence the complaint of police officers is unwarranted.

After the Bandaranaike assassination case no political or other major crime was properly investigated and prosecuted. This is tragic. Of course if an influential person is the complainant or the crime has political implications the case has been tried by three judges at a Trial at Bar or by the High Court expeditiously. In other cases police are lethargic. They complain that crimes are undetected for want of public cooperation! The truth is that many crimes are rooted in corruption and linked to underworld criminals.

There are several Members of Parliament and Ministers who were ordered by the Supreme Court to pay compensation for violation of human rights. They harbour a grievance against the court and remain in office without any indication of their being removed from office. Some of these politicians who criticise the court are Lawyers.

The Judicial Service Commission having powers over the minor judici ary consisted of the Chief Justice and the next two senior most judges. The Commission now consists of the Chief Justice and two junior judges. There is no proper scheme for selection and training of competent Lawyers to the minor judiciary as in Thailand. The Sri Lanka Judges Institute which was established in 1985 is ineffective. Hence the standards in the Original Courts continue to deteriorate.

It appears that the judges in the Superior Courts are slow to give orders against the State. However some judges are fearless and will give a judgment against the State. There also appears to be a tendency in the Supreme Court to be slow in making orders against the State involving Government policy. This is a departure from the progress achieved by the court in giving judgments against arbitrary actions and violations of human rights during the period 1988-1999. Lawyers too have become politicised. One group of Lawyers describe themselves as “SLEP Lawyers”.

Some senior lawyers are traditionally retained by the Government. There are others including President’s Counsels who are also retained by the State. When such eminent lawyers make submissions for the State courts are sometimes confused. This can lead to distortion of justice. Petitioners find it difficult to obtain the services of eminent lawyers to appear for them in disputes with the State involving high policy. This has resulted in retarding the cause of justice. One laments the absence of fearless counsel of the caliber of late RTICLES LANy - basil S.Nadesan Q.C., Dr.Colvin R. de Silva, Nimal Senanayake and Arul Pullenayagam It. is observed that presently a Minister has personally undertaken activity of offering privileges to judges of Original Search Sea such as handing over vehicles, and sending them on training; also the opening of courts and allied institutions. Even the Chief Justice appears to be maintaining links with the executive which exceed the traditional limits There is no objection to maintaining public relations between the judiciary and the executive. But the present developments appear to show a degree of politicisation of the judiciary as as in the public service.

The result of these conditions is the undermining of the Rule of law. It context that politicians have become enough to assert that Parliament and Courts may be closed and some judges will be retired. Even though freedom speech is subject to restrictions prescribed by law in respect privileges of Parliament, defamation and contempt of court, statements have been made in respect of judges on the basis that they too are State officers. Are the legislators and executive unaware of Article 170 of the Constitution which shows that judges are not “State officers” by definition? rino the Attorney General guide them? It seems to be a task beyond them. Cannot private lawyers convince the courts regarding the rights of citizens and the executive? It appears that they are reluctant to press their cases against particular judges. This may be a diplomatic method of ensuring that their practice is not adversely affected. This is unfortunate for the State and the citizen. The effect of this situation will be seen in the future in the shape of public turmoil. One indication of what is in store is the present tendency of the public to impose drastic punishments on persons suspected of crime well before their trial. “Those whom the Gods want to destroy, they first make them mad.”

It is the public interest which is the victim of these conditions. I have analysed the causes of the melody. Depoliticise the system. Go back, if possible, to the Soulbury period of the judicial system sans the discriminations. A joint effort by the professionals and all branches of Government is required where mere “yes men” should have no part to play. Objective advice should be accepted; flattery should be rejected.

No amount of discussion on “corruption”, lack of transparency or accountability will solve the present problem until the abolition of the present system of one party rule is achieved by adopting a Constitution which permits power sharing of executive power by the electors (and not by politicians) on the basis of equality without discrimination on the ground of political opinion. The 1999 proposals by the National Joint Committee contain valuable proposals for a new Constitution which would depoliticise the system of administration. But no politician appears to be interested in implementing it. They appear to be addicted to mere political power like heroin addicts.