The then Supreme Court and Sirisena Cooray

July 22, 2014

The importance of an independent judiciary will dawn only when you are in the
Opposition. Mr. Sirisena Corray became free and was able to walk free as there was an
independent judiciary. People sometimes gets affected, when, with the enormous
powers it has, the Supreme Court tries to arrest the sand mining actiities in !eduru
Oya, usurp the original jurisdiction of a Magistrate, conduct in"uiries and sentence
people to jail. The people get frustrated when the Supreme Court reduces the price of
petrol, which is the mandate of the e#ecutie and pokes its hands into school
admissions. People also lose faith when the husband of the Chief $ustice is employed
by the %oernment as head of a Corporation. The "uestion of conflict of interest would
creep in. &o amount of sermonising that it is his fundamental right to be employed at a
place he has chosen. The Chief $ustice interfering with the working of the place where
her husband has obtained employment, does not go down well with the people. 'n
order to be independent of e#ecutie pressure $udges need tremendous courage and
coniction. $udges must not only act as judges
but must manifestly seem to act as judges.
Justice A.R.B. Amerasinghe, Justice
Wijetunga and Justice Gunawardena,
were the judges who heard the
fundamental rights application filed by Mr. unil Rodrigo on behalf of
irisena !ooray. "he theory of a grand conspiracy could ha#e been hatched
in order to obtain political mileage and o#erawe the public and the !ourts
of this country. "he thought of incarcerating !ooray till he becomes wea$
may ha#e brought happiness to those who, in the Go#ernment, $new this
man%s strength and were sha$en by his action after he returned from self
e&ile. When the ecretary of 'efence wrote to the '.(.G. )!.(.'* a letter
+R+, the upreme !ourt stated
,( should li$e to dispose of one matter immediately. "he ecretary, in
e&ercising his powers of arrest, should always act cautiously, for the liberty
of one citi-en is no less important than that of any other, whate#er his
station in life was, or is e&pected to be.,
"he tate depended upon the in#estigations of the !.(.' into the allegation
of an elaborate conspiracy to assassinate the .resident to justify the
detention of !ooray. "he fact that /oththi 0pali% had purchased some
property near the ancestral home of the .resident was sought to gi#e
credence to this theory. (n order to further confuse and confound the
issue, four confidential reports were placed before !ourt. "he contents of
these reports were said to be highly confidential in nature that it was not
possible for the ecretary of 'efence to ma$e it public. (t is normally
contended that these reports if made public would impair the on1going
in#estigations into the conspiracy to assassinate the .resident. But the
upreme !ourt, ha#ing perused the reports stated, ,"hose reports do not
materially add anything to the narration of their contents in the affida#it of
the ecretary.,
!an the order of the ecretary be 2uestioned3 'oes he not wield absolute
power under the regulations3 pecially, when the allegation is the most
serious that could be brought against a person, that he conspired to $ill
the .resident3 "he .ublic ecurity Act and the 4mergency Regulations
ga#e a discretion, absolute and unfettered, to the ecretary of 'efence to
issue a detention order in order to safeguard the interest of the tate. (s
this position correct3 "he manner in which the Go#ernment acted in this
instance would only seem to show that it was using these regulations to
detain political enemies. 5o one would ha#e been safe if the !ourts
interpreted the regulations in this manner.
"he fact is that, the !ourts ha#e as far bac$ as +678 interpreted these
sections in order to ensure that fundamental rights of indi#iduals are
protected.
(f a judgment re2uires, before it can be made, the e&istence of some facts,
then although the e#aluation of those facts is for the ecretary alone, the
!ourt must in2uire whether those facts e&ist, and ha#e been ta$en into
account, whether the judgment has not been made upon other facts,
which ought not to ha#e been ta$en into account.
Justice Amerasinghe has dwelt upon the 2uestion of two reasonable
persons acting reasonably but coming to opposite conclusions on the same
set of facts. "hey ha#e accepted the fact that, not e#ery reasonable
e&ercise of judgment is right, and e#ery mista$en e&ercise of judgment is
unreasonable. But 2uoting 9ord 'enning ,When the ecretary honestly
ta$es a #iew of the facts or the law which could reasonably be entertained,
then his decision is not to be set aside simply because thereafter someone
thin$s that his #iew is wrong., "he !ourts ha#e with much care ta$en into
consideration that these are emergency regulations, and there are
difficulties inherent in the in#estigation and prosecution of certain offences,
such as terrorist crimes or conspiracies to assassinate political leaders, and
the need for acting 2uic$ly where national security or public order is
in#ol#ed. But the whole process would be made of no effect if the
)ecretary%s* decision was afterwards to be conned o#er word by word,
letter by letter, to see if he has misdirected himself. "hat cannot be right.
And the e&istence of such crimes cannot justify switching the notion of
reasonableness to the point where the essence of safeguard secured by
Article +8 )+* of the !onstitution may be abrogated,
(n this matter before us, the ecretary in my #iew abdicated his authority
and mechanically signed the 'etention :rder. As, ( ha#e pointed out, the
ecretary%s decision was not reasonable in the sense that it was not
supported with good reasons, and therefore it was not a decision which a
reasonable person might ha#e reasonably reached. ;is decision was not
only wrong, but in my #iew unreasonably wrong. "his happened because
he did not satisfy himself and allowed himself to be misled.
(t is the belief of all right1thin$ing people of this country that the judiciary
will remain independent. (t will not succumb to #arious multi1dimensional
and multi1faceted threats, o#ertures and influences that any Go#ernment
in power may bring upon it to change its stance as the only protector of
human rights from the tyranny of the 4&ecuti#e. "he 4&ecuti#e in some
circumstances may do its utmost to subjugate the power it has gi#en to
the !ourts by the people of this country. "he people may be for or against
the pac$age but under the guise of introducing constitutional reforms, they
will not permit remo#al of a single Judge from the upreme !ourt.,
"he fundamental rights application was mainly based on the 2uestion of
informing Mr. !ooray of the charges or the offenses upon which he was
arrested. Justice Amerasinghe says ,Although the ecretary issued the
detention order on the +<th of June +66=, because he says he was
satisfied that Mr. !ooray was in#ol#ed in a conspiracy to assassinate or
harm ;er 4&cellency the .resident, yet, as we ha#e seen it was only on the
>?th of June that he was as$ed about the alleged conspiracy, and that too,
after Mr. !ooray had read about it in the newspapers and drawn the
attention of the police officer interrogating him to the news item.,
.oliticians irrespecti#e of their stand on the 2uestion of an independent
judiciary hate its independence when they are in power. "he rot began with
a man who came from a family who had been sired by a upreme court
judge and a scholar. What @eli& 'ias did JR Jayewardene who entered the
profession with great ;A .erera continued in the footsteps of @eli& 'ias
and sac$ed se#eral judges of the upreme !ourt and brought the first
impeachment against !hief Justice 5e#ille amara$oon. o do not belie#e
any one who says that when they come to power they would abolish the
consititution or not interfere with the judiciary. Without doing both they
cannot remain in power for long.
Posted by Thaam