Justice delayed is justice affirmed, apparently

Justice delayed is justice denied. We’ve heard that adage often enough.  We also know that justice delayed makes for buck-making. Who makes the bucks? Well, the lawyers of course. And who or what are the accessories after the fact of buck-making courtesy delays? Why, the entire judicial system including laws, procedural culture and the judges. Let us add to this the tiny matter of mandatory court vacations, originally put in place for British judges to have holidays back in the ‘Mother Country’ but which defy all logic in this day and age. 

Of course, we must acknowledge that certain cases drag on account of factors outside the ones mentioned above. That also happens. It’s certainly no justification for the gross injustices wrought by (habitual) delays. 

In November 2009, then then Minister of Justice, Milinda Moragoda shared with me some horrifying data which I summarized as below in an article published in the ‘Sunday Island’ titled ‘Childhood is made of innocence and adult traps’:

‘Out of 14,966 cases pending before the High Courts, 4,032 (26.94%) were trials concerning child abuse. The data set indicates that close to 20% of all pending cases before the High Courts are of offenses committed before 1999 but there’s no category-wise break down. We can assume however that a significant number of cases are more than 10 years old. The implications for the abused child are obvious; there is bound to be a serious impact on that child’s overall development and that kind of scarring, exacerbated by inordinate delay in some form of closure, cannot be healthy for society either.’

The numbers would probably have changed over the past nine years, but probably not for the better. In terms of delay, cases in general are as bad or even worse. Recently the salaries of judges were upped considerably, in some cases by over 250%. If this was only about correcting some remuneration-related injustice, then no one should complain. However, if the ‘salary-uppers’ thought of it as an incentive for better service, they would be disappointed. Cases are not seeing quicker conclusion, let’s say.  

Put it down to habit, put it down to profit, put it down to anything you like, but there are certain cases of such national import that delays are inexcusable. 

Yes, this is about the recently determined case pertaining to the dissolution powers of the president.  The President, in his wisdom, took the entire country by surprise when he sacked Ranil Wickremesinghe. The President, for obvious reasons, issued a gazette notification dissolving Parliament. This was the move that was contested. The Supreme Court, in its wisdom, took weeks to pass judgement on the relevant objections. The political and even administrative system almost came to a standstill. Uncertainty ruled. 

It was important and the decision, either way, would have far reaching repercussions. Indeed the decision, some have pointed out, would be mandatory reading for law students for years to come. As such the argument can be made that for this very reason it was necessary to peruse carefully the arguments for and against the constitutionality of dissolution as per the 19th Amendment.  

On the hand, what was there to peruse? The lawyers on either side presented strong cases, yes. Still, in the end, all that had to be determined was which of the two key articles in the 19th Amendment could stand alone. It was determined that the restrictions placed on dissolution in the draft 19th Amendment superseded those permitting dissolution. The restrictions, let us remember, were considered by the Supreme Court in an earlier deliberation to be unconstitutional and required two-thirds support in Parliament as well as in a referendum. Such things happen of course. The point here, however, is that the Supreme Court had to consider the weight of two articles for five to seven weeks? 

It’s not just the two articles of course. Constitutions have many cross-references. The proposed 20th Amendment, for example, seeks to repeal or amend no less than 30 articles of the Constitution. On the hand, one would expect judges of the Supreme Court to be well versed in the Constitution. 

Today, even after that decision, when it is apparent that despite the rhetoric pertaining to and the spirit of the 19th Amendment, the President retains enormous powers, when it is clear that any situation where the party that a President belongs to does not command a Parliamentary majority there’s bound to be numerous conflicts given the distribution of constitutional powers between the President and the Prime Minister, we can can anticipate continued litigation. In fact that is one of the glaring flaws of the 19th Amendment. The authors did not anticipate the obvious: disagreements between the President and the Prime Minister. The 19th is silent on this. The other glaring error in the text is that it gives a non-elected body, the Constitutional Council, the power to overrule the opinion of the President in approving individuals to the independent commissions. That’s a clear disavowal of sovereignty as embedded in Article 3 of the Constitution.

In any event just imagine the worst-case-scenario of the Supreme Court being asked to interpret on multiple issues on account of irresponsible, incompetent and incorrigible legislation! 

First of all, this calls for a review of the Constitutional and subsequent ‘cleaning up’. With respect to the thrust of this article, however, it calls for a greater degree of efficiency on the part of the Supreme Court simply because dilly-dallying compromises governance or even renders it untenable.  

For all the accolades showered on the Supreme Court by born-again democrats, funded-voices and candlelight-ladies (they’ve gone silent on the UNP veritably giving the finger to democracy since the ‘landmark’ decision on dissolution; and one suspects that they would have cried ‘foul’ had the determination gone the other way), this delay is worrisome, to put it mildly.  

Sure, one can make an argument that it is better to take time and get it right rather than risk erring on account of haste. Some have argued that the bench had to consider examples across time and space; that’s ridiculous because the bench just has to determine on a specific text (certain articles in an amendment) in terms of a larger text (the Constitution) that includes all relevant articles in the said amendment. In any case, people are supposed to be competent, knowledgeable and therefore efficient. 

Efficiency, however, is not something associated with Sri Lanka’s justice system. It showed in the last two months of 2018. That’s certainly not something to cheer about. Indeed, those who do not find any issue with delay on this occasion, might well live to suffer at the very hands of tardiness. Systems, when flawed, can work for you but flaw can also work against you in different circumstances. Boots do get worn on other feet, one notes. 

For now, given a certain ‘tiding over,’ the nation can be pleased. For now. Perhaps we might have to regret that we did not question the length of time taken in this matter and indeed that we don’t question judicial delay in general.

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malindasenevi@gmail.com. 

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The before and after of the Supreme Court decision

The Supreme Court has ruled. The decision has been announced. Accordingly, the surreptitiously inserted clause allowing the President to dissolve Parliament (in order to circumvent an earlier Supreme Court ruling insisting that a two-thirds majority and a referendum would be necessary for the dissolution clause in the draft 19th Amendment to stand) is meaningless.  

Now we can talk about the before and after.

First the ‘before,’ briefly. We saw in the aftermath of President Sirisena’s sacking of Ranil Wickremesinghe and subsequent dissolution of Parliament, many born-again democrats howling in protest. Few if at all showed any concern about the many anti-democratic acts of the Yahapalana regime as a whole or its constituent parties and relevant leaders, Wickremesinghe and Sirisena included. They did not voice any concern about the sophomoric piece of legislation authored by the UNP and endorsed by 223 members of Parliament (Sarath Weerasekera alone objected). That’s the 19th Amendment, the piece of paper that has spawned the chaos.   

The UNP’s cheering squad is naturally elated. The hurrahs are actually hilarious. Many have claimed that the decision itself shows that Sri Lanka has an independent judiciary. What this means is that had the SC determined otherwise, they would have lamented ‘the lack of judicial independence’.  

Some have called for Sirisena’s resignation because ‘he violated the constitution’. Some believe that the SC decision should automatically catapult Wickremesinghe back into the Prime Minister’s seat. That’s outcome-preference speaking. And that’s what has been spoken by most on both sides of the political divide.  

It has to be remembered, also, that those who came to abolish the executive presidency, through crimes of omission and commission including the flawed 19th Amendment, brought about a situation where the President is the only individual with power.  

Perhaps the most abiding outcome of the SC decision is that law-makers will show more seriousness in future. That would be a very positive outcome.  

That’s the future. Where do we stand right now? Well, the President cannot dissolve Parliament arbitrarily. Parliament itself is at a standstill thanks to the antics of the Parliamentarians, a clearly partisan Speaker, a stubborn President and a court order. We will have to wait and see if the key players in the drama can rise above their personal and political agenda to resolve things.  

What we do know is that no single party has a majority in Parliament. We have the Tamil National Alliance (TNA), officially part of the Opposition with R Sampanthan holding the office of Leader of the Opposition acting in cahoots with the former government, i.e. the pre October 26 disposition led by Ranil Wickremesinghe and Maithripala Sirisena, two individuals who have since parted political ways. We have TNA spokespersons talking of an agreement with Ranil Wickremesinghe. We saw how M.A. Sumanthiran batted for Wickremesinghe and indeed the TNA operating now as Wickremesinghe’s sidekick but as though Wickremesinghe is his (Sumanthiran’s) sidekick.  

Whether or not there’s an agreement between the UNP and the TNA needs to be disclosed by either or both parties and if there is, then its substance must be made public. Let’s wait on that. 

We have a claimant to power (the UNP) that’s terrified of going before the people. Their legitimacy was questioned when the party was routed at the local government elections.  Their legality is hanging by a judicial thread, so to speak. We have their track-record over almost four years, part tied to Sirisena but part a brief they have to defend on their own. This includes the bond scam, mismanagement of the economy, absolute incompetence on all counts, shameless bartering of the country’s sovereignty, clearly partisan constitutional tinkering (19th Amendment) and underwhelming work on the reconciliation front.  

We have the Sri Lanka Podujana Peramuna (SLPP) with much stronger legitimacy claim courtesy the February 2018 election result but a legality that is under a shadow and dependent on the President’s whims. We have a President whose legitimacy is horrendously compromised and whose legality might come under threat if UNP-noises regarding impeachment turn into concrete action. 

And there’s the people. They are not a monolith of course. Any keen observer on the political ferment following the sacking of Wickremesinghe would have noted that the objectors were essentially diehard UNP loyalists or else those who benefited from the Yahapalana regime.  There was no groundswell of support for the UNP.  The ‘massive protests’ called never converted into mass support for the UNP, its leader or its political position.  This is not to say that everyone who didn’t add voice to shout condoned the President’s actions of course. Many would have found it all unpalatable, but at the same time few had taste for what the UNP has dished out.  

If, as the greens have argued, the people were horrified by Sirisena’s moves and were appalled by the unexpected elevation of Mahinda Rajapaksa, why did it not translate into mass protests? Those who take the trouble to talk to a cross section of the polity would conclude the following: a) they found the recent political developments distasteful, b) they weren’t too unhappy about Wickremesinghe being ousted, c) they found the behavior of parliamentarians disgusting, d) they want an opportunity to express their sentiments on all things, e) they are willing to go along with the SC determination, and f) they are waiting for the case to be brought to them for judgment.

The problem is that the greens talk and have talked for years in echo chambers. When they say ‘everyone’ they are really referring to ‘everyone they speak with’ and that’s essentially ‘other members of the club’.  

The more serious issue is that the vast majority appear to be nonchalant regarding the machinations in Colombo. They don’t really lose any sleep over constitutional matters, the executive powers vested in the office of the president or judicial processes. That’s not apathy, as some might claim. That’s judicious decision. The institutional arrangement has essentially operated in a way that public views are immaterial. The public seems to have returned the perceptional favor, even though the state is in their face and enters their homes in multiple ways. This mismatch has not really troubled lawmakers. Indeed they thrive on it. 

There are other interesting developments. We’ve not had any talk of devolution in months. In fact the postponement of provincial council elections has raised not a hair of protest from the people. Those whose agitation was loudest, namely the TNA and the devolution-touting sections of the NGO community appear to have forgotten the word. And yet, the provincial councils, sans representatives, do operate (as did the local government bodies in the years when they were decreed to sleep by the election-fearing Yahapalana Government) courtesy of the administrative structure. It’s as though the 13th Amendment has been dumped. We might as well lay it to rest with a decent funeral if necessary.

Indeed, the absence of politicians has not really hampered the day-to-day operations of ministries and state run institutions. Sure, we need Parliament to pass laws and budgets, but state officials have risen to the occasion and proved that they can get things done as well or better as they did when politicians interfered in their work.  

People involved and who talk about doing the decent thing should indulge in deep self-reflection.  Jayampathy Wickremaratne and Ranil Wickremesinghe, most of all, should reflect on their absolute incompetence and political chicanery with respect to the 19th Amendment.  Yes, they won’t.  Politicians are not made that way.  

The UNP cheering squad, going by statements issued by party leaders and born-again democracy lovers, seems to believe that the SC decision was only a first step. They are correct. They believe that the last step would be the reinstatement of Wickremesinghe as Prime Minister.  That shows their limit and moreover demonstrates once again how utterly divorced the party and its loyalists are from the masses. The party is not democratic (if you believe otherwise, read the party constitution). The party does not operate democratically. The party has always put party interest ahead of national interest (check all the amendments to the constitution).  

It is easy for loyalists to play the game of relative merits with liberal doses of selectivity and convince themselves that Wickremesinghe is the best. If that’s the extent of vision, it would explain why this entire drama was people-less as far as the UNP is concerned. 

In the ‘long way to go’, whether they like it or not, there will be non-loyalists. The UNP can wish them away at cost; factor them in and the party may have a chance at a future election. As of now, the party leadership does not seem inclined to trust ‘the people’, using the term only for political convenience.  

The people. They’ve been quiet. That could be ominous and not just for the UNP.  

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malindasenevi@gmail.com. www.malindawords.blogspot.com

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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 

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