A federal constitution is the best for our country - Former Supreme Court Judge CV Wigneswaran

By: Ayesha Zuhair

Could you begin by telling us what you have been doing since your retirement?

I am glad you are asking me that question Ayesha! In connection with my nomination to the Constitutional Council under the 17th Amendment, the earlier Prime Minister without recourse to me had said in Parliament that I had become a Hindu Priest! On the contrary I had been quite busy secularly. Busier than when I was on the Bench. I have been participating and continue to participate at conferences, seminars and meetings both local and foreign, and writing articles and essays in respect of subjects ranging from Legal, Religious, Cultural, Literary, Historical, Societal to Fine Arts.

Q: There is a widely held perception that the judiciary of this country is politicised and that personal biases often hinder the judicial process. Do you agree with the view that the judiciary has lost its independence, and if so, how can the situation be rectified?

There is no doubt that the judiciary of our country has changed, and not for the better. It is not appropriate for me to discuss specific matters dealing with specific judges or judgments. However the serious issues happen to be systemic. The loss of our judiciary’s independence can be traced to the 1972 Constitution and thereafter to the 1978 Constitution. Let me explain some of the most salient structural deficiencies in our system.

    1. Virtually unfettered powers of the executive to appoint persons of its choice to the higher judiciary. Though the 17th Amendment made headway in establishing some kind of independence with regard to the appointments to the higher judiciary, the 18th Amendment took us back even further.

    2. The emergence of an ultra-strong executive under the 1978 Constitution devalued the position and status of the judiciary. The important thing to remember is that the independence of the judiciary is intimately connected to the balance of power between the different arms of the government-the executive, legislature and judiciary. It is only natural that when you have a very strong executive branch the judiciary would necessarily be undermined. You may recall that when the executive and parliament did not belong to the same party, the judiciary was in a position to flex its muscles more freely.

    3. The abolition in 1972 of the power of post enactment judicial review carried over to the 1978 Constitution further emasculated the judiciary.

    4. The practice of bestowing special dispensations to members of the higher judiciary and their family members during and after their tenure in office makes the judiciary particularly vulnerable.

    5. Another problem is the practice of filling the higher judiciary with executive minded judges. The practice of filling up the higher judiciary with greater numbers of officers from the Attorney General’s Department who were comparatively young and lacked judicial experience, but had been in their erstwhile professional work close to the executive, ensured “executive mindedness” on the Bench. The State Officers by their very conditionings are state-oriented, and often have a close relationship with the executive. Not so with others who would generally be people-oriented. The state can look after itself. We must have judges who would look after the interests of the People against the state, without of course purposely jeopardizing the state’s interests.

The first four require constitutional changes. For the fifth, I would suggest that there must be minimum recruitment from the Attorney General’s Department to the higher judiciary. A functioning Attorney General should never be considered for appointment as Chief Justice.

Of course recruitment of Officers from the Attorney General’s Department to the original judiciary is to be welcomed. They make good judges in the long run since their state-oriented perceptions get withered away. But I must add here that the executive will never, never come forward to make such changes! They would continue with the present system be they from the governing party or opposition! And the judiciary will no doubt become the hand-maid of the executive if they have not already become so.

Q: A profound lack of respect for the judiciary was manifested in the manner in which people – including lawyers – hurled abuse at two of the three judges who sat on the Trial-at-Bar in the White Flag case on November 18. How do you view this incident?

I am unaware of the nature of manifestation. It could have been politically motivated. But still the incident as you describe it does not augur well for the country let alone the judiciary. But on the other hand if such demonstrations were spontaneous it must be remembered that politically motivated prosecutions and judicial ball-playing so to say, would no doubt draw the people’s wrath.

Q: Contempt of Court is often cited as an impediment to discussing judicial verdicts. Do you think that a change is required to enable people to constructively question judgements and to advance freedom of expression in Sri Lanka?

Generally, the following matters fall under Contempt of Court:

(1) failure to comply with an order of court;
(2) an act of resistance or insult to the court or its judges; and
(3) conduct likely to prejudice the fair trial of an accused person.

There is nothing wrong in a person criticising a judgment after it had been delivered on the basis of its legal merits or lack thereof. So long as the discussion pertaining to judgments do not border on any of the matters hereinbefore enumerated there appears no need for any change in the law dealing with Contempt of Court. But it must be remembered that judgments should not be hidden in cloistered corners.

There must be transparency and therefore discussion of judgments, so that mistakes or wrong perceptions of judges would not be carried over to the next case by them. Contempt of Court proceedings have been designed to protect litigants and accused – not to pamper the judges!

Q: How do you view the decision by the government to appoint a Parliamentary Select Committee (PSC) to probe the conduct of former Chief Justice, Sarath N. Silva? Is it a violation of the Constitution to probe into the conduct of a retired judge?

There was considerable opposition to Sarath being appointed as Chief Justice before he was appointed. I remember Param Coomaraswamy and Desmond Fernando, both respected lawyers who headed the International Bar Association at different times, voicing their disapproval at a public meeting to his appointment. Nevertheless he was appointed, thanks to the then executive. After appointment, if his conduct was found questionable in law on the ground of proved misbehaviour or incapacity, there was provision in the constitution to impeach him.

I cannot support the appointment of a PSC to probe his conduct while he was on the Bench. The executive and the legislature do not have that power except in terms of the law. Such actions on the part of the executive and the legislature could be considered as witch- hunting and further erodes judicial independence.

However, it may be appropriate to look at the House of Lords’ decision in the Pinochet case. It was held in that case that the appearance of bias on the part of one judge out of five judges who heard the case, was adequate to warrant a re-hearing. The inherent power of review vested in our Supreme Court could be said to empower it to revisit issues where an appearance of bias has been demonstrated. It should be stressed that this is not to apply to situations where parties argue that the decision was wrong on the merits.

Thus any person purportedly aggrieved due to the existence or even appearance of bias may invoke the Supreme Court’s power in revision. The above decision might be said to apply to allegations in relation to the exercise of judicial power by Sarath as a judge. However, in relation to the dismissal by the Judicial Service Commission of judges of the Original judiciary, the Judicial Service Commission, could reconsider matters or an opportunity might be given to them to have their cases re-heard fully by evolving the appropriate legal machinery.

Q: There is political pressure being exerted by the United National Party to secure former Army Commander Sarath Fonseka’s release. In your opinion, does this amount to interference in the judicial process?

As I said earlier politically motivated prosecutions would draw political repercussions. If we could still boast of freedom of expression in this country I see no reason why anyone cannot exert political pressure in cases of this nature, provided such political pressure is legal, within the democratic sphere and does not violate the laws of contempt, which I referred to earlier.

Q: The UN Committee against Torture (CaT) in its concluding observations on Sri Lanka released on 25 November expressed concern about the “continued and consistent allegations of the widespread use of torture” and the existence of secret detention centres in Sri Lanka. Is this something that worries you?

This has been worrying me from the time I was introduced to the several torture methods used by the military and the police when I heard PTA cases in the High Court of Colombo twenty years ago. At the end of every case where torture was used, the Registrar of the Court, was directed to bring these matters to the notice of various authorities like the Ministry of Justice, Prisons and the IGP.

If steps were taken then to curtail or arrest such hideous indiscretions, the UN CaT may not have had occasion to express concern about continuation of torture in this country. Non action on the part of the authorities has created a culture of impunity. It is significant to note that all that the Emergency Regulations shed by virtue of its removal have all been now brought back and added into the PTA. With the war over why should the state arm itself with these extraordinary provisions against which considerable public agitation took place earlier leading to the abrogation of the Emergency Regulations? Is it to continue violence against individuals?

Those who read the Tamil press would find the CaT’s observations corroborated. In fact one of the constant agitations among the Tamils today is to probe into and find out the whereabouts of a large number of detainees. Why should anyone be kept incommunicado and in secret after May 2009 unless something terrible is being done to them, is the question they ask. They are perturbed that their politicians have not been able to adequately help them nor even the Courts.

Q: How do you assess the impact of the 18th Amendment to the Constitution in terms of democracy and good governance? Do you agree with the view that the 17th Amendment was ‘deeply flawed’?

The structural flaw in the 17th Amendment was that it insisted on a complex appointment mechanism that did not contemplate non-co-operation. The Supreme Court could have ironed out this problem, but it failed to issue clear legal directions to resolve the political impasse that had been created.

This gave a chance for the President to make appointments without the recommendations from the Constitutional Council. Any way the 18th Amendment has now replaced the Constitutional Council with “a weaker mechanism known as the Parliamentary Council” to quote recent CPA publication by Ms. Aruni Jayakody.

It is weak because the President now has to only seek the observations of the Parliamentary Council not their recommendations.

The Parliamentary Council now has very little power to influence the appointment process, and for all practical purposes gives a perfunctory nod to the President. The removal of term limits also strengthens the Executive and as I said earlier is detrimental to the judiciary. The independence of the judiciary was therefore eroded by the 18th Amendment and that does not augur well for democracy and good governance.

One may argue that the 18th Amendment has strengthened the office of the President so that the public service could be streamlined and made efficient. But it is precisely because such a system was found to be flawed that independence was sought by the 17th Amendment. Thus democracy and good governance are most certainly going to be affected if it had not already been affected.

Q: There is tremendous pressure on the government to address violations of human rights and international humanitarian law, alleged to have occurred during the latter stages of the war in 2009. The government maintains that these allegations are being propagated by pro-LTTE Diaspora groups who have even managed to mislead some Western governments. Do you think the calls for an international war crimes probe are justifiable?

During his recent visit to Sri Lanka, Mr. Yasushi Akashi said that the issue of accountability for any human rights’ violations in the war needs to be addressed. He urged a national mechanism to deal with this issue. Suppose we accept his advice as valid does that mean Akashi belongs to a pro-LTTE Diaspora group? Does it mean we are giving in to international pressure? But this precisely seems to be the attitude of certain sections. It must be remembered that dealing with the issues of the past is vitally important for internal reconciliation.

Furthermore, soon after May 2009, if I remember right, there was a joint statement issued by the UN Secretary General and the President of this country that there would be accountability. What has happened to that statement?

My answer to your question is if we are interested in reconciliation, if we are interested in a political solution, if we are interested in taking off economically on the road to prosperity and success joining up with the minorities in this country, then accountability is sine qua non for such an eventuality to take place. If the government had been indulging in humanitarian rescue operations in the Wanni at that time why should the government consider such calls for probe as pressure exerted by anyone?

They should gladly consent to any international probe so that any misunderstandings or misgivings with regard to the genuineness of our government would be cleared.

Q: The Supreme Court’s opinion on the Expropriation Bill is being viewed as a disappointment in many quarters. It has been argued that a law which singles out certain enterprises and ignores others of a similar nature (like Mihin Lanka for example) is a prima facie violation of Article 12 (1) of the Constitution which states that equals must be treated alike. Furthermore, it appears to have had a negative impact on investor confidence in Sri Lanka. What are your comments?

I have had no opportunity to read the Supreme Court’s opinion on the Expropriation Bill. But it is this type of legislation, which underlines the need for checks and balances with regard to the powers of the President, particularly when there is no strict separation of powers between the executive and legislature. Article 12 (1) says as follows-“All persons are equal before the law and are entitled to the equal protection of the law”.

If certain enterprises have been singled out ignoring others of a similar nature, the constitution expects that there be a clear basis why some were chosen for expropriation by state while others were left out. I do not know whether the Supreme Court was enlightened in this respect. If proper grounds were not provided it would appear to be political witch-hunting. Then it would contravene the provisions of Article 12(2) which says “No citizen shall be discriminated against on the ground(s) of political opinion.” When erstwhile state enterprises are running at tremendous loss the urgency for a Bill of this nature is no doubt suspect.

Q: As a respected member of the Tamil community, what are your views on the efforts at political reconciliation and development?

I do not see any possible solution to the ethnic conflict immediately, unless extraneous pressure, inland or foreign, compels the powers that be to relent. This applies to both the government as well as the opposition. Majority community parties are not interested in any solution and want to maintain the supremacy of the majority community through their language and religion.

Except for a handful of persons like Dr. Wickramabahu Karunaratne, Mr.Weliamuna and a few others the majority of Sinhala masses do not want a solution.

Let me explain why I make such a sweeping statement.

Around 1919, the Sinhalese leaders found that unless they made their request for territorial representation unanimously the British were not going to grant their request. So they approached Sir P. Arunachalam, gave him written undertaking that a seat would be reserved for the Tamils in Colombo, and requested him to talk to the Jaffna Association, which preferred communal representation to territorial representation. In the cause of creating a well- knit united Ceylonese polity he was able to get the Jaffna Association to consent to territorial representation. He had implicit trust in the Sinhalese leaders. The request to the Queen was thereafter unanimous and the 1921 Constitution granted their request for territorial representation. Once the supremacy of the majority community was ensured in the Legislature the Sinhalese leaders Sir James Peiris and E.J.Samarawickreme retracted. A seat for Tamils in Colombo was refused. The reason they gave was significant. Apart from saying that they were not bound by their written promise since they no longer held the offices they earlier held when promising, they also said “You Tamils are yourselves the majority in your two provinces. Why should you have seats in Colombo?”

This meant they recognised the individuality of the Ceylonese Tamil Community who had occupied the two provinces, North and East, from pre-historic times. It was such recognition that made S.W.R.D. Bandaranaike passing out from the Oxford University to recommend a federal constitution for Ceylon. The Tamils did not accept this idea favourably since they were scattered throughout the island while being rooted in the North and East and were doing well.

Thereafter the majority community made use of the whip-hand they had got by virtue of the legal instrument of territorial representation, to discriminate against the minorities especially the Tamils. Under the Donoughmore Constitution the numerical strength of the majority community led to the formation of the Pan Sinhala Cabinet. After the Pan Sinhala Government of the 1930s we see them depriving the franchise of the Up Country Tamils in the 1940s. Then in the 1950s the Sinhala Only Act deprived many Tamils of their government jobs. Early 1970s saw standardisation in education, which deprived many Tamils of their higher education.

Throughout this period the state was colonising areas traditionally Tamil speaking with outsiders without giving first preference to the people of those areas. The demography of the two provinces traditionally Tamil speaking was being calculatedly changed. The 1972 and 1978 Constitutions centralised power in the hands of the majority community. Now there is de facto Army rule in the North and East.

Should there be not civilian over-sight in these areas? Does not democracy mean civilian management of local areas? How long is the military going to stay in the North and East? For ever?

For all this, the Soulbury Constitution of 1947 was secular. It did not indicate a unitary structure. It had an inclusive approach. It recognised the multi-ethnic nature of our society and inserted the all important provision of Section 29. Our 1972 Constitution, which had no mandate to change the 1947 Constitution and no participation from the elected representatives of the Tamils of North and East, got rid of Section 29, giving no akin provision instead, made Buddhism State Religion and approved of the Sinhala Only Act earlier passed thus ushering in officially the supremacy of the majority community.

Having got so far do you mean to say any Government of the majority community would consent to settle the issues of the minorities? They would want the minorities to creep around the stem if they wanted any succour and that too individual favours. Look at our budget. Highest for the military. After the war, is it human security that needs precedence or state security?

What has prevented the State from granting the legitimate expectations of the people of the North and East that they be allowed to look after their affairs undisturbed by outside forces? Root causes which gave rise to violence among the Tamil youth still remain unattended to.

None of the Political Settlements reached with the leaders of the Tamils have been given effect to. Bandaranaike – Chelvanayagam Pact, Dudley Senanayake-Chelvanayagam Pact, Regional Councils’ Legislation under J.R. Jayewardene have been abrogated. The present President, if I remember right in January 2010, gave an assurance to the Prime Minister of India that he would work along the lines of the Thirteenth Amendment plus. The Thirteenth Amendment is a dead letter today.

Now tell me Ayesha! Do you think any majority community based Government, with a history such as this, would consent to grant rights to the Tamil speaking people, unless internationally or locally pressured?

Q: What exactly does the Tamil community want?

Simple. The Tamil-speaking people want to look after their affairs themselves. In legal terminology that is the right of self-determination. They want to be governed in the North and East in their language. They want to go back to the land of their forefathers from temporary living quarters provided by whomsoever. They want their security, law and order to be in the hands of their siblings and progeny not in the hands of outsiders.

They want their lands and properties to be administered by themselves; not by outsiders. They want to elect their own representatives without being dictated to by outside agencies, military power or financial power or administrative power. They need to preserve their language, culture, religions and their way of life without outsiders building statues and vihares in their midst with military might. They need to be freed from mercenaries amongst their midst who plunder and rob at the instigation of outside agencies.

All these are not rights which the Tamil speaking people have concocted for themselves. Any people who have certain identities of their own are entitled to ask for self-determination in terms of the international covenants.

My suggestion is that a federal constitution is the best for our country so that the individuality of each community, major or minor, with its distinguishing identities, could be allowed to grow side by side with each other under one flag. Separation is what Prabhakaran asked. Federalism is what the non-violent Chelvanayagam asked! If need be you need not use the word ‘federalism’ since already it had gathered the status of a dirty word. But the maximum devolution to the periphery without a structural opportunity for interference from the centre should appease the Tamils.

Of course the Indo-Lanka Accord could be a starting point. After all it was an international agreement. But fundamental changes in governance, constitutional process, judicial process, in public administration and local government need to be effected and most importantly reforms in the security sector need to be placed in position if this country is to progress democratically.

Unlike when we were young, many Sinhalese have forgotten or have been made to forget the fact that Tamils occupied this country even before the birth of the Sinhalese language. Their progeny in the North and East are therefore entitled to their unfettered individuality.

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