Is there any remedy that can be adopted against a president who is violating the constitution?

The only remedy is impeachment. For that you need a two-thirds majority three times over.

Is this an impeachable offence?

This is definitely an impeachable offence. But you have to have a two-thirds majority at the time of facilitation, at the time of forwarding it to the Supreme Court and after the Supreme Court findings. Now the elections have come so this may be a fortuitous moment to decide whether we are going to implement the 17th amendment or whether we are going back to original presidential powers.

But the public don’t care about this, do they?

People care in this way. If you take the public service, it was immensely safeguarded by the 17th amendment. Cabinet has now by decision taken back its powers. Even the original public service commission which existed before the 17th amendment isn’t there now. Even the semblance of a police commission is gone. It’s worse now that what it was prior to 2001. We have had a public service commission from the time of Independence.

The public service becomes very weak. They are always trying to pander to politicians, to find out which side is winning or losing. The element of service is being lost from these institutions. The police force is seriously affected. The elections commissioner continues to stay in his position purely because the Supreme Court has allowed him to do so. Somebody has even blamed me for it.

When the elections commissioner came before you, why didn’t you do more to facilitate the setting up of an independent elections commission instead of merely rejecting his request to retire?

No, he has to continue until the elections commission is set up. Supposing he was also allowed to retire, someone would have made an acting appointment. We would have had elections under an acting appointee. That’s why we said at least this person should be safeguarded or we would have had a series of elections without any connection to the constitution. I think it was a very wise move. Much against his wishes, we had to induce the elections commissioner to continue or there would have been a deadlock situation.

Courts are not there to create deadlocks. I think the problem started with petroleum prices when I decided, in public interest, to reduce the price of petrol saying the government’s revenue was far too high and that hedging agreements were illegal. The government did not comply. That would have been a deadlock situation but the petitioners, realising that the government was not complying, withdrew the case.

Did you have the jurisdiction to determine fuel prices? Didn’t the deadlock emerge because the government very rightly disregarded your order?

It was a public interest suit. People were affected by the high taxes that were imposed, about 150 per cent at that time. The petitioners came to court on the basis that these high taxes were imposed to make payments on the illegal hedging agreements whereas world market prices were tumbling. We had every right to see whether the hedging agreements were lawfully entered into. That was executive action. It was well within jurisdiction.

All we said was that the hedging agreements entered into by the chairman of the petroleum corporation — who is under the jurisdiction of the court — are prima facie not valid and that the benefit of this should pass on to the people. See the prices today. There are five legal proceedings all over the world on these hedging agreements. The Supreme Court would have dealt with this matter. We would probably have brought about the solution with the banks. It was all stymied by this very hard-headed decision not to comply with the court decision.
It looked like you were issuing a directive on the government.

It was not a directive. It was a consultative process. The tax structure was worked out by treasury officials. We found that the tax structure was far too high. The government was forced to comply with the hedging agreements. We said we will stop that on a judicial order, just pass on the benefit to the people. The government said you stop the hedging agreement but we won’t pass on the benefit.

Wasn’t that the government’s prerogative?

No, because when the Supreme Court’s orders are not complied by the government, the banks will say they, too, won’t comply. There are two parties to this, the government and the banks. That was the dilemma and fortunately we didn’t have to go into that crisis because the petitioners knew we were in a bad position and withdrew. What I anticipated has happened. There are huge claims and I can’t imagine how we are going to meet them. Internationally, we have no defence. This is a difficult fight. But within the country we would have had a case because there were elements of fraud and corruption.

Many critics feel that through judgments like Lanka Marine Services Limited (LMSL), Insurance Corporation and Water’s Edge, you were destabilising a fragile system. Would you agree?

These were difficult cases that had not been decided in Sri Lanka ever before. We had to create new ground on the basis of this public interest litigation and it hit certain parties hard. A case is filed in public interest saying a particular transaction is not properly carried out; that there was an unlawful exercise of executive power; and that the transaction was not transparent or valid. We have to go into whether it’s valid or invalid. If it’s invalid it hits hard the officials who did it and the beneficiaries. The public gains. It was said that these judgements were a disincentive to investment but if someone comes and lawfully invests in a transparent process, no court will ever dream of touching it.

After you retired as chief justice, Justice Shiranee Tilekewardene was given a shelling by some senior lawyers appearing in the Water’s Edge case who felt the judgement was flawed. Where did this pent up anger come from?

Criticism of Justice Shiranee Tilekewardene’s judgement was made to her face. This is not something you normally do. I used to always prevent this cross talk. I knew where to stop the whole process. I think that day it had gone beyond and it was an unnecessary exchange but the Supreme Court finally decided that the judgement was not going to be looked at.

You were once good friends with President Mahinda Rajapaksa. Why did your attitude towards him change?

I have known him for over 40 years. Needless to say, when he became president I was a very happy man. Primarily I thought he would handle this war situation well, which he did. But I expected more from the point of view of governance and human rights because he was known as a human rights activist. I thought we are moving into a liberal era where human rights and governance reached a higher peak. I was always trying to encourage that movement. That is where this came into some kind of conflict situation. Earlier, there were times I would go and meet him, try to speak about some of the things that were bothering me.

I would say that we may have to decide a particular case in a particular way and that I’m only informing you. That is within the bounds of a chief justice to go and say, especially because we have personal contact as well... not the ultimate judgement as such, but I used to keep him informed. The North-East de-merger, I definitely notified him. I said be ready for this, I may have to do this. Even the petroleum case, he knew about it. He can’t say he didn’t know. LMSL, I notified him. All these matters, generally. Sometimes he comes home, sits where you are seated. But I found... very often I found a different reaction from him, especially on these human rights and governance issues which affected me very deeply. If he had complied with the court order on petroleum products, the country would have benefited.

Didn’t he try to sack you at one time?

I think that was in a moment of anger and he was shouting in a cabinet meeting. I didn’t take that seriously. He was annoyed with this petroleum thing. This was due to a wrong perception. The UNP was one of the petitioners and Ravi Karunanayake was in court. I spoke to Mr Karunanayake in court and said don’t make this a political issue as we want to get the benefit for the people and the government. He said it’s all right and that they won’t ask for anything less than the recommended price formula.

When he went out, they had lit some crackers... politicians being politicians, they are bound to. The information that went to the president was that I spoke to Mr Karunanayake and showed some kind of compassion towards him. Not that I was being partial to him, I was trying to get him involved in this. I thought that petroleum prices being a national issue, there must be consensus. Unfortunately this was misconstrued.

I think that led to serious differences which is sad from my point of view. When I left (as chief justice) I genuinely and sincerely wanted to be out of it. But it seems they don’t allow me to be out of it. Cases are filed to review. This kind of thing never happens. There have been so many chief justices from 1802. You don’t have a barrage of attacks on them. They mostly go into virtual oblivion but this is unfairly being kept alive. If some official has to be brought back, some attempt could have been made when I was there. When you are away and then you make allegations, I am also pushed into the arena. Now, of course, I’m fairly in the arena. I have no alternative.

Now that you brought up the case of P.B. Jayasundere, senior lawyers like R K W Goonesekere have criticised the fact that you directed that an affidavit be filed with the undertaking that he will never again hold public office. Weren’t you overreaching yourself?

There were scathing, serious findings against him and court ordered compensation to be paid. Of course, the court doesn’t go on directing that people should be removed from office because that is not the relief that is sought in the petition. The normal thing is when there are scathing findings from court, there is some inquiry and the appointing authority removes that person. It didn’t happen and the petitioner filed another motion saying this person is not fit to hold office in view of the findings made by court.

When the notice was issued on this, the attorney general’s department said they were in agreement, that they won’t be appearing for him and to issue notice on him. When notice was issued, I was very surprised that Faiszer Mustapha appeared (for Mr Jayasundere) and said they meant no disrespect to court in holding office, and they were only continuing to hold office because the president didn’t accept their resignation. They said they will file an affidavit. I said agree on the affidavit, file it and if the petitioners says this is sufficient, I won’t proceed to a further order from court. When the affidavit was tendered, the counsel for the petitioner said they were more than satisfied with it. So no order was made.

That’s where it ended. Later, he filed another motion that he wants to withdraw the affidavit and said very unfairly that the contents were dictated. I said the court naturally has to put down what was agreed upon by the parties.

If President Rajapaksa wins the election in January, when does his second term start?

In my view it should commence six years from the date of the election but if you take Section 3A (of Article 31), it will commence on November 19, 2010.

So how would you define the interim period from January 26 to November 19?

That’s where the section is defective. The former period is coming out of his old term. This is not a credible definition at all because the old term has come to an end and he has a new mandate. My view is that the section should have been put to rest with J R Jayawardene and we must go back to article 31 which is one of the entrenched provisions of the constitution.

So many years after they were combined, why did you direct the North and East to be de-merged?

This is a very sensitive issue. The merger had gone on de facto for a long time. No president was taking a political decision to de-merge. A case was filed as a continuing violation because the president had to extend its period every time. We had to re-examine the whole basis again, returning to the time the Indo-Lanka Agreement was signed and we found the basis of the Indo Lanka Agreement and the 13th amendment had not been fulfilled — that there had been no disarmament or cessation of hostilities.

These were the two basic preconditions. Without that, President Jayawardene couldn’t have merged the North and East. What is wrong can’t be made right by continuing. The referendum period had been extended over and over again. Today, there’s a cessation of hostilities and disarmament. Now is the time for someone to merge and have a referendum if somebody is so minded.

Why was there so much tension between the judiciary and executive during your tenure as chief justice?

When there is a very strong executive virtually not answerable to parliament, there are naturally tensions with the judiciary. If the president was answerable to parliament, then part of that tension would have dissipated through parliament. Here, the conflict came directly with the courts.

You halted the eviction of Tamil lodgers from Colombo and ordered checkpoints to be removed, placing the government in a difficult situation at a time when they were fighting terrorism. Why did you hinder security?

With regards to checkpoints, what I said was that they were not helping security at all. I pointed out that the bomb which exploded outside the old parliament had passed through three checkpoints. I said these checkpoints only harass females who are driving and innocent looking people. When you stop a person who is exercising the freedom of movement, there must be valid ground - you must be suspicious of the way he moves or drives or something. But just stopping for the sake of stopping is illegal.

Lodges have been operating for years and everybody knew about it. The police take a daily tally of people who are in lodges. That’s a social reality. You have to sympathise with them and, if at all, get more comfortable accommodation for people who are victims. They have no proper livelihood in their areas so you have to care for them. Or they come to get their passports or visas extended. Once again, you have to care for them.

Why didn’t you haul up Victor Ivan for contempt of court over his book?

It was not only his book. When I took oaths, he published my photograph upside down on a black background. Someone asked me the same question. I said if everything goes well, I have 10 years as chief justice. If I’m going to spend my time fighting with this man, I won’t be able to discharge my duties. When somebody filed a case against SB Dissanayake of course I looked at it but I didn’t want to initiate something.

The UNP once proposed impeachment motions against you on the basis of some serious allegations.

I think it was a joke. The impeachment motion was drafted by Victor Ivan. You get the same charges (as in his book). The idea was to publish it in the papers. I wanted to answer. I asked the secretary-general of parliament to send the motion to me so that I could publish an answer. He said the motion had not been presented. The motion contained mostly imagination. They said I’m living with someone or that I’ve had some divorce or something like that. I may be having problems in my family or something. That’s a different thing. But none of those charges involved any allegations of corruption or any element of abuse of power.

Don’t you think a chief justice should be above board in these issues?

You have to take off your private life from your public and official life. You can’t, say, have a roaring affair with someone in the courts on the basis that it’s your private life. But if you have a genuine family problem, then you are not barred from being chief justice just because you have a family problem.

Why did Justice Shirani Bandaranayake and Justice T B Weerasuriya resign from the Judicial Services Commission?

They suddenly brought about a crisis. This was not for me. The constitutional council was not being appointed at this time. So when they resigned, they thought the JSC would become defunct and the president will be compelled to appoint a constitutional council. These two judges worked with me peacefully for months before that. My view is that this was to force the constitutional council to be appointed. But there is a provision in the constitution which says JSC can go on in spite of any vacancy. The president appointed two judges as acting.

Are you saying they did not resign over any differences with you?

No, they have said they can give reasons but nowhere have they said it’s because of working with me. Very often I don’t go for the meetings. It’s the two of them that decide.

You delivered some controversial decisions during the last two years of your term. While many welcome your judgements, your critics say you acted on vested interests and that you were biased.

What is the vested interest? Not economic interest — I have gained nothing in this process. I have no relatives or friends or anybody in business, so I have no vested interest there. I have no family members in the field so I have no vested interest there. The only vested interest I could have is political. I have worked under all five presidents; J R Jayawardene, Ranasinghe Premadasa, D B Wijetunge, Chandrika Kumaratunga and Mahinda Rajapaksa.

My strength of decisions has been the same and didn’t alter with the personality of these presidents. In the Court of Appeal, too, I gave judgements that were quite controversial. Of course, differences arise when I feel that there is no proper governance. These are the standards...when there is no proper governance and things are not in order, I have to check that. If you analyse all of these judgements, the interest has been rule of law and governance. Nobody has benefited and least of all I have not benefited.

So you didn’t do all this to go out in a blaze of glory?

Maybe I wanted the satisfaction that I had done the best in my job. People felicitated my departure. When I was departing, I said I go nowhere from here. I want no office and no position. That was made very clear. But of course, what you say is correct, after 41 years, you have to have the satisfaction that you have done your best. ~ courtesy: Lakbima News ~