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Independence of the Judiciary

31 July 2012 08:57 pm - 0     - {{hitsCtrl.values.hits}}

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By C. V. Vivekananthan Attorney-at-law
In the year 1983, Vivienne Goonewardene filed a Fundamental Rights Application against Hector Perera and Others. The Supreme Court held that the State was liable for the transgression of fundamental rights the police committed when he was enforcing the law and ordered the State to pay Rs.2,500/- as compensation to Vivienne for infringement of her fundamental rights as safeguarded by Article 13 (1) of the Constitution.

Thereupon, the houses of the Judges were pelted with stones. Two or three days later a person appeared before the National TV and claimed that he organized the pelting ceremony. President Jayawardene, who aspired to create and preserve the independence of the judiciary and a just and free society, observed that pelting of stones at the houses of the judges was a democratic way of protest. The President refused to accept the pelting of stones at the houses of the judges as an act of interference with the right of a Court in making an order.

It was openly alleged that the 106 Line CTB Double Decker Bus was used to carry those defenders of democracy for the purpose of pelting stones. The Route No.  106 CTB Double Decker Bus was plying commuters to and from Kotahena and Panadura, via Hulftsdorp.

There was a brooding silence yet there was visible condemnation against the dastardly act and the allegation was made openly from many quarters that the independence of the judiciary was attacked. The result was that the President had to appoint a DIG as a one man Commissioner.  

This time not only the court complex, being public property, was severely damaged and part of the record room was burnt but also interference with the making of an order by the Magistrate, Mannar was openly demonstrated. No one was arrested though names were given to the Police. It rendered a tsunami wave of Protest islandwide.

When an order is made by a court whether it is illegal or otherwise, the aggrieved party could lawfully move the appellate courts to set aside or revise the order. There was legal remedy available to them to apply for anticipatory bail to prevent a person from being arrested and remanded. They could move for their remedy up to the Supreme Court. They cannot picket in front of the court and ask for justice by pelting stones.

No one could claim exclusive possession to the sea, seashore and foreshore. To call  an area of Muslim or Tamil or Sinhala  receives no recognition in the use and enjoyment of the sea and the seashore.

The use of sea is common to all and owned by none. It is Res Communes. The use of the seashore, foreshore is common to all as that of the sea. The aforesaid principle has been ingrained in strata of judicial decisions in Sri Lanka. Thus, the seashore is a public property and the State protects it for the benefit of its citizens.  The Crown Land Ordinance defines the seashore states that ‘the shore of the island of Ceylon is between high-water mark and low-water mark’. The provisions of the same Ordinance declare that ’the administration, control, custody and management of the foreshore are vested with the Crown and Regulations may be made for the restriction and control for the use of the foreshore by members of the Public’.

The use and enjoyment of territorial waters, seashore cannot be acquired by prescription or on the ground of custom.
The common use of the resources of the sea and the seashore is controlled, imposed restrictions by statutory provisions, e.g. Whaling Ordinance, the Pearl Fisheries Ordinance, the Chink Fishery Act, Tourist Development and the like.

The Government cannot grant exclusive right of fishing but it can prevent others from their rights of the territorial waters and seashore. It could pass regulations with regard to taxation and licensing. The State or its authorized officers could grant licences to fishermen to spread out fishing nets, anchoring boats, construct wadis on the sea-shore or on land belonging to the State adjacent to the sea-shore.

Migrant fishermen from Negombo are fishing in the fishing areas of Mannar. So do the fishermen from Galle, Matara and Hambantota, Mullaitivu, Kilinochchi, Chempiyanpattu, Point-pedro and other fishing areas of the Jaffna Peninsula.
Most of the politicians, as decision makers, feel strongly that others should pay obeisance to their way of solving a problem. The solution might have sprung up arbitrarily, capriciously and unilaterally without realizing that such a solution may not promote moderation, toleration and co-existence with all the Sri Lankan communities.

If the Government inclines to allow exclusive possession of the territorial waters and the seashore to be enjoyed by their supporters for political gain, the natives of the seashore will in the future may claim exclusive possession. The migrant fishermen from any area of the country may not be able to carry on the fishing activities.  In that event, migrant fishermen and the natives would engage in violence. It would once again bring discord and disharmony among various communities of Sri Lanka. Thus the State is obliged to create public awareness in this regard for the people to practice a give-and-take policy amicably and peacefully in order to make Sri Lanka a happy home for all.
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