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skulduggery
BY FAIZER SHAHEID-2017-07-19
However, to this date, no major arrests have been made, and all this is while a
popular Attorney-at-law, Nagananda Kodituwakku, takes on the entire system,
claiming that tampering of the judiciary has been recurring over a long period of
time.
Background
In a letter addressed to the President of the Bar Association of Sri Lanka, dated 10
July 2017, Kodituwakku claims there had been frequent tampering of the judiciary
which had also led to the enactment of the Fourteenth Amendment to the
Constitution.
He further claims that there were two bills on the Fourteenth Amendment in
circulation at the time, and he cites a speech made by Prime Minister of the time,
Ranasinghe Premadasa. In this speech, Premadasa is alleged to have questioned if
the Fourteenth Amendment was the one they had already discussed about, or
another, which was in circulation and different from what he referred to. He also
refers to a further speech where Premadasa clarifies the position of the PSC in
respect of the Fourteenth Amendment, and the speech is said to have had no
reference to a clause on rejected candidates.
Kodituwakku had claimed that this was a deliberate attempt to defraud the
people of their Constitutional Rights.
Follow up
Consequent to refusal, Kodituwakku had made a second request to the then Chief
Justice by way of a motion. However, Justice Sripavan had declined to make a
ruling and in lieu of that stated the motion amounts to obstruction of justice and
interference in the due administration of justice. He had further taken action to
circulate the motion to consider if Kodituwakku should be suspended from legal
practice. In response, Kodituwakku filed a further motion against Chief Justice
Sripavan and Justice Eva Wanasundara stating that the action initiated by the
Chief Justice was intimidatory and amounts to abuse of judicial power. He also
cited provisions of the UN Principles on the Role of Lawyers which require that
judges permit lawyers to pursue their functions without intimidation and
harassment. He had requested a bench of seven judges without Chief Justice
Sripavan and Justice Eva Wanasundara to hear his case.
Following this saga, Chief Justice Sripavan stepped down from the National List
case and asked for it to be heard by a bench of which he was not a part.
Very recently, UN Special Rapporteur for the independence of judges and lawyers,
Monica Pinto had expressed rather embarrassing views of judges and lawyers in
Sri Lanka. Her report, compiled after her visit to Sri Lanka in April 2016, contained
similar views of the judiciary in Sri Lanka. However, the statements fell on deaf
ears. Her comments were treated in the same way the comments of UN Special
Rapporteur on Human Rights and Counter-terrorism, Ben Emmerson, QC were
treated by Justice Minister, Dr. Wijeyadasa Rajapakshe. He took absolutely no
heed of the views expressed by either. Instead, he explained that the UN Special
Rapporteur lacked calibre.
While it is good to stand your ground and defend your country, to deny that the
country suffers is simply a fallacy to gain more votes.
In the past, judges had made mistakes in order to receive favours from the
politicos in power. Nagananda Kodituwakku points out the controversy relating to
the Fourteenth Amendment. However, much politics has been played in the
judiciary over the years rather emphatically.
After Shirani Bandaranayake was appointed as Chief Justice, it appears that the
politicians in power and the heads of the judiciary did not get along too well for a
short period of time. Due to this reason, Former President Mahinda Rajapaksa
had her impeached in an unceremonious fashion and appointed one of his
loyalists, Mohan Peiris as the Chief Justice in her place.
The proceedings of the impeachment were ill-conceived and drew plenty of bad
blood. As soon as President Maithripala Sirisena came to power, he saw to it that
Mohan Peiris was sent home. However, this time, there were no impeachment
proceedings. Of course, President Sirisena violated the Constitution like he did not
know it existed on many occasions, but his repeated fidgeting of the judiciary is
most unwelcome. In this particular context, he removed Mohan Peiris from office
and appointed Shirani Bandaranayake again in his place, and then she stepped
down the next day and K. Sripavan was appointed in her place. Hence, the
political melodrama in the judiciary continued even after the action filed by
Nagananda Kodituwakku.
Even at present, there have been claims of repeated intimidation of judges in the
Court system. A well-known fact is the appointment of non-career judges to the
superior courts instead of career judges. While career judges remained in their
respective positions, it is often seen how certain judges are introduced from
outside the system fairly often.
When President Sirisena appointed R. Kannan as a High Court Judge, it was met
with rather severe criticism. Likewise, the appointment and promotion of other
judges appears increasingly to depend on political backscratching rather than on
merit. It has depleted the standards of the judiciary and contaminated the legal
system as a whole, thereby spoiling the good work of the majority in the legal
fraternity.
On 28 November 2015, the Bar Association of Sri Lanka affirmed that the judicial
system had not met the confidence of the people over a period of time. This does
not appear to have improved recently.
In the absence of elections, the Courts have now become the political battlefield.
Cases have been filed against the appointment of defeated candidates, indefinite
postponement of elections and even the existence of a National Government has
been challenged. However, politics appears to infringe in each of these cases.
Many of these cases are over two years old and have been repeatedly subject to
judicial delays. Being so, the Justice Ministry revealed recently that there is a
backlog of over 700,000 cases in the Sri Lankan Courts.
Posted by Thavam