President’s Media Unit fabricates story of CJ’s “move to enter politics”

Tuesday, 27 November 2012

The Presidential Media Unit is strategically carrying out a campaign to publicize the story that Chief Justice Dr. Shirani Bandaranayake has plans to enter public politics. The story is being publicized by Mahinda Illeperuma from the President’s Media Unit under the supervision of Minister Dullas Alahapperuma.

Illeperuma had summoned several journalists from national newspapers to the President’s Media Office and asked them to publicize a story saying that the JVP and UNP MP Ravi Karunanayake is engaged in discussions with the Chief Justice to make her the common opposition candidate at the next Presidential election.

He had instructed that the story be published in a manner that would create doubts in the mind of the UNP Leader and his loyalists and to bring down the Chief Justice’s image as a person with political aspirations.

The journalists had been further advised to highlight the Chief Justice who usually arrives and leave the Supreme Court complex from a back door had used the front door to leave for the parliament and that she had put down the shutter of her vehicles and greeted the media when the cameras were focused on her. These have been pointed out as signs of a person with an intention to enter politics.

When inquired, senior lawyers affiliated to the Chief Justice said she had no intention of entering the disgusting politics in the country.

The lawyers said that the Chief Justice was fighting against the charges leveled against her amidst pressure from senior government members for her to resign from the post in order to safeguard the good name of the judiciary, the office of the Chief Justice and her name. They noted that it would create a bad precedent for the judiciary and future Chief Justices if she gave into pressure and resigned.

One of the senior lawyers pointed out that Dr. Bandaranayake has served as a Supreme Court judge for 16 years and that she had not accepted the three duty free vehicle permits offered during the period. The lawyer explained that if she was greedy for cash, she could have easily sold the three permits for Rs. 10 million. Therefore, Dr. Bandaranayake is not a person to be controlled by offering positions and perks.

A senior Finance Ministry official when inquired confirmed that the Chief Justice had not accepted any duty free vehicle permit.

Arafat’s remains are being exhumed

TUESDAY, 27 NOVEMBER 2012

Palestinian engineers have started working to exhume late leader Yasser Arafat's remains in the West Bank city of Ramallah at dawn today (27th) sources said.

Investigators are expected to exhume the remains of the late Palestinian leader Yasser Arafat in an attempt to determine how he died.

Swiss, French and Russian experts will take samples to establish whether his death, at a military hospital in Paris in 2004, was the result of poisoning.

France began a murder inquiry in August after Swiss experts found radioactive polonium-210 on his personal effects.

Arafat's medical records say he had a stroke resulting from a blood disorder.

His widow, Suha, objected to a post-mortem at the time, but asked the Palestinian Authority to permit the exhumation "to reveal the truth".

Lankan army controls Jaffna Uni hostel
Jaffna University

[ Tuesday, 27 November 2012, 02:02.17 PM GMT +05:30 ]

Due to the fear on Mahweerar day commemoration Lankan army has entirely controlled the hostel of Jaffna University, our correspondent said.

Military personals entered to the male and female hostels had shut down the rooms of the students and ordered to remain in their respective rooms. Military personals, police and the members of the intelligence unit has deployed in the university compound since 5.00 pm this evening. Security forces engulf Jaffna University Tamil Guardian 27 November 2012 Jaffna University is experiencing a disproportionately high presence of security forces today as troops and police flocked to the campus to prevent any commemoration of Remembrance Day. The forces extended their presence as far as the male's hostel as well as interrogating passers-by in the vicinity surrounding the campus. There have also been reports of unidentified motorcyclists threatening students at gunpoint to refrain from commemorating the day.

Transnational Government Of Tamil Eelam’s 4th Parliamentary Sitting Begins In The British Parliament

By Colombo Telegraph -November 27, 2012 

Transnational Government of Tamil Eelam‘s (TGTE) fourth Parliamentary sitting begins in London on November 28th and will continue until December 1st.

Visuvanathan Rudrakumaran - Prime Minister TGTE

“The Sitting will begin with a conference at the British Parliament on November 28th, the day after Hero’s Day. Several Members of Parliament and other dignitaries are attending this event. General public is invited to attend the inaugural session of the Transnational Government of Tamil Eelam Parliament on November 29th (Thursday), at 6:00 pm. Location: Brent Town Hall, Forty Lane, Wembley, Middlesex, HA9 9HD. The TGTE Parliament will discuss different Resolutions and issues affecting Eelam Tamils and initiatives to advance Tamil Eelam cause.  The Parliamentary sitting will be broadcast live through web.” says TGTE

“Transnational Government of Tamil Eelam  is a democratically elected
government of the Tamil Diaspora of Sri Lanka. Its actions are
non-violent, democratic and diplomatic. It held internationally supervised elections in twelve countries to elect Members of Parliament (MPs). These MPs drafted and ratified a Constitution and elected a Prime Minister, a Cabinet and a Speaker.” TGTE further says.
For info contact: secretariat@tgte.org

5 Arrested on distributing "Tamil War Heroes Day" posters in Akkaraipattru

[ Tuesday, 27 November 2012, 05:14.28 AM GMT +05:30 ] Police arrested 5 individuals distributed “Tamil War Heroes Day” posters at the Aalaiyadivembu area in Akkaraipattru last light.

All these suspects were arrested while transporting posters by Three-Wheeler near the Ramakrishna mission school road in Akkaraipattru. All these suspects would be produce before the courts today, police sources said. Five persons with pro-LTTE hand bills arrested Five suspects distributing pro-LTTE hand bills to mark the 'LTTE war heroes' were arrested by the police in Akkaraipatuwa. LTTE ‘war heroes’ day is commemorated today (27 November). (Wasantha Chandrapala)

Pirapaharan’s LTTE had moves to make Heroes Day inclusive

[TamilNet, Tuesday, 27 November 2012, 10:22 GMT]
Conceding the fact that many members of the other militant organisations too had laid down their lives for the cause of Tamil Eelam, Pirapaharan’s LTTE took initiative in taking an account of them for honouring them as Maaveerar (heroes). Forms had been distributed for this purpose to get written consent from the next of kin of the slain heroes of the other militant organisations. The outbreak of war in 2006 stalled the process started in 2002, revealed a former senior member of the LTTE to TamilNet on Tuesday. If needed, he would openly come out and testify the fact in his own voice, the former senior member said.

The former senior member further came out with the following details:

The process started in 2002, after talks held between the LTTE and various members of the other militant organisations as well as family members of those who had sacrificed their lives for the cause of Tamil Eelam.

Their leaders might have made mistakes, but the cadres sacrificed their lives for the cause and they should be honoured as Maaveerar, was the position taken by Pirapaharan’s LTTE.

The LTTE had a special consideration for those of the other militant organisations who laid down their lives fighting the SL forces in the pre-IPKF period.

The apex secretariat of the then LTTE conducted a survey and has prepared a list of slain members of the other militant organisations who should be honoured. To get the consent of their family members, special forms were printed and have been sent to various Maaveerar Affairs offices and to the political offices of the LTTE in the North and East.

The LTTE was firm and wholehearted in conferring the honour to the slain members of the other militant organisations it had listed out. But first it wanted their family members to give written consent.

The response was enormous from the family members of those who had sacrificed their lives fighting under EROS and TELO, and was considerable from the sections of EPRLF and others.

When the process reached a crucial stage it was stalled with the outbreak of the war in 2006. The following years were not conducive for any progress in this matter.
* * * TamilNet came to know a rough outline of the initiative from the Late S.P.Thamilchelvan, Head of the LTTE’s Political Division and from some former members of the other militant organisations.

The inclusive initiative of Pirapaharan’s LTTE has to be pursued to its fruition by all well wishers of the cause of Eezham Tamils, is a strong voice heard from several quarters of Tamil civil society and activists.

HN: Czech businesses may lose contracts in Sri Lanka over human rights

ČTK | 

27 NOVEMBER 2012

Prague, Nov 26 (CTK) - The Sri Lankan authorities are reluctant to make good their promises that they will grant lucrative contracts to Czech businesspeople after the Czech Republic criticised the country over its violation of human rights in the United Nations, daily Hospodarske noviny (HN) writes yesterday.

Last year, Sri Lanka offered contracts worth billions of crowns as a reward for special relations with Czechs. The contracts are to help renew the country, devastated by decades of a civil war, HN writes.

However, Sri Lanka is now backpedaling on its promises because the Czech Republic criticised the violation of human rights in the country in the United Nations, it adds.

When former industry and trade minister Martin Kocourek returned from Sri Lanka last year, he had good news for Czech businesspeople. The Sri Lankan government offered contracts for the repair of a refinery in the town of Sapugaskanda to Czechs, HN writes.

The deal for half a billion dollars was not the only promise. The Sri Lankan government was also interested in the delivery of equipment for a hydraulic power plant and the construction of a new refinery in Trincomalee, it adds.

In Sri Lanka, Czech businesspeople had the door open to their businesses more than anyone else in Europe, HN writes.

The Czech Republic was one of the first to help the country after the 2004 tsunami and it keeps sending humanitarian aid there, it adds.

Besides, Czech arms makers, specifically the firm MPI Group headed by Michal Smrz, was delivering military materiel to the Sri Lankan government for a long time, helping it in its fight against the Tamil separatists, HN writes.

The firm heads a consortium that was to get the Sri Lankan deals soon, it adds.

"Now it seems that we will have to take part in routine tenders where the decision will mainly be made depending on the relations with Sri Lanka we have," Czech ambassador to India Miloslav Stasek is quoted as saying.

The bilateral relations significantly cooled this March when Sri Lankan diplomats indicated to their Czech counterparts that the agreed-on deals may no longer be valid, HN writes.

The diplomatic fire was only caused by a few sentences made by Czech U.N. ambassador Katerina Sequensova which went beyond a resolution of the Human Rights Council, criticising human rights abuse in Sri Lanka, it adds.

"Sri Lankan diplomats were outraged at the Czech Republic being very active, perhaps more than necessary when speaking about the state of human rights in the country," Rom Kostrica, a member of the Czech Chamber of Deputies who has just returned from a mission to Sri Lanka, is quoted as saying.

The March resolution was proposed by the USA and it was joined by the whole EU. Sequensova's commentary went beyond the joint proclamation, HN writes.

Referring to its own sources, HN writes that primarily Czech arms makers are outraged at the position of Czech diplomats, some even speaking about a "deliberately destructive foreign anti-policy."

"The gentlemen who are complaining should realise that other businesspeople are successful in Sri Lanka," Czech Foreign Minister Karel Schwarzenberg is quoted as saying.

"I have read the statement by the Czech ambassador. It was absolutely in order and truthful," he added.

The MPI Group was sending tanks, armoured personnel carriers, military vehicles and rocket launchers to Sri Lanka for almost ten years until the conflict ended three years ago, HN writes.

Czech diplomats and politicians are now trying to calm down Sri Lankan authorities, arguing that the Czech Republic is still a trustworthy partner, it adds.

Stasek has returned from his third visit to Sri Lanka since March, HN writes.

"We keep fighting, we are making our most," he is quoted as saying.

He has scored the first success as Sri Lanka sent two rare female elephants to the Prague zoo, HN writes.

This was promised before the March diplomatic dispute, but then Sri Lanka was reluctant to do so, it adds.

The Czech Republic now plans to open its embassy in Sri Lanka and to stage a Sri Lanka Week in Prague, HN writes.

"I think that in the future the policies of the industry and trade and foreign ministries should be harmonised," Kostrica said upon return from the country.

($1 = 19.636 crowns)

Czech businesses may lose contracts in SL

TUESDAY, 27 NOVEMBER 2012 15:24

The Sri Lankan authorities are reluctant to make good their promises that they will grant lucrative contracts to Czech businesspeople after the Czech Republic criticised the country over its violation of human rights in the United Nations, a Czech daily newspaper Hospodarske noviny (HN) reported.

Read more...

There Is More Freedom Of Expression In Burma Now Than In Sri Lanka – A conversation With U Nu’s Daughter

By Basil Fernando -November 27, 2012

Basil Fernando

We were one of the leading nations in agriculture and many other things in South East Asia. We have lost it all since the 1962 military takeover. Now advisors come from those countries, which were in very difficult position before 1962, to advice us on agriculture, and so many other things. Our health system has collapsed. Our education system, which was of the same quality as that in India those days, has now degenerated. Above all, our legal system does not exist at all. The courts are in neglected buildings, and they are quite dirty. Lawyers have to pay bribes to police officers. Corruption has got into everything … said Ms. Than Than Nu, the daughter of the first Prime Minister of Burma, Mr. U Nu, in a conversation with me and two of my colleagues today (27 November 2012) at her residence in Yangon.

Than Than Nu showed us her father’s autobiography written in Burmese that is reprinted after the recent lifting of censorship. Earlier, on three occasions, the military censor had refused permission to publish and had informed the publisher, not to bring it for a fourth time, as the censor himself had personally forbidden the publication.

After the censorship was lifted and the book reprinted, it has become a best seller. Some years ago this book was also translated into English under the title U Nu, the Saturday Born. Ms. Than Than informed us about the 1968 takeover and how the situation became worse by 1969 when their family had to flee from Burma. There was large-scale exodus of many, including the more educated sections of Burmese. She also spoke about how her father tried to organise an armed resistance from the Thai-Burmese border and how that too finally failed. Then the family went to India and Than Than returned only 2003. During exile, Than Than worked for the All India Radio, Burmese broadcast. She told us about how the broadcast from India became popular throughout Burma and the Burmese people across the world in those days of repression and how this broadcast was stopped after the Prime Minister Mr. Rajeev Gandhi’s assassination.

Answering our questions Than Than said that prior to 1962 there was a strong Supreme Court, a good judicial system and also a well placed legal profession. The law was respected and that was one of the reasons for the stability then. However after the military takeover, gradually, the judicial system came under the military control and lost its independence. Corruption was widespread and the people lost any trust in the legal process.

With the collapsing of the legal system, distrust about property rights spread and today one cannot be sure about ones ownership about anything. The government can confiscate anything and powerful persons can takeover any property. There are complaints about land grabbing everywhere.

Now there is an effort to make changes and Than Than believes that these are genuine efforts. However, there is also very strong resistance to change by those who have vested interests. They will try to resist many efforts for change. So there are formidable obstacles on the way. However the people are making efforts and they will fight on. Smaller parties like the Democratic Party to which Than Than belongs have also contributed to change though that is not noticed or talked about. What Than Than talked about regarding the dismal collapse of the rule of law system can easily be noticed everywhere. Than Than added that people talk about police reforms, but without judicial reforms, police reforms does not make any sense.

In a discussion with 30 young lawyers and political activists in Yangon on the rule of law, when a question was asked whether it is legal for policemen to beat-up people, the answer was that it happens in all police stations throughout the country. The idea whether something is legal or not, did not make sense to them.  If someone becomes a victim of crime it is hardly possible to expect any effective legal intervention or justice in any case. Corruption has got into everything and within that setup everyone knows that there is no real independence of the judiciary.

While these young lawyers and political activists are quite surprised and happy about the changes that are happening, like the beginning of the parliament where the opposition is actively participating in debates, and the lifting of censorship and the expansion of rights to have demonstrations, they were pessimistic about any rule of law emerging in the country in the near future. The lawlessness is so widespread that they are confused about how things could change. However many among them are persons who were imprisoned for political activism in the past, and they are determined to remain active for bringing more changes despite the confusion as to how this would be possible.

It is obvious that the media repression that prevails today in Sri Lanka has seized to exist in Burma. From the point of view of freedom of expression, and space for political activism, Burma now is a far better place than Sri Lanka.

MaRa fits Lamborghini engine to his Bulldozer to bulldoze the impeachment inquiry in a day
(Lanka-e-News -27.Nov.2012, 4.00PM) Even before the impeachment motion filed against the chief justice (CJ) has been heard and finished by the Kekile (mockery of justice) select committee of the govt. , the verdict in respect of this inquiry has already been finalized, according to reports reaching Lanka e news. This ‘Kekille court' decision is being finalized based on the written submissions forwarded by the CJ to it , and under the leadership of Minister Dr. G L Peiris. Former Attorney General (AG) Mohan Peiris and former CJ Asoka de Silva , currently Cabinet legal advisor are assisting him. The Despotic MaRa had given stern instructions that by 8th of next month everything should be concluded.

Interestingly , Anura Priyadharhsana Yapa , the chairman of the Select Committee comprising a greater majority by far of Govt. representatives (despite bitter objections raised by the opposition) , who is himself a Lawyer has a unique record of having never appeared in any cases any day in any Colombo court including the Supreme court , district court , appeal court or any other. Of course in keeping with his own propensities he has appeared only in kasippu (illicit liquor) cases at Kuliyapitiya .The antecedence of the other representative of the Kekile select committee , Minister Dilan Perera who went berserk the other day barking and trying to bite like a rabid dog at the previous select Committee meeting is as putrid or even worse. He too has never appeared any day in any case in the Supreme , appeal of High court.' 

The whole kekile select Committee is nothing but a puppet show of the Rajapakses . Despotic and desperate MaRa had during the last Kekille select Committee meeting spoken twice to Yapa by phone. Consequently , the seven Govt. representatives cannot take independent decisions or arrive at a consensus. If the puppets of MaRa do not dance to his tune , to MaRa who is frantically attempting to chase the CJ because she does not toe the line of MaRa’s despotic and unlawful policies , chasing away these ‘puppets’ is as simple as placing a signature. There is no one in that ‘Kekille King’ puppet show who is not aware of that.
By now , every one is aware that Lanka e news is always first with the news and best with the views. This was even confirmed by the IGP himself who urged his subordinates recently at a high profile meeting to read Lanka e news which is first with all the secret information. We were the first to reveal boldly and forthrightly earlier on that an impeachment motion was in the pipeline against the CJ. Today , we reveal likewise another hitherto unknown truth that the Kekille select Committee of MaRa puppets are already finalizing the verdict against the CJ under the leadership of Dr. Peiris.
While this is the disastrous situation in the country based on actual events , speculations and otherwise relating to the impeachment motion steered by the dictatorial MaRa aimed at annihilating the independent judiciary , and thereby pave the way for a complete despotic control over the country wiping out even that little democracy that is now remaining , isn’t it the paramount duty of the joint opposition to rid itself at least now of its favorite sleepy and somnambulism afflicted habit and its hobby horse of blabbering about some vague and abstract theory ? The realization must dawn on the opposition and its leaders that they have to take to the streets with all their might now , or it will be too late when they wake up from their sleep and lethargy. The people, the political leaders ,the intelligentsia and the legal sphere should also understand the urgency of such a campaign . We are at the crossroads where a crucial decision must be taken .Are we to be idle spectators waiting until the devil drives us to hell just because we have committed the initial grave blunder of putting the devil at the wheel, and that it only knows to drive us to hell ?

Surely shouldn’t we understand that MaRa has got down super luxury Lamborghini cars at reduced taxes while people are starving not for nothing . It is to bulldoze his diabolic and devastating plans even faster using the Lamborghini engines on his Bulldozers.

Sri Lanka impeachment hearing begins

23 Nov 2012

Sri Lanka's chief justice has faced the first day of an impeachment hearing. The 54-year-old judge was summoned after lawmakers rejected her appeal for more time.

From the capital Colombo, Minelle Fernandez reports.

K.H.J Wijayadasa And Lloyd Fernando: Governance Is The Foundation Of Sustainable Prosperity

By W.A. Wijewardena –November 27, 2012

Dr W.A. Wijewardena

Wijayadasa’s thesis

The veteran Civil Servant and Secretary to two former Presidents, K.H.J Wijayadasa has delivered a very strong message to contemporary Sri Lankans in his publication “Governance, Heritage and Sustainability” launched last week in Colombo before an audience of likeminded veterans belonging to his era. He has said that the “legitimacy of government is measured by degree of democratisation, accountability of official and political elements of government, transparency, respect of human rights as well as the ability to uphold the sanctity of the rule of law”. Explaining what he means by this, he has said that at political levels, the rulers should be held accountable to the people whom they rule by giving the people a chance to contest the political power. Today’s trend has been, he says, moving toward a less authoritarian mode of power exercised by politicians and supported by a participatory approach in which everyone at all levels has a say about the doings of the governments. This view of Wijayadasa is consistent with how democracy has been defined by Nobel Laureate Amartya Sen in his 2009 book “The Idea of Justice”: Democracy is government by consultation.

Wijayadasa: Sri Lanka should strengthen its Supreme Court

In Chapter I of the book, presenting his observations of the American Presidential election of 1996, Wijayadasa has praised the checks and balances established in the American system of governance to limit the authoritarian powers of its Executive Presidency through an effective separation of powers among the three major branches of the state: The Executive, the Legislature and the Judiciary. Based on the virtues of the American system, he has recommended to Sri Lanka that the country’s Supreme Court should be armed with more powers to determine the constitutionality of both legislative and executive actions. In my view, Wijayadasa’s prescription is timely and opportune in view of the current embroilment between the Supreme Court and the other two branches of the state in Sri Lanka. It is the opinion of the constitutional experts that the Supreme Court exercises its powers on behalf of the people in whom the sovereignty has been vested just like the other two branches do the same on behalf of people.

Dandamis: Instill fear but don’t expect love and respect from others

But such a separation alone cannot guarantee the elimination of authoritarian rule in a society. The three branches should respect each other and should have cultivated a practice of morality of not using the powers vested in them for a different cause to instill fear in others. This was eloquently communicated to Alexander the Great by Dandamis, a Sage in the ancient Indian University of Taxila, when Alexander asked him the question: “How can one make oneself loved and respected by others?” The answer of Dandamis was swift and clear: “If you have enormous powers, but still you do not instill fear in others, then, you are loved and respected” So, good governance requires each of the branches of the state to use its powers responsibly and with due accountability without instilling fear in other branches. Wijayadasa has in his book provided a blueprint of how a government should accomplish this wish of a nation.

Rulers are simply servants and not masters                          Read More

SRI LANKA: The Standing Orders relating to the impeachment are flawed in law - says an international expert

Contributors: St. Petersburg

LEGAL OPINION

November 27, 2012

1. I am Sergei GOLUBOK. I hold postgraduate degrees of LL.M. in International Human Rights Law awarded by the University of Essex in the United Kingdom and Candidate of Juridical Sciences in Public International Law and European Law awarded by the St. Petersburg State University in the Russian Federation. In 2008-2011 I had an honour to serve as a legal secretary at the Registry of the European Court of Human Rights in Strasbourg, France. Currently I am a practicing attorney and member of the St. Petersburg Bar Association appearing before Russian courts including the Supreme Court of the Russian Federation and before the international human rights tribunals such as, for example, the Committee against Torture. I am also a deputy editor-in-chief of the International Justice law journal which is published by the Institute of Law and Public Policy and teach international law at the Russian Academy of Justice in Moscow.

2. It was brought to my attention that the following question had been referred to the Supreme Court of Sri Lanka: Is it mandatory under Article 107 (3) of the Constitution [of Sri Lanka] to provide for matter relating to the forum before which allegations are, the mode of proof, the burden of proof, standard of proof etc., of any alleged misbehaviour or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?

3. Pursuant to Article 107 (3) of the Constitution of Sri Lanka in conjunction with Article 107 (2) of the said Constitution Parliament shall by law or by standing orders provide for all matters relating to the presentation of the address on removal of the serving Judge of the Supreme Court and of the Court of Appeal on the ground of misbehavior or incapacity ("the impeachment procedure") including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.

4. I was approached by the Asian Human Rights Commission with a request to prepare this opinion on international legal standards concerning the fair-trial guarantees in the impeachment procedures against serving judges.

5. The most important point of reference is the International Covenant on Civil and Political Rights (hereinafter, "the Covenant") to which Sri Lanka is a State Party. Article 14 § 1 of the Covenant provides that all persons shall be equal before the courts and tribunals and that in the determination of his or her rights and obligations in a suit at law everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Further, under Article 25 (c) of the Covenant every citizen shall have the right and the opportunity without any distinction on the basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and without unreasonable restrictions to have access to public service in his or her country, on general terms of equality.
6. In its jurisprudence the Human Rights Committee (hereinafter, "the Committee"), an independent expert body tasked with the interpretation and application of the provisions of the Covenant, has developed the meaning of the rights listed in the preceding paragraph of this opinion with relation to the impeachment and other types of involuntary removal from office of serving members of the judiciary.

7. The Committee found that a dismissed judge should have at his or her disposal the availability of effective judicial protection of his or her rights and be able to effectively contest the removal (see Views of the Committee rendered on 5 August 2003 in the matter of Pastukhov v. Belarus, Communication no. 814/1998, UN Doc. CCPR/C/78/D/814/1998, at para. 7.3).

8. With respect to the parliamentary impeachment with no subsequent judicial remedy the Committee found violations of Articles 14 and 25 of the Covenant referring to the conclusion that such procedure would not ensure required objectivity and impartiality (see Views of the Committee rendered on 24 July 2008 in the matter of Bandanaranayake v. Sri Lanka, Communication no. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005, at para. 7.3).

9. In its concluding observations on Sri Lanka the Committee expressed concern that the procedure for the removal of judges which is set out in Article 107 of the Constitution of Sri Lanka is incompatible with the Covenant as it allows Parliament "to exercise considerable control over the procedure for removal of judges" (UN Doc. CCPR/CO/79/LKA, at para. 16). The Committee went on to recommend to Sri Lanka to provide for judicial, rather than parliamentary, supervision and discipline of judicial conduct.

10. The then Special Rapporteur of the United Nations Human Rights Council on the Independence of Judges and Lawyers (hereinafter, "the Special Rapporteur") Mr Leandro Despouy of Argentina opined in 2009 that the irremovability of judges was one of the main pillars guaranteeing the independence of the judiciary and that that fundamental principle might be transgressed only in exceptional circumstances (see UN Doc. A/HRC/11/41, at para. 57). Special Rapporteur Despouy further expressed his strong concern about the situation in those countries where, like in Sri Lanka, the legislative or executive branches of the government play an important or even decisive role in disciplining judges (see UN Doc. A/HRC/11/41, at para. 60).

11. The serving Special Rapporteur Mrs Gabriela Knaul of Brazil issued a special press statement on 14 November 2012 expressing her concern about reprisals against judges in Sri Lanka and urging reconsideration of Chief Justice's impeachment. Having reiterated her predecessor's thoughts as summarized in the preceding paragraph of this opinion, the Special Rapporteur expressed her uneasiness with the procedure of impeachment of the Chief Justice of the Supreme Court of Sri Lanka. She shared the view of the Committee that 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 Covenant. The Special Rapporteur urged the Sri Lankan authorities to reconsider the impeachment of Chief Justice and ensure that any disciplinary procedure that she might have to undergo would be in full compliance with the fundamental principles of due process and fair trial.

12. The European Court of Human Rights (hereinafter, "the European Court") in its jurisprudence likewise considers possibility of independent judicial review with full fair-trial guarantees to constitute inalienable element of any involuntary removal from office of a serving judge.

13. Thus, in its recent judgment in Harabin v. Slovakia (Application no. 58688/11) the European Court found the following: "The mission of the judiciary in a democratic state is to guarantee the very existence of the rule of law. The [European] Court therefore sees as a matter of major importance when a Government, as in the present case, initiates disciplinary proceedings against a judge in his or her capacity as President of the Supreme Court. What is ultimately at stake in such proceedings is the confidence of the public in the functioning of the judiciary at the highest national level. It is therefore particularly relevant that the guarantees of Article 6 [of the European Convention on Human Rights which is substantially similar to Article 14 of the Covenant] should be complied with in such proceedings" (at para. 133 of the European Court's judgment rendered on 20 November 2012).

14. The European Court has earlier found that Article 6 § 1 of the European Convention is fully applicable in the disciplinary proceedings against a sitting judge (see the judgment of 5 February 2009 in Olujić v. Croatia, application no. 22330/05).

15. It follows that a serving judge in disciplinary proceedings which might ultimately lead to her or his dismissal should be entitled to fair-trial guarantees including a right to be tried by an independent tribunal. According to the international legal standards all disciplinary (including those ultimately potentially leading to removal) proceedings against members of the judiciary must be determined in full compliance with the procedures that guarantee the right to a fair hearing and to an independent review (by a court of law).

16. Given the absence of such guarantees procedure as currently established by the Standing Orders enacted by the Parliament under Article 107 (3) of the Constitution cannot be legally used.

Respectfully submitted,

Dr Sergei Golubok, LL.M.
Attorney-at-Law, St. Petersburg Bar Association, Russian Federation
Turistskaya, 18-1-349
197374, St. Petersburg, RUSSIAN FEDERATION

Bar Association headed by President Wijedasa Rajapakse hit back hard at Govt.’s : Unconstitutional impeachment : rift deepens

(Lanka-e-News -27.Nov.2012, 6.00AM) The SL Bar Association today filed a historic fundamental rights (FR) petition in the Supreme Court against the impeachment process of the MaRa Govt. in respect of the chief justice (CJ) Dr. Siranee Bandaranayake. This petition was filed in the SC by Wijedasa Rajapakse , Attorney at law , the President of the Bar Association and four others. The speaker and the 11 members of the Select committee had been named as respondents. In the petition it is pointed out the efforts of the Govt. unconstitutionally to remove the CJ from office is impinging on the very foundation of the judiciary including verdicts delivered by the courts in respect of the Govt. It further states that where an individual is charged ,unless and until the individual is proved guilty duly in a properly conducted investigation that individual must be legally considered as innocent. Hence the impeachment motion is in contradiction of the legal traditions and protection of the laws , whereby it is creating a pernicious precedent, it asserts. The Bar Association has questioned in the petition the validity of the standing orders under which the impeachment motion was tabled. Although a body can be appointed under the constitution to hear the impeachment motion , the standing order on which the select Committee was appointed is not valid , it argues. The SL Bar Association has in the circumstances declared that the impeachment process cannot be carried out under the relevant standing order , and has hence requested an injunction order to halt the Parliamentary select committee proceedings pertaining to the impeachment process. The SL Bar Association is the apex professional body of the Lawyers of the country.

Follow The SC Recommendation Urges Lawyers

By Colombo Telegraph -November 27, 2012 

“In a democracy, public expect all the institutions including the parliamentarians to respect the recommendations and orders of the highest Court of the country.  Unless the public, lawyers and judges come forward to the protect the judiciary, our future generations will be left with a lawless state.  We call upon the Parliament and the Executive to display maturity when dealing with the impeachment, and not to proceed with the impeachment until the Supreme Court exercise its constitutional duty in the relevant interpretation.” says Lawyers for Democracy.

Lal Wijenayaka

“There is no legitimate basis to expedite this inquiry ignoring the Supreme Court recommendation. The manner in which the inquiry is being conducted has converted the inquiry against the Chief Justice into a trial on the parliament itself.” issuing a statement its convener Lal Wijenayaka further says.

We below reproduce the statement in Full;

The Supreme Court (SC)  is now possessed with several cases where the Court is constitutionally bound to interpret the constitution and to determine the constitutionality of the Standing Order 78A, that deals with the impeachment procedure. The Supreme Court has made a recommendation that the Select Committee of Parliament (PSC) should not proceed with the impeachment inquiry until the SC examines the validity of the questionable  Standing Order on which the impeachment inquiry is being based.

We view the Recommendation given by the Supreme Court as a great opportunity for all parties to restore mutual respect and rule of law and to avert a constitutional crisis in the country.  We are dismayed that the PSC has, by majority, rejected the recommendation of the Supreme Court  and to proceed with the inquiry, with scant disregard to the constitutional traditions.

There is no legitimate basis to expedite this inquiry ignoring the Supreme Court recommendation. The manner in which the inquiry is being conducted has converted the inquiry against the Chief Justice into a trial on the parliament itself.

In the mean time the Chief Justice and the judiciary are subjected to all possible humiliation  to an unprecedented level. We note with regret the level of media attacks in State media and the circulation of mudslinging booklets/posters obviously, instigated by the Government, to discredit the Chief Justice and the judiciary.

In a democracy, public expect all the institutions including the parliamentarians to respect the recommendations and orders of the highest Court of the country.  Unless the public, lawyers and judges come forward to the protect the judiciary, our future generations will be left with a lawless state.  We call upon the Parliament and the Executive to display maturity when dealing with the impeachment, and not to proceed with the impeachment until the Supreme Court exercise its constitutional duty in the relevant interpretation.

Singed On behalf of Lawyers for Democracy

Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan , K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe ,Sudarshana Gunawardana, Lakshan Dias , Sunil Jayaratne, Harin Gomas, S.G. Punchihewa

*Lawyers for Democracy (LfD) is a representative body of legal practitioners throughout the island. Conveners include Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan , K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe ,Sudarshana Gunawardana, Lakshan Dias , Sunil Jayaratne, Harin Gomas, S.G. Punchihewa.

Related posts;

Full Text Of The Supreme Court Request To The Parliamentary Select Committee

Full Text: Dr Jayampathy Wickramaratne’s Petition Against The Impeachment Of The CJ

Full Text: Chandra Jayaratne’s Petition Against The Impeachment Of The CJ