Coming in at a time when many changes are set to take place, newly appointed Minister of Justice Wijeyadasa Rajapakshe in an exclusive interview with the Daily Mirror sheds light on some of the more sensitive and topical issues prevalent in the country. Here are a few excerpts....
What was the situation in the Justice Ministry at the time you took over? What are the main oversights that needed attention?
Really there was no problem with the Ministry of Justice. There were big issues in the independence of the judiciary and the Law College. People had lost the confidence in the entire Courts system because of political appointments and influence which is cancerous. It was cancerous. The executive had encroached on the legislature and the judiciary, so there is a need for overall reform.
Firstly, addressing the issue of the Law College, will there be any changes to the Council of Legal Education currently headed by Chief Justice Mohan Peiris?
All decisions must come from the Incorporated Council of Legal Education (ICLE). The Minister has authority to appoint five members. I have already appointed a new member, Mr. Palitha Fernando, the former Attorney General, and I hope to make some changes in the future, also to make the changes in the Law College system, and in changing it, the main role is played by the CJ as the Head of the Council. With the existing arrangement the whole system is in disarray.
You spoke of making changes in the Law College system. What do you think about the current three- year regulation?
I am totally unhappy about it. Not only myself but the entire country is very unhappy. It looks as if the people who made the rules are not living in this country. There is a lot of discrimination against children from remote rural areas. They’re trying to take the Law College and create a feudalistic society. Their main target was to confine legal education to a particular segment, and that is the worst discrimination possible, since independence.
What happened was that they attempted the coup, but failed and could not execute it. Then they have got the AG, this is the information and CJ to give further advice as to how he can remain for the balance two-year period
Will you make changes to make it a more fair system?
The next issue you spoke of was regarding the independence of the judiciary. Regarding this, do you think the CJ should resign? And do you think he will resign?
I am firm that he should resign, but I am not sure he will resign. He undertook to send his resignation letter during two discussions in my presence, one with the President and the other with the Prime Minister. He wanted a position at a foreign mission, so I arranged with the Foreign Minister to appoint him to Rome. On January 21, at his request, we fixed the meeting at 5.00 pm at the Presidential Secretariat to submit his letter of resignation, and in return to accept his letter of appointment to Rome. He had come to the Secretariat while the Cabinet meeting was on but after a few minutes we heard he had left, presumably after receiving a phone call.
What are your reasons for saying he should resign?
There are a lot of reasons, and the first is that his appointment was illegal. Although there was an impeachment, there was no resolution in Parliament to remove Dr. Shirani Bandaranayake. Secondly, he was holding a lot of political appointments, such as the adviser to the Cabinet, Chairman of Seylan Bank and even his appointment as AG was a political one. He was responsible for discarding the independence of the AG’s Department and Legal Draftsman’s Department, which in the last several years came within the purview of the Executive President; whereas it should have remained under the Ministry of Justice, which the current ministry has rectified. There is another reason, the biggest reason, which is the mounting tension in the whole country because much more than our opinion, the public opinion is of greater importance because the Court system is for them. And the entire legal fraternity is also against him. There is a practical problem as to how he will maintain this judicial system because the CJ is responsible for it. And especially considering that he was at the President’s House on the day of declaring the election results where his name has been mentioned as one of those who involved in a coup. He has no business being in the Presidents House. But the AG can, because he is the adviser to the President, but no CJ should have been there. Even during the last Sinhala New Year, he showed up on a live telecast that he was with the President and the First Lady and the family at his private residence in Tangalle, preparing Kiribath. This is shameless.
You were the BASL President at the time the 43rd CJ was impeached, and the Bar took a very strong stand to contest the motion. You also contended the legitimacy of the 44th CJ. However, as the Bar Association president at the time, you were present when the 44th CJ was sworn-in and welcomed him. What made you to go back on your stance to continue challenge his legitimacy?
You may recall that for the first time in the history during my tenure with regard to the impeachment and the assault on the secretary of the Judicial Service Commission, we boycotted the entire Court system in the whole country for six days. An unprecedented special general meeting summoned to Colombo, the largest number of lawyers running into 3,400, at which we unanimously resolved that, if Dr. Shirani Bandaranayake is not given a hearing, the next CJ will not be welcomed. We categorically said that we were not fighting for Shirani, but against Mohan. We were fighting on principle to safeguard the respect and dignity of the office. Also, we asked for a simple demand, and that is, that even a criminal has a right to have a fair hearing from an independent body and Court, and we asked that only that right be given to Shirani Bandaranayake. If an independent Court or committee found that she was liable for any wrongdoing, then it would not have been an issue for us. They came and shot at my house too, that is how the Government tried to subdue me. We accepted him as the de facto CJ. The whole country had no other option when he sat in Court. Because we can’t let down the rights of the litigants we had to appear. Not only myself but the whole legal fraternity appeared on that basis.
You said he was present at Temple Trees and that his name was brought up in connection with the alleged coup. Could you tell a bit more about this situation?
He admitted to us that he was there. He said that he went to see the losing President. He couldn’t deny his presence there, because he met the Prime Minister also when he was at Temple Trees at around 4.45 in the morning.
Is there any more to elaborate on this widely speculated coup?
Certainly, regarding the coup, before the election we furnished material to the Elections Commissioner, you can get details. We gave an entire plan of the coup where they decided to open over 400 temporary camps, and according to my recollection also about 20 barricades in Colombo just after 12.00 midnight. They had named some retired forces officials to be in-charge of the areas, including the areas in which the persons in service were stationed. Therefore we knew they are going ahead with the coup. That was averted due to these reasons; firstly, since we complained in advance to the Elections Commissioner and he took immediate steps to issue the appropriate directions to the forces and the Police, including the Defence Secretary. Secondly, I requested for the agents of the candidates to be accommodated at his office on the night of the election when the results were being released and he did so. Thirdly, and most importantly, he issued a serious warning that changed the entire history of this country. He said not to shoot the violators below their knees, but rather to shoot them on their heads. These few words are historical that protected the democracy, and even though he may not have had a legal basis for saying it, he still said it and that showed the people how serious he was. The idea was for the restoration of democracy and for that purpose of this solitary sentence by the EC is like another Magna Carta, which restored the democracy. The whole political history of our country was changed. This was a jab to all the loyal supporters of the then regime who were holding high posts in the forces and the Police. Fourthly, the Opposition Leader gave a stern warning. If the Police or the forces do anything illegal, we will take serious action against them and they will have to pay the heavy price for it. And finally, while the coup attempt was being hatched, and to our knowledge, about two or three senior politicians who alarmed and warned the President about the danger of going ahead with the coup.
Q Right now it is still an allegation; it cannot be said with certainty that it happened until it is proven. Isn’t it?
There is no conclusion they did, it is still open and the presumption of innocence prevails. The CID and the AG are going ahead with the inquiry. So we won’t go to interfere with that, we will let them come to an independent finding.
The alternative story given by the previous Defence Secretary Gotabaya Rajapaksa is, that it was merely a curfew they were trying to impose to avoid a possible riot resulting from the unprecedented Rajapaksa loss. Isn’t that a possibility as well?
No. It is false, it is completely false. They themselves are the very people who are responsible for all the tension, unrest and division in the country. So long before the election they had created a situation where there could be riots. But in 1994, when Chandrika Bandaranaike became the President, she changed the political culture and said that all the organizers after 4 ‘O clock after the ballot boxes were sealed, must convert all your SLFP branches into a Peace Council and if an incident happened that the organizer would be made responsible and punished. This time also the President and the Prime Minister asked all the organizers to follow the same. And categorically the EC also pointed out that no rallies, pageants or anything. People have passed that era and they will not be fooled by these stories.
Another thing he pointed out was that they would not have summoned the IGP and the AG there if they were going to stage a coup. What can you say to that?
What happened was that they attempted the coup, but failed and could not execute it. Then they have got the AG, this is the information and CJ to give further advice as to how he can remain for the balance two-year period. We didn’t make any allegations against the AG because he did an advisory role to the President, but the Head of State cannot get advice from the CJ. We have nothing against the IGP and the AG, but the forces were not necessary there. If it is to impose a curfew, you can do it through the Police, and only if there is a situation that the Police cannot handle, the forces should be called in. They know this better than anyone. Once it is declared, the system will come into operation.
Moving on, is it possible to investigate all the cases of Bribery and corruption, even with the Committee Against Corruption headed by the Honourable Prime Minister, and the independent bribery unit established by the JVP considering that there are almost 30,000 cases of corruption against the previous regime?
We don’t think within a short period we can resolve all these issues. But what we are concerned are the mega deals and mega bribes. We are not saying that the other cases are not important, just that there is no time at present to go into all these. However, all these matters will be looked into and the most important cases will be given priority, especially, where the politicians and state officials are involved, since the magnitude of the amounts are vast. We will do this because it is our promise, and people are waiting for it.
What can you say about the notion that these cases are filed only against the people in the previous regime; particularly against the former President and his family, and that, is this a witch hunt and personal vendetta?
If it is a witch hunt, then once these inquiries are done, then they can say that all these cases are bogus. Why can’t they wait till they come to a conclusion? You asked about Gotabaya Rajapaksa saying the coup is false. Even in the 1962 coup, those involved denied it. There is no man who has ever been in a coup that has ever admitted it.
Are the arms in the floating armoury, held by the two private firms Avant Guarde and Ranka Lanka, illegal?
I don’t have a wider knowledge on the issue, but according to the news I have got, according to the coastal protection laws, it is totally illegal. While we have one of the most robust forces which defeated the most ruthless terrorists in the world, the Defence Minister or the Secretary should never have allowed a private party to get involved in the protection of the coastal belt or the country. The President is a Commander in Chief, if he gets a private party for the protection of the country, it’s a charge that is sufficient to impeach him, because his Prime duty is to protect the country. Now for money he has sold that part too. In time to come, and if they remained in power, they may have suggested to privatize the forces as well and made a commission from it.
This is still an open matter so I won’t comment further, but up to the point of outsourcing it to a private firm is illegal.