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The Indo-Sri Lanka Free Trade Agreement - is it legal?

Dr. Piyasena Dissanayake
Secretary, National Joint Committee.

At the end of last year, the people of Sri Lanka were surprised to learn that on 28th December 1998, President Kumaratunga had signed on behalf of the Republic of Sri Lanka a Free Trade Agreement with the Republic of India.

We say surprised because, even though there were some reports before the President left for India that some such agreement was to be signed, not only the people but even those who would be directly affected by such an agreement had not been consulted and been kept completely in the dark.

Thus, even though this agreement dealt with trade, none of the Trade Chambers or Chambers of Industries had, as far as we are aware, either been consulted in drafting the Agreement or kept informed of its contents. Let alone Trade Chambers, to go by newspaper reports, even key ministers concerned with the subject matter of the Agreement such as the ministers of Trade, Industry and Agriculture were not aware of the contents of this Agreement which is likely to have wide-ranging repercussions on our entire economy.

The whole Agreement seems to have been "hatched" in secret by bureaucrats and other persons unknown with only the President aware of what was being prepared. What the people find puzzling is what need there was for this secrecy and also why the necessity to rush through in haste an international agreement that would have incalculable consequences for the country and especially for the Sinhala people.

In this note we do not propose to go into the merits or de-merits of the Agreement. That task will, no doubt, be undertaken by the Trade Chambers, economists and other experts. What we are concerned with is the procedure adopted in entering into this Agreement and its legality.

The Agreement was signed by President Kumaratunga purporting to act on behalf of the Republic of Sri Lanka. The question that arises is - what provision of the Constitution empowered her to bind the Republic of Sri Lanka to the terms of this Agreement since we know that she can only act in terms of the powers conferred on her by the Constitution. So what are the powers of the President under the Constitution? This is given in Article 33 which reads as follows:

33. "In addition to the powers and functions expressly conferred on or assigned to him (her) by the Constitution or by any written law whether enacted before or after the commencement of the Constitution, the President shall have the power

(a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament;

(b) to preside at ceremonial sittings of Parliament;

(c) to receive and recognize, and to appoint and accredit, Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents;

(cc) to appoint as President's Counsel, attorneys-at-law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. Every President's Counsel appointed under this paragraph shall be entitled to all privileges as were hitherto enjoyed by a Queen's Counsel;

(d) to keep the Public Seal of the Republic, and to make and execute under the Public Seal, the Acts of Appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other judges of the Supreme Court, such grants and dispositions of lands and immovable property vested in the Republic as he is (she) by law required or empowered to do, and to use the Public Seal for sealing all things whatsoever that shall pass that Seal;

(e) to declare war and peace; and

(f) to do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he (she) is required or authorized to do.

It will be seen that none of the powers given above confer on the President the power to enter into this Agreement. We have therefore to look elsewhere to determine whether the President had the legal power under the Constitution to commit the Republic of Sri Lanka to this Agreement. The Republic of Sri Lanka is governed by a government which is under the direction and control of the Cabinet of Ministers as clearly stated in Article 43 which reads as follows:

"43 (1) There shall be a Cabinet of Ministers charged with the Republic, which shall be collectively responsible and answerable to Parliament,

(2) The President shall be a member of the Cabinet of Ministers, and shall be the Head of the Cabinet of Ministers provided that notwithstanding the dissolution of the Cabinet of Ministers under the provisions of the Constitution, the President shall continue in office."

It will be seen that the authority in charge of the Government under the Constitution is the Cabinet of Ministers and not the President. The President is just one member of the Cabinet, the only difference from other members being that she is the Head of the Cabinet. She is, as the phrase goes "Primus inter pares" or "first among equals". What this means is that, in so far as all matters relating to the governance of the country are concerned other than the matters referred to in Article 33 which we have quoted above, the President has no independent powers.

All powers rest with the Cabinet of Ministers which alone can decide on all matters relating to governance that do not impinge on the provisions of Article 33. All executive actions performed by the President as Executive President than those referred to in Article 33 should therefore be in accordance with Cabinet decisions and Cabinet directives.

It follows that since in this instance the Cabinet of Ministers had not approved the terms of the Indo-Lanka Free Trade Agreement, the President, in purporting to sign this Agreement on behalf of the Republic of Sri Lanka was doing so without proper legal and constitutional authority.

Hence, in so far as the Republic of Sri Lanka is concerned this purported Agreement with India is void and unenforceable against the Republic of Sri Lanka as the person who signed it on behalf of the Republic of Sri Lanka had no authority to do so.

It is also necessary to point out that, in signing this Agreement and committing the Republic of Sri Lanka in this manner the President is guilty of intentional violation of the Constitution and misconduct involving abuse of the powers of the office of President which are impeachable offences under the provisions of Article 38 (2) (a) of the Constitution and no subsequent rectifications of any sort can cure these irregularities.

If there is a fair and free election
UNP will romp home - Ronnie

by Zacki Jabbar
A large number of top police personnel including the DIG in charge of the province have been suddenly transferred out by the PA government. A number of other government officials have also been transferred.

Even the governor of the province has suddenly resigned. These are all ominous signs that the government is preparing the ground to rig this election in a most methodical and systematic way.

As violence escalates by the day in the runup to the North Western Provincial Council Election to be held later this month it appears that both the PA and the UNP are treating this poll as a mini General Election.

With elections in the other provinces to follow and talk of Parliamentary or Presidential polls in the near future "The Island" spoke to senior UNP Parliamentarian Ronnie de Mel on Wednesday about his impressions of the campaign in the North Western province and the allegations of violence made by the UNP and PA against each other.

Denying that the UNP is resorting to violence, Mr. de Mel said the UNP will win the election provided the PA government permits a free and fair election to be held.

Q. The PA and the UNP are accusing each other of resorting to violence in the runup to the NWPC election. Are we to believe that both parties are equally responsible for the violent incidents being reported?

A. I have just returned from Kurunegala after five days there. I met all the UNP party branches, youth leagues, women's branches and all our main supporters in six electorates in and around Kurunegala.

I also addressed several village level and other meetings and met leading members of the Buddhist clergy and other religions, many government officials and others. But not a single instance of UNP violence or thuggery was reported to me.

On the other hand hundreds of incidents of PA thuggery and violence have been reported. Even the office of our MP in Dodangaslanda, J. C. Alawathuwela, was attacked twice. The furniture, office equipment etc has been burnt and the people inside the office assaulted and chased out.

If this can happen to a sitting member of parliament one can gauge the level of PA violence in Kurunegala. Another member of Parliament Sarath Kohongahage has been surrounded and beseiged in a police station itself for nine hours. There have been a series of incidents of PA shooting and assaults.

The houses of some of our supporters have been attacked and burnt. Some of our vehicles and other offices have been smashed. All our flags decorations and posters are torn or taken down immediately they go up.

On Tuesday I held a meeting of our organisers in Wariyapola electorate with the MP, Mrs. Amara Piyaseeli Ratnayake, presiding and with two other MPs and several Provincial Councillors from other parts of the country present. Immediately after the meeting as our people were coming out of the hall they were assaulted and three of our supporters were injured. The police is absolutely helpless. They dare not take action for fear of getting transferred or otherwise punished.

The government is determined to unleash a reign of terror in Kurunegala, prevent our voters from exercising their franchise and win this election at all cost. If there is a free and fair election the UNP is absolutely certain of winning this election. This is the reason for all the PA terror that has been unleashed.

Q. How many electorates does the UNP expect to win?

A. Going by the results of the last parliamentary election in August 1994, the UNP obtained 332,547 votes in the whole district while the PA obtained 366,586 votes. The difference therefore is only 34,000 and with the present unpopularity of the government and the resultant swing towards the UNP we hope to get this 17,000 votes and much more with great ease. We also hope to get the vast majority of the new votes as the youth are totally disillusioned with the government.

I have just visited six electorates and moved about with the people addressed meetings both big and small and gauged the situation at grassroots level in these six electorates. I am absolutely confident the UNP will win four of these electorates. The other two are fairly equally balanced with a slight edge towards us. With good organisation in the next three weeks we hope to get even a small majority in these two electorates also. Going by reports and observations in the other areas the UNP is now getting a commanding lead in the entire province.

Q. Will the UNP be calling for foreign observers to monitor the NWPC election?

A. I do not think foreign observers are needed to monitor this election. We would however welcome NGOs and impartial observers to monitor these elections if possible.

Our experience with monitoring of elections in Sri Lanka have not been very successful in the past. Most of the persons who are sent out to monitor elections have no experience of the local terrain, election practices and malpractices. They are very often good samaritans who are totally clueless.

What we need in Sri Lanka is not observers and monitors but a completely independent Elections Commission, an independent police force, and Police Commission, and independent public service and Public Service Commission.

If we go back to the conditions that prevailed in the first two decades after independence when we did have comparatively free and fair elections, then these problems will be solved without any observers or monitors who in my opinion serve little purpose.

Q. Aspersions have been cast on the neutrality of certain NGOs

A: I do not wish to cast any aspersions on either local or foreign NGOs. I know their strengths and weaknesses. I do not think NGOs can in any way ensure free and fair elections without setting up independent Public Service, Police and Elections Commissions.

Until these three independent institutions are set up we can never hope to have really free and fair elections in Sri Lanka.

Q: How do you view the sudden transfer of a large number of policemen out of the North Western Province?

A: A large number of top police personnel including the DIG in charge of the province have been suddenly transferred out by the PA government. A number of other government officials have also been transferred.

Even the governor of the province has suddenly resigned. These are all ominous signs that the government is preparing the ground to rig this election in a most methodical and systematic way.

The PA are experts in the art of capturing polling booths destroying ballot boxes mass impersonation and vote rigging. They had a successful trial run in the Pradeshiya Sabha elections. They will repeat this on a larger scale in the NWPC elections.

Q: How do you view State media allegations of you having clandestine connections with former DIG's Premadasa Udugampola and Muni Gomes?

A: I was totally amused by this allegation in the state media. I have had no connection whatsoever with Mr. Premadasa Udugampola are any of his followers.

I have known Mr. Muni Gomes and ASP Samson as they were police officers who served in Matara district earlier. They are both now retired and have joined the UNP. What is the harm in police officers joining any political party after retirement?

The PA had a whole band of them helping their alliance in all elections.

I have fought and won elections over the last 35 years. I can truthfully say that I have never asked anybody to transgress any election law or ever asked anybody to even impersonate a vote for me. I have also conducted elections for over 10 years as a member of the old Civil Service.

If I have to hold a political discussion on strategy or tactics surely I will not hold it in public, in a hotel we have a full fledged office in Kurunegala and several other places where we hold these discussions. I did however see with my own eyes a compulsive credit card loving Cabinet Minister from the South holding a discussion which went on till the early hours of the morning in the lower floor of this same Kandyan Reach Hotel where I stayed.

He held the meeting with about 70 or 80 people from the South who had been specially brought in government vehicles to Kurunegala on the day before the President's meeting in Ridigama. This included several underworld characters from the South including a politician who has been accused of smashing up UNP vehicles and causing hurt to UNP supporters only a few weeks ago when Mr. Ranil Wickremasinghe toured the Matara district and also another SLFP bigwig who was once accused of throwing bombs at me during a political procession and meeting in Devinuwara and killing an unfortunate person walking by my side in this procession.

I understand that this credit card loving Minister is now giving the necessary directions to write the front page and the centre page of the Ceylon Daily News, the Dinamina and the Observer. So much for the freedom of the press and the freedom of the mass media under this government.

One cannot aspire to be the doctor Joseph Gobbels of the PA government without having an atom of the brains of Dr. Joseph Gobbels.

Q: How do you view the UNP's prospects in the Puttalam district?

A: The situation in Puttalam is equally good from all reports I have heard from those organising the campaign in that area.

The Catholic vote which turned against us in 1994 is coming back to us. So is the Muslim vote. I will myself be going for meetings in Puttalam shortly when I will be able to gauge the situation better.

THE WEEK THAT WAS
Govt., Opp., MPs concerned about violence in NWP

by Shan Wijetunga
The North Western Provincial Council elections figured prominently in the Emergency Law debate in parliament with the government and opposition both confident of victory for their respective side.

While challenges were exchanged by the government and the opposition another group of MPs were formulating a programme to set up an all party forum to curb political thuggery during the forthcoming polls.

In the forefront to form this forum were MPs Dallas Alahapperuma, T. B. Ekanayake and Mahinda Amaraweera from the government while from the opposition it was MP R. M. Ratnayake.

On the initiative of MPs Dallas and Ratnayake 28 Opposition MPs and 16 government MPs met in the parliamentary conference room for the discussion.

The MPs present at the discussion were Susil Munasinghe, Mahinda Amaraweera, Dr. Rajitha Senaratne, Suranimala Rajapaksa, Amal Senadhilankara, Nandasena Herath, Dr. Karunasena Kodituwakku, H. R. Wimalasiri, P. V. Ratnayake, Lal Gunasekera, Thilak Mahalekamge, Jayatissa Ranaweera, D. M. Bandaranaika, Nimal Bakmeewewa, R. A. D. Sirisena, Ali Zahir Moulana, D. Harrison, Ediriweera Premaratne, Heen Mahattheya Liyanage, Upali Gunaratne, Chamal Rajapaksa, Dr. T. M. Illiyas, Nanda Gunasinghe, Lakshman Yapa Abeygunawardana, Ranjith Madduma Bandara, Upali Amarasiri, Chandradasa Galappatti, Kabir Hasheem, Tissa Attanayake, Mano Wijeratne, Jayalath Jayawardana, Sarath Gunawardene and Rohan Abeygunawardane.

MP R. M. Ramanayake met the Leader of Opposition, Ranil Wickremarasinghe and explained the reason for the meeting and sought his blessings.

The UNP leader welcomed the move but wanted a list of the MPs participating in the meeting and to raise the question regarding the refusal of permission to the United National Party to hold its final propaganda rallies at Chilaw and Kurunegala.

After longthy discussions the MPs agreed on certain areas and entrusted Mr. Dallas Alahapperuma to issue a press statement on the discussions and the agreements reached there. The forum is expected to meet again soon.

Hemasiri
Prime Minister Sirimavo Bandaranaike visited Kataragama beginning of the year as was her practice every new year and also to attend the commemoration ceremony of the centenary birthday anniversary of late premier S. W. R.D.Bandaranaike.

Among the VVIPs present were ministers Mahinda Rajapakse, Richard Pathirana, Nimal Siripala de Silva and Deputy Minister Jagath Pushpakumara. M.P. Dallas Alahapperuma also was present.

Hemasiri Fernando former Chairman of Telecom was also present at the ceremony. Prime Minister Sirimavo Bandaranaike discussed the removal of Hemasiri Fernando from the post of Telecom Chairman with the ministers present.

Hemasiri will continue to be her secretary, she said.

Lalith Front
Lalith Front formed by the group led by Srimani Athulathmudali, a breakway group from the Democratic United National Front is in danger of splitting into two due to differences between Srimani Athulathmudali and MP Ravi Karunanayake.

A surprise meeting of the executive committee of the front was summoned on Sunday morning over the telephone by Srimani Athulathmudali.

Several decisions were arrived at this meeting one being the removal of M. S. Nanayakkara from the post of secretary of the party as he was alleged to have acted contrary to the welfare of the party. M. Isseth was appointed temporary secretary of the party.

Meanwhile, Mr. Nanayakkara also had summoned a meeting of the executive committee last Thursday night at the party headquarters, Kotte.

Among the 20 members present were Ravi Karunanayake, Siri Andrahennedi, Anil Wijesinghe, Lakshman Abeygunaratne, Edward Gunasekera and Ranjith Palihapitiya. Ravi Karunanayake was elected temporary president of the executive committee and it was decided that the cancellation of membership of secretary Nanayakkara on whom they had confidence contravened the party constitution. The decision to be conveyed to the Commissioner of Elections.

Second decision was to support the UNP at the north western provincial council elections.

The third decision was to proceed with legal action against the decision to remove Nanayakkara from the post of secretary.

There were also suggestions at the meeting to remove Srimani Athulathmudali from the party leadership.

D. M. continued
Most of the political thuggery in the north western provincial elections had taken place in the Puttalam district specially in the Anamaduwa area with the blame for most of these troubles being placed on MP D. M. Dissanayake, his wife, Indrani is also a contestant at the provincial council elections from the People's Alliance.

A recent incident at Anamaduwa has put Dissanayake on the mat. It was alleged that he had wanted three wheeler drivers in Anamaduwa to display his wife's photograph on their vehicles. They had refused and resorted to strike action. It was Deputy Minister of Fisheries, Melroy Fernando who intervened and brought about a settlement and informed President Chandrika Kumaratunga about it.

The president who had earlier too received allegations against D. M. Dissanayake summoned him to 'Temple Trees' and warned him against repetition of such offences threatening serious consequences.

UNP group meeting
The UNP parliamentary group met last Thursday morning at the parliamentary complex. The main topic of discussions was political thuggery at the north western provincial council elections.

Dr. Karunasena Kodituwakku spoke of MP Sarath Kongahage being surrounded by a group of PA supporters at the Kobeigane police station when he went there to make a complaint.

Finally, when Kongahage was allowed to leave the police station it was close upon midnight.

Member John Amaratunga spoke of the travails of Ayub Khan, UNP contestant from Chilaw.

A convoy of vehicles with Ayub Khan and his supporters were attacked damaging all the vehicles. Ayub Khan was admitted to hospital with serious injuries.

General Secretary Gamini Athukorale said he had inquired into both these incidents. In the case of Ayub Khan four vehicles were completely damaged. In the Kongahage's case the police had not taken suitable action.

Leader of the party, Ranil Wickremasinghe said as the government was aware it cannot win the elections it was gradually increasing its political thuggery. But the UNP should act with caution to get the voters help to win this election.

Commissioner of Elections summons delegates of political parties
A conference of the delegates of political parties contesting provincial council elections in the north western province was summoned by the Commissioner of Elections, Dayananda Dissanayake last Thursday morning at his office. Among the delegates present were General Secretary of Peoples Alliance, D. M. Jayaratne, General Secretary UNP, Gamini Athukorale and delegates of the JVP and independent political groups.

Inspector General of Police Lucky Kodituwakku along with several Deputy Inspector Generals were also present at the meeting.

First to complain were JVP and UNP delegates who informed the Commissioner of Elections about vehicles plying in the north western province with out number plates or using false number plates being used by armed groups.

Gamini Athukorale proposed that licences of all vehicles plying in the north western province should be inspected.

A proposal was also made to provide a special emblem to vehicles plying in Kurunegala and Puttalam districts.

Inspector General of Police stated that already a programme has been set up to arrest any suspicious looking vehicles.

Next question raised was the holding of final propaganda rallies. Incidentally, both the UNP and the PA have fixed their final rallies on the same date.

After discussions on political thuggery and transport of ballot boxes Inspector General of Police informed the delegates that if any officer in charge of a police station in the north western province was unable to curb criminal activities in the area action would be taken to remove him from the particular police station.

L E G A L W A T C H
Rights and duties at elections

by Nayana
It is necessary to remind ourselves what elections are supposed to be, in order to realise what they have become.

The exercise of the franchise is said to be part of the "sovereignty of the people" - Article 4 (e) of the Constitution. The recent Supreme Court judgment on the petitions challenging the Provincial Councils Elections (Special Provisions) Bill has made it clear that since the Thirteenth Amendment, this sovereign right to exercise one's franchise covers not only national but also provincial elections.

Even prior to the Thirteenth Amendment the Constitution cast upon the State a duty to "strengthen and broaden the democratic rights of the people by decentralising the administration and by affording all possible opportunities to the people to participate at every level in national life and in government."

The fundamental rights to equal protection of the law and freedom from discrimination on political grounds imply that all contesting parties and groups be treated equally. As already pointed out in this column, the Supreme Court judgment referred to above suggests that Article 12 may even require political parties to treat their candidates equally.

The fundamental rights to freedom of speech, assembly and association, together with the power to place reasonable restrictions on the exercise of these rights in the interests of public order and safeguarding the rights and freedoms of others, form the constitutional basis for the laws regulating the conduct of election campaigns.

Article 93 of the Constitution requires that voting at elections "shall be free, equal and by secret ballot". The elections laws relating to the supervision of polling, marking of ballot papers, sealing of ballot boxes and counting of votes are designed to give effect to the principles contained in Article 93.

Thus when election laws are flouted, it is not the same as, say, the non-compliance with traffic rules or licensing laws. It is a violation of constitutional principles and the denial of the constitutional rights of some section of citizens.

Where such violation is committed by or with the connivance of any State agency, it amounts to an infringement of rights by the very authorities established to safeguard such rights.

Under the Constitution it is the duty of all organs of government to respect, secure and advance fundamental rights. Safeguarding the principle of free and fair elections is also the public duty of all those including the President, Ministers and Members of Parliament who assume office only after making an oath or affirmation to "uphold and defend the Constitution".

The enforcement of the detailed provisions of the Provincial Councils Elections Act and the corresponding Elections Acts governing presidential and parliamentary elections must therefore be viewed against this background.

Thus the government of the day is under a duty both to respect the independence of the Commissioner of Elections and his staff and also to provide adequate resources to his Department to enable it to discharge its functions effectively. While opposition MPs may not have power to allocate resources, they are under a corresponding duty at least to see that their candidates and supporters do not engage in activities that would interfere with the requirement that elections be "free, equal and by secret ballot".

It is said that "eternal vigilance is the price of liberty" and the election law makes provision for supervision of the poll and the count by polling agents and counting agents of all the contesting parties and groups.

However, as the public is aware, there have been many documented incidents of polling agents (usually of the opposition) being physically chased away or prevented from reaching the polling station; unauthorised persons entering polling stations and interfering with the ballots; and even voters being chased away.

It should also be remembered that, as the Supreme Court recently pointed out, the Election Acts govern the conduct of the entire campaign from the first day of the nomination period. The law seeks to regulate the conduct of specific election-related activity such as the putting up of posters, holding of meetings and house to house canvassing, as well as prohibiting acts such as bribery or treating of voters, and the making of false statements about candidates.

However Election Acts do not deal with the law and order situation as such, except in an ex post facto fashion by allowing an election to be set aside by a court upon proof of general intimidation which prevents a section of electors from voting for the party or group of their choice and thereby materially affecting the result of the election.

As this column has previously pointed out, the interpretation placed on the section by decided case law makes the setting aside of such an election a tough proposition for a losing candidate.

All this underscores the need for an effective and impartial police force to maintain law and order during the entire election campaign as well as during the actual poll and count. Although the Constitution entrusts the Commissioner of Elections with the performance and discharge of all functions and duties under the election laws, this has not so far been interpreted so as to give the Commissioner control over the police force in an area where an election is being held.

Events in the ongoing election campaign in the North-Western Province make it clear that the transfer and deployment of Police in the Province remain firmly under the control of the Government. As such, the Government has to take responsibility for the shocking state of lawlessness that appears to be prevailing in that Province.

We can do no more than end with the cautionary words of the Supreme Court delivered in a judgment involving incidents of violence at the 1997 local government polls:

"The acts of general intimidation complained of in these proceedings should be an eye-opener to those vested with the responsibility of good governance to take appropriate steps to prevent such occurrences in the future, lest it be thought that even after fifty years of Independence, the oft lamented but hitherto un-eradicated scourge of election violence has become part of our election culture."

Commitment of a Judge
Superior Court Judge turns the mirror inwards
'What exactly could be our cause?'

by C. V. Wigneswaran
To answer that question we career judges must go back to the time we applied for a post in the judiciary. What prompted us to apply for a judicial appointment?

May be economic considerations did. If I was not making ends meet at the unofficial bar or if I was harassed at the official bar I might have applied. If my parents or wife prompted and prodded me, I might have applied. If I was interested in prestige and authority to be reckoned as somebody in society I might have applied. If I wanted to teach somebody a lesson by obtaining power of office and acquaintance of those in authority, I might have applied. If such or other ejusdem generous consideration prompted me to seek a judicial career then selfishness, self interest, self aggrandisement and self glorification would have been the underlying reasons for my joining the judiciary. My commitment then as a Judge would thereby have the interest of myself as the guiding principle.

If altruistic considerations prompted me towards the judiciary I would not consider self-interest important but the principle of acting for the interests of others might direct me in my judicial career. The word "others" could still mean those close to me - my family, my social group. my religious group, my regional group, my ethnic group and so on. I would therefore submit that even such a parochial perception savours of selfishness. If my actions are directed to obtain a name and fame for myself among those near and dear to me, then my purposes are ultimately selfish and not altruistic.

Judiciary
Let us remember therefore that self interest could have prompted us to join the judiciary. There cannot be anything adversely wrong with it. But having joined the service we must be able to sever the umbilical chord which binds us to selfish considerations. We must then start examining the character and content of the office assigned to us. Since we are men and women who hold the scales of justice impartially in our hands the members of the public do not consider us merely human. We are in the perception super human nay divine. That is why people address us as they address the Royalty. We cannot therefore allow their beseeches to be neglected their entreaties to be slighted, their implorations impulsively ignored. In dealing with the solicitations of societal members we have to act within the law but as arbiters of human discord and dissension. In attempting to do so we are expected to sacrifice our personal bias, preferences, prejudices and predilections at the altar of our office.

Favourable
We expect a juror who comes to hear a case to walk into our Court having discarded the favourable or unfavourable prepossession of mind. He is expected to hear the evidence and the judge's direction on the law and give his verdict without fear or favour. Such a juror can walk out of the Court and live his previous life the same way he did before entering the portals of the Court. How much more would society expect of a judge? A judge cannot enter his Court house and act as a juror would and come out of the Court house and act despicably or contemptibly. Unless the words of advice we give litigants in Court, unless the fundamentals of law we uphold in Court are perceivable in our life too as governing principles of our personal life, our words in Court would have no meaning. In this respect when we don the judicial garb we are expected to make a promise unto ourselves that we shall act according to our conscience and according to law at all times. Conscience means the innate sense of right and wrong. That cannot be very different from good laws, because laws after all reflect the conscience of society. If there be conflict, we expected to find out whether the thoughts that gnaw at us are born basically of selfish considerations or altruistic considerations. That is an inward search. Also whether a law that comes up before us for interpretation or enforcement had been created out of prejudice and bias or for the welfare of the society as a whole. That is an outward search. If there be conflict, certainly we must decide to act with circumspection always keeping in mind the welfare of the society as a whole. Our dedication thus would have to be devoted to law and society as a whole.

The constitution of the Democratic Socialist Republic of Sri Lanka certified on 31st August 1978 states in Article 4, inter alia, that the sovereignty of the people shall be exercised and enjoyed through (i) the legislative power of the people exercised by Parliament, through (ii) the executive power of the people exercised by an elected President, through (iii) the judicial power of the people exercised by Parliament through Courts and other tribunals created and established or recognised by the Constitution, through (iv) the fundamental rights declared and recognised by the Constitution which shall be respected, secured and advanced by all the organs of government aforesaid and through (v) the franchise exercisable at the election of President and members of Parliament and at referendums.

Parliament
The judicial officers are no doubt not elected by the people directly, unlike Members of Parliament and the President. But once appointed to hold office they are protected by the Constitution and granted security of tenure in office without interference, in order that they may in turn protect, vindicate and enforce the rights of the people (vide Article 105). Therefore our responsibility is not to those elected by the people to the other organs of government but to the people direct.

The insertion of the phrase ''the judicial power of the people exercised by Parliament'' has been given different interpretations by those who would like to subjugate the judiciary to dance to the tune of the other organs of government. To me the wording appears very simple and straight forward. Except in regard to matters relating to the privileges, immunities and powers of Parliament and of its members wherein the judicial power of the people may be exercised directly by Parliament according to law, the article confers only the status of a midwife on Parliament and nothing more as far as the judiciary is concerned.

The Parliament may decide on the infrastructure of Courts - where they have to come up, how many have to come up, how many judges must be appointed their jurisdiction and so on. But once the judges are appointed, through the Judicial Service Commission the Parliament ceases to exercise judicial power except in specified areas. The individual personalities who form the Parliament may be there even after five years or they may be out. Their position depends on the whims and fancies of the voters and the vagaries of elections. But not so with judges. Constitution protects us to go on until we resign or retire or die subject of course to the provisions of Chapter XV of the Constitution.

The Parliament is only the conduit pipe through which the judicial power of the sovereign people is vested in us. They cannot interfere with us and should not interfere with us. So too we should not act with bias towards our midwife. But our commitment should be towards the sovereign people and of course towards the law which shall direct our performance.

When we speak of sovereignty of the people it does not refer to a person or even a limited collection of people. It refers to society as a whole. What is good for the society as a whole including its weaker sections, should be the paramount consideration of judges.

Consequences
When we hear criminal cases the prosecutor is the State. The State takes steps when there is a private feud between two parties provided the feud gives rise to action considered criminal under the law because such actions if not adequately exposed and dealt with and determined might have adverse consequences on society.

The individuals who control the State machinery sometimes take steps to use criminal law to harass their opponents or those whom they dislike. That is one area where the judiciary has to show its commitment to law and the people and not to any institution, whether a law enforcement authority or any other nor to any individual however highly placed. Any attempt to use the judicial process for persecuting opponents must receive the strictest stricture from Courts.

I once had to face a situation of this nature. If the suspect under consideration, against whom no charges had been framed but kept on remand for over 2 years, has had a charge sheet filed against him and had pleaded guilty and thereafter sentenced to maximum sentence he would have been a free man by that time. The State however wanted further time for investigation and objected to bail. But bail was granted by me and the State Counsel was told in no uncertain terms that the case seemed politically motivated to harass the suspect.

It was significant that once bail was granted no charge sheet was filed thereafter. Needless to say veiled threats and even enticements too were dangled before me. Of course I was soon transferred out of the station where I had gone only a few months earlier. May be there was no connection between these two facts!

On the other hand hoping for personal benefits or fearing reprisals if we play ball with the persecutor it would mean that we have descended from our position of impartiality and high profile to neither depths and that is suicidal to the judiciary. This does not mean that we should start with a prejudice against the prosecutor as a persecutor. That would affect the law and law enforcement adversely.

Reasonable
In our day to day judicial life as a Magistrate it is always easy to discharge or acquit an accused on the oft resorted ground of ''benefit of the doubt''. This should not be so. Where there is reasonable grounds to believe a prosecution story subject of course to the law pertaining to burden of proof and standard of proof, we must endeavour to convict the wrongdoer. Imagine if all the judges take the easy path of acquitting all accused on the basis of ''benefit of the doubt'' being given to the accused when there are adequate grounds for a conviction, the wrongdoers in our society are going to say ''Well we will go on. Because the Courts are with us.''

The other extreme would be to convict all accused under any circumstances with vengeance. Some judges convict without adequate reasons, often because they have certain prejudices entrenched at the back of their minds. ''I must teach them a lesson!'' seems to be their motto. The consequence of such behaviour is that an innocent person wrongly convicted is going to be a liability to the society. He will harp grudges against judges and all those in authority.

Judgments
Some of us write judgments in civil or criminal cases in any way we want haphazardly and hope that parties will not appeal. In fact we will even prevent parties appealing by locking up the records until the appealable period is over. There are some of us, despite all our prevention, if we find a party still appealing we would add paragraphs to the delivered judgment subsequently to make us look respectable in the eyes of the Appeal Court. Our action in this regard is fraudulent to say the least.

Again we act to protect ourselves and not those whom we have to be committed to. Should we not have taken that extra trouble to write a proper judgment expecting it to be appealed against? Even if we have to take a little more time it would be better to write a proper judgement. In criminal cases we may give our verdict immediately or within a day or two and take a little more time to give our reasons. We in the Appeal Court often see through many of the gimmicks and antics of original Court judges.

Circumstances
Another matter that needs our earnest consideration is the control of our tempers. Sometimes it is necessary to show anger to augment authority. But in those circumstances we are only acting the part of an angry judge. We must not under any circumstances lose our temper. If we do, the lawyer would get the better of us. We would fail to act judicially and reasonably and we would also bring down the dignity and decorum of Court by our agitated behaviour. How could we sit in judgment if we behave no different from the suspects and the accused brought before us? They commit offences at the heat of their passion . We have no right to follow their example.

We must remember that despite all our shortcomings and even comparative indigent circumstances due to lack of housing, lack of communication both vehicular and telecommunication and similar shortcomings, the Sri Lankan common man has developed a sense of respect, reverence and awe towards the members of the judiciary. He feels that we are his saviour. He feels that we are his last hope. If we on the other hand descend to the arena of contest or fall from the standards of behaviour expected of us, we would be causing tremendous tension in the minds of the people which would ultimately give way to hatred and disrespect for the judiciary.

Every action of ours, as I said earlier, is being watched. Therefore Judges like Caesar's wife should be above suspicion.

Sometimes petty jealousies among us lead to embarrassment not only to ourselves but also to the staff and the legal profession and their clientele. It is best that we act with restraint at all times. Suppose a District Judge makes uncharitable remarks against an Additional District Judge or vice versa, the judiciary is affected. The lawyers and the staff could take it upon themselves to fan the embers of disunity. It is far better for us to talk to each other and settle our disputes because after all we are expected to be responsible citizens whose lifestyle would be a model to lesser mortals. If talking to each other is not possible, we must get the help of the High Court Judge in the region or any other Judge amenable and acceptable to each other and solve the problem.

Unmanageable
Allowing personal conflicts among judges to surface to unmanageable limits affects the commitment of the judges involved in the conflict. We cannot pass strictures on accused and suspects if our personal behaviour is suspect and sullied. Therefore at all times the dignity of our respective offices must be kept in the forefront when dealing with anyone. We must always remember that daily transformation of our own selves to create a better judiciary is as important as the reformation and transformation of offenders to create a better society. "To offend and judge are distinct officers, And of opposed natures - said William Shakespeare in the Merchant of Venice. I would submit that in the area of reformation, an internal transformation in judges as well as those judged is equally essential if we are to create a better future.

The persons whom we keep company is very important in creating a better environment to ensure commitment to our profession.

Government
If we go to a club and become too friendly with a lawyer or a police officer or any other government official, naturally we would find it difficult to doubt their words or action when per chance they come into question in Court. To uphold even scales, it should be a necessary restraint imposed on ourselves by our own selves to keep a healthy distance from those who might appear before us.

Lord Macaulay (1800 - 1859) said "The reason that Judges are appointed is, that even a good man cannot be trusted to decide a cause in which he is himself concerned". Thus, if we are too involved with anyone within our jurisdiction we cannot do justice to our office, This does not mean that all of us must lead a secluded purdah life. Restraint is the key word. The extent of restraint shown by us in our daily life would show our commitment towards our office more favourably and healthily.

Sometimes we are forced into situations. Once a judge found his Law College colleague who was practising before him in a provincial Court was exceedingly nice and helpful to him by asking after his meals and conveniences every morning in his chambers. One day he overheard the lawyer telling his client that he had spoken to the judge and the judge had promised to acquit the accused but that the accused must pay for him and the judge adequate fees. The judge was so angry he went on the Bench, heard the case and found the accused guilty in a case where he would have acquitted the accused even before the complainant's evidence was over. The judge in this instance took out his anger towards the counsel on his poor client. The conviction was set aside in appeal. If the judge had kept the lawyer in his place without accepting his doubtful hospitality this need not have happened.

Idiosyncrasies
All judges are not the same. Each has his or her own idiosyncrasies and manner of behavioural pattern. But we must each set up in our respective lives certain common standards of behaviour consonant with our high office. It is far better to be an honest judge whose forte is not erudition than be an erudite judge with questionable behavioural pattern.

Another area in which we tend to demean our office is in advertising our knowledge an authority to the world at large. Expecting respect we probably do so. But some times or more often such behaviour has the opposite effect. We are found out. Every lawyer would know that flattery of the incumbent in office would bring favourable results to him or her in our Court. It is therefore necessary to show humility at all times however learned we think we are. It was said by Bacon that "a much talking judge is like an ill tuned cymbal".

Inclination
Similarly our inclination to accept the words flowing out from the lips of any particular Counsel as gospel truth would show us in poor light. We must no doubt appreciate good arguments and submissions of Counsel. But we must not forget that submission and arguments are by themselves more important than the persons who say or put forward them.

It is very essential that we do not brush aside arguments by lesser known Counsel or junior Counsel merely because they are not too well known or inexperienced. Such an attitude on our part would again show us in poor light in that we may be perceived as persons not committed to our office but to personalities.

Another important aspect in the bearing and conduct of a judge was referred to by Seneca (who was born 4th year before Christ and died AD 65) as follows:-

"The upright judge condemns crimes but he does not hate the criminals".

Divine
To hate the criminal would mean that we have already made up our minds about them and they are to be condemned for ever. As judges there is a quality of the divine which is expected of us. We are not expected to hate anything or anybody intrinsically. Equanimity should be our strong point. At the bottom of our hearts must remain the fountains of the artesian wells of compassion and charity. William Wordsworth in his Ecclesiatical Sonnets said,

"He only judges right who weighs, compares, And, in the sternest sentence which his voice Pronounces, ne'er abandons charity".

In summarising what one considers the corner stones of commitment of a judge, the single important paramount objective which need to be kept in mind is the Law in general.

To be committed to Law means commitment for the welfare of the sovereign people. To be committed to Law means commitment to one's judicial office. To be committed to Law means commitment to high ethical and moral values. To be committed to Law means commitment to human dignity. To be committed to Law means commitment to compassion and charity.

Ladies and Gentlemen let us resolve ourselves here and now that we shall build up a judiciary untrammelled by external interference nor internal lethargy, indifference or inertia.

(Text of a talk delivered at the Annual General meeting and Conference of all original court Judges at the Taj Samudra Hotel on 15th December 1998)

President on violence- a rejoinder

"Tie them to a tree and tell me and I will do the rest" Presidential exhortation to people - a rejoinder.

Certain statements made by President Chandrika Bandaranaike Kumaratunga recently deserves comment, purely because of the irrationality of such statements.

She is quoted in the 'Daily News' of 8th January, '98, as stating at a PA Provincial Council election meeting at Nattandiya thus (Page 17): "Finally, I would like to make a categorical request to the people of Wayamba. We are carrying on a peaceful election campaign. If anybody tried to resort to acts of violence from our party, tie such a person to a tree and send a message to me. I will see that such persons are taken into custody. We don't believe in violence like the UNP."

What a practical proposition it is! Who is the PA supporter or for that matter an ordinary citizen who would dare to apprehend a PA Politician or a PA big wig who would indulge in violence and tie him to a tree. Suppose if he had done such an unimaginable task. Would he or she be able to contact the President when the North East Governor Gamini Fonseka had complained he could not contact her for official matters.

Would it be correct on her part to instigate more violence when the accepted course of action would be to report any such violence to the Police. However the gravemen of the charge is that the police had not taken action to apprehend the culprits who had perpetrated violence against candidates of parties opposed to the PA despite complaints made and culprits identified.

We have it on record that the PA's Deputy Minister of Fisheries, Milroy Fernando admitting that a series of violence acts committed by a particular PA MP in the Puttalam District had brought disrepute to the PA and that he had brought them to the notice of the President and other PA highups. Still no action.

The scenario of the President exhorting people to catch offenders, tie them to a tree and tell her so that she would do the rest is not confined to violent acts. She wanted this done in regard to those who would attempt to give bribes as well as she told a public meeting sometime ago. Sometime back people could remember the President herself saying she had been offered a bribe. Has she done anything about this effort to bribe her? In parliamentary parlance one could ask: If not why?

Now, who is fooling whom?

- A Concerned Citizen

South Korean - Kim Dae Jung faces stiff challenges

by Dr. Stanley Kalpage
South Korea is undergoing the hardest of times since the Korean war began in 1950. Its widely acclaimed economic miracle has turned into abject misery for a large section of its population.

By mid - 1997, South Korea had the world's eleventh largest economy. It had been admitted into the 'rich nations club' - the Organisation for Economic Co-operation and Development (OECD). But now, seventeen months after the East Asian economic crisis hit South Korea, along with other countries like Thailand and Indonesia, South Korea is struggling to get back on its feet.

South Korea's astounding economic growth has gone haywire - too much borrowed money and too much corruption. The abrupt crash has shattered the lives of tens of thousands of people who face a desperate future of extreme poverty and malnutrition. As a consequence, Korea's poor, many of whom were just taking their first steps out of poverty, are tumbling back into conditions they thought they had left behind forever.

Kim Myung Youn
The story of Kim Myung Youn typifies the desperation among the masses of newly unemployed, and those who fear losing their jobs as the unemployment rate continues to climb. His experiences have been chronicled and highlighted in the Washington Post.

Kim lost his $ 40,000-a-year sales manager job and began selling hats from a truck on the streets of Seoul to support his wife and two teenage daughters. This earned him about $ 1 a day and Kim was soon compelled to use his unemployment benefit of $ 750 per month to pay off his debts and to make ends meet. He then tried his hand at selling newspapers, 700 of them over a 5-hour period from 2 a.m. to 7 a.m., delivering 270 newspapers and earning $ 25 a day. But he soon gave this up when he could not remember the houses to which the newspapers had to be delivered.

On Christmas eve, over dinner of pizza, kimchi, rice and tofu (soybean cake) soup, a visiting Washington Post reporter handed the Kims an envelope containing almost $ 4, 000 in donations sent by people who had read about Kim's story and wanted to help the family. Kim and his wife Moon Mi Ya seemed startled as checks and $ 100 bills piled up on the table before them. The money won't get kim a job or solve the family's problems, but has encouraged and given them confidence to face the immediate future.

Kim Dae Jung and the economic crisis
In tackling the economic crisis, President Kim Dae Jung's government has not forgotten the unemployed. His administration has pledged about $ 7.5 billion in 1998 to build a social safety net for the nearly 2 million workers who have lost jobs in the last year. Previously, there used to be just about nothing to help the unemployed, because there were just about no unemployed. Now, there are benefits for up to nine months, and the government is putting about 300,000 day labourers to work on public works projects.

The government says growth in new high-tech fields will fire a South Korean renaissance, and plans to train more than 300,000 workers in computer programming and other high-tech skills. It promises loans to help entrepreneurs start new ventures.

South Korea, the richest of the East Asian countries in crisis, plans to spend about $ 80 million in 1999 to cover school fees to keep a quarter-million students from dropping out. The government has provided $ 8 million to feed children who can no longer afford to take decent lunches to school. And all this while sending a remittance of $ 1 billion to the IMF as a second loan payment for the $ 28.7 billion obtained in December 1997.

Chaebol reform
The economic crisis is only one of the challenging tasks that Kim has faced since he took office as South Korea's president on 25th February 1998. Others include chaebol reform, a stubborn parliamentary opposition at home and an unpredictable regime to the North.

A restructuring of South Korea's ailing conglomerates, or chaebol, was a key condition of a $ 58 billion bail-out of the country's economy by the International Monetary Fund (IMF).

Kim Dae Lung says that "the chaebol restructuring is going well so far, of the 25, about 10 have already been dissolved. But the restructuring of the top five is still being carried out."

Kim has insisted on certain guiding principles to transform the chaebol.

First, transparency through consolidated financial statements, ensuring the rights of minority shareholders and the appointment of outside directors. Second, a ban on cross-payment guarantees. Third, better financial structures so as to reduce debt-to-equity ratios to 200% or lower by the end of 1999. Forth, for the owners of the chaebol to have more legal culpability, to act as CEOs and to take responsibility and be accountable. Finally, preventing octopus-like expansion by asking the chaebol to stick to core businesses that are competitive and profitable.

Kim says that he is engaged in a second nation-building exercise, to practice democracy and the free-market system hand-in-hand. In the past, before the advent of democracy, he says there had been widespread corruption, collusion between politicians and businesses, and government-controlled finances. Kim aims to have "a true and meaningful free-market system."

A stubborn opposition
Ever since president Kim Dae Jung began his anti-corruption investigations, his National Congress for New Politics (NCNP) and its coalition ally, prime minister Kim Jong Pil's United Liberal Democrats (ULD) have been on a collision course with the main opposition party, the Grand National Party (GNP) Twelve members of the GNP defected to the government and gave it a slight majority with 155 seats in an Assembly of 299.

The GNP, whose members have also taken to the streets to voice their protest at what they deem to be "the beginning of a dictatorship" are boycotting the National Assembly sittings.

An unpredictable North
North Korea seems to have got move hard-lined and militarised in recent months. With Kim Jong Il's consolidation of power after the new Supreme Peoples' Assembly of North Korea met on 5 September 1998. Kim Dae Jung's "sunshine policy" towards the North does not seem to be working.

The spirit of the late Great Leader Kim II Sung seems to be living on. The late Leader has been conferred the title of "Eternal President" and the presidency itself has been removed from the constitution. The Eternal President's son and heir, was re-elected as chairman of the National Defence Commission (NDC), a position that apparently makes him de facto head of state.

With his current position, Kim Jong Il seems to be sure of his grip on the North Korean armed forces which, with more than a million men, are one of the largest in the world. The army and security forces can be expected to crush any opposition to the regime.

Of late, Pyangyang has rejected the olive branch held out by Kim Dae Jung and repeated its willingness to consider re-unification only on its own terms and when US troops have been withdrawn from the South. On the other hand, the North is not averse to receiving economic assistance from the capitalist US or even from the South to feed its starving population.

At year's end a cruise ship docked in a North Korean port carrying 780 South Korean tourists, the first southern sightseers to set foot in communist North Korea since 1950. Most have relatives in the reclusive Marxist state who they haven't seen in 48 years. It was a strange kind of tourist visit. The customs and immigration officials were the only North Koreans they were likely to see during their four-night, five-day stay. No family reunions were permitted during the tour.

Again, on 31 August, the North Koreans fired a multi-stage rocket which some observers thought was a pilot test for a long range ballistic missile. The rocket arched over Japanese airspace and the debris from the booster stages fell near Japan's waters, ruffling North Korean-Japanese relations. The North Koreans however claimed that it was a satellite beaming music in praise of their new leader Kim Jong Il.

Relations with neighbours
With all his preoccupations at home and in dealing with a recalcitrant North, Kim Dae Jung has found time to visit Washington and neighbouring countries like Japan and China, to improve relations. Kim and President Clinton agreed on how to deal with North Korea: assisting the communist state economically without trying to destabilise its political system or leadership.

In Japan, Kim sought assistance to re-build his crisis-stricken economy. Kim sees Japan playing the role of a strong engine for new economic growth in Asia. Summit discussions in Japan focused on three areas vital to Seoul. First, security in the neighbourhood. But here, little could be done since the subject involves the belligerent and isolationist North Koreans. Second, improving the trade balance - consistently and exasperatingly in favour of Japan. And third, "the apology" - the delicate matter of Tokyo's repentance for its brutal 35-year occupation of the Korean Peninsula ending in 1945.

During President Kim Dae Jung's five-day visit to Beijing, Chinese President Jiang Zemin and his South Korean counterpart agreed to a new "partnership for the 21st century," China and South Korea had opened diplomatic ties only six years ago, but are already each other's third largest trading partners. South Korea is the second largest foreign investor in China. Both countries have a stake in maintaining peace in the Korean peninsula.

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