Taming The Judiciary & The Legacy Of The 1982 Referendum
By Rajan Hoole –December 24, 2016
Dr. Rajan Hoole
“…during many years every minister, whatever his personal character may be, consented, willingly or unwillingly, to manage Parliament in the only way in which the Parliament could then be managed. It at length became as notorious that there was a market for votes at the Treasury as that there was a market for cattle in Smithfield. Numerous demagogues out of power declaimed against this vile traffic: but every one of those demagogues, as soon as he was in power, found himself driven by a kind of fatality to engage in that traffic, or at least to connive at it.”
“All the four Judges of the Court were on the bench. Wright… had been raised to this high place over the heads of many abler and learned men solely on account of his unscrupulous servility. Allibone was a Papist, and owed his situation to that dispensing power, the legality of which was now in question. Holloway had hitherto been a serviceable tool of the govern- ment. Even Powell, whose character for honesty stood high, had borne a part in some pro- ceedings which it is impossible to defend… The government had required from its law officers services so odious and disgraceful that all the ablest jurists and advocates of the Tory party had, one after the other, refused to comply, and had been dismissed from their employments.” ~ Lord Macaulay, from The History of England: The English Parliament during the decades after the Restora- tion of 1660, and the King’s Bench in 1688 under James II, at the trial of the Seven Bishops
“All the four Judges of the Court were on the bench. Wright… had been raised to this high place over the heads of many abler and learned men solely on account of his unscrupulous servility. Allibone was a Papist, and owed his situation to that dispensing power, the legality of which was now in question. Holloway had hitherto been a serviceable tool of the govern- ment. Even Powell, whose character for honesty stood high, had borne a part in some pro- ceedings which it is impossible to defend… The government had required from its law officers services so odious and disgraceful that all the ablest jurists and advocates of the Tory party had, one after the other, refused to comply, and had been dismissed from their employments.” ~ Lord Macaulay, from The History of England: The English Parliament during the decades after the Restora- tion of 1660, and the King’s Bench in 1688 under James II, at the trial of the Seven Bishops
The UNP and the Judiciary
The massacre of 53 Tamil political prisoners in Welikade Jail was among the most dastardly crimes committed during the July 1983 violence for which the State was directly answerable. But it was a tragedy for which the conditions were being laid over a period of time. The Attorney General’s department and the Judiciary had played roles which indirectly contributed to it.
The Press reported on 30th May 1983 that Parliamentary Standing Orders providing for the removal of judges by parliament were to be amended. Government sources had told the Press that according to the constitution judges could be removed only for misconduct or incapacity either by law or by Parliamentary Stand- ing Orders. They added that the absence of matching provisions has compelled Parliament to draft a new act and standing orders.
The Bar Association of Sri Lanka responded to this proposed amendment (Sun 2nd June) by pointing out that such provisions already existed. According to the Constitution a judge of the Supreme Court or Court of Appeal can be removed only by an order of the President made after an address to Parliament supported by a majority of the total members of Parliament. The BASL pointed out that Article 107(3) of the Constitution provided procedures for address, investigation and proof of misbehaviour or incapacity. Investigation and proof were thus crucial to the procedure, giving some protection even against a government with a five-sixths majority in parliament. This majority Jayewardene continued to enjoy after the dubious referendum of 1982. An amendment diluting the provisions for investigation and proof would have enabled the Government to appoint and remove judges at will. In fact, the whole conduct of the Government since the promulgation of the new constitution in September 1978 had sent a clear message to the judges to conform or face the consequences.
