Emergence Of Sinhala Chauvinism At The Top Layer Of The Ruling Elite

By Vickramabahu Karunaratne -November 3, 2012

Dr. Vickramabahu Karunaratne

The campaign started by those who are very close to the President, to remove the 13th amendment, shows that Constitution making process in the coming period could become arbitrary and carried out at the whims and fancies of the chauvinist elements within the regime. If it really takes place, this will go into history as yet another effort to cater to the popular majoritarian impulses in Lanka. As all powerful Defence Secretary Gotabhaya Rajapaksa called for the abrogation of the 13th Amendment and the chauvinists JHU and pseudo nationalistic Wimal Weerawansa’s NFF jumped the bandwagon, there were fears that the political leadership in the country was to indulge in another crazy attempt to change the supreme law of the land. Of course the remarks by Keheliya Rambukwella that the government does not have plans to abrogate the 13th Amendment for the ‘time being ‘ change the mood. As Trotsky pointed out in the permanent revolution thesis, the bourgeoisie leaders who ruled Lanka too, failed to improve on the semblance of liberal democracy left behind by the British. It is this inability of local capitalists that compels the proletarian movement to intervene to carry out the tasks of democratic reorganization of the society. The 13th amendment came with a strong intervention of the left movement in this country. In the course of that struggle left parties lost nearly thousand national and local leaders including Vijaya , Vimala sena, Panditha and Chandra Vimala.

It is claimed that the provincial council system established under the 13th Amendment itself turned out to be a white elephant. In particular the short-lived Northern Provincial Council collapsed and there after no government were able hold elections there. So the people, for whom the devolution on nationality basis was proposed, are virtually shut out from the system. At the same time, the incomplete provincial council system in the south, turned out to be a white elephant.

However, the failure of the 13th Amendment should primarily be attributed to the dislike of the Central government to devolve powers to the existing provincial councils. This problem has been discussed extensively since the time of Chandrika, and LLRC has indicated in detail the nature of the improvement that could satisfy the Tamil people. In short the solution to the current deficiencies of the 13th Amendment lies in strengthening the power sharing structure stipulated by the amendment.

However, the willingness on the part of the current regime to share power with national minorities is most important. Clearly Mahinda regime has failed even to initiate a truly national dialogue to seek a political solution. Hence the Tamil leaders question the genuineness on the part of the government.  Set against latter’s rush to enact the 18th Amendment, which dismantled all salient achievements of the 17th Amendment, no one can blame the Tamil leaders for their mistrust. On the other hand the inability of the government to seek a political solution is glaring. Inspite of populist acts made to show their loyalty to the voice of the oppressed,

Mahinda regime’s steady march towards

authoritarianism cannot be hidden. All attempts to change the constitution, except the 13th amendment, can be proved to be reactionary.  This includes the republican constitution of comrade Colvin. Unfortunately he was a prisoner of a bourgeoisie government dominated by majoritism.  He claimed that the parliament as the representative of the people was empowered by his constitution. But it was passed by an assembly without the Tamil leaders. Hence it inherited majoritism by birth. As many pointed out the tampering with the Constitution in this manner began by D.S. Senanayake who disenfranchised the Tamils of Indian origin under the Citizenship Act. The true intention of DS was to manipulate the electorate and eliminate an electoral challenge emanating from the Lanka Sama Samaja Party (LSSP) and the Communist Party. “Liberal” leaders have failed to go beyond the chauvinist limitations created by themselves. They have come to an apex in this process with the creation of Mahinda regime. It is based on the ideology of patriotic war to establish a unitary constitution. War was interpreted as a patriotic war against an international conspiracy conducted by an alien power, probably western based, to take over Lanka. Having defeated the alien force the government is, step by step removing all remaining tentacles of the alien power. One of the most important shackles left behind by the conspirators is the 13th amendment! Accordingly the campaign for the removal of 13th amendment is a continuation of the war in the domain of politics. This is the story of the chauvinists.

What is going to happen? This is the question raised by concerned people. They are surprised to see the emergence of Sinhala chauvinism at the top layer of the ruling elite. However it is still at the apex and there is no corresponding mass activity at the bottom. At the bottom we see the campaigns of workers, fishers, peasants and students demanding higher payments and better wages. These mostly led by left leaders who support devolution as a way out to the national problem. Thus, one can say safely that if the conflict flows over to the streets, this time chauvinists will be defeated.

SRI LANKA: Sri Lankan born Irish citizen detained for five years without any charges

November 2, 2012

ASIAN HUMAN RIGHTS COMMISSION-URGENT APPEAL PROGRAMME

Urgent Appeal Case: AHRC-UAC-192-2012

2 November 2012
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SRI LANKA: Sri Lankan born Irish citizen detained for five years without any charges

ISSUES: Illegal arrest; arbitrary detention; torture; impunity; denial of justice; rule of law
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Dear friends,

Mr. Gunasundaram Jeyasundaram (57), an Irish citizen was arrested and detained upon arrival in Katunayake International Airport on September 5, 2007 accused of helping the Liberation Tigers of Tamil Elam (LTTE) and has since been arbitrarily detained without charge. A Writ of Habeas Corpus was filed but had been continuously delayed as has a Fundamental Rights Application. Despite urgent appeals by The UN Working Group on Arbitrary Detention, tremendous ongoing support from the Irish government and members of the European Parliament the government of Sri Lanka has failed to take any action. Mr. Gunasundaram Jeyasundaram has now been in detention for over five years without being charged or, in fact, produced before any court of law. At present he is detained at the Magazine Remand Prison in Colombo. This case is yet another illustration of the exceptional collapse of the rule of law in the country.

CASE NARRATIVE:                                                            Read More>>>

Divaina removes editor, the President re-appoints

Saturday, 03 November 2012 

The management of Upali Newspaper Company had last week removed the Editor of the Sunday Divaina newspaper, Gamini Sumanasekera. The position had been filled by Anura Solomons and Sumanaskera had been appointed as an editorial consultant.

Sumanasekera had been removed after the circulation of the Divaina newspaper that sold around 150,000 copies had dropped to around 75,000 copies. Since his removal from the post of editor, Sumanasekera had not gone to office and complained about the matter to the President.

The President had then telephoned the Chairman of Upali Newspapers, Nimal Welgama and said, “That fellow is whining that he has been removed. Just left him have his previous position. I will order more advertising to the newspaper.”

Following the President’s conversation, the Chairman had re-appointed Sumanasekera as the editor of the newspaper, but he had not yet reported to work.

For A Secular, Devolutionary, Parliamentary Constitution: A Commonsense Approach To 13A

By Kumar David -November 3, 2012

Prof. Kumar David

Bigotry and prejudice are common to the human condition in all lands; perhaps it afflicts a majority in both Sinhalese and Tamil communities (the Muslims seem to be a trifle better), but if not a majority, a sizable portion are racist and averse to pluralism. Such is my unflattering perception of my countrymen. The Thirteenth Amendment is a case in point. The revulsion of most Sinhalese is visceral and stems from two readings; it is seen as an imposition by loathed India, which is true, and it is seen as a concession to the Dehemalas, which, in practice, is not true. The Sinhalese man in the street does not know what 13A contains but has acquired a conditioned reflex to detest it; I do not have any illusion that anybody can change that.

The Tamils see in 13A a promised land way out in the distance. It is typical of Lanka that a constitutional provision introduced to grant the Tamils a degree of autonomy has done everything except that! Every province in the country sports an elected provincial council except the Tamil Northern Province which never really had one. The irony is quite wasted on the Sinhalese community which does not so much as give the time of day to Tamils and their snivelling. The LTTE rejected 13A outright, like the Sinhala chauvinists, for reasons partly similar (Indian edict) and partly contrary (to expedite Eelam, not settlement). The TNA and the Tamils see Jerusalem afar, on the other side of Delhi, and cherish fond illusions that Sonia-Singh, or their successors, will one day arm-twist the Rajapakses, or their successors, into giving the Tamils what the Sinhalese abhor, the space to govern their own affairs. As the poet said, 13A was “dead yesterday, unborn tomorrow”.

Strangely however the curators of the Sinhala State, from JR to Mahinda, dare not repeal 13A, and that seems to be the case despite Gothabahaya, Wimal, the JHU, Dinesh and a bunch of other racists baying at the moon. It is a case of good cop-bad cop; Mahinda and GL play the accordion in Delhi and Geneva, the other lot play the double bass at home, resonating in calculated dissonance. It is not cacophony, it is counterpoint, and so things will remain till the swindler is made to lay down his Executive baton by a forward charge of the people. To put it in a nut shell, I have come to the evidence based conclusion from 35 years observation of this charade, that 13A (plus, minus, divided or multiplied) will not be implemented, neither will it be repealed; it is like a patient who is permanently terminal! (My intention is not to discourage those who are striving to have 13A implemented, but that’s a separate matter).

Into a bigger package                                                       Read More  

Which way forward in post-conflict Sri Lanka? Lessons from the so-called ‘powerless’ women of the North

Which way forward in post-conflict Sri Lanka? Lessons from the so-called ‘powerless’ women of the North

Image courtesy Sri Lanka Brief--3 Nov, 2012 Raksha Vasudevan

Introduction
Before the war, we were all together. Now, we are widows with no security, and no one sees what we have to live through. But we go on, try to find some money to get us through the day…we have to eat, no? The cooking and cleaning needs to be done, the children have to go to school…that’s how life goes.[1]

What must have seemed to 36-year old Rina[2] like nothing more than a statement of unavoidable realities is laden with meaning for social scientists studying representations in postwar contexts of‘vulnerability’ and ‘marginalisation’ – and perhaps even more interestingly, the meanings of‘survival’and‘endurance’ in such settings. Tragically, although an intriguing subject for study, Rina’s circumstances are relatively ‘ordinary’ in the north of Sri Lanka: she is one of the estimated 40,000 female heads of households (“FHHs”) in that region[3], most of them born from the three decades of civil war.

Given the oppressive environment of military surveillance and control over information which still persists in the north, as well as the historically polarized nature of Tamil-Sinhalese politics, impartial academic research into the needs and response strategies of groups thought to be vulnerable in this area is desperately needed in order to understand their ways of coping, and better meet their ‘real’ needs. Within this context, this article presents the findings of interviews conducted with 65 FHHs[4] in ten villages and towns in northern Sri Lanka in early 2012[5].

The main goal was to uncover the various ways in which FHHs have reacted to the most pervasive economic, physical and psycho-social vulnerabilities facing them in the postwar context. In doing so, it also aimed to test the validity of the two stereotypes of Tamil women which have emerged during the Sri Lankan conflict: one of the masculinized ‘woman warrior’, and the other of the ‘helpless victim’ of war and displacement.

Through this research, these images are both ultimately revealed to be overly simplistic portrayals: As Giles states, “women are seldom victimized or empowered by war: their experiences are more complicated”[6]. Likewise, rather than placing the entire burden of blame on the Sri Lankan state, patriarchal Tamil culture is also found to be culpable in explaining the current plight of FHHs in the north.

Findings: A diversity of response & resistance strategies                               Continue reading »

UNHRC meet shows Sri Lanka-West gap

By P K Balachandran | ENS - COLOMBO

03rd November 2012 10:34 AM

The review of the rights situation in Sri Lanka at the UN Human Rights Council (UNHRC) in Geneva on Thursday showed the existence of a wide gulf between Sri Lanka and its Western critics.

While the Western countries tried to pin Lanka down on specific instances of human rights abuse, the Lankan representative either skirted them or denied the allegations, and dwelt on the overall improvement in the situation, especially infrastructural development in the war-affected Northern and Eastern provinces.

The US reportedly asked about investigations into the assassination of five students in Trincomalee (January 2006); execution of 17 aid workers in Muthur (August 2006); assassination of editor Lasantha Wickrematunge (January 2009); and the disappearance of cartoonist Prageeth Eknaligoda (January 2010). The US wanted to know what measures were taken to protect witnesses.

Other concerns were the tracing of the missing and the abducted; reluctance to hold elections to the Northern provincial council; and moves to impeach the country’s Chief Justice.

Canada pointed out that not all Tamil war refugees had been able to go back to their villages. It wanted to know why the government was unwilling to bring about a Right to Information Act and devolve power to the provinces as per the constitution. UK wanted to know what progress had been made by the Lankan Army’s Court of Inquiry into instances of “war crimes.”

Colombo, on the other hand, skirted such specific issues and dwelt on the brighter overall scenario. It said that all refugees had been sent back to their homes. Of the 12,000 LTTE cadre who surrendered, only 782 were still undergoing rehabilitation and 262 were facing legal proceedings. Of the 7,940 who disappeared in 2010, 6653 had been traced. The corresponding figures for 2011 were 7,296 and 5,185.

As regards the Army Court of Inquiry into war crimes, Colombo said that the court had met 30 times since January and was probing 50 cases.  Cases of sexual violence were investigated, but held that claims of army involvement were unfounded. A witness protection bill was under consideration by the cabinet, it added.

Lanka said that it had committed US$ 2.8 billion for reconstruction of North and East; built 124,184 houses; and cleared 98 pc of area earmarked for de-mining.

Our 3 D Dilemma

By Duleep de Chickera -November 3, 2012 

Bishop Duleep de Chickera

Since the end of the civil war in May 2009, there has been an unprecedented emphasis on what is popularly known as development. The most visible signs of this type of development are the improvement to roads and bridges, the construction of harbours and airports, the building of big hotels and resorts, and the cleaning up and landscaping of our cities.

At least two arguments support this understanding of development. They are both connected with the war. It is claimed to be our best chance of catching up with the rest of the world after the set back of decades of war. And it is argued to be an act of justice for those deprived of development and who have waited so patiently for so long because of the war. An extension of the justice argument spills over into reconciliation. If we are now able to give our unstinted attention to development, this means that we have been set free from conflict and are able to benefit together from this shift.

This article addresses the impact of development on the civilian victims of War (CVW) of the previous acute war zones in the North and East and its wider consequences on justice, devolution and reconciliation. It ends by offering a model of leadership.

Development and reconciliation

Good governance in any post, civil-war situation, will see the return to normalcy of CVW as its highest priority. Since the war in our own country caused unimaginable devastation to human lives and the infra-structure, a serious and speedy programme of rehabilitation was expected as the right way forward. This programme would have had to include housing and the basic amenities as well as the restoration of livelihoods and health and educational facilities for the CVW, as a first step. Being equal citizens of the country, CVW would have to be treated with respect through this process. In practice such respect would demonstrate sorrow for all they had been through and an eagerness to help them restore their broken lives with dignity.

Consequently any programme of national development that ran parallel with rehabilitation would be expected to include the CVW. While experts and investments would certainly have to be brought in from elsewhere, the human resources and contribution of the CVW would also require recognition. Equipping the CVW with micro credit capital and organisational skills so that they too would become part of the process of national development and own and benefit from it directly would have laid an excellent foundation in our journey towards national reconciliation.

Fresh wounds                                                Read More

#UPRLKA: Complete tweet archive and related visualisation around Sri Lanka’s UPR review

#UPRLKA: Complete tweet archive and related visualisation around Sri Lanka’s UPR review

Image courtesy Sydney Morning Herald

Groundviews

On 1st November 2012,

Sri Lanka was taken up for discussion as part of the Universal Periodic Review (UPR) at the UN Human Rights Council (HRC). The last UPR was in 2008, and under scrutiny was Sri Lanka’s human rights record over the past four years, that significantly, saw the end of the country’s 27 year old war.

A number of leading Sri Lankan and international human rights organisations, independent media including Groundviews and Vikalpa, as well as other leading voices on Twitter agreed to use #UPRLKA and #UPR14 hashtags in tweets around Sri Lanka’s case at the UPR. Since #UPR14 was a generic hashtag, #UPRLKA was encouraged as the primary hashtag to use when tweeting on Sri Lanka.

Groundviews started to archive every single tweet (and retweet) with #UPRLKA on 29th October (Monday). At the time of writing, we have archived 3,592 tweets, the majority of which were posted on 1st November, leading up to and during the session on Sri Lanka, from 2.30pm – 6pm in Geneva.

Simply put, there is no easy way to archive tweets, and though the company has promised to make this easier for individual accounts later this year, tweets anchored to a specific hashtag, event, process or day, given the sheer quantity of tweets published globally per second, soon disappear, making it close to impossible for students, researchers and historians to search for, access and ascertain the timbre of discussions on the platform days, weeks and months after the peak of content generation. This data loss is a real problem, especially in repressive regimes, where very serious challenges, concerns and entire conversations are conducted and communicated over Twitter.

After evaluating a number of options, we settled on Martin Hawskey’s method to use Twitter’s Developer API with Google Spreadsheet to archive every single #UPRLKA tweet. Setting it up was relatively easy, and we started our archival process the same day #UPRLKA was announced through various platforms, including via a Press Release we sent out, as the hashtag of choice to use during the course of the week for updates dealing with Sri Lanka’s UPR appearance.

Embedded below is the complete list of tweets. Please note that this spreadsheet is automatically updated every half hour with any tweet that has the #UPRLKA hashtag, so the nearly 3,600 we recorded at the time of writing may well increase much more as time goes by.

You can access this spreadsheet in a larger window by clicking here.

Using Martin Hawskey’s template, we’ve also created a comprehensive data visualisation of all the tweets during this week. Again, note that this visualisation is dynamic, and will in the future reflect additional tweets with the #UPRLKA hashtag.

Given the size of the dataset, you’ll also need a fairly powerful computer to see this visualisation, which offers graphical perspectives of every single tweet published, the top tweeters, the top hashtags used and the top conversationalists. You can zoom in and out of the visualisation using the scroll button on your mouse. Clicking on any dot will give you information about the user, including the total number of tweets, replies to tweets and mentions.

Click here or on image above for the live data visualisation.

Finally, all of the tweets archived by us as of today can be download as a PDF here, and as a Microsoft Excel spreadsheet here.

SRI LANKA: The banality of the impeachment

November 3, 2012

Under the present circumstances and under the 1978 constitution, when the president does not want the Chief Justice, the president just tells them to get out and go home. The way he does it is called impeachment proceedings. Once the president decides to file such proceedings - he has a two thirds majority in parliament - the victimized person has no real option. His or her fate is sealed and the only options open are to resign and go away, as Chief Justice Nevil Samarakoon, did it or be impeached and thrown away.

Impeachment is an act of might. The rights and wrongs are not weighed in the matter. So-called charges can be cooked up and may be about the most trivial matters. In an article to a Sinhala paper, Gomin Dayasiri, a senior lawyer, stated that in Sri Lanka a judge can be impeached very small reasons. The charge against Chief Justice Neville Samarakoon was about some comment he made at some school prize giving.

Just last week, at Maha Veediya in Galle man’s leg and hand was cut off and he was stabbed and left in the road struggle and die. A video footage about this incident was a circulated in the internet. It was a gruesome sight of extreme barbarism. The act of impeaching of judge is symbolically more or less a similar kind of act of might in Sri Lanka. The knife with which the judge will be stabbed is the two thirds majority that the ruling party has in the parliament.

Thus, looking into the impeachment process with the idea of finding some kind of rationality is falling for a basic fallacy. Under the conditions in Sri Lanka and under the 1978 constitution it is just public stabbing and nothing more.

J R Jayawardana’s mean scheme                                                                . Read More...

A concordant UPFA, a discordant Opposition? Not quite!

The Cabinet: Lanka’s longest gravy train

 Sunday 04 November 2012

There is a superficial view that the government is a concordant gathering of the like-minded while the opposition is all hither and thither and unable to get its act together. Superficial observations are not entirely without merit as sycophants and bootlickers line up on both sides of the Cabinet and Parliament, echoing their masters’ voices (note plural in honour of the siblings), reciting “Yes Sir! No Sir! Three bags full Sir”. It is also true that the political opposition is failing to realise the minimum it can, while trade unions, civil society and professional bodies are doing better.
First let’s look at the constituents of government and opposition. The UPFA consists of nine parties with the SLFP, the principal party of the Lankan bourgeoisie (remember this dubious honour no longer belongs to the UNP), at the helm. The other important UPFA entity is the party of monks and Sinhala chauvinists, the JHU. These two stamp on the UPFA its ideological character, while the Rajapaksa siblings set an authoritarian bearing towards an autocratic future. The anti Rauf Hakeem Muslim party too sports a base and parliamentary strength. The rest are appendages, parasites, chaff not critical to the survival of the regime; Weerawansa’s ultra-racists, the three decrepit relicts of the Dead Left (LSSP, CP and DLF), Dinesh’s MEP, and the Douglas and Pillayan circuses. A menagerie, not a concordant gathering! 
The parliamentary group includes three other formations, each more influential than all the chaff put together - the UNP crossovers, a bunch of political trash, SLMC money making hucksters, and the CWC whose leader fritters away what his father built over decades. Nevertheless, notwithstanding the rot, these three have an electoral base, they can bring three or four (or in the case of the SLMC more) members to Parliament with minimal support from the SLFP or UNP. They are epiphytes, not parasites. The count of entities in government has reached twelve if my reckoning is correct. Interestingly, much as they hate each other like Ali Baba’s forty thieves, they still hang together; a phenomenon I will return to after enumerating the Opposition.
The opposition consists of fewer entities; the UNP, TNA-ITAK, JVP and the Peratugami (Frontline Socialists, the JVP breakaway party). Then, though relatively smaller in size but capable of winning seats in Parliament, are Mano Ganesan’s DPF and General Fonseka’s outfit. Finally there are four very small parties on the sectarian left; Siritunga’s USP, Bahu’s NSSP, the Maoists and Socialist Equity. Their following is insignificant, but they have long ideological histories and influence beyond their numbers – I am glad. In summary the opposition is intrinsically less discordant than the pro-government amalgam. The foremost discord in the ranks of the opposition is not between parties, but the insane civil war inside the UNP.
i
The 40 (or 80) thieves 
The cement that binds the UPFA and the Government Parliamentary Group is bribery. I do not mean that every member of the Cabinet and deputy minister is taking baksheesh from local and foreign companies, bribes from the public, favours in kind like women, or kickbacks from the drug trade, though more than we know of are likely on the take. What I do mean is that every member of Cabinet and deputy minister is on a gravy train at the expense of the public exchequer. The president retains power by bribing the Cabinet since a post in the Cabinet is essentially a bribe given to 40 persons (or 80 if you count deputies) as a retainer for their support. The president bribes ministers using public funds and lets them run wild; they in turn allow the regime to get away with murder, metaphorically and literally. That’s why the Cabinet needs to be so large, that’s the deal, that’s the binding cement.
Do not underestimate the benefits of ministership. First come status and prestige – in our obsequious society a buffoon in national garb and an amathithuma title is held in demigod esteem that would embarrass a president of the United States. However, it is the perks that are corrosive and corrupting. I am referring not merely to state accommodation, cars, drivers, petrol and allowances, but to the numerous sycophants ministers appoint. The number ranges from less than 20 in a small ministry to over 50 in a large one. Hangers-on are appointed as private, press, coordinating and all manner of secretaries, with salaries, petrol allowances and perks. It is having this small army of publicly paid slime-balls that makes the carrot of a cabinet post really attractive. You may say Dead Left ministers, or GL, or maybe a few others are not on-the-take for bribes and kickbacks, but I say: “Ok that’s true, but they are all on the publicly funded gravy train that I have described”. 
My purpose in this recounting is not a moral one; I am not on a crusade to expose graft, direct or indirect, among ministers. My purpose is political; my intention to show that skin-deep concord in the government has its foundation in the shared pay-off that ministerial posts offer. There is no ideological, economic policy, devolution related or programmatic cohesion in government. Ask ministers what they think of Gotabaya and militarization, ask SLFPers about Mervyn or Duminda. Want to find out who is on the drug money circuit? A rival UPFA MP is the best source. The point is this, the government-side is patching over more divergences and differences than the opposition-side; however, it is not dysfunctional, because like the forty thieves in that delectable Arabian Nights fairytale, they are all in on a publicly funded gravy train. 

Can the Opposition unite?
They say it takes a heart attack to change your ways; the UNP has had it, and if it cannot still overcome its internal lunacy it deserves to die. As an outsider I have no axe to grind on behalf of any of the contenders, but I do have an interest in the UNP playing its role to rid Lanka of the Executive Presidency (EP), the fetid source of putrefaction in public life. General Fonseka must be congratulated for firing up a movement and getting a mass campaign against EP off the ground.
Is there some principle because of which some party in the opposition wishes to retain EP? Not that I am aware of. There was a time when Tamils clung to the misguided view that EP was a safety net, but no more. They have learnt the hard way that hoping to be kingmaker between SLFP and UNP is a misbegotten illusion; so the TNA has come on board against EP. The nigger in the woodpile is Ranil who can’t get a hold on his own party but covets the presidency. If he impairs an alliance any longer, those who say “Off with his head” deserve to win the day. 
It is clear that the slovenliness of the opposition in campaigning in unison is subjective. Short-sighted leaders are unable to grow up, so it’s up to the public to drive these blinkered incompetents in united action.

Impeachment Proceedings Brought Against Sri Lankan Chief Justice

Press Statement

Victoria Nuland
Department Spokesperson, Office of the Spokesperson

Washington, DC

November 2, 2012

The United States is concerned by actions taken to impeach Sri Lankan Chief Justice Shirani Bandaranayake. We also note with concern recent threats to Sri Lankan judicial officials, including the assault last month on a judge who had publicly criticized government pressure on members of the judiciary. We urge the Government of Sri Lanka to avoid any action that would impede the efficacy and independence of Sri Lanka’s judiciary.

The United States, along with our partners in the international community, continues to urge Sri Lanka to address outstanding issues of the rule of law, democratic governance, accountability and reconciliation.

Govt responds to US statement at UPR

SATURDAY, 03 NOVEMBER 2012

The Government, in response to the statement made by the United States at the Universal Periodic Review (UPR) in Geneva said today that they had completely acted within the provisions of the Constitution with regard to the impeachment against the Chief Justice.

Speaking to the Daily Mirror, Government Spokesman Keheliya Rambukwella said the legislators had acted completely within the Constitutional framework.

“If jungle law has been practiced in this instance I can understand all these allegations and counter-allegations regarding the motion but that is not the case. We as legislators have acted completely within the framework provided in the Constitution” he said.

The United States representative at the UPR in a statement urged the government especially in the light of today’s news of the efforts to impeach the Chief Justice, to strengthen judicial independence by ending government interference with the judicial process, protecting members of the judiciary from attacks and restoring a fair, independent, and transparent mechanism to oversee judicial appointments.

Rambukwella said as far as the government is concerned it does not get involved in matters of the judiciary.

“Should a democratic country use the constitution and act within it, or to go beyond or against it? These are the questions that need to be asked from those making these statements. As far as the government is concerned it does not get involved with matters of the judiciary, but when there is an issue between the judiciary and others there is provision in the Constitution as to how it should be resolved” he said. (HF)

Choksy’s Opinion On The Process For The Impeachment Of The CJ Circulated By Basil Rajapaksa

By Colombo Telegraph -November 3, 2012 

The following press statement of KN Choksy, PC on the mechanism and process for the impeachment of the Chief Justice is sent to media including the Colombo Telegraph by Basil Rajapaksa‘s press secretary Dharman Wickremaratne.

K. N. CHOKSY P.C. COMMENTS ON THE MECHANISM AND PROCESS FOR THE IMPEACHMENT OF THE CHIEF JUSTICE

Mr. Choksy expressed his Opinion that the Impeachment mechanism is the only accountability mechanism for the Higher Judiciary. In other words, so far as Judges of the Supreme Court and Court of Appeal are concerned it is the only method by which they are made answerable for their conduct in office.

Choksy

As far as the minor Judiciary is concerned, the Judicial Service Commission, which is headed by the Chief Justice, has its own accountability and disciplinary procedure.

When it comes to the President the Constitution provides an impeachment procedure by Parliament.

The President is also made responsible to Parliament for his actions. He also has to face the hustings and the people every six years.

Members of Parliament too can be expelled by the Political Party who have nominated them and lose their seats in the House.

When it comes to Public Servants, there is a mechanism where the Public Service Commission exercises disciplinary control.

Thus, there is an accountability process in every sphere of public service in its broad sense.

When one looks back on the impeachment of Superior Court Judges there is precedence. This is not the first occasion on which impeachment proceedings have been commenced against a Chief Justice. During the stewardship of President Jayawardene, in the case of Chief Justice Neville Samarakoon too, the process of impeachment was put into motion. A Select Committee of Parliament headed by Mr. Premadasa was appointed to look into certain preliminary questions. However, the matter came to a natural end before culmination as Chief Justice Samarakoon reached his age of retirement and thereby ceased to hold judicial office.

There is also international precedence for this procedure of impeachment by the legislature in other domains such as the United States of America and Australia.

Sri Lanka is a democratic nation and accordingly not the process and procedure is without its safe guards. There is a due process to be followed prior to impeachment. A Petition has to be presented to the Speaker with not less than 1/3^rd of the total number of Members of the Parliament, signing the same. (In the present case, 117 Members have signed it, i.e. more than half).  Thereafter, once the Petition is presented to the Speaker, the Speaker has to appoint a Select Committee of Parliament, which comprises of Members of Parliament, both from the Government and the Opposition to inquire into and report to Parliament on the allegations contained in the Petition.

At the Select Committee which inquires into the matter, the Chief Justice has the right to be represented by Counsel, or by a representative or to appear in person. Thereafter, the findings of the Select Committee are tabled in the House, and Parliament debates the same. If the Report of the Select Committee is passed by a simple majority of Parliament, an Address is sent to the President by Parliament for the removal of the Judge, in this case the Chief Justice. The President acts on this Address of Parliament.

Therefore, Mr. Choksy noted that there is a balanced mechanism and Constitutional process where the Chief Justice has a right to be heard and the due process of the Law is followed. Parliament thus acts on the lines of a judicial body.

Mr. Choksy noted that it is not a kangaroo Court as there is a Constitutional process mechanism.

In order to ensure that justice and fair play prevails, Parliament refers the matter to a Select Committee of Parliament. This enables a finding to be come to in a rational and non partisan manner in fairness to the judge concerned and the Institution of the Courts.

Mr. Choksy further added that the Constitution mandates that the Chief Justice shall not be removed other than for “proved misbehaviour”, proved to the satisfaction of Parliament. Parliament scrutinises and debates the findings of the Select Committee.

The words “proved misbehaviour” are of a wide import. They bring within their sweep both misbehaviour in the exercise of their official duties, and also personal conduct; and this for a good reason, namely, that judges must be like “Caesura’s wife”) i.e. beyond any suspicion whatever.

Mr. Choksy noted that the impeachment proceedings of the Chief Justice are entirely in the hands of the Legislature. The Judiciary does not come into the scene at all in keeping with the rule that none shall be a Judge in his own cause.

Never the less, Parliament has to be satisfied that there is proved misbehaviour. Since the Courts do not come into the picture the proof has to be to the satisfaction of Parliament as a whole.

The appointment of a Supreme Court Judge is made by the President under the Constitution. But the President is not empowered to remove such a judge. For the purpose of protecting the institution of the higher Judiciary, a wider process is envisaged with Parliament being brought into the mechanism.

Normally, the appointing authority has the power to remove, but in the larger interest of the protection of the administration of justice, a wider body, namely, Parliament is involved. The President cannot remove a Supreme Court judge or in this case the Chief Justice except upon an address of Parliament.

Mr. K. N. Choksy President’s Counsel, who is an expert on Constitutional Law, had been the first Minister of Constitutional and State Affairs under President D. B. Wijetunge from 1992-1994 and thereafter Minister of Finance from 2002-2004 under President Kumaratunga during the Premiership of Ranil Wickramasinghe.

Mr. Choksy has also been a Member of Parliament for 21 years having joined Parliament in the first National List, when it was introduced under the stewardship of President Premadasa. Mr. Choksy was also appointed in the first batch of President’s counsels by President Jayawardene.