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Editorial

Recent judgments: Some queries

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Thursday 3rd December 2020

Any judicial decision is always acceptable to only one party to a legal dispute; the winner hails it, claiming justice has been served, and the loser frowns on it and grumbles. That is the way the cookie crumbles. The judiciary, however, is not infallible, in any country, and concerns that the public expresses about its decisions should be heeded. In fact, judgments can be discussed and even criticised by the public but without causing affronts to the dignity of the judiciary and/or its members.

It is only natural that judgments in high-profile cases come under public scrutiny, and various views are expressed thereon. SJB MP Hesha Withanage, in Parliament, on Wednesday, raised a question about the judicial decisions that have attracted a lot of public attention of late. Referring to the recent judgments, given in favour of certain government politicians and their associates, he asked Minister of Justice Ali Sabry why other cases could not be similarly disposed for the benefit of the public so that the remand prisons would not be overcrowded. If all cases had been heard expeditiously, the unfortunate situation in the trouble-torn Mahara Prison, where hundreds of remandees are being held, would not have arisen, MP Withanage said. He was obviously viewing the issue from a political angle, and trying to embarrass the government, but his query may have struck a responsive chord with many people. He also provided the public, albeit unwittingly, with an opportunity to know the other side of the story.

Fielding Withanage’s query, Justice Minister Sabry said the anthropause caused by the prevailing pandemic had created a situation where court cases could not be heard, and, therefore, the Justice Ministry had requested the Judicial Services Commission to expedite the process of delivering judgments in the cases in which hearing had already been concluded. More than 70 judgments had been delivered recently, and the ones the Opposition was referring to were only a few among them, the Minister said, insisting that the government did not interfere with the judicial process.

Minister Sabry then got on his hobbyhorse; he lashed out at the previous regime for having manipulated the legal process and set up of the Financial Crime Investigation Division, etc., for that purpose. The less said about the Police Department, the better in that it is a mere appendage of the government in power. The same is true of the Attorney General’s Department, but incumbent AG Dappula De Livera deserves praise for trying to make a difference and standing up to the powers that be in carrying out his duties and functions. Unfortunately, he has not received enough support from the legal fraternity, the media, civil society organisations and the Opposition.

It is doubtful whether the discerning public will buy into Minister Sabry’s claim that the present government does not interfere with the legal process. Under the current dispensation, the police have shown their selective efficiency by concluding probes against Opposition politicians double-quick. They have also reopened some old cases where the political enemies of the current adminstration are involved. But they invariably baulk at executing arrest warrants when the suspects happen to be government politicians and those in the good books of the ruling party.

The judiciary is the only branch of government which people repose their trust in, and, therefore, extreme care must be taken to prevent an erosion of public faith therein lest democracy should be further weakened. Hence the need for the Justice Minister to support his claim that more than 70 judgments have been delivered in court cases during the recent past; he ought to release a list of those judicial decisions. That is the least the Justice Ministry can do to clear doubts in the minds of some people about the court cases the Opposition has referred to and defeat attempts being made in some quarters to cast aspersions on the judiciary.

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Editorial

Contempt, freedom and responsibility

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The imprisonment of MP Ranjan Ramanayake for contempt of court has perturbed the SJB beyond measure. Some Opposition legislators were at their oratorical best recently in Parliament, waxing eloquent as they did on the virtues of freedom of expression and other such democratic rights of citizens and lawmakers. They would have the public believe that Ramanayake’s jail term is too harsh a punishment. True, many were those who expected him to receive a lenient penalty. But that’s the way the cookie crumbles. Ramanayake should have known better than to run around repeating the statement that had landed him in trouble. Somebody should have warned him.

Those who are currently in the Opposition, shedding copious tears for Ramanayake, derived immense perverse pleasure from the plight of their political rivals who were sent to jail during the yahapalana government. The SLPP politicians are apparently elated at what has befallen Ramanayake, who is their bugbear. However, the general consensus being that the contempt of court laws need revision, the Opposition and the government ought to prevent partisan politics from colouring their standpoints on this important issue and work together.

Ramanayake’s jail term has given rise to a debate on the laws pertaining to contempt of court, and flaws therein. This issue should have been addressed a long time ago. It is unfortunate that an MP had to go to jail for Parliament to take it up. Better late than never, though. Parliament should set about examining the contempt of court laws and take action to rid them of flaws and specify penalties. This issue has to be sorted out once and for all.

Meanwhile, the need to revise the laws anent contempt of Parliament cannot be overemphasised. Parliamentary privileges also deprive people of freedom of expression. Some MPs shamelessly take cover behind their privileges and defame others with impunity. But the MPs raise privilege issues at the drop of a hat. It is being argued in some quarters that the regular courts should not hear contempt of court cases, for one should not hear one’s own case. If so, the same principle must apply to Parliament as well where contempt issues are concerned. Thankfully, some of the draconian powers the legislature was vested with as regards contempt and breaches of privilege have been whittled down, but Parliament still has the power and jurisdiction to punish summarily certain offences.

Judicial officers who hear cases of contempt of court have necessary educational and professional qualifications to carry out their duties and functions. But the same cannot be said of the lawmakers who range from the sublime to the ridiculous. If the very serious charges they level against one another in the House during debates are anything to go by, then there are murderers, fraudsters, chain snatchers, drug dealers and swindlers among them. Some of them have admitted that they benefited from the largesse of the owner of the company involved in the biggest-ever financial crime in this country—the Treasury bond scams; they also went out of their way to defend the bond racketeers. Therefore, how advisable it is to allow the lawmakers with such bad eggs among them to sit in judgment is the question.

There is no gainsaying the fact that lawmakers cannot perform their legislative duties and functions without a certain amount of legal immunity. But restrictions are called for to prevent them from abusing their privileges and legal immunity to defame others, who are left without any legal remedy. Legislators must not have the freedom of the wild ass.

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Editorial

Syrup promoters in the soup

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Monday 25th January, 2021

So, it should now be clear that the Dhammika peniya or syrup, which the Department of Ayurveda has undertaken to test, is no cure for COVID-19. All intelligent people knew it was fake, but others including some government politicians were convinced otherwise. Health Minister Pavithra Wanniarachchi, who swigged the syrup to protect herself against coronavirus, has contracted COVID-19. Several other MPs who ingested it have also tested positive for the virus. The Health Minister is currently at a treatment centre, we are told. We wish her as well as all other patients a speedy recovery, but cannot help wondering why she did not opt for treatment at shaman Dhammika Bandara’s shrine, where a goddess is said to have revealed the COVID-19 cure to him while he was in a trance state.

A previous Rajapaksa government (2010-2015) collapsed as it took the advice of shamans and astrologers seriously and even advanced a presidential election at their behest. Everything it did was astrologically determined. It, however, was not alone in falling for astrological advice, etc., hook, line, and sinker. Its predecessors had even launched military operations according to schedules prepared by astrologers. Most of those offensives ended in disaster. It is said that the launching of operations in Eelam War IV was based on sound military advice; that may be the reason why they succeeded.

The incumbent government is the old Dhammika peniya in a new bottle, as it were, in that it consists of the superstitious elements who were in the aforesaid ill-fated Rajapaksa regime. It has sought to banish coronavirus with the help of some rituals such as dropping pots into rivers. Thankfully, it has stopped short of appointing a minister for superstitious affairs.

Health Minister Wanniarachchi committed something unpardonable by promoting the shaman’s concoction. Wanniarachchi was responsible for triggering mass hysteria by ingesting the peniya at an official event together with some of her SLPP parliamentary colleagues. Thereafter, tens of thousands of people from different parts of the country converged on a village where the shaman distributed the syrup free of charge. They blatantly violated the quarantine laws, but the police looked on. Perhaps, the government let that happen as it wanted public attention distracted from its failure to contain the pandemic and other burning issues such as the soaring cost of living. There may have been many coronavirus infections in that seething mass of humans near the shaman’s syrup distribution centre, and that may be one of the reasons why the pandemic has spread throughout the country.

Nothing could be more disgraceful to a country than to be ruled by a bunch of superstitious politicians who fall for false claims of quacks and deify shamans. The question is whether the Health Minister who promoted a quack’s concoction without any scientific evidence to prove its efficacy and misled the public should be allowed to continue to be in that position.

Some government ministers took on the critics of the Dhammika peniya, calling them traitors. They mixed their brand of patriotism with the untested syrup. They have cut pathetic figures. Speaker Mahinda Yapa Abeywardena ought to act cautiously hereafter without letting intellectually challenged ministers and MPs use Parliament to promote concoctions touted as remedies for diseases. We are afraid that he, too, has blotted his copybook.

Another fake indigenous physician has claimed to have found a cure for COVID-19. His potion is said to contain hawks’ eggs. If so, the quack must be arrested forthwith, for hawks are a protected species and it is an offence to destroy their eggs. Will the Department of Wildlife get cracking?

Given the sheer number of superstitious politicians in the present government, one can only hope that the new Constitution being drafted will not have a provision for giving superstition the foremost place.

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Editorial

The galloping stock market

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The Colombo stock market has been galloping like nobody’s business these past several days with little or no rational explanation of why this is so in the context of a pandemic-hit business downturn. Among the reasons that have been proffered by brokers and analysts for this surge in confidence of market players, and they have increased substantially in recent months according to the CSE, is that interest rates are plunging. Investors who could earn as much as 12 or 13 percent or more on fixed deposits not so long ago, have to be now satisfied with marginal returns way below the prevailing rates of inflation. They are thus attracted to a stock market which is now performing better than most others in the region.

But the surge on the Colombo market is not supported by foreign or institutional buying which knowledgeable people say is necessary to sustain the current momentum. In fact there has been a steady outflow of foreign funds from Colombo in recent months and there has been no stemming of this flow. Although various authorities have more than hinted that institutions like the Employees Provident Fund and the Insurance Corporation will be back in the market in the short term, this does not appear to have come to pass.

Little wonder. There have been a plethora of allegations about pump and dump and market manipulation that institutional fund managers will be reluctant to open themselves to fresh accusations. This would mean a safe ‘do nothing’ philosophy unless they are ordered to enter the market. We do not know whether there is political or any other directions on what state-controlled entities should do with regard to stock market investment today. But we do know that this has happened in the past. It has been rightly urged that the EPF is only the guardian of the private sector retirement fund it manages, and not its owner. The fund belongs to its members who, together with their employers, make monthly contributions to it as a retirement saving. It must therefore refrain from speculative investments like stock trading is the conservative viewpoint.

The contra-argument has also been adduced. The EPF has long been a captive lender to the government. Government borrowing would naturally ease as the economy grows and there was official thinking within the Central Bank that it made sense to invest in private sector growth areas through the stock market as a long-term strategy. This was done to some degree that was admittedly small. Those who read the annual reports of listed companies, and even their quarterly financial reports listing their top twenty shareholders, will know that that the EPF has substantial stakes in many blue chip companies. There must be a lot of unrealized capital gains in the EPF portfolio where the pluses will outweigh the minuses although the fund cannot always back winners. If its members get an annual dividend ahead of inflation on their individual holdings in the fund, nobody can reasonably complain.

The benchmark All Share Price Index of the CSE has already topped its all time high and the upward momentum continued as this is being written on Friday. Where it will end, nobody can say. It is certainly a good thing for the country that many small investors are entering the stock market which is now retail driven. A completely new class of investors have today entered a field which not so long ago was the exclusive preserve of the rich. Massive turnovers in the billions are being recorded on the CSE every day and stockbrokers who had a lean time as the Easter bomb and the pandemic hit forcing market closure for a long period, would now be laughing all the way to the bank. While the market and its players can bask in the current sunshine, it is very necessary to attract foreign investors back to the CSE. This will undoubtedly be a formidable tasks but a bull run such as that which ongoing can be a factor that can prove persuasive.

 

Ranjan Ramanayake

 

The Chairman of the Elections Commission went on public record that Ranjan Ramanayake, the actor politician, who has now begun serving his term of four years rigorous imprisonment will not lose his parliamentary seat for six months. But the attorney general has said otherwise and the elections boss has subsequently stated that what he had expressed is a personal opinion. However that be, the Ramanayake issue remains very much alive in parliament where his Samagi Jana Balavegaya colleague, Harin Fernando sported a black shawl last week and said he will continue to wear it until Ranjan returns. Parliamentarian M.A. Sumanthiran, who defended Ramanayake in the Supreme Court also spoke up for the actor saying he was privileged to appear in court “for a clean, honest politician and I’m proud of that.”

The Speaker is yet to rule whether the convicted MP is entitled to attend parliament and promised to announce his decision in three weeks. Readers know that other prisoner-parliamentarians have previously attended sessions, but what will happen in this instance remains an open question in the short term. While most people believe that there is no appeal from a Supreme Court determination and a presidential pardon is the only way out, a contrary view relative to this matter has also been expressed in the context of the International Convention for Civil and Political Rights (ICCPR) to which Sri Lanka is a signatory.

In parliament last week Sumanthiran drew attention to the fact that Sri Lanka has failed to enact legislation for contempt of court although some work in that regard had been done. Expressing the view that the term imposed on Ramanayake was unprecedented and exceptionally severe, he drew attention to a serious lacuna in the law which has resulted “in an unprecedented injustice to an honest Member of Parliament.” Ramanayake has consistently refused to apologize for the offence over which he was charged; his parliamentary colleague, Lakshman Kiriella, also last week referred to the conduct of two former chief justices, although under the protection of parliamentary privilege. Such reference had obvious implications in the context of what Ramanayake said.

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