Law Students In Sri Lanka Condemns The Blatant Violation Of Judicial Independence
By Colombo Telegraph -January 10, 2013
“We, as law students in Sri Lanka, wish to record our deep concern over the blatant violation of judicial independence and the usurpation of the role of the judiciary by the executive and legislative arms of government.” say 389 law students in Sri Lanka.
We, as law students in Sri Lanka, wish to record our deep concern over the blatant violation of judicial independence and the usurpation of the role of the judiciary by the executive and legislative arms of government.
We condemn:
- the initiation of the impeachment motion against the Chief Justice. The coincidence of the impeachment motion with a series of judgments unfavourable to the government, suggests that it was only brought because the Chief Justice failed to follow orders, rather than because she failed to observe the standards of integrity expected of her.
- the failure to accord the Chief Justice even the most basic protections in carrying out an investigation into her conduct. This includes the failure to give her a list of witnesses and documents; the denial of adequate time to respond to charges; the apparent bias of two members of the Parliamentary Select Committee; the crass language used against the Chief Justice and the lack of clear procedure. No outcome from an inquiry such as this can be given credibility.
- the contemptuous statements made by Members of Parliament and Ministers of the government against the judiciary as a whole and the Chief Justice and the Judges of the Court of Appeal in particular.
Moreover, we are deeply alarmed by the decision to ignore the Supreme Court’s interpretation of Article 107 of the Constitution. This move is the culmination of several steps, including the passing of the 18th Amendment to the Constitution, to concentrate power in the Executive arm of government. It is a blatant violation of the constitution, a rejection of the arm of government mandated with ensuring that both the rulers and the ruled are subject to the same law, and is an attack on the foundations of our democracy.
However, we also recognize that
- the current crisis is part of a much deeper malaise of apathy, selfishness and lack of democratic values in our society. It is only in such a society that politicians and actions such as these are tolerated.
- as students we have played a part in the deterioration of these values in our society and have a role in ensuring their revival and restoration.
- some of the best legal minds in Sri Lanka support this travesty of justice. This is proof of a crisis in education, and in legal education in particular, whereby students memorise principles of law but do not internalize them, are not changed by them, and do not appreciate their moral content.
Therefore, we call upon all Sri Lankans, and re-dedicate ourselves, to the task of rebuilding our society. Society is changed by the everyday acts of ordinary individuals, in classrooms, offices, fields, towns, cities and villages. We may not all have positions of power, but we all have influence where we are. It is in those places where we already have influence that we must think and speak and act with truth, justice, mercy, love and integrity. It is in those places that we must begin the patient, courageous work of making Sri Lanka a land where freedom, equality, justice, fundamental human rights and the independence of the judiciary reign.
- S.H.A.P.M. Kulasinghe (Faculty of Law, University of Colombo)
- K.G.C. Maheshika (Faculty of Law, University of Colombo)
- D.A.H.P. Dasanayaka (Faculty of Law, University of Colombo)
- W.P.M. Pemasiri (Faculty of Law, University of Colombo)
- J.M.S.U.K. Jayalath (Faculty of Law, University of Colombo) Read More
Shirani, Dayan And The National Reconciliation
By Harim Peiris -January 10, 2013
Harim Peiris
Battling to preserve an independent judiciary and bring about national reconciliation
Earlier this week the Rajapaksa Administration added yet another dubious distinction to its governance records by breaking decades of parliamentary tradition and forcing on the order paper of Parliament the debate and vote on the impeachment motion against Chief Justice Shirani Bandaranayake. Traditionally and historically the agenda of parliament, is agreed upon by consensus at the Party leaders meetings. However, on this historic first occasion all the Opposition party representatives walked out of the party leaders meeting after vehemently protesting that a report and process held null and void by the Supreme Court should not be proceeded with by Parliament. The constitutionally required procedure of enabling legislation and ensuring due process must be complied with. A UPFA government that wrapped up an inquiry in four weeks would have none of it.
The debate on the impeachment process undertaken by the Rajapaksa Administration has serious implications for the future of democracy in Sri Lanka.
1. The supremacy of the people and the primacy of the Constitution
Firstly, as the Opposition parties, leading lawyers and civil society have maintained it is imperative in a republic that the Constitution as the basic law of the land be strictly adhered to. Not even the government in Parliament or outside it has the right to act ultra vires the Constitution. In fact one basic function of a constitution is to place boundaries on governmental power and it is imperative that the Rajapaksa Administration abide by the constitutional ruling of the Supreme Court and submit to the writ of certiorari of the Appeal Court against the findings of the PSC. Sri Lanka is a republic in which the people are supreme.
2. A government violating the constitution is a feature of a failed state
A government that violates the country’s Constitution acts in contempt of the basic law of the land is a feature of a failed state. Sri Lanka is a democracy with a proud history as one of the first countries to enjoy universal adult franchise (one person one vote) even before independence from 1931 onwards. The Rajapaksa Administration has no mandate from the people to violate the Sri Lankan Constitution and to push Sri Lanka towards becoming a pariah state internationally that would be categorized as a failed state for having a government that violates the constitution of the State. If the basic law of the State is violated by the government that is entrusted with state power, which is one defining feature of a failed state. One wonders if there is a domestic conspiracy by the minor constituent partners of the UPFA, who advise the president to make Sri Lanka a fragile or failing state. Sri Lanka currently has a politicized and non-independent bureaucracy and a politicized police force. We cannot and should not become a failing state by adding a politicized and non independent judiciary to that list.
3. UNHCR, CHOGAM, Prof. Peiris and Canadian Minister Kenney
The current constitutional crisis in Sri Lanka and the attempt by the Rajapaksa Administration, too, is being closely watched by the international community. Expressions of concern have already been made by a host of important international actors including the US, EU and the UN. Adding their voice to the growing international chorus of concerns last week was visiting Canadian Minister of Citizenship, Immigration and multiculturalism Jason Kenny, who was in Colombo to express Canada’s deep concern about the number of refugees fleeing post war Sri Lanka. According to the press statement issued by the Canadian High Commission at the conclusion of his visit the minister was to urge Sri Lanka to undertake a genuine process of post war national reconciliation and to reiterate that unless progress on reconciliation was forthcoming the Canadian Prime Minister Stephen Harper would boycott the CHOGAM to be hosted by Sri Lanka. Foreign policy analysts also opine that Prime Minister Stephen Harper may advise the Governor General of Canada to advise Her Majesty the Queen that when she visits Sri Lanka for CHOGAM she would not be representing Canada as head of state. Further Sri Lanka faces a review of its post war reconciliation at the March 2013 sessions of theUNHRC and indications are that the UPFA Government will face international stricture due to its lack of progress on reconciliation.
Minster Peiris responding to all this has stated on record to The Island, that a section of the international community has given a fresh lease of life to the LTTE by passing a resolution on Sri Lanka at the UNHRC and obstructing Sri Lanka’s reconciliation process”. But, the UNHRC resolution was merely asking the Sri Lankan government to implement its own reconciliation process, the report of the LLRC. One wonders how the learned ministerial professor could define implementing the LLRC recommendations which the Rajapaksa Administration has failed to do as a lifeline to a toothless international rump LTTE. On the contrary, it is the lack of reconciliation in Sri Lanka which is a boon and the life blood for extremists elements in the Diaspora and which undermine the more moderate and democratic Tamil political leadership.
One of Sri Lanka’s most able and erudite defenders has been Rajapaksa supporter, academic and diplomat Dr. Dayan Jayatileka, who in an interview on 7th January 2013, to the www.mirror.lk web site sums up the problem in this way: “As a political scientist I am appalled that alongside and behind this impeachment motion there is a claim that the legislature does not have to adhere to the strictures of the judiciary … defending Sri Lanka internationally now requires reforming and democratizing Sri Lanka domestically … Sri Lanka’s international position is deteriorating and the country will be placed at great risk, precisely because of domestic dynamics, i.e. the positive reforms that are not being undertaken and negative actions that are underway”.
