Monday, January 7, 2013

Un-truths and Distortions about the Impeachment Process

(Lanka-e-News -07.Jan.2013, 6.00PM) The campaign justifying the impeachment of the CJ is forging ahead regardless with enhanced vigour even after Supreme Court has pronounced through the Court of Appeal that “it is mandatory under article 107(3) of the Constitution for the Parliament provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity.”

Despite that legality of the impeachment proceedings are continued to be discussed in public even by members of the Parliamentary Select Committee. Minister Susil Premajayantha, himself a lawyer has stated that a burden of proof is not a crucial ingredient in the impeachment inquiry of a judge. If it was said by Minister Wimal Weerawana one can ignore it as balderdash but when it is said by a lawyer the reader will be bewildered as to whether he is bluffing or is lacking in his knowledge of the basic tenets of law. Surely he should be aware of that Article 12 (1) and 13(5) respectively of the Constitution of Sri Lanka stipulate that all persons are equal before the law and every person shall be presumed innocent until he is proved guilty. Although the Supreme Court has given a final verdict rebutting all these so-called ‘law points’ raised by many lawyers, journalists and others, it will be still pertinent to have a look at the procedures adopted by some countries in impeaching their judges which have relevance to our jurisprudence on the subject.

The necessity of a burden of proof and the degree of proof required to impeach a judge has been discussed by the panel of Senator-judges in the impeachment of Chief Justice Renato Corona of the Philippines, a country which follows the American System of Law in general and impeachment of judges in particular. The panel quoted with approval and favour, a book titled ‘Impeachment – A Handbook written on the impeachment’ of Presidents, judges and other officers of state in USA by a renown professor of the Yale University, Charles Black Jr, where he has stated “the Burden of Proof required in the impeachment proceedings is ‘overwhelming preponderance of evidence’, not merely preponderance of evidence followed in civil cases, but a more stringent proof.” Rule No. 133(1) of the Rules of Court of the Supreme Court of the Philippines which stipulates the Court may consider all the facts and circumstances of the case, the witnesses, manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the facts to which they are to testify, the probability or improbability of their testimony, their interest or want of interest and their personal credibility so far as the same may appear upon the trial.
The Senator- judges drawing from Black Jr.s’ Hand Book were agreed that the degree of proof must be one of “clear and convincing proof” a much more stringent standard the in preponderance of evidence but less than proof beyond reasonable doubt. But in a close reading by a trained legal mind it will appear that clear and convincing proof is nothing more in the final analysis than proof beyond reasonable doubt. Full story >>

CJ’s Case: Full Text Of The Court Of Appeal Determination Today

By Colombo Telegraph -January 7, 2013

Full text of the today’s Court of Appeal determination.In the application filed by the Chief Justice, the Court of Appeal has issued a Writ of Certiorari quashing the proceedings of the Parliamentary Select Committee on the impeachment.

The Court held that it had jurisdiction to look into this matter and it had the power to exercise judicial review on findings provided by the Constitution. Therefore this power cannot be abdicated by the other arms of the government namely the Legislature or the Executive.

Read the full text here

CJ’s Case Today Update : Whole Impeachment Fiasco Is Intended To Remove The CJ And Appoint A Stooge – Romesh

By Colombo Telegraph -January 7, 2013

The writ application filed by the Chief Justice Dr. Shirani Bandaranayake was taken up today, 7th January 2013 at 10am, before Justices S. Sriskandaraja, Anil Gooneratne and Salam.

Chief Justice

Romesh De Silva, PC appearing for the Petitioner, commenced submissions citing an observation of Chief Justice Abrahams in colonial times when the Attorney General of Ceylon appeared to defend the Governor General in a case, that the court is the only place of refuge for the citizen and said that it is imperative that court does what is right.

He made reference to the Supreme Court determination that Standing Order 78A is ultra vires and unconstitutional and submitted that on that ground alone, the relief sought should be granted, given that under the Constitution it is the Supreme Court alone which is required to interpret the Constitution. It is clear that the PSC is illegal.

Romesh De Silva submitted that apart from the above, the purported inquiry was held in a manner that was lacking in terms of the requirements of Wednesbury Reaonableness. Failure to give a list of witnesses and documents, no proper time given to inspect rheams of documents given with less than 24 hours to go through, denial of opportunity to xross-examine witnesses, refusal to allow independent observers etc were referred to.

De Silva also made submissions highlighting the inordinate bias of the government nominated members of the purported Parliamentary Select Committee. Clearly, the accusers, prosecutors and judge were all the same – contrary to all norms of a proper, fair impartial inquiry.

De Silva also submitted that the PSC acted deviously by informing the CJ and her lawyers that no witnesses were being called and surreptitiously calling 16 witnesses over the phone. Thus, steps were taken to deprive the CJ of a fair inquiry.

He also submitted thar there was also procedural impropriety, in that there was no proper clear procedure adopted by the PSC. In fact, all steps taken to secure a proper process were refused and denied.

Monday, January 07, 2013

The Supreme Court decision that the Parliamentary Select Committee (PSC) appointed in terms of Standing Order 78A has no legal power or authority to make a finding adversely affecting the legal rights of a judge without a definite finding that the allegations have been proved and that no address of parliament could be made for the removal of a judge, does not appear to be acceptable to parliament. The Appeal Court announced the decision of the Supreme Court Divisional Bench. This ruling goes against the expected address by President Mahinda Rajapaksa on the PSC decision, which found Chief Justice Dr Shirani Bandaranayake guilty of certain allegations and recommended that she be dismissed from the post of Chief Justice.
Following the ruling of the Supreme Court, Deputy Speaker Chandima Weerakkody has said that the court ruling regarding the issue would not be binding on Parliament. The Deputy Speaker addressing the media had said that the Speaker Chamal Rajapaksa had ruled that no external pressures could infringe parliamentary powers and privileges dealing with the Select Committee process.
The debate on whether the Supreme Court could make a ruling on decisions made by the PSC and whether the parliament is bound to accept such a ruling has been an issue of national debate both in legal circles as well as the public. On Thursday, while the announcement of the Supreme Court was being awaited, there were public meetings held in Colombo on the issue such as by trade unionists supporting the ruling UPFA coalition. The country appears to be deeply polarized on the issue and the two sides are like two trains running on parallel tracks with no end in sight.
Vital questions arise on the consequences of parliament refusing to accept the rulings of the supreme legislature of the country and the fallout of the possibility of this ruling on non-acceptance of the Supreme Court decisions being followed by the public. The judiciary interprets the law of the land formulated by the legislature and non-acceptance of such rulings could lead to extreme chaos. This kind of confrontation does not usually occur in recognized democracies and is avoided by parties concerned.
In countries that follow democratic traditions and conventions, wiser counsel prevail. Acceptance of advice by authoritative and respected personalities who intervene in the interests of the welfare of the nation is a usual practice although often not made public. A nation needs venerable senior advisers who have achieved eminence in their respective fields and are considered statesmen. There has been the remarkable absence of such people who are considered statesmen since the early 1970s. Today strongmen prevail over statesmen.
While the crisis was building up and the legislature was preparing to lock horns with the judiciary, there appeared to be no restraint placed on those abusing members of the judiciary even in journals and other media controlled by the state.
This sad state of affairs was perhaps inevitable in considering the ways in which the executive, legislature and the judiciary have conducted themselves over the years. In the pre 1970 days senior members of the judiciary, legal profession and even legislature had sane and sober individuals who would not have permitted escalation of the confrontation between the three arms of government to the extent of the present disgraceful levels. Maverick Felix Dias Bandaranaike commenced the rot with political appointments to the judiciary. The then government assumed the role of a village thug conducting themselves on the principle of the power of the majority of the two-thirds in parliament. Anything done with a two third parliamentary majority in the political interests of the government was law and this erroneous concept of justice still seems to be a hangover. Properties of innocent were taken over, political opponents ridiculed and punished. Leading legal luminaries now conferred with sanctity of epitomes of justice destroyed long-standing institutions of the country. Today, in their dotage some of them write to papers now in defence of human rights.
The sovereign people overthrew that corrupt and chaotic government giving J. R. Jayewardene a five-sixth majority. His supporters soon after victory went on the rampage and the leader himself added fuel to the rising fires. Judges were sacked en masse, their houses stoned and the riots continued only to be picked up by the Rajapaksa administration. Victory in ‘war’ made them heroes but what follows is certainly not heroic. This complex of a two-third majority conferring near divine powers is today at the root of all evil.
Today Mahinda Rajapaksa has the enhanced executive powers, which were conferred on him by parliament as well as the parliament at his command.
In the 17th Century Louis XIV of France declared: L’Etat Cest Moi – I am the state. He wanted to be absolute ruler of France and to control France without anyone’s help. Things are different in today’s world where absolute power is rejected. Francois Hollande, who became French Prime Minister recently, had the plank for election the taxing of the super rich. Two weeks ago France’s constitutional court, Conseil Constituionale, struck down the law proposing a 75 per cent income tax on the wealthiest people. Hollande however is not an absolute ruler and would now have to bow down to the decision of the court.
The ongoing Sri Lankan constitutional crisis should not be viewed as a battle of egos. It would only be destructive to the country and self destructing to the dramatis personae as well. The essential objective should be to ensure that justice is being done to the Chief Justice.
If the government believes in the allegations made against her, it could still be done in a fair trial where the principles of natural justice are observed. A way out should be sought to settle the dispute with wise counsel. While the legislature is supreme in the legislative sphere, it is not in the dispensation of justice. The conduct of some representatives within the walls of their own chamber would have disqualified them from being judges.

Breaking News: Writ Issued By Court Of Appeal

By Colombo Telegraph- January 7, 2013

In the application filed by the Chief Justice, the Court of Appeal has issued a Writ of Certiorari quashing the proceedings of the Parliamentary Select Committee on the impeachment.

Accordingly, there is no valid, actable finding under the law as pronounced by the Appeal Court on the basis of which a vote can be carried in the legislature to remove the Chief Justice from office.

The position endorsed by the Court is effectively that steps need to be taken to provide by legislation (as opposed to Standing Orders) for the impeachment of Superior Court judges. This means that since draft legislation (a Bill) is reviewable by the Supreme Court as per the Constitution upon being referred by a citizen within 7 days of it being placed on the Order Paper of Parliament for inconsistencies with the Constitution including provisions for the protection of fundamental rights, it would be possible for the citizenry to ensure that any Bill is only enacted into law with provisions that ensure adequate safeguards to ensure the degree of due process needed to ensure judicial independence.

Await further details.

The Danger Behind The Bipartisan Agreement On Parliament’s Supremacy

By Jehan Perera -January 6, 2013

Jehan Perera

The Rule of Law means that everyone in a society is compelled to abide by the prevailing laws. These laws are interpreted by the courts of law in the light of the supreme law as stated in the Constitution. If anyone refuses to accept the decision of the judiciary, they are punished. If the government refuses to abide by the decisions of the judiciary the Rule of Law will break down. This is the uncertainty that Sri Lanka faces, now that the highest court of all, the Supreme Court, has decided that the power of the Parliamentary Select Committee appointed to decide on the validity of the charges against the Chief Justice is a nullity in law.

The manner in which some of the members of the Parliamentary Select Committee are reported to have behaved in their face to face interactions with the Chief Justice has not improved public confidence in the justice of their decision. They found the Chief Justice to be guilty of three of the five charges out of 14 that they were tasked to inquire into. The speed and manner in which these findings were made, and that the target was the Chief Justice has done nothing to improve the situation. In the public mind the judiciary remains the most trustworthy institution capable of meting out justice to victims of injustice.

Sri Lankans who desire the wellbeing of their country and of its people, and who are not blinded by the prejudices of partisan party politics, will be hoping and praying that the government finds a better way of dealing with the problem. Too much is at stake for it to be otherwise. If the government disregards the Supreme Court, it will send out a message to other wrongdoers that they too can hope to disobey the law and get away with it. What is sauce for the goose will be sauce for the gander as well. The intimidation of judges and empowerment of wrongdoers will invariably paralyse the system of justice at all levels, and not merely at the very top.

COMMON POSITION

The ambivalent approach of the main opposition party to the crisis that is engulfing the country might appear to be perplexing. The UNP’s refusal to permit its members to participate in the Court of Appeal hearing into the petition challenging the Parliamentary Select Committee was no different in practical terms from that of the government. The government members of the PSC also did not go before the court to argue their side of the case and explain themselves. Their common ground is the supremacy of Parliament to conduct its affairs without interference from the judiciary. The question is whether judicial oversight is interference or a guarantee of protection of the rights of every citizen which is the bounden duty of the judiciary.

The common position on the judiciary’s role vis a vis the Parliamentary Select Committee adopted by the government and UNP reveals a mindset of ruling politicians and governments that goes back several decades. When Sri Lanka received its independence in 1948 its political leaders were steeped in the British tradition of respecting the role of the judiciary. But this broke down in the succeeding decades. In 1972 the government of that time decided to make a break with those colonial legacies that they felt were holding back the country’s power surge into the future. The so-called autochtonous or home-grown constitution of 1972 gave pride of place to Parliament and downgraded the judiciary and also brought the public service under the elected politician.

The desire of the government leaders of 1972 was to give Parliament and the ruling party virtually unfettered powers to do what they deemed necessary for the country’s progress and development. The stated aim was an advanced socialist democracy in which prosperity would be evenly distributed to the masses of people. However, the results of excessive government intervention and nationalization of economic enterprises were not encouraging and economic development plummeted to the point that people had to stand in line to buy bread. Unfortunately the lesson that power corrupts and unchecked power corrupts even more was not taken to heart.

DANGER SIGNS

The Constitution of 1978 was designed with the aim of promoting rapid economic development. Once again power was centralized for the purpose of making those decisions that would propel the country on the path of economic takeoff on the lines of East Asian countries. But instead of Parliament being the repository of centralized power as in the 1972 Constitution, much of the centralized power was handed over to the newly introduced Executive Presidency. The first President under this constitution was happy to say that he was now freed from the “whims and fancies” of Parliament to do as he willed. But the promised economic progress was not sustainable and to make matters worse, the disempowerment of the ethnic minorities plunged the country into ethnic war.

The fact that the two small political parties that had members in the Parliamentary Select Committee decided to go before the Court of Appeal demonstrates their assessment of the need for a countervailing power and system of checks and balances. Unlike the UPFA and UNP, the TNA and JVP can never hope to control the majority in Parliament. Therefore they appreciate the role of the judiciary that would ensure the justice they cannot get from the Parliamentary majority. In addition, the appearance of a bipartisan consensus between the government and UNP in refusing to appear before the Courts on the issue of the impeachment of the Chief Justice may be a tactical one on the part of the opposition party. It is significant that the UNP has also said that the government should obey the Supreme Court order. They may well be giving the government the rope to hang itself.

There is also the role of the international community to consider. Already the government is on the back foot internationally on account of alleged war crimes and human rights violations during the war. In March last year the majority of countries in the UN Human Rights Council voted that Sri Lanka should implement the recommendations of the Lessons Learnt and Reconciliation Commission. Among the key recommendations of the LLRC were to strengthen the Rule of Law and for the government to respect the integrity of public institutions, including the judiciary. The flouting of these recommendations can provide the international community with the opportunity for a stronger recommendation that troubles the government the next time theUN Human Rights Council meets in March of this year.

UNP calls for changing law on judges’ impeachment

(Lanka-e-News -07.Jan.2013, 6.00PM) The UNP says the law with regard to the impeachment of judges in Commonwealth countries has changed after the decision taken at the 2003 meeting of the Heads of Government of the Commonwealth in Abuja, where the Latimer House principles were adopted.

A media statement issued by the UNP yesterday said: "Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.

"Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapakhe, PC, has given notice. This would be in keeping with the decision of the judgment of the Supreme Court," it says in the statement.

Full text of the UNP statement: "The Supreme Court Judgment of Amaratunga J, in Chandra Jayaratne v. Anura Priyadarshana Vapa held

a. "It is mandatory for Parliament to provide by slaw the Body competent to conduct the investigation contemplated in Article 107 (3)

b. The Selection of the body to investigate the allegations of misbehavicr or incapacity and its composition and ‘the manner in which the investigation is to be conducted (procedure) are all matters to be decided by Parliament in its wisdom keeping in mind the necessity to ensure ‘equal protection of the law’ enshrined in the Constitution,

This judgment upholds the issues raised by the UNP (i) that a Resolution to remove a judge under Article 107 is a matter coming: solely within the purview of Parliament and (ii) it is also a requirement to have an independent, impartial inquiry in accordance with the Latimer House principles.

This judgment traces the history of the Constitutional provisions relating to a resolution of Parliament to remove a judge. The Supreme Court identified the differences between Article 107 (3) of the present Constitution and the provisions of the previous Constitutions. The present Constitution prepared by President J R Jayewardene strengthened the safeguards for the judiciary. i.e. Standing Order 78A.

The first set of Standing Orders dealing with an inquiry under Article 107 (3) was passed by Parliament in 1984. The inquiry in relation to Chief Justice Neville Samarakoon was carried out under Standing Order 78 A, Parliament appointed a Select Committee under Standing Order 94 to inquire into whether the judge had made the statement in question. The Select Committee reported that the statement in question had been made by Chief Justice Neville Samarakoon who himself in writing informed the Committee that he had made such a statement. A resolution in terms of Article 107 was presented to the Speaker based on the findings of this Report. Thereafter the Speaker appointed a Select Committee under Standing Order 78A.

The law in this regard changed after the decision taken at the meeting of the Heads of Government of the Commonwealth in Abuja in 2003 which adopted the Latimer House principles. The Latimer House Declaration states:

"1. Judicial Accountability (a) Discipline: (i) In cases where a judge is at risk of removal the right to be fully informed of the charges, to be represented at a hearing to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to: A. Inability to perform judicial duties and B. Serious misconduct

(ii) in all other matters, the process should be conducted by the Chief Judge of the courts;

(iii) Disciplinary procedures should not include the public admonition of the judges. Any admonitions should lie delivered in private, by the chief judge.

Sri Lanka as a member of the Commonwealth is under obligation to implement this Resolution. The Commonwealth reiterated its commitment not only to the Latimer House principles but also to the political values of the Commonwealth at the Porto Spain Declaration in Trinidad and Tobago in 2009.

Therefore the UNP calls on President Rajapaksa and his government to enact as urgent legislation the Private Members Bill titled "Removal of Judges of the Supreme Courts" of which Member of Parliament Wijedasa Rajapaksa, PC:, has given notice. Thins would be in keeping with the decision of the judgment of the Supreme Court.

The UNP also points out that the Supreme Court did riot accept the arguments put forwards by the Attorney General that the present Constitutional provisions and the Standing Order 78A was sufficient to carry on an inquiry under Article 107 of the Constitution. Furthermore, the Supreme Court did riot accept the argument put forward by some of the political parties that the Select Committee of Parliament exercised judiciary power and was therefore contrary to Article 4 (c ) of the Constitution. Those who make accusations against the UNP today are the same parties whose arguments were not accepted by the Supreme Court.

Some of the daily English media and the Indiana media have sought to misconstrue the UNP’s non participation in these proceedings.

In addition to the ruling given by Speaker Anura Bandaranaike in June 2001, the Supreme Court in Attorney General v, Samarakkody, and the Court of Appeal in Gomez v. Mohomed have held that Parliamentary proceedings are not justiceable by courts. The present judgment has reinforced this position. It must also be mentioned in this connection that section 9 of the Parliament (Powers and Privileges) Act requires 1-hat all privileges, immunities and powers of Parliament shall be part of the general and public law of Sri Lanka and the same shall in all Courts in Sri Lanka be judicially noticed.

The Members of Parliament representing the UNP in the Select Committee did not sign the report. They submitted their views on the procedure to the Select Committee. Not having received a received a reply they submitted their resignations to the Speaker. Therefore they were not members of the Select Committee at the time it became functus.

It alto appears that ail parties have missed a very vital matter, namely Section 49 of the Judicature Act, which provides:

49(3) "Where any Judge who is a party or personally interested, is a Judge of the Supreme Court or the Court of Appeal, the action, prosecution, proceeding or matter to or in which he is a party or is interested, or in which an appeal from his judgment shall be preferred, shall be heard or determined by some other Judge or Judges of the said court".

In other words, the Section ousts the jurisdiction of the Court of Appeal in a case where a Supreme Court Judge is a party or is interested in any action before a Court and vests jurisdiction solely in the Supreme Court. The Section has been carefully drafted to encompass not only cases where the Judge is party but to include actions in which a Judge has an interest in, as would be the case, in all actions relating to a resolution for the removal of a Supreme Court judge under Article 107.

The Court of Appeal could therefore not have issued the notice.

The jurisdiction of the Court of Appeal is set out in Articles 138 – 146 of the Constitution. This read together with Section 9 of the Parliament Powers and Privileges) Act and Section 49 of the Judicature Act would therefore give rise to a constitutional question. The Court of Appeal’s reference of this to ‘the Supreme Court under Article 125 of the Constitution ors was limited to Article 107(3) of the Constitution. The Court did not refer this issue to the Supreme Court.

Unfortunately interested parties in Sri Lanka have sought to treat judicial independence as their private right with no one else having the right to speak on the independence of judges contrary to the view they hold. This is as dangerous as the Rajapaksa regime’s view chat the Judicial Powers should always be exercised in their favour, The Supreme Court has -to be commended for rejecting both these views. Independence of judiciary is a part of the sovereignty of the people and the UNP continues to stress its belief in the sovereignty of the people.

It is the duty of Parliament to uphold the independence of the judiciary as envisaged in the Constitution so succinctly stated in the preamble.

Protest will explode if court verdict concerning Chief Justice Issue not respected. General Alliance warns

Monday , 07 January 2013

Government should respect to the verdict given by the Appeal court concerning the impeachment against Chief Justice.

If government do not respect the verdict contemplating that parliament is supreme than the courts, people protest will explode island wide and this cannot be prevented by any elements. Such warnings were given by opposition parties to government.

General opposition parties’ media briefing was held in Colombo at opposition party leader's official bungalow yesterday, and general Alliance parties made this statement.

UNP's western province council member Mujiboor Rahman said, war has come to an end, but government narrating war victories, many issues have been achieved positively. However with the same intention, it functioned and has got entangled in issues by clashing with the judiciary.

According to the interpretation given by the Supreme Court concerning impeachment against Chief Justice, the Appeal court gave its verdict which should be accepted by the government.

Contrary, government is forcibly controlling the independence of judiciary, the outcome would be a massive peoples pandemonium will get originated in the country, which none could prevent.

Many of the parliament members are taken to their side by providing advantages and prospects and government acquired two third majority in parliament through this easy methods.

Therefore the government by this easy method majority status is not willing to accept the court verdict and if it functions in this manner, a massive people's protest will explode was said by Nawasamasamajee party leader Prof.Wickramabahu Karunaratne.

Supreme Court has given an interpretation concerning impeachment against Chief Justice. To be precise it has mentioned that court activities should occur in the impeachment probe proceeding.

On this context if court actions have processed, the impeachment issue can be handled.

Ministers Wimal Weerawansa and Rajitha Senaratne gave statements concerning the impeachment motion, said it is like playing cricket in road without the ball.

Mowbima Peoples party representative Hameed said, judiciary, executive and legislative the three is like the three stones in a stove. On top of this, the utensil which is kept is called democracy. Always the three should be equal. If one gets higher the utensil called democracy will fall into the fire. Out of these three sectors, only judiciary will function impartially.

Chief Justice without resigning was firm in her decision after impeachment was introduced. If she had resigned, this government would have appointed a person suitable to them as Chief Justice, and may have transformed all the structures of the judiciary biasedly.

Meanwhile JVP Parliament member K.D.Lalkanth said, if intended to operate against the constitution, we have decided to organize a people protest.

He said , if Speaker, Government, Opposition party leader function against the constitution, the public has the rights to voice against them.

Working class, intellectuals, professional experts and public will join and have decided to walk to the street and protest. Supreme Court has the powers to provide legal interpreting.

Courts have already given legal interpreting concerning no confidence motion against Chief Justice Shirani Bandaranayake. This legal interpretation should be accepted by all sectors which is essential.

Speaker, government and opposition party leader has notified that the Appeal court legal interpretation will not be accepted. They have pointed out it is against constitution.

Court should take action to punish the sectors defaming the court.

Court reprimanded the present Higher Education Minister S.P.Dissanayake for the charges of reviewing the verdict of Supreme Court. Same procedure should be adopted in the others issues too, were further mentioned by him.

The Expected Return On Patronage Appointments

By Elmore Perera -January 7, 2013

Elmore Perera

In February 2006, President Rajapaksa appointed Nihal Jayasinghe J as Acting Chief Justice overlooking the seniority of Bandaranayake J and Weerasuriya J. On 11^th March 2008, in the presence of the Hon. D.E.W. Gunasekera, C.R. de Silva (then Attorney General) Lalith Weeratunga and several others, President Rajapaksa pleaded that Ranil Wickremasinghe had mis-led him into believing that he could not appoint Shirani (his good friend who hailed from Anuradhapura and was doing very good work) as Acting Chief Justice for the reason that she had not served in the legal profession for 25 years.

In return, Jayasinghe J totally suppressed one application to the Supreme Court challenging inter alia the appointment of Balapatabendi J as President of the Court of Appeal in May 2006, and in another such case, fraudulently altered in August 2006, the order made by him on 30^th June 2006 rejecting the application. Jayasinghe J was the beneficiary of further patronage by appointment as High Commissioner in the UK, immediately after retirement.

On 6^th April 2006, Speaker W.J.M.Lokubandara received a letter from President Rajapaksa purportedly urging him to activate the Constitutional Council. Without directing the Secretary General of Parliament to summon a meeting of the nine members already duly appointed and/or duly nominated for appointment to the Constitutional Council, the Speaker consulted the Attorney General, K.C.Kamalasabeyson, PC to discern what legal powers he had to carry out such a function. The AG responded setting out clearly what steps the Speaker could and should take to activate the Constitutional Council. Speaker Lokubandara refrained from doing so and in due course was the beneficiary of a patronage appointment as a Provincial Governor. In time, AG Kamalasabeyson was requested by the President to retire prematurely and C.R. de Silva, PC received appointment as Attorney General, from President Rajapaksa. Read More

Un-Truths And Distortions About The Impeachment Process

By Chandra Kumarage -January 7, 2013

Chandra Kumarage

The campaign justifying the impeachment of the CJ is forging ahead regardless with enhanced vigour even after Supreme Court has pronounced through the Court of Appeal that “it is mandatory under article 107(3) of the Constitution for the Parliament provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity.”

Despite that legality of the impeachment proceedings are continued to be discussed in public even by members of the Parliamentary Select Committee. Minister Susil Premajayantha, himself a lawyer has stated that a burden of proof is not a crucial ingredient in the impeachment inquiry of a judge. If it was said by Minister Wimal Weerawana one can ignore it as balderdash but when it is said by a lawyer the reader will be bewildered as to whether he is bluffing or is lacking in his knowledge of the basic tenets of law. Surely he should be aware of that Article 12 (1) and 13(5) respectively of the Constitution of Sri Lanka stipulate that all persons are equal before the law and every person shall be presumed innocent until he is proved guilty. Although the Supreme Court has given a final verdict rebutting all these so-called ‘law points’ raised by many lawyers, journalists and others, it will be still pertinent to have a look at the procedures adopted by some countries in impeaching their judges which have relevance to our jurisprudence on the subject.

Mervyn denies hand in incident

by Dasun Edirisinghe-January 6, 2013
Investigations into the killing of a Kelaniya Pradeshiya Sabha UPFA member on Saturday night had been handed over to the Criminal Investigations Department (CID) yesterday, Police spokesman SSP Prishantha Jayakody said.

He said that no one had been arrested in connection with the incident so far.

A masked motorcyclist shot dead Kelaniya Pradeshiya Sabha ruling party member Hasitha Madawala near his house at Waragoda.

He was a close associate of Kelaniya PS Chairman Prasanna Ranaweera, who is at loggerheads with SLFP Kelaniya organiser Minister Mervyn Silva.

After shooting Madawala, the killer had fired into the air before he left the scene, eyewitnesses told the police.

Madawala succumbed to injuries prior to admission to the National Hospital.Contacted for comment, Minister Mervyn Silva said that he had no connection with the murder of PS member Madawala.

"Several times, some people pointed the figure at me for some incidents," Minister de Silva said, adding that all such allegations had been proved wrong.

He said when former minister Lalith Athulathmudali was assassinated, most of the people pointed the finger at President R. Premadasa. "But what happened later?" he asked.

Minister Silva said he condemned all killings as a pure Buddhist and conveyed his condolences to slain PS member’s family.

Till death did us apart

Chairman of the Kelaniya Pradeshiya Sabha Prasanna Ranaweera grieves the death of his colleague today. President Mahinda Rajapksa visited the funeral and was thronged by people who urged him to take action against those responsible. Pix by Gayan Madusanka Hettiarachchi

Kelaniya PS chairman complains of death threats

Sunday, 06 January 2013 21:45

Kelaniya Pradeshiya Sabha Chairman Prasanna Ranaweera said today that there had been repeated death threats made to him and 12 other members of his council for more than a year, at the instigation of a local politician.

The Chairman said that after Pradeshiya Sabha member Hasitha Madawala was killed, he had even complained to the Inspector General of Police and all other persons concerned. Commenting on the shooting incident, he said that the members of his council had to endure many difficulties in addition to death threats.

“We were sometimes harassed on false complaints. We were even taken to court by the police on such complaints. They tried to imprison the slain member on one occasion. We are not responsible for burglaries, nor are we involved in drug peddling. The people are aware of our innocence,” he said.

He said, “We ask the President not to leave room for the fate that befell Mr. Madawala to befall us.”

Meanwhile, President Mahinda Rajapaksa had contacted Mr. Ranaweera this morning and assured him of impartial inquiries. He also assured him that those responsible would be brought to book irrespective of their positions. (Lal S. Kumara)

The Imminent Danger Of The Execution Of Rizana Nafeek

By Asian Human Rights Commission -January 7, 2013

According to the news received from Saudi Arabia Rizana Nafeek, who has been the Dawadami Prison since 2005 may be executed at any moment. This was revealed to the BBC Sinhala Service by Dr. Kifaya Iftekhar, who is based in Saudi Arabia and who has been looking after the interests of Rizana for several years now. Dr. Iftekhar also said that the Sri Lankan government has been informed by the Saudi authorities of the possibility of her impending execution.

demonstrator holds an image of Rizana Fathima Nafeek during a protest in front of the Saudi Arabian embassy in Colombo, Sri Lanka, on July 8, 2011 Dinuka Liyanawatte / Reuters

For several months now the Sri Lankan government has been reporting that moves are underway for Rizana’s release and that this may happen at any time. However, it appears that these announcements were made only to appease the strong expressions of concern by the Sri Lankan and international community’s who are calling for her release. The government has not been able to conduct diplomatic negotiations with the family on the deceased infant that has the power to grant pardon. Such pardon is usually granted either on the payment of blood money or without such payment by the generosity of the family.

Dr. Iftekhar told the BBC Sinhala Service that there is still room for assisting Rizana Nafeek and saving her life.

The Asian Human Rights Commission has campaigned for Rizana’s release since 2007 when her case was brought to the notice of the world. A vast movement arose within Sri Lanka to demand her release and there was also massive support for her release from the human rights community and particularly from women’s movements. Many signature campaigns were conducted on her behalf and websites opened by various concerned groups to rally support for her.

The Asian Human Rights Commission once again calls upon everyone to intervene and write to the Saudi authorities urging them to grant Rizana pardon.

We once again call upon the president of Sri Lanka and the Sri Lankan authorities to take effective action to conduct negotiations and also to renew diplomatic efforts to save her.

For further information on Rizana’s case please see the AHRC dossier here.

Sri Lanka's flooded farms inundated with debt

Farming families face mounting economic problems after severe weather devastated land and crop cycles.

Farmers in Sri Lanka are facing mounting debts after severe weather destroyed their crops.

Months of drought were followed by severe flooding which deluged their land, and the changing weather patterns have caused havoc with the crop cycles.
Al Jazeera’s Minelle Fernandez reports from Polonnaruwa, Sri Lanka.

Sunday, January 6, 2013

Start lectures or face closure: SB tells Jaffna Uni.

By Chris Kamalendran-Sunday, January 06, 2013
Higher Education Minister S.B. Dissanayake warned that the Jaffna University would be closed if academic activities did not recommence tomorrow. “I have told the university authorities that, willingly or unwillingly, we will have to close the university, even for one year, if campus activities are not normalised,” Mr Dissanayake told the Sunday Times.

The Minister on Thursday met the university’s� Vice Chancellor (VC) Vasanthy Arasaratnam and Deans of the Faculties, and directed them to resume academic activities. However, they pointed out that, though they were ready to resume lectures, students were not attending.

Students have vowed to boycott lectures until four students including the secretary of the students union, who were arrested and sent to Welikanda camp for rehabilitation recently, are released. The VC had explained that the offices were functioning, but students have kept away citing lack of security in addition to demanding the release of the students. Students claim that they may be arrested if they return for lectures.

Minister Dissanayake had reportedly told the authorities that students should return for lectures and the matter of the release of the students would be decided by the Defence Secretary. Mr. Dissanayake said the students security concerns wouldhave to be taken up with relevant authorities.

The meeting was attended by Minister Douglas Devananda, Higher Education Ministry Secretary Dr. Sunil Jayantha Nawaratne and Jaffna Security Forces Commander Maj. Gen. Mahinda Hathurusinghe. Jaffna University Teachers Association President A. Rasakumar told the Sunday Times that, usually, when a person was arrested and sent for rehabilitation, a letter is issued to that effect, which had not been the procedure regarding the four students.

“Majority of the students are worried they� too would face similar situations,” he said adding that the exams have already been delayed due to the previous closure of the university due to the strike by academics, and the Arts Faculty exam is scheduled for January 16.

Meanwhile, the Federation of University Teachers Association (FUTA), in a statement, expressed concern about the recent beating, harassment and arrests of students in Jaffna. The FUTA has called on the government to either charge the detained students in court or release them forthwith.

The organisation said of the nine students detained, six have were released, while three remain in custody since December 10.FUTA said it condemns the use of the Prevention of Terrorism Act (PTA) to deal with a problem requiring political effort and a political settlement.