President on collision course with Judiciary and the sex tape

AG resigns but President says not to quit

Lalith asked to speak to CJ on compromise

UNP warns GL, Rohitha and
Wiswa of contempt charges

High Court judge interdicted over
sex tape by CJ

President tells judge not to resign

While the opposition moved to work out the nitty-gritty of forming a broad alliance to take on the UPFA administration last week in the lead up to the budget, President Mahinda Rajapakse was confronted with a Supreme Court determined to put right the issues of good governance plaguing the country.

For some time now the Supreme Court in general and Chief Justice Sarath N. Silva in particular have made it clear from the Bench they were not ready to look askance while the government went about violating the fundamental rights of the people and sweeping issues of corruption under the carpet in the name of prosecuting a war and this issue finally came to a head the previous week.

No doubt the government believed, given the opposition's apathy, they could ride roughshod over the constitution and have a ball with public funds as was evident in the case of Mihin Air, but what they possibly did not reckon was a man called Sarath Nanda Silva and the justices of the Supreme Court sitting on Hulftsdorp Hill who would brook no such nonsense.

Directive

And the first sign of trouble for the government came when the Supreme Court issued a directive for the removal of all barricades in Colombo and frowned upon Defence Secretary Gotabaya Rajapakse's order for the eviction of Tamil people living in lodges, from Colombo. That was last year.

At that time the government shrugged off the Supreme Court decisions as isolated acts and flexed its muscles by restoring the barricades within weeks of the order and continued to carry on regardless, not making any effort to even appoint the Constitutional Council.

Then came the Lanka Marine Services case where the Chief Justice took to task Treasury Secretary P.B. Jayasundera who was running the Finance Ministry as his private fiefdom, and that to the government was like a wake-up call.

Challenge

But rather than act on the orders of the Chief Justice in the spirit in which the judgment was delivered, the President who had succeeded in dividing practically every political party including his own SLFP considered it a personal challenge to his authority and decided to thumb his nose at the Supreme Court.

This he did by taking Jayasundera the very next week to the Olympics in China, having previously made  a public spectacle of refusing to accept the Treasury Secretary's resignation in the wake of the judgment.

With the government also having whipped up war hysteria in the country, the belief was the President and the UPFA can do no wrong in the eyes of the people and just as much as a political blackguard like Mervyn Silva was sported on the presidential sleeve as an act of defiance so was a pardon offered to CWC Leader Minister Arumugam Thondaman following the Nuwara Eliya Magistrate Court convicting him of contempt of court.

The message by the government was loud and clear. They were a law unto themselves and no one dared challenge their authority.

That is why even after Speaker W.J.M. Lokubandara in writing called upon the President to appoint the Constitutional Council in terms of the constitution; he chose to ignore it, taking cover under a select committee.

Forced

It is in this backdrop a number of fundamental rights petitions came to be filed in the Supreme Court last month covering issues such as appointment of the Constitutional Council, forced registration of Tamils, the Presidential Gazette for the extension of service of public officers and on noise pollution where the Chief Justice went so far as to remand a Buddhist monk.

There again the President rather than leaving the judiciary alone and respecting their judgments sought to make political capital over the issue by inviting the monk to Temple Trees and making a show of solidarity before the cameras.

Undeterred, the Supreme Court set about its role sticking to the letter and spirit of the law raising heckles in government quarters and in an act of desperation it was decided to appoint a cabinet sub committee comprising Ministers G.L. Peiris, Rohitha Bogollagama and Vishwa Warnapala to probe a speech made by Justice Saleem Marsoof at the K.C. Kamalasabeyson Commemoration and the judgment made against P.B. Jayasundera.

Mockery

Further, with Jayasundera finally resigning as Treasury Secretary in view of the judgement, further steps were taken to make a mockery of it by moving him to a plush new office in the Finance Ministry as Presidential Advisor and also dispatched him for talks to Iran.

Interestingly however there was panic in other quarters of the government at this move and Minister Peiris was quick to disassociate himself from the probe by informing Justice Marsoof there was no such committee appointed but refrained from stating it publicly for fear of earning the ire of President Rajapakse.

It is in this state of play that the Supreme Court on Monday, September 29 took up the Jayasundera issue on the basis of motions filed by the petitioner in the original LMSL case, Presidential Advisor Vasudeva Nanayakkara and read the riot act to the CID, Bribery Commission and the Attorney General for failing to act on the basis of the original judgment.

Going further, the Chief Justice issued notice on Jayasundera to appear before the Supreme Court on Wednesday, October 8 and answer what positions he holds in government and any positions held in an enterprise where the state has shares.

Extension

In a further development the previous week, the Chief Justice also indicated the Presidential Gazette through which the Attorney General was given a six month extension of service was doomed. That is to come up before the Supreme Court tomorrow.

Finally on Monday, September 29 the Supreme Court in an air pollution and city traffic congestion case also called for the removal of barricades along Galle Road stating it was a violation of the people's fundamental right to the freedom of movement, an order that came days after Defence Secretary Gotabaya Rajapakse, in an obvious pre-emptive strike told the media the judiciary does not understand security.

Thus, the message from the Supreme Court to the government and the likes of Gotabaya Rajapakse was that there is a law of the land and the judiciary will not be intimidated into turning a Nelsonian Eye on conduct unbecoming of the state. 

First cracks

And on Tuesday, September 30, the first cracks in the government's armour surfaced with Attorney General C.R. De Silva deciding to call it quits  much to the President's discomfort.

De Silva, an outstanding prosecutor and a man of high integrity, who takes pride in the black coat was not about to be drawn into a battle between the Judiciary and the Executive, having only accepted an extension of service at the President's request and said as much to his colleagues before taking the final decision.

In fact De Silva was all set to go into private practice after August 26 upon reaching the retirement age when a request was made for him to stay on for a while longer and he reluctantly agreed not wanting to let down his long-time buddy Mahinda Rajapakse.

Even if at that time, De Silva was to tell the President he will not demean the office of the Attorney General by holding the office on contract, it is thereafter that a Gazette notification was decided upon. But with the Chief Justice indicating such a Gazette notification was not in order, De Silva decided to call it quits before the next court date, October 6 and informed his decision to President Rajapakse in the morning of Tuesday, September 30 over the telephone.

The President having arrived hours earlier from New York told De Silva not to be rash and to meet him that evening at 6.30 to discuss the issue, which the Attorney General agreed to do.

And at the appointed hour, De Silva walked into Temple Trees and told the President he does not wish to demean the office of the Attorney General by getting into a conflict with the judiciary and would like to resign with effect from Friday, October 3.

Not surprisingly, Rajapakse was defiant and told the Attorney General he should not throw in the towel but to stay and fight lest a wrong message goes out to the country.

But De Silva told the President it was best to maintain the dignity of his office and resign rather than wait for a Supreme Court judgment on the matter, which could be far more damaging to all concerned.

"I have no problem going into private practice," De Silva, one of the best prosecutors the Attorney General's Department has produced, told the President.

Finally the President agreed, no doubt wondering who can succeed De Silva and was to in parting query from the Attorney General why The Sunday Leader was 'promoting' the Chief Justice, to which he had no answer.

In sharp contrast was former Treasury Secretary Jayasundera who was attempting every trick in the book to cling on to public office despite the Supreme Court practically calling him a fraud, and without a blush of shame was to participate at a meeting in Temple Trees the very Tuesday with garment exporters on the GSP Plus facility.

Changed

At this meeting, where Ministers G.L. Peiris and Milinda Moragoda were also present together with among others Jayasundera, Treasury Secretary Sumith Abeysinghe, industrialists Ashroff Omar, Mahesh Amalean, Ajith Dias and Dian Gomes, the President first indicated Sri Lanka should not apply for the GSP Plus facility.

Having said that, the President made it known he later changed his mind and decided to send in an application and have discussions on the facility and hope for the best.

Later that night with the Attorney General having informed the President of his resignation, Jayasundera learning of it also decided to call it quits.

Jayasundera was to tell the President it would be unwise to accept an advisor's post and that he would like to resign from all the posts before October 8 so he could tell court as much on Wednesday.

Once again the President was of the view Jayasundera should stay put and fight back since the Chief Justice has only nine more months in office and to leave the rest to him.

But as of Friday there was no fight left in Jayasundera and he decided to resign from all his posts, signaling the Supreme Court is indeed supreme and going against the Chief Justice was not a risk worth taking.

The President however was unhappy with these developments telling confidants he cannot allow the Supreme Court to run the country and was to once again on Thursday, urge the Attorney General to reconsider his decision.

The formula worked out was for the original Gazette to be repealed and either a new Gazette introduced extending only the term of the Attorney General with retrospective effect or place De Silva on contract.

The Attorney General was not attracted by the offer but at the same time did not want to let down not so much the President, but his friend Mahinda Rajapakse and said he will agree to the new arrangement only if it has the blessings of the Chief Justice.

"I do not want the office of Attorney General demeaned. Therefore, unless the Chief Justice finds no legal impediment to such an arrangement, I cannot accept. If the CJ agrees, however, I will continue in office," De Silva has said.

Faced with this situation, the President asked Secretary Lalith Weeratunga to speak with the Chief Justice Friday morning and ascertain his views on the matter.

With no response received, the President decided to repeal the Gazette Friday to save the indictments filed after August 26 by the Attorney General and to introduce a new Gazette whereby the President could permit a person to continue in office after retirement.

The Attorney General for his part did not want to stay on under such circumstances opting to maintain his integrity rather than continue in service under the controversial conditions.

This developing crisis with the judiciary was also of concern to the SLFP organisers of the Western Province who met at the Presidential Secretariat Thursday evening where Senior Presidential Advisor Basil Rajapakse held forth. At the head table with Rajapakse were General Secretary Maithripala Senanayake, Treasurer Dulles Alahapperuma and Peoples' Bank Chairman Karunajeewa.

At the end of the meeting, many organisers were to ask Rajapakse how the crisis will play out and in characteristic fashion he dismissed it as a storm in a teacup.

"It will be sorted out by next week. We are talking to the Chief Justice now. Some People have carried tales and created some crisis but it is being settled now," Rajapakse said, possibly not realising he was by implication casting bad motives to the Chief Justice for his judgements.

Options

And while the President was weighing his options on this situation with the constitutional council issue too to be taken up in the Supreme Court on October 16, the UNP got into the act with a stinging statement calling into question the government's attempt to intimidate the judiciary.

That message was meant to signal that the UNP's support will not be forthcoming for any moves to impeach the Chief Justice making it impossible for the government to even dream of such an option despite whisperings going on in the corridors of power since the fate of at least 25 UNP defectors in government also depend on the Supreme Court.

Said the UNP inter alia: "We note with great trepidation, various efforts to throttle the judiciary. The manner in which the government is dragging its feet and refusing to deal with the former Secretary to the Treasury in a timely way is indeed a scathing indictment on the government and further proof of the culture of impunity with which it surrounds itself. The thinly veiled criticisms of other judgments emanating from courts by persons in high office, surprisingly by some public servants, is another cause for concern.

"The appointment of a Cabinet Committee, consisting of G.L. Peiris, Wiswa Warnapala and Rohitha Bogollagama to inquire into:

a. statement made by Justice Marsoof

b. judgements made against P.B Jayasundera

is another classic instance of the government taking action to throttle the judiciary by way of intimidation.

"The appointment is in total violation of the Constitution and is an affront to the dignity of the Supreme Court. The Cabinet Committee has no powers to inquire into the statements or conduct of judges. Under Article 4(c) the Constitution, judicial power of the people is exercised by parliament through courts. Article 107 gives parliament not the cabinet, the power to inquire into and call for the removal of Supreme Court judges. The non-appointment of the Constitutional Council is a violation of the powers of parliament.

"This matter has now been raised in parliament.

"Furthermore, a report of the Committee of Public Enterprises made findings against the then Secretary to the Ministry of Finance - P.B. Jayasundera. Based on the findings Vasudeva Nanayakkara and others filed action in court seeking relief. Any attempt to inquire into the references made in respect of P.B Jayasundera by the Supreme Court amounts to both breach of parliament as well as contempt of court. These three members of cabinet, if found guilty can be punished by both the Supreme Court and parliament."

Before issuing this statement which was drafted by former Attorney General Shibly Aziz, the UNP Leader Ranil Wickremesinghe discussed the issue with party seniors and several legal luminaries and decided to draft papers to file contempt of court and parliamentary privilege charges against Ministers Peiris, Bogollagama and Warnapala.

Deny

"Once action is filed, they will either have to deny the appointment of such a committee to escape liability or admit to it and face the consequences. Our effort must be to get them to deny it and remove the cloak of intimidation that is being attempted to be put on the judiciary," Wickremesinghe had said.

That all was not honky-dory between the President and the Chief Justice was further evident in the interdiction case of a Colombo High Court judge over charges of alleged bribery and sexual misconduct with photographs and a video tape to boot.

Interestingly the Chief Justice was in receipt of a petition against the High Court judge of Court Number 2 in Colombo alleging he had accepted a bribe of Rs.3.5 million from Thilanga Sumathipala for his acquittal and another Rs.1.5 million from Duminda Silva who is an accused before the same judge in an abduction case.

The petition further alleged the judge had received sexual favours from a woman courtesy Duminda Silva and as proof, two compromising photographs taken from the video were attached and on receiving this documentation, the Chief Justice got activated.

Initially, the Chief Justice summoned the High Court judge to his chambers the previous week but having got held up in his ancestral home in Katana on the given date, the meeting was postponed.

By this time the High Court judge possibly realised trouble was brewing because he had already been told by High Court Judge Deepani Wijesundera that Secretary to the Justice Ministry Suhada Gamlath had told her at a wedding there was information he (High Court judge in Court No. 2) had allegedly accepted a bribe from Sumathipala to acquit him.

And on Thursday, September 25 the High Court judge was summoned before the Judicial Services Commission where Chief Justice Sarath Silva, Justice J. Balapatabendi and Secretary Chandra Jayatilleke were present.

Not mincing his words, the Chief Justice was to tell the High Court judge at this inquiry there was a petition against him with serious allegations and handed over the compromising photographs for perusal.

The Chief Justice said the photographs were taken from a video which according to the petition is also available and that given the circumstances, he would have to go.

Authenticity

Taken aback, the High Court judge rejected the bribery charges but admitted to the authenticity of the photographs though denying it had anything to do with Duminda Silva.

The High Court judge had said since the petition was unsigned there can be no basis for the bribery charge and that the graphic photographs were of an act of intimacy nearly four years back and had nothing to do with Duminda Silva.

In making his defence, the High Court judge said he together with another judge (presently serving in Anuradhapura) had four years back gone to the home of a Tamil businessman in Mount Lavinia, who was a friend of the other judge and that there were two women in the house with whom they had sexual relations.

"That is my private life and has nothing to do with my judicial work. Judge (name withheld) can be asked and he will corroborate what I am saying," the High Court judge had said.

The Chief Justice had then asked whether payment was made for the sexual favours received to which the High Court judge had responded with a vehement denial.

Not convinced at the defence, the Chief Justice had said the photographs were of recent origin and the defence submitted will not hold.

With that said the High Court judge was asked to go while the JSC continued to deliberate the issue. That was Thursday, September 25.

The High Court judge for his part however was not about to throw in the towel despite another former judge I.M. Abeyratne advising him to submit his retirement papers and instead he made contact with President Rajapakse.

The President for his part told the High Court judge to stay and fight the case without resigning or retiring since there was insufficient proof for his ouster.

Emboldened by the President's solidarity the judge who did not attend court on Friday and Monday, did so Tuesday, September 30 and sat on the bench.

But the Chief Justice was not done yet and the very day, the High Court judge was issued a letter of interdiction under the hand of JSC Secretary Jayatilleke.

The interdiction letter dated September 30 had this to say:

"The Judicial Services Commission at its meeting held on 25.09.2008 at which you were interviewed regarding the complaint made against you of procuring inter alia sexual favours and gratifications for favourable judicial orders has decided to interdict you from service with effect from 01.10.2008 pending appropriate disciplinary action in terms of Article 111 (2) of the Constitution."

The letter was signed by JSC Secretary P.W.D.C. Jayatilleke.

It is interesting to note that the interdiction letter does not name the source of the complaint or the bribery charges but only that of sexual misconduct and no sooner the order was received, the judge once again made contact with the President.

On being told of the latest developments, the President once again told the judge to stay and fight and to send him an appeal against the interdiction for consideration based on the law.

The contention was to be, the JSC can only recommend disciplinary action and that under the 17th Amendment to the Constitution, it is only the President who can impose a punishment.

Given the Presidential approach the High Court judge spoke to Attorney Kolitha Dharmawardene where full disclosure was made and a legal opinion was sought to be sent with his appeal to the President over the weekend.

This move again highlights the growing schism between the Judiciary and the Executive and whether like Basil Rajapakse predicted, can be patched up by merely talking to the Chief Justice remains to be seen.

While these developments were taking place on the corridors of power, Thursday evening saw a meeting between Wickremesinghe, Rauf Hakeem, Mangala Samaraweera and Mano Ganesan where the focus was on forming a broad alliance to face the challenges ahead.

It was Hakeem who told those present that discussions were already underway among the minority parties to form a broad front and that discussions can also be held with the mainstream parties too to join hands.

He said the UNP must also sort out its internal problems to make a broad alliance a viable proposition and that he stands ready for it.

With that said they discussed the outlines of such an alliance where the CWC will also be brought in and it was decided as a first step to form the front to agitate on issues against the government.

And even as this discussion was going on among the opposition leaders, at the Presidential Secretariat, Senior Presidential Advisor Basil Rajapakse was telling the SLFP organisers from the Western Province to prepare for a general election next year.