Britain, Sri Lanka And Living Examples Of True Democracies

By Nagananda Kodituwakku -January 1, 2013 

Nagananda Kodituwakku

On Friday the 05^th October 2012, the High Court in London allowed three elderly Kenyans to pursue damages for torture they suffered in the hands of the British during the colonial era.

The UK government is bracing itself for thousands of similar legal claims from people who were imprisoned and allegedly mistreated during the final days of the British Empire. The said High Court ruled that the three elderly Kenyans who were detained and tortured during the Mau Mau rebellion have the right to sue for damages.

The High Court judge rejected claims from the government’s lawyers that too much time had elapsed since the seven-year insurgency in the 1950s, and it was no longer possible to hold a fair trial. Last year the same high court judge, Mr Justice McCombe, rejected the government’s claim that the three claimants should be suing the Kenyan government as it had inherited Britain’s legal responsibilities on independence in 1963. And this ruling may also make it possible for victims of colonial atrocities in other parts of the world to sue.

The UK Foreign Office acknowledged that this ruling had “potentially significant and far-reaching legal implications”, and said it was planning to appeal. “The normal time limit for bringing a civil action is three to six years,” a spokesman said. “In this case, that period has been extended to over 50 years despite the fact that the key decision makers are dead and unable to give their account of what happened.”

During the course of their attempts to have the claims struck out – efforts that the claimants’ lawyer, Martyn Day, described as “morally repugnant” – the British government’s lawyers accepted that all three of the elderly Kenyans were tortured by the colonial authorities.

Day said, “The British government has admitted that these three Kenyans were brutally tortured by the British. There will undoubtedly be victims of colonial torture from other countries, who will be reading this judgment with great care”.

There may also be claims from Malaysia, and even from Sri Lanka where some native people were massacred during number of uprising against British rule including the Matale rebellion.

It is very interesting to note whether the judges in Sri Lanka would enjoy a similar or somewhat faint independence in dispensing justice in matters, which come before them where the government is involved.

For instance, when integrity and conduct of Presidential Candidate Mahinda Rajapakse was challenged before the Supreme Court, where he was accused for embezzlement of tsunami funds the then CJ Sarath N Silvasimply ruled against the application. Then some time thereafter this same individual had the audacity to say that if he had acted as required by law Mahinda Rajapakse would have been behind bars. And now this very same person defends the obviously wrong process the government adopted to eject the CJ from office.

The people should revisit the circumstances under which the impeachment motion was brought in against the current CJ. Recently the government sought legal cover to the police to refrain from producing suspects taken into custody for 48 hours. This was clearly against the fundamental freedom enjoyed by the people and hence refused by the Supreme Court.  When the said proposed amendment to the criminal procedure code was refused by the Supreme Court the government ministers (Nimal Siripala de Silva and Keheliya Rambukwella) said in pubic that the govt respects the observance of the rule of law by the Court and would not resort to bring an impeachment motion against the CJ for defying the will of the government that violated the sovereign rights of the people. But the actions which followed thereafter were the exactly the opposite.

Democracy is something, which people should earn not something a society can be bestowed with by foreign powers. This is food for thought for right thinking people to comprehend what a fake democracy the people of Sri Lanka enjoy under the so-called freedom from British colonial rule.

Gota offers to train Indian forces .; India ready to learn

Gota offers to train Indian forces .; India ready to learn

Lessons: Photographs obtained by Al Jazeera appear to show massacre of Tamils during final stages  war.

MONDAY, DECEMBER 31, 2012

Sri Lankan Defence Secretary Gotabaya Rajapaksa has offered Sri Lanka’s help to train Indian army personnel in counter-insurgency warfare.
 The offer was made during the visit of the Indian army chief Gen Bikram Singh to Sri Lanka in the third week of December.  “When I met Gen Bikram Singh, I renewed our offer to train Indian forces in counter-insurgency. We have designed courses in this field and have offered them to other countries facing terrorism. It is now up to the Indian army chief to decide,” Gotabaya told Express.

 Sanguine about a favourable response from India, the Lankan Defence Secretary said: “We have had good relations with the Indian armed forces even during times of political turmoil in India.”

Joint Exercises More Likely

 Asked specifically if he envisaged Indians coming to Lankan military institutions for training, in the same way as more than 800 Lankan officers were going to Indian military institutions every year, Gotabaya said that military training could mean attending courses or participating in joint exercises, or both, but with India, joint exercises were  more likely.

“Such exercises are already taking place. These will be continued and improved,” he said.

 India Already Attuned  

 That India is ready to enter a two-way street with Lanka in the field of military assistance was evident in Gen Bikram Singh’s remark at the passing out parade at Sri Lanka Military Academy on Dec 22.

“With significant experience on both sides, we have a lot to learn from each other and we look forward to reinforcing our cooperation in  the military domain further,” he said.   Between December 3 and 24 Indian and Sri Lankan Special Forces had conducted joint exercises at the Indian army’s Special Forces Training Centre at Nahan in Himachal Pradesh. The SINEX I and II joint naval exercises were conducted in 2005 and 2011 respectively. The communiqué issued on these exercises had mentioned “sharing experiences” as one of the aims, indicating that the flow of knowledge was not one way, from India to Lanka only.

 In 2010, visiting Indian Defence Secretary Pradeep Kumar had proposed that the SINEX series of naval exercises be made a regular feature and it was accepted by Lanka.
(Source: Indian Express)
DM

Forced Reconciliation?

• Psychiatrist gives female Tamil recruits clean bill of health
• No sexual harassment, mental illness, just collective hysteria

By Chrishanthi Christopher-

Monday, December 31, 2012

Some of the Tamil females, who were recruited to the army and reportedly suffered mental distress after their training course, are said to have gone back to the camps fully recovered.
Military Spokesperson, Brigadier Ruwan Wanigasooriya, said the women have been cleared by psychiatrist to be in perfect health and fit to continue with their jobs in the army.
Psychiatrist, Sivasubramaniam Sivadas, based at the Jaffna Teaching Hospital, who treated the 15 women who are reported to have suffered harsh military training, has refuted the claim of sexual harassment and cleared them of any mental complications. He claims the women had a bout of collective hysteria and are now fit to resume work. It is reported the women opted on their own, to go back to the camp and continue with their jobs.
But many refute this claim and say the women are still in a state of depression and disappointed with their proposed jobs and want to come out of it. A counsellor who wished to remain anonymous, and who claims that he had met the women recruits and spoken to them says, they had no opportunity to establish any trust with the doctor during counselling sessions, for them to come out with their real emotions and feelings.
“After treatment, Dr Sivadas, had just asked them bluntly whether they would like to go home or back to their jobs. And they opted to go back to their jobs. They fear harassment and repercussions in case they leave the army. They are in fear and feel trapped,” he said.
He said they were misled and duped into accepting a job that is against the Tamil people’s beliefs and principles. They were told that it would be a civil job and that they had to work inside the camp. But they had to undergo harsh military training.

Cheated

“The understanding was that they would work inside the camp, wearing sarees, doing non-combatant work, and return home every day after work. But during the training period, they found the job needed them to carry guns and they found that they were part of the Sri Lankan Army,” the Counsellor said.
Tamil National Alliance (TNA) MP, Suresh Premachandran, confirmed there was no proper procedure followed for the recruitment process. He said the army went from house to house enticing the families and the girls into joining, by offering a salary of Rs.30,000 for the job. For a poverty stricken family in the north Rs.30,000 is big money. “They were told that it was work in the village and an office job, and that there was no military training involved.” He said the women who joined felt ‘cheated’ and six women left the job immediately.
Premachandran said those who fell ill are those who feel trapped and want to go home. “The army doesn’t want to send them back,” he said.
It is learnt that in the years 2007- 2009, they worked for the Liberation Tigers of Tamil Eelam (LTTE) doing ordinary chores and were paid. The understanding among these recruits and families was that working for the army would also be the same.
The recruits are in the age group of 22-23. When they started the intensive training, the female recruits realized that they had to wear fatigues, stay in the camps and do combatant work. This made them feel bad and depressed. They felt that they are traitors to their own community – to be part of the Sinhala Army who have terrorized and killed the Tamil people – their families, their loved ones. Also, their relatives, friends and neighbours have started shunning them and classing them as betrayers.
Further, it is understood, the Kilinochchi Base Hospital has no qualified psychiatrist, but only a diploma holder who could only do counselling sessions. If the counsellor cannot handle the case the patients are referred to the Jaffna Teaching Hospital, which has a fully qualified psychiatrist.

Unorthodox procedure

However, in this case, the army did not refer the female recruits to Dr. Jeyaraj – the counsellor at the Kilinochchi Base Hospital, but directly consulted with Dr. Sivasubramaniam Sivadas, a fully qualified psychiatrist at the Jaffna Teaching Hospital. It is not the normal procedure followed they say.
Dr Sivadas, who reportedly treated the 15 Tamil women admitted to the Kilinochchi Hospital, had dismissed reports of sexual harassment or mental disorders. He had described the symptoms as collective hysteria, which arises due to inner conflicts. The women, although wilfully joining the army, were driven by poverty – have found that the job goes against their culture and lifestyle causing inner conflict. They feel the job goes against Tamil nationalism.
Reports taken before they were recruited established that they were physically and mentally stable. And the queer behaviour was a ventilation of their inner feelings.
They have been asked openly whether they wanted to go back home. And they have volunteered to stay. Counsellors say the women had no trust in the psychiatrist to convey their genuine inner feelings. “It is important to establish a rapport and trust with clients before they believe in the counsellor, to divulge their inner conflicts, and for that they need to go for two or three counselling sessions,” he said.
Also, during their stay in the hospital, they were allowed to meet only their parents and no others. Relations, friends and others were not allowed – what was the reason? he questions.
There were three categories of women recruits – those who had no qualms and wanted to continue to work in the army, others who thought that since they have put their feet deep into it there is no way of turning back, and those who want to be let out. These 15 women recruits belong to the last category.
The recruitment process was contrary to the norm and had no advertisement in the newspapers, no gazette notification and no appointment letters.
Ironically, on the day of the recruitment, the parents were given a certificate each thanking them for allowing their daughters to join the army. The fathers were garlanded and the mothers presented with a paper broche as appreciation.

What happened?

Looking back, he says, on November 14th the girls were informed to get ready and that they will be taken for language training. “On November 15th the girls were taken to the camp. On November 16th the rehearsals commenced and on the recruitment function was on November 17th. The same day, 60 girls created problems saying that they had been fooled to join the army. The girls were crying in the photos that were taken at the recruitment function. This was misinterpreted as some sexual assault that had taken place. This merely because of disappointment and the mere feeling that they had got caught and there was no escape. The girls were scared for their families that if they go back there will be repercussions, perhaps harassment.”
On November 5 they were subject to medical tests and their parents were allowed to join them. Two fathers of the women recruits, who watched the procedure, had found the medical examination very disquieting – akin to army recruitment – and had stopped their children thenceforth. Four girls had left immediately when they came to know that it was not the job they thought they were getting into. The other girls, who had come alone, either did not know or were too scared to withdraw.
On the day of the rehearsal, the girls seeing the army banner displayed on the stage, had reportedly refused to join. But they were again told that theirs would only be civil work and the banner was displayed for the Sinhala soldiers. ”You are not in the army,” they had said. However, five girls who had mobile phones had immediately phoned their parents and left when they arrived.
The women felt trapped and that the situation was beyond their control. And this personality strain has manifested itself as snake dancing or possession by the devil. This is psychological behaviour connected with the culture, which is manifested in a spiritual or dance form.
“These are all uneducated people who care about what their neighbours say and think.”
People say it is too early for the women to come to terms with the job. 30-years of war with the army has made them attuned to the idea the Sri Lankan Army is against them, and that they are the people who have killed their kith and kin. It will take years for this feeling to fade.

Police suddenly withdrawn from Jaffna university compound [ Monday, 31 December 2012, 06:27.43 AM GMT +05:30 ] Police officers deployed in the Jaffna university compound suddenly withdrawn from the area. University administration continuously makes pressures on students of faculty of arts on recommencing academic activities of the university. Due to this students of faculty of arts decided to visit meeting schedule to take place at the university today. Since November 28 Jaffna police constructed check points in the main entrance of Jaffna university, faculty of science and main entrance of students hostel. Previously various people condemn the activity of police presentation in the university premises which cause threats to activities of university students. However end of one month these police officers were suddenly withdrawn from the site. This sudden decision was taken to encourage students to visit meeting independent manner, sources said. Chancellor of the Jaffna University advised the vice chancellor and faculty head on recommencing academic activities of university which would help them to release currently in the military detention. Lecturers and the students of faculty of arts decided to hold special meeting this regard. Meeting of faculty of science would hold tomorrow, sources confirmed.

On Law Entrance Exam And Anti-Muslim Sentiment

By Jehan Perera -December 31, 2012 |

Jehan Perera

The great hopes of a leap forward to a new era that came with the end of the war have now been dispelled.  The anticipated prosperity and inter-ethnic reconciliation that was expected to be Sri Lanka’s after the war has still not materialized.  The continuing bailouts of loss making government enterprises and the impeachment of the Chief Justice are but two examples of the failure of governance.  The mobilization of the country to win the war has not been accompanied by a restructuring of the state to deal with the challenges of winning the peace.  Life continues to be hard for the vast majority of people and competition is intense due to limited economic opportunity within the country.

This is the context in which the dispute over admissions to the Law College has taken on an ethnic dimension.  The statistics show that a disproportionate number of successful applicants has come from the Muslim community. This has led to allegations that there has been cheating at the examinations and Muslim students have been the beneficiaries.  In a context in which political power is seen a source of patronage to constituents, the fact that the Minister of Justice is himself a Muslim has been used to give a communal and conspiratorial interpretation to the matter.

An organization called the National Intellectual Council (NIC) has urged the authorities to cancel the Law College Entrance Examination results and hold the examination again.  They have said they suspect the students to have received the paper with the support of hierarchies in the Ministry of Justice.  In addition, a Member of Parliament of the mainstream opposition UNP has been reported in the media saying that the party suspected a fraud after it was found a group of influential candidates had held on to the top 50 slots in the rankings.  All these students are alleged to have studied at the same institute and taught by the same teacher.

The Justice Ministry has responded to these accusations with a lengthy statement.  The minister’s media secretary has said that results of the Law College entrance examination to admit students for the year 2013 have generated much discussion and have now developed into a controversy involving a number of organizations making allegations against the Minister Rauff Hakeem.  He has pointed out that the Law College is managed by an independent Board which is under the supervision of the Council of Legal Education headed by the Chief Justice.  The examination is itself carried out by the Department of Examinations, which is not under the Justice Ministry.

WEAK ADMINISTRATION

Under normal circumstances, the Justice Ministry’s explanation should suffice to quell suspicions of a conspiracy. However, the recent actions of the government that undermine the independence of state institutions demonstrate the need for such institutions to be truly independent of political manipulation.  The Chief Justice who heads the Council of Legal Education is in the process of being impeached in a manner that violates the basic requirements of due process.  Even if the members of the Council of Legal Education score high on personal integrity, the larger political environment is hostile to their independence.

Sometime ago the administration of the Law College came in for criticism on account of the way it held its final examinations.  A son of President Mahinda Rajapaksa was alleged to have been given special consideration by sitting for his examination is a separate room away from the rest of the students.  It is circumstances such as this that creates unnecessary doubts in the minds of the general public about the manipulation of examination results due to the weakness of internal administrative systems.  The18^th Amendment to the Constitution that gave to the President the power to appoint anyone he desires to the topmost positions in the state apparatus has contributed to the politicization  of the public service and to the erosion of standards in it.

The breakdown of confidence in the Law College examination has occurred soon after a similar incident that affected the Ordinary Level examination, which is of crucial importance to hundreds and thousands of school children.  Many of them were similarly affected by a leak of one of the question papers in the Science subject.  Police investigations have revealed that the science paper was leaked to a tuition teacher who in turn coached his students to obtain excellent results in that subject.  In this instance, the suspect was ofSinhalese ethnicity and presumably most of the beneficiary students were also of Sinhalese ethnicity.  The Minister of Education nor the Commissioner of Examinations under whose purview the Ordinary Level examinations are held are also of Sinhalese ethnicity.

It is relevant to note that no voice has been raised that the cheating that took place at the Ordinary Level examination was a Sinhalese conspiracy. Rather it was a criminal action and the accused tuition teacher and his accomplices in the Education Department have been arrested.   The communal interpretation given to the alleged acts of cheating at the Law College examinations need to be challenged.  They appear to be part of a larger campaign against the ethnic minorities.  The deliberate fostering of Sinhalese nationalism by politicians to suit their political agendas is a recipe for trouble in the coming period.

MUSLIM BRIDGE

Recently it was reported that the Muslim Council of Sri Lanka together with the All Ceylon Jamiyyathul Ulama, the apex religious body of is Islamic Theologians, met Defence Secretary Gotabhaya Rajapaksa to explain the situation.  They had explained that around 19 websites identified by them are spreading anti-Muslim ideas in the country. In addition, there are Facebook and SMS campaigns also against Muslims.    According to the news report the Defence Secretary had assured them that the rising incidents of extremism were not the stands of the government, Sinhala society or the Buddhist monk community and the government would not allow disrupting the hard built peace in the country.  This promise is to be welcomed.  It is alleged that some of the extremist Sinhalese nationalist groups enjoy unofficial government patronage at the highest levels.

The three decade long war, and especially its last three years, saw an unprecedented mobilisation of nationalism on both the Sinhalese and Tamil sides.   Both the government and LTTE engaged in nationalist mobilization of the human resources at their disposal.  But what was deemed to be necessary in a time of war must not be permitted to continue into the future is proving to be divisive and counter-productive to the government’s efforts to reunify the country and develop the economy.  The diversity that exists in the country, and the different links that each of the ethnic and religious communities have with different sections of the international community must be made an asset and a strength, and not be made into a liability.

So far, however, the portents are not positive in this regard.  It seems that whenever government leaders are at a loss for new ideas or explanations for the difficulties that face the country, they speak about protecting the country from anti-Sri Lanka groups working abroad and their collaborators within the country.  As all the major religions practiced in Sri Lanka are universal ones, it is inevitable that the religions practiced by the minorities will have large numbers of adherents abroad.  This becomes a source of threat to Sinhalese who have a historical memory of repeated foreign invasions that lay waste to the ancient kingdoms and to the suppression of Sinhalese civilization. This sense of threat in turn prompts them to take action against the minority religions, to the point where there have been several attacks against Christian churches and Muslim mosques.

The great pity in all of this is that inter-ethnic and inter-religious relations between people at the community level are largely amicable and free of animosity.  Those who have experience of inter-religious work will speak of the positive response they get from adherents of all religions, and in particular the Muslims.  As they are generally bilingual and conversant in both Sinhala and Tamil languages, the Muslims can be a bridge between the Sinhalese and Tamil people.  They also share the Tamil apprehension about the erosion of minority rights; at the same time they share the Sinhalese commitment to a united and undivided country.

Colombo posters wage war against all shades of Tamil nationalism

[TamilNet, Sunday, 30 December 2012, 09:20 GMT]
Citing the posters that appeared in Colombo and in southern parts of the island last week, a notice in Sinhala addressing ‘intelligent students’ of the Jaffna University, invariably accused all shades of Tamil polity in the island and in the diaspora that are not collaborating with the genocidal regime, as working for the division of the ‘country’. The notice also accused Sinhala students and shades of Sinhala Left in the south showing solidarity with the students of the Jaffna University, as unconsciously becoming a “prey to the interests of the LTTE to divide the country.” An English translation of the notice is produced herewith. 

• English translation of the notice in Sinhala distributed in the South

The posters and the notice named the main Tamil political parties TNA and TNPF based in the North and East of the island, Inter-University Students’ Federation and Frontline Socialist Party based in the South and all the shades of diaspora activism which the force behind the posters and the notice ‘classify’ as the TGTE, GTF, TCC and Headquarters Group.

The ‘organisation chart’ allegedly produced by SL intelligence and distributed in the island with a Sinhala notice ‘explaining’ the chart

Who finally remain left out by the posters and the notice were the collaborating EPDP that too now subtly sidelined by the regime, the Ankajan Group, a direct part of the regime’s Sri Lanka Freedom Party (SLFP) the regime now tries to simulate to impose on Tamils in the North, the TMVP in the East outwitted by the regime and rejected by the people, KP in captivity and the few collaborating individuals operating in the diaspora, who accuse others for ‘interfering’ in the affairs of the island from being in the diaspora but reserve that ‘license’ only to them, Tamil political observers in the island commented.
According to the political observers, the posters and the notice indirectly acknowledge the following:

1. Tamils in the island and in the diaspora overwhelmingly favour their independence.
2. Tamils in the island and in the diaspora are not with the State and regime of Sri Lanka.
3. The State and regime of Sri Lanka is bankrupt in coming out with alternatives that could convince any of the shades of non-collaborating Tamil polity.
4. The war waged in the name of countering ‘LTTE terrorism’ was in fact a war against Tamils getting their liberation.
5. The on-going SL military oppression on Jaffna University students is not because they observed the Heroes Day, but because of the long-term need of militarily erasing out Tamil liberation activism from germinating again even in democratic ways.
6. As the State and regime of Sri Lanka can’t come out with alternatives other than militarily erasing out Tamil aspirations and structurally annihilating the Tamil nation in the island for the unity of the ‘country’ and its ‘prosperity’, it is a crime if any Sinhalese in the South voices against what the State and regime are doing.

The current wave of terror unleashed against Tamil youth in the island by the State and regime of Sri Lanka, as a part of the chain of terror-campaign since the genocidal war, aims at isolating Tamils from their polity by intimidation, and aims at prodding Tamil youth needing security to join the elements and outfits run or promoted by the genocidal State and its abetters, the political observers said, adding that the terror campaign is part of a larger orchestration.

At the height of the current terror campaign, a security analysis team of New Delhi was present in the North and East. When Mr. Sampanthan denounced the LTTE and detracted total withdrawal of the occupying SL military, a key person of a ‘group’ backed by the West in setting agenda on Sri Lanka was tweeting that Sampanthan's speech reflected an influence of his recent reporting and that was “good to see”, the political observers cited.

Just like the Colombo posters and the notice, the international abetters of genocidal Colombo too are known for mischievously not distinguishing the ‘terrorism’ they saw in the LTTE, which they still ban, and the righteous national liberation aspirations of Eezham Tamils.

The posters and the notice remind all the shades of Tamil national polity in the island and in the diaspora of the need of showing solidarity and unwavering firmness on the fundamentals in presenting Tamil aspirations to the world and to the face of the powers, the Tamil political observers in the island further said.

Lankan women give their heart to 'brave heart' Indian girl MONDAY, 31 DECEMBER 2012  Women in Sri Lanka today joined in to pay tribute to the 23-year-old 'brave heart' Delhi gang-rape victim, calling for stringent punishment for the culprits. The women carried a huge poster which read, “let's rise on behalf of the Indian daughter,” and were getting it signed to hand over to the Indian High Commissioner. The event was organised by members of the main opposition United National Party (UNP), and those who gathered included the Mayor of Colombo, AJM Muzzamil and several UNP seniors, who all said they were shocked to learn the fate of the young physiotherapy intern who was raped and brutally tortured by six men in a moving bus on 16 December. “We urge that culprits be given maximum punishment,” UNP provincial councillor Shanthini Kongahage said. She said that Sri Lankan women too suffer the same sort of harassment and brutality and lamented the lawlessness which she blamed for the increasing attacks against women in Sri Lanka. (Press Trust of India)

Parliament ‘donkeys’ can’t treat people who are supreme this way : MPs have no privileges to disregard courts –SL Gunasekera
(Lanka-e-News -31.Dec.2012, 5.15AM) Senior Lawyer S L Gunasekera said 
,because of the conflict between the Legislature and the judiciary , the entire country is being plunged into anarchy and it is the stupid ‘donkeys’ that blabber that Parliament is supreme who should be held fully responsible for all the evil fallouts of this conflict. 

Elaborating on the legal position , he emphasized that under our constitution it is the people who are supreme , and not these stupid M Ps appointed via lists . MPs are truly lackeys of the President. These lackeys will do any sordid task at President’s bidding. This is because they are all fawning bootlickers . When they talk about supremacy they are only expressing President’s supremacy. In other words what they say is , in our country what exists is a dictatorial reign. That is the supremacy these silly asses know of. This is all done to inflate their already swollen egos. 

If they do not conform to the court decisions , in my opinion , the courts will hear the case one sided. Indeed that is how it should be heard. These silly farts should stop farting around and deflate their swelled headedness . Anura Bandaranaike had made it abundantly clear that every citizen of this country is alike and equal. Before the law every everyone has the same rights . Just because they are Parliamentarians they have no privileges to assume that they don’t need to submit to court orders and are exempt. 

What I say is , by all this foolish and arrogant conduct it is the country that is being driven into a holocaust . If these farts do not abandon their idiotic arrogance , our country will never improve or progress. 
The chief Justice (CJ) is also an ordinary citizen of this country. Why can’t she file an action ? If she wishes to divorce her husband , what she has to do is also file an action in court . She has no other option. Even though she is the CJ if she has been a victim of injustice , she also has only one place to go to seek redress – that is the court. 

Hence these farts must understand they have no supremacy. That belongs only to the citizens of the country as a whole. I will not comment on judicial decisions. I do not know what will be the court verdict. If these ‘donkeys’ conduct themselves disregarding the court decisions , then they must be held fully answerable for all the anarchy and tumult it can trigger, he warned .

Should The Dentists Conduct Trials?

By Basil Fernando -

Basil Fernando

The state media continues their non-stop misinformation campaign on the impeachment move by the government. Several ministers also participated in this media campaign. The central topics of the campaign are that it is the charges that are important, and not the process – meaning that whether the inquiry took place by a competent and impartial tribunal does not matter – and that judicial review into the proposed actions of the executive, such as theDivenaguma Bill, amount to sabotage.

If this campaign approach is correct, then there need not be any trials regarding anybody charged with anything in Sri Lanka. All that needs to be done is for the public to debate on the charges. For example, if someone is charged with murder or rape or fraud, then radio programs should be held, where discussions could be conducted on these charges. Of course, in this instance, only those who are making the charges are allowed to speak in these programs. Even if it was otherwise, this would simply make the right of having a fair trial completely unnecessary.

In the same line as this argument was the statement of Minister Rajitha Senaratne, who said that Mr. Romesh De Silva, the Senior Counsel appearing for the Chief Justice, and the rest of the legal team, raised hairsplitting arguments before the PSC. What a dentist such as Rajitha Senaratne thinks of a legal argument is hard to imagine. Suppose a patient who goes to get medical treatment were to protest that the doctor is calling for X-Rays, blood reports, urine reports and many such tests, saying that all he needs is treatment for his illness, and that all these tests are a waste of time. This is similar to saying that the issues raised by lawyers are “hairsplitting”.

That brings us to the issue of why a fair trial is conducted by impartial and competent persons, and why certain procedures are followed. Fair trial is a legal concept. It involves many complicated issues, such as how the truth of a matter should be inquired into before conclusions are arrived at; what rights the person accused of charges has in the process of such an inquiry; what rights the lawyers representing both parties have in raising issues which relate to the legal process; and in what manner the impartiality of the tribunal and the competence of the persons to deal with all these complicated issues are guaranteed. Just as not just anybody can practice as a dentist (if it was otherwise, it would be a rather dangerous situation), similarly not just anybody can practice as a judge. If this is not the case, trials could be held by dentists or accountants or others, and that would of course be an absurdity.

Also, the absence of bias is an essential element of a judicial officer. Even a competent and experienced judge who has a bias relating to some aspect of a case is expected to step aside and, if they don’t, the final judgment will be held invalid solely on that basis. In the famous Pinochet case, the judgment was set aside solely on the basis that one of the judges had a previous connection with Amnesty International, which brought the case. There was no allegation at all that the judge deliberately acted in favour of the plaintiff. The mere fact of such distant connection was considered adequate for him to be disqualified.

All the seven members of the government in the PSC are naturally biased on this matter. In fact, if they were not so, they would not be allowed to continue as parliamentary members on behalf of the government. This is not a case where there can be any doubt about the bias. Thus, one of the cardinal principles of a fair inquiry was violated in this instance. This is like a relative of a murder or rape victim being the judge in a case relating to the same murder or rape.

The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, has mentioned the principles that are universally followed in the case of the removal of judges.

 “The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.” In her view, the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.

As regarding Australia, two law professors have summarized the principles followed relating to such matters in their country.

Professor Adrienne Stone and Laureate Professor Cheryl Saunders AO

Judicial removals are treated by the vast majority of governments with the utmost seriousness. As extraordinary decisions that must only be made in extraordinary circumstances, judicial removals must be treated with that level of seriousness.

Australian and international standards on the removal of judges from office clearly reflect a requirement that prior to any consideration by a parliament to remove a judge, a thorough, cautious, fair and independent investigation into alleged misconduct or incapacity by former judicial officers must take place.

Any procedure which does not fulfil that standard is inimical to the rule of law and the independence of the judiciary, and no government that refuses to afford its judicial officers these standards of protection can claim to legitimately represent its constituent people, or act with the legitimate authority which only the people may bestow upon their governors.

For their full statement, please click here

Now, as far as Sri Lanka is concerned, what is needed is to have a campaign through the radio or another medium on the charges.

Regarding the other aspect of the campaign, that the Divenaguma judgment was sabotage, there is no charge to that effect made against the Chief Justice. Anyway, by this it would be implied that all review of the proposed legislation would amount to sabotage if the judges gave an opinion adverse to the government. If the obligation under the constitution is that the judges should have favourable decisions regarding all the bills presented by a government, then, in fact, there is no purpose in placing them before the courts at all. The constitutional obligation is for the Supreme Court to say whether the proposed bill is in conformity with the constitution and, if that is not so, to declare it. Thus, these state media attacks on judicial review, calling it sabotage, are an attack on the constitution itself.

One of the purposes of the impeachment is to create a stooge judiciary, which means a judiciary that will not declare bills to be unconstitutional even if they are. It was on this basis that it was argued on the Sri Lankan state media that, in the United States, judicial review was invented by a “devious” and “cunning” person. It was argued that the United States constitution does not have judicial review. That judicial power implies judicial review was scorned. That is as if to say that someone having a nose does not imply that he can breathe, or that someone is an alcoholic but he does not drink liquor.

This whole approach of conducting an inquiry by way of giving the highest possible publicity to the charges is a dangerous and primitive practice, against all legal and ethical norms. Such media campaigns are hate campaigns and an incitement to violence. This will put Sri Lanka behind civilization by several centuries.

Impeachment crisis: Destiny of Lanka at stake

Sunday, December 30, 2012

= If the law enforcement process loses its independence, politicos might play the role of policemen and anarchy will prevail

= �President insists on going ahead with the move despite pleas by allies�for prorogation of Parliament

By Our Political Editor

Sri Lanka’s Parliament has functioned for more than 179 years though under different names at different times. That is from the time of the Legislative Council in 1833.

The laws they wrote in to the statutes and the contributions made by the learned members have gone into public record. Both, the members and the records that have lived the test of time were revered though some may have reflected diverse opinions.

Over the years, Sri Lanka’s political culture polarised into one of the ruling party and a main opposition being the key players. There were checks and balances though it was on a reducing scale. In recent years, the fact that a coalition of parties forming the United People’s Freedom Alliance (UPFA) is in governance with hardly any vibrant opposition is well known the world over. This week, the absence of a strong opposition became the lament among even key cabinet ministers from leftist parties. They are perhaps unmindful that their leader, President Mahinda Rajapaksa, should get part or more of the kudos. His deft manoeuvering has divided some political parties or united some factions in his favour.

Chief Justice Shirani Bandaranayake attending the Bodhi Pooja organised by a group of lawyers at the Kelaniya Raja Maha Viharaya this week. Pic by Indika Handuwala

Arguably, the political system has also gone through a metamorphosis in more recent years. If one formidable political party at the centre picks on a ‘strongman’ to contest a district, it became customary for the rival party to select his or her opponent. They did not necessarily come from academia or with a professional background. The process spawned a relative drop in quality in the calibre of those who represented the voters. That is by no means to say there are no more men or women of wisdom. There are, but some have been relegated to the graveyard of the silenced. For some others, the stakes involved have struck a blow to principles. The choice before them is survival, both personal and political.

When political parties were returned with overwhelming mandates, it became a tool for the government in power to tinker with the constitution. Such moves made the office of the Executive Presidency omnipotent. A later 18th Amendment to the Constitution not only degraded Parliament but also strengthened individual power of that office. Thus, it became the Executive President who appointed the Chief Justice, senior judges, the Police Chief and the Elections Chief among others. The role of the opposition became only advisory and they continue to refuse to participate in such a process. The Human Rights Commission and the Attorney General’s Department among others came under the presidency. Institutional power was thus weakened.

Yet, the institution these elected representatives belong, the Parliament, the supreme body remains sacrosanct. What they place on official record, like legislation they pass, remains for posterity though some may have become obsolete and the others amended. So are the findings of Parliamentary Select Committees (PSC) that are appointed to probe various issues of national importance. The findings in the form of a report have become a “Magna Carta” of sorts in the fields they delve in.

This is why the 1,575 page two-part report of the Parliamentary Select Committee that probed the impeachment charges against Chief Justice Shirani Bandarnayake is significant. Though only signed by the seven members of the ruling coalition, after the four opposition members walked out in protest on grounds that the process was not just and fair, it will still remain a record for both the public and future parliamentarians for generations to come. Fearful or comforting enough, it could form the yardstick or precedent for future parliamentary probes. More so in an environment where past reports or utterances are cited to back present practices and justify them. Such justifications have sometimes gone beyond simple logic or complex legalities.                      Read More