26 September 2017

Back to White-Vanning days?

Supreme Court under a cloud!
Back in the day a new term entered the political lexicon of Sri Lanka: white-vanning.  It was about the use of vehicles, typically white vans, to abduct certain characters that the then regime felt were unsavoury.  

At times it was used to obtain information on LTTE activists and activities that could have endangered hundreds of lives, as in the case of the brother-in-law of then Senior Superintendent of Police Sarath Lugoda.  The man was abducted in Kirulapona and found a few days later in some other location.  Such abductions were justified then as necessary evils in the face of a ruthless terrorist organization.  One recalls that former president the late J.R. Jayewardene famously said in the early days of the ‘ethnic’ conflagration, ‘in times of war the laws are silent.’  

White-vanning, metaphorically speaking, was not always birthed by such ‘national security prerogatives,’ even if this was morally defensible.  It was used to silence (through fear or elimination) political rivals, just like in the UNP-JVP period of terror (Bheeshanaya) of 1988-89 when ‘crushing the insurgents (or ‘the corrupt, oppressive regime’)’ was an alibi for many to bump off opponents, whether the rivalry was political or business-related.   Of course, in comparison, the excesses of the previous regime are mild, but that’s no consolation either for the victims and their loved ones or democracy and civilization in general.  

Now white-vanning was supposed to be a thing of the past.  Indeed, there have been no killings that could even remotely be associated with the regime.  Abductions, yes, but still very minor.  There have been on the other hand, a readiness to unleash force to put down protests.  There’s also intimidation of the media and abuse of state media institutions.  These are ‘balanced’ one might argue by the passage of the Right to Information Act.  If we talk relative merits, we can always be happy with the status quo, even if it degenerates a little more.  The Rajapaksa years, after all weren’t rosy and neither was the time of Chandrika Kumaratunga.  And then we had the JR-Premadasa years, which were positively horrendous.  

But perhaps the first sign that this regime is seriously getting ready to ‘white-van’ is the concerted effort to silence public interest lawyer and presidential candidate Nagananda Kodituwakku.  

Kodituwakku is a thorn in the flesh of the corrupt and the slothful.  The cases he’s taken on recently in the public interest have been responded to with an unconscionable ‘look the other way’ by the judiciary.  The measures taken are not illegal. You can, for example, take refuge in what could be called ‘dating,’ i.e postponing the consideration of the particular case.  

Serious crimes of omission and commission such as the illegal passage of the 14th Amendment in 1988 have been opened up for debate by Kodituwakku through litigation.  The case has been passed from judge to judge, which itself can imply (in the very least) an abdication of judicial responsibility.  
Now here’s the time line which has led to what to me is a clear case of judicial white-vanning.  

Kodituwakku files  a case citing judicial corruption (SC/Writs/03/2016).  Among those charged is a justice of the Supreme Court.  The particular judge has had at least two run-ins with Kodituwakku, who has on February 9, 2015 requested a different bench, excluding the judge concerning the case CA/Writs/65/2015.  The action, Kodituwakku has stated in the said application followed severe criticism leveled by the President of the Bar Association against the improper appointment of the said judge as the President of the Court of Appeal by then president Mahinda Rajapaksa.  A different bench was duly appointed. 

Subsequently, a similar submission is made before a bench presided over by the same judge on May 21, 2015 hearing the Write Application No 83/2014.  The objection was on the issue of ‘losing trust and confidence’.  The judge determines that the matter would be referred to the Chief Justice: “… Matter be referred to the Chief Justice for making a serious allegation of contempt. Registrar is directed to send the record before the Hon’ Chief Justice…”

The Chief Justice, in his judicial wisdom, the record indicates, has not taken the submissions of the allegedly errant judge.  

The judge in question, let us note, was charged for judicial corruption on February 15, 2016 by Kodituwakku before the Commission to Investigate Allegations of Bribery and Corruption.  This was for the abuse of the office of the President of the Court of Appeal to confer favours to the former Executive President Mahinda Rajapakse. Kotituwakku argued that this was clear by the way the Writ Application (CA/Writ/434/2014) challenging the then President Rajapakse’s nomination for a third term was handled by him.  The Writ Application simply disappeared after it was filed at the Court of Appeal.  It was white-vanned, one might say!  Anyway, that complaint prompted a formal inquiry and as of now the recording of Kodituwakku’s evidence has been completed.

Now, for the record, Kodituwakku has written to the Registrar of the Supreme Court requesting that several cases he has filed not be listed before certain judges he has mentioned by name.   And now the allegedly errant judge has accused Kodituwakku of “improper, insulting, intolerable, unbecoming and contemptuous behavior’ and is moving to have his practice be suspended or that he be removed from the office of Attorney-at-Law of the Supreme Court.

Now is this a mere matter of egos or the splitting of hairs between two men, each for reasons of convenience?  Theoretically it could be just that.  

On the other hand, Kodituwakku’s intervention with respect to the 14th Amendment is a slap in the face of all three branches of the state — the judicial, legislative and executive.  It was an amendment which was initiated by the then incumbent executive, President J.R. Jayewardena to a) bypass a draft amendment that was following established procedure, and b) allow persons defeated at a General Election to enter Parliament through the ‘National List.’  Jayewardene sent a typewritten version of HIS draft amendment along with a handwritten note to the then Chief Justice requesting determination on constitutionality.  This version was not gazetted and was not placed on the Order Paper.  The people’s trust was betrayed in the instant that the Chief Justice took it up for perusal.  It was Jayewardene’s draft that was taken up in Parliament following the discretion of the then Speaker.  In every single election held since then the 14th Amendment was referred to make room for political losers, with full complicity on the part of the particular Executive and the particular set of legislators.   

In the matter currently in court, courtesy the stubborn litigant Nagananda Kodituwakku, the record shows that the judiciary has been lax or worse in moving on the illegality of the 14th Amendment.  
In this context, one has to wonder when the umbrage taken by this judge is just a matter of bruised egos or objection to an unconscionable affront or whether the judge is but an instrument of a larger collective of individuals who feel threatened by the lawyer.  Given the almost two decades worth of injustice meted out to the people over and above the burdening the same with patently anti-democratic and illegal legislation, given the navel-gazing by all three branches of the state on this very matter for the very same period, and given the by now clear fact that Kodituwakku has pulled the carpet from under the feet of these very same branches of the state, we have to wonder if this is a classic case of legal white-vanning. Indeed, Kodituwakku is of the opinion that the moves against him are due to his uncompromising stance vis-a-vis any person holding any public office including the judiciary particularly after steps have been taken to charge several judges for judicial corruption.

The matter has not yet been concluded in the Supreme Court.  Let us not be presumptuous.  Let the judges judge and consequently judged in view of the history of events, statements, interventions, sloth, negligence and ignorance.  However, let us be vigilant simply because the very judge who is moving to silence Kodituwakku has been pencilled in to hear the case.  If the Supreme Court does not understand the meaning of the term ‘conflict of interest,’ and if this judge does not see fit to excuse himself then his judicial ‘fitness’ needs to be questioned.  At best it can be seen as an attempt to draw Kodituwakku into a fight and make him ‘prove’ unfitness, but it is more likely that it would force Kodituwakku to object and request a different bench.  In short, ‘constructive postponement.’  Should we laugh or should we cry?

One thing is clear though.  If Kodituwakku is subjected to legal white-vanning, “regular” white-vanning cannot be too far away.

Also read: Executive, legislative and judicial branches of the state: ALL OUT OF ORDER