Sri Lanka:Like the Titanic Sri Lanka Democracy Sunk -Basil Fernando

Thursday, 08 November 2012 

comparison with the Titanic is most appropriate. Titanic at the time was thought of as a wonder ship that could never sink. It was not expected ever to perish.

Sri Lanka also was considered a wonder. It was expected to be an example to other countries. It was expected to prove that democratization of a “less developed country” is possible and achievable. In granting adult franchise in 1931, long before many other countries, Lord Donoughmore said, the world will watch the outcome of this.

However, what everyone conveniently forgot was that they must be vigilant because of the possibility of hidden icebergs.

One such iceberg emerged in 1978. This was by way of a new constitution. It had been quickly created through the tyranny of a two-third majority that government had in parliament. It was a man-made iceberg that created a constitutional monster called the executive president.

However, the country’s affluent sections and the intellectuals were happily drinking and singing the praises of open economy and became oblivious to the danger that was looming.

Each group was pursuing their petty interests and lost sight of the whole.

While the legislature and the judiciary were also were having their parties with the executive, the iceberg got ever closer.

It finally struck. The final blow was on the judiciary, which was itself enjoying the party.

When and how will the sunken democracy rise again? Those are the only real questions now.

In Indonesia it took over 35 years to undo General Suharto’s attack on democracy. Burma, is still struggling to rise again after General Ne Win’s attack on that country’s democracy and there are many other examples which show how difficult it is to rise again.

It is, of course, possible, the sleep walk-by thinking nothing has happened.

Many may find ways to get something out of this tragic situation…… There are times when vultures have their festivals.

But, the truth now is that the ship has in fact sunk.

Ruling Coalition Partner Communist Party Says They Are Not For Impeachment Of CJ

By Colombo Telegraph -November 7, 2012 

“The Communist Party of Sri Lanka dissociates itself from the initiation of the process for impeachment of Mrs. Shirani Bandaranayake, Chief Justice” says the Communist Party of Sri Lanka.

Raja Collure

Issuing a statement its Chairman Raja Collure says ”it notes that the motion for impeachment was brought forth in the background of a conflict between the judiciary and the Executive. Conflict between the judiciary and the Executive is a product of the Executive Presidential system and would continue to recur as long as the Executive Presidential system in place. Therefore our attention should be drawn to the urgency of abolishing the Executive Presidential system.”

“The political Bureau of the Communist Party of Sri Lanka has advice the Communist members of parliament to refrain from been nominated to the Select Committee on the impeachment.” he further says.

Lat week the Colombo Telegraph reported that the Politbureau of the Lanka Sama Samaja Party (LSSP) has instructed its national organizer and MP for Kegalle District, Y.G. Padmasiri to withdraw his signature from the impeachment motion against the Chief Justice.

The Politbureau had earlier decided that LSSP MPs should not sign the impeachment motion. However, after a meeting President Mahinda Rajapakse had with UPFA leaders, Minister Tissa Vitarana who is also the Secretary of the LSSP had unilaterally instructed MP Padmasiri to sign the motion. At the Politbureau meeting held on 02nd November, members had been highly critical of the Minister for overriding a decision of the Party. Sources said that Minister Vitarana had been greatly embarrassed and had apologized for what happened. Thereafter, the Politbureau had instructed Mr Padmasiri to write to the Speaker and withdraw his signature.

This episode comes in the wake of the Communist Party Special Congress that took place on 28 October resolving in a self-criticism that voting for the 18th Amendment was a mistake. On 02 November, the Politbureau of the CP had censured Minister Chandrasiri Gajadheera for signing the impeachment motion against the Chief Justice without its permission. Gajadheera had explained that Minister DEW Gunasekera had instructed him to do so. Minister Gunasekera had come in for severe criticism and the Politbureau has decided that the two CP MPs should obtain instructions from the Politbureau in future.

Meanwhile Democratic Left Front Secretary and Minister of National Languages and Social Integration Vasudeva Nanayakkara said that the party leaders have not signed the impeachment motion. Nanayakkara told The Sunday Leader that he will give his views on the motion once he sees the allegations after it is presented in Parliament this week.

Read the press statement here;  English and Sinhala

Related stories;

Chief Justice Is Planning To Call More Than 700 Witnesses

Inauspicious Start For Impeachment Motion Handed Over At Auspicious Time

JUSTICE MUST BE SEEN TO BE DONE

Media Release
JUSTICE MUST BE SEEN TO BE DONE

Created on 08 November 2012
The Government has tabled a motion in Parliament to impeach the Chief Justice Shirani Bandaranayake that sets out 14 charges against her, including some relating to her personal finances. Government spokesmen have assured that the motion is not motivated by any displeasure caused by such judgments and that it is based on alleged acts of misconduct by the Chief Justice. However, it is significant that the Supreme Court has recently given several judgments against the State including one that has upheld the devolved power of provincial councils, which is necessary for inter-ethnic power sharing. It is also significant that there have been several other instances of gross misconduct by members of the government that have involved criminal acts and loss of public funds that have gone without proper investigation and without punishment. This has given rise to speculation that the Executive and Judicial arms of government have been on collision course.

It is extraordinary in a democratic society for a chief justice to be faced with charges of the kind that have been published that are said to merit impeachment. The UN Declaration on the Judiciary states that “Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”

Justice it is said must not only be done but also be seen to be done. The government has made assurances that due process will be followed. The Speaker will now form a Parliamentary Select Committee to investigate the charges against the chief justice. It is important that the initiation of such inquiries will not be based on political grounds but will be done with independence and impartiality. The impeachment resolution is signed by the members of the government party coalition in Parliament. There will be a Select Committee where members of both sides of Parliament would be represented that will go into the merits of the impeachment. We hope that the Chairman of the Select Committee will be drawn from the Opposition with equal representation from both sides of Parliament.

The National Peace Council believes that those who are holding public office need to behave in a manner that will not bring disrepute to them or to the positions they hold. The Chief Justice has asserted that she has always acted in keeping with the hallowed traditions of an Independent Judiciary and that she is prepared to face any impeachment motion brought against her. Accordingly she needs to be given every opportunity to defend herself before the Parliamentary Select Committee, which we hope would be fearless, independent, impartial and transparent in its deliberations in the interest of respect for the rule of law and democratic governance in Sri Lanka.

Governing Council

The National Peace Council is an independent and non partisan organisation that works towards a negotiated political solution to the ethnic conflict in Sri Lanka. It has a vision of a peaceful and prosperous Sri Lanka in which the freedom, human rights and democratic rights of all the communities are respected. The policy of the National Peace Council is determined by its Governing Council of 20 members who are drawn from diverse walks of life and belong to all the main ethnic and religious communities in the country.

BASL Has Failed To Act Positively

By Lal Wijenayaka -November 8, 2012 |

Lal Wijenayaka

The series of events which are naked attacks on the rule of law and the independence of the judiciary in the recent past are well recorded.  These events culminated in the unprecedented action of the JSC chaired by the Chief Justice and constituted of two other Supreme Court Judges releasing a statement to the public through the Secretary to the commission.  In whatever way one looks at the statement, it is the expression of the displeasure of the JSC on the interference of the executive in the discharge of its constitutional functions.  There is no doubt that this unprecedented move stemmed from the unprecedented happenings of the recent past.

Lawyers are the persons who will be most affected by any outside interference in the enforcement of rule of law and the independence of the judiciary.  Lawyers could perform their professional duties with dignity and self respect only under a system where the rule of law and independence of the judiciary is respected.  In a legal system where the rule of law and independence of the judiciary is trammeled as far as the professional duties are concerned they cease to function as lawyers and become mere ‘brokers’ in the system.  Therefore, the preservation of the rule of law and independence of the judiciary goes to the heart and core of the profession.  No member of the legal profession with a conscience can compromise in any way with these developments.

The BASL as the professional body of the lawyers has a paramount duty to safeguard Rule of Law and independence of the judiciary against the attacks on the rule of law and the independence of the judiciary and to protect and promote the rule of law and independence of the judiciary.

In the midst of the serious and alarming events that has come to pass, it is saddening to see that the BASL has failed to act positively and meaningfully against these events that has dealt unprecedented blows on the rule of law and the independence of the judiciary.  It has to be said that this has being the case not only under the present leadership of the BASL but for a considerable period of time.  The failure to act during  Chief Justice Sarath N Silva’s tenure in office is a glaring instance.

It is not that the BASL did not do anything, but that the BASL has failed to do anything more than issuing statements condemning these attacks and expressing its concern.

These forms of protest would have even sufficed if these incidents were isolated incidents which are deviations from the norm.

But unfortunately it is not so and these series of events has shown a pattern, a system and repetition.  It has reached a stage where the BASL is obliged to go beyond the mere issuing of statements and going into discussions with the authorities concerned.

The time has come for the BASL to go to the people and educate them, enlighten them and get their backing for a campaign to force those responsible for the present state of affairs to refrain from such actions.

It is the people who are souverign and it is for the BASL to take these serious developments to them.  There is no issue in discussing these matters with the authorities concerned.  The view of the BASL seems to be that there should be a compromise between the executive and the judiciary. What is meant by this ‘compromise’ is not clear.  The only compromise should be that the executive and the legislature should respect the Rule of Law and independence of the judiciary as proclaimed in the constitution and upheld in the constitution.  There cannot be any other compromise short of this.

A suggestion made at the meeting of the Bar Council, that the BASL should go to the people to explain and enlighten the people on these issues was not even considered.

The very successful manner in which the university teachers under the FUTA, was able to take their cause to the people and to muster the people behind their cause is an example worth emulating.  FUTA was able to carry on their campaign in taking the crisis of education to the people with much force in a dignified and enlightened manner worthy of academics.  Now almost every household in Sri Lanka is aware of the crisis of education.

Every household should be made aware of the crisis in administration of justice which is more serious and goes to the very fundamental question of upholding the constitution and Democracy.

Democracy cannot stand minus rule of law and independence of the judiciary.

Impeachment motion-a damp squib.! charges stink like bowel discharges – MaRa in a fit of rage and insanity
(Lanka-e-News -08.Nov.2012, 4.30PM) Because of reports that the impeachment motion is dropping dead in its tracks , the sounds of the gabs and garbage mouths of the Rajapakses have also gone dead. MaRa at the Temple Trees who is breathing fire and brimstone over this fiasco has virtually gone mad shouting hoarse at all and sundry using his favorite ‘choice words’, according to reports reaching Lanka e news. Because there were two serious lapses in the indictments No. 09 and No.11of the impeachment motion tabled in Parliament by the Speaker on the 06th , the whole impeachment has been subject to grave illegalities.

The charges 9 and 11 refer to the case filed in 1992 against Dr. Shiranee Bandaranayake as a SC judge . But to the consternation of the protagonists of this impeachment , during this period Dr. Bandaranayake was just a student at the Colombo University. She was appointed as a SC judge only in October 1996.

Consequently , the impeachment has seriously and absolutely misled the Parliament .

Following this exposure of the flaws in the impeachment motion by the legal sector , MaRa , BaRa and some MPs were to request the Speaker for a correction. 
In a country where the rulers have even denied the right to correct the mistakes in a piece of village scurrilous literature , the legal counsels have pointed out that there are no traditions which permit rectification of mistakes of the impeachment which misled the Parliament, brought against the individual who is as high as the third in the country’s administrative hierarchy.

Meanwhile, it is also specially noteworthy that following the publication of the English version of the impeachment tabled in Parliament , many foreign individuals and the intelligentsia have shockingly and in dismay pointed out that there are countless flaws in the language .They added that a student sitting for the London O/level exam would have written in better English language.

Will SLMC And Left Parties Give The 2/3 Majority Needed?

By Colombo Telegraph -November 8, 2012

An interesting constitutional issue has arisen consequent to the determination of the Supreme Court in the matter of the Divineguma Bill. The Supreme Court has ruled that as the Northern Provincial Council has not been constituted, it was not possible for the Bill to have been sent to the Northern Provincial Council for the expression of its views. However, the Court has also ruled that the Governor of the Northern Province could not have expressed a view on behalf of the Northern Provincial Council. As such, the Court has determined that the Bill must be proceeded with on the basis that the Northern Provincial Council has not agreed to the passing of the Bill.

Tissa, DEW and Vasu

Article 154 G (3) of the Constitution states as follows:

“(3) No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President , after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference, and - where every such Council agrees to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting ; or where one or more Councils do not agree to the passing of the Bill, such Bill is passed by the special majority required by Article 82:

Provided that where such reference, some but not all the Provincial Councils agree to passing of a Bill, such Bill shall become law applicable only to the Provinces for which the Provincial Councils agreeing to the Bill have been established, upon such Bill being passed by a majority of the Members of Parliament present and voting.”

The Supreme Court has stated that the only workable interpretation that could be given is that since the views of one Provincial Council cannot be obtained, the Bill should be passed by a two-thirds majority, considering the provisions of Article 154 G (3).

A constitutional expert contacted by Colombo Telegraph stated that if the Bill is not passed by 2/3 majority but only by a simple majority, the law will not apply to the Northern Province.

The above likely scenario was raised by Colombo Telegraph last week. Pro-devolution parties in the Government such as the Sri Lanka Muslim Congress, Lanka Sama Samaja Party, Communist Party, Democratic Left Front of Minister Vasudeva Nanayakkara, CWC and EPDP as well as MPs such as Rajitha Senaratne, John Seneviratne and Dilan Perera will now have to decide whether to provide a 2/3 majority to impose the Divineguma Bill on the Northern Province when the people of the Northern Province have not been consulted. Political observers expect the CWC, EPDP and pro-devolution MPs of the SLFP to go along with the Government. However, the Sri Lanka Muslim Congress and the Left parties will find it extremely difficult to do so.

Lankan government fails to solve ethnic problems: Group for peace and reconcilia​tion

[ Wednesday, 07 November 2012, 01:41.19 PM GMT +05:30 ]

Group for peace and reconciliation informed multi religious leaders that government has defeated the terrorism and failed to solve ethnic issue of this country.

Group of international and local religious leaders visited Jaffna peninsula today had hold discussions with the representatives of group of Peace and Reconciliation and also with traders in the area. During the time of discussion group for peace and reconciliation pointed out since end of the war Lankan government fail to complete resettlement activities and also fail to evacuate high security zones in the war zones. The report of Lesson Learnt Reconciliation commission stressed to decrease number of military presentation in the Jaffna peninsula. They also blamed since the defeat of terrorism in the country government continuously implement Prevention of Terrorist Act in the country. Media organizations were not permitted to hold independent work media personals face various threats to continue their duty. .........................................................................................................................................................

Supreme Court Declares Two Other Bills Unconstitutional

By Colombo Telegraph -November 7, 2012

Justices Shiranee Tilakawardane

The Supreme Court has declared two clauses of the Appropriation Bill (2012) inconsistent with the Constitution. A three judge Bench comprising Justices Shiranee Tilakawardane, Priyasath Dep and Eva Wanasundera held that the two clauses in the Bill, unless amended in line with its determination, would violate the constitutional provision giving Parliament full control over public finance, because they provide too much discretion to the executive in the disbursement and raising of public funds. The Court’s Special Determination was made on a challenge to the Bill by theCentre for Policy Alternatives (CPA).

Meanwhile, another three judge Bench comprising Justices P.A. Ratnayake, Chandra Ekanayake and S.I. Imam declared a provision relating to the detention of persons in the Criminal Procedure (Special Provisions) Bill (2012) also inconsistent with the Constitution, unless it was amended in line with an undertaking given to court by the Attorney General.

Both determinations of the Supreme Court are reproduced below.

Supreme Court Determination -Appropriation Bill

« Previous Image | Back to Post |

As US Trashes "Evil 8" on Human Rights, Nothing on Sri Lanka, Bahrain, S. Sudan

By Matthew Russell Lee

UNITED NATIONS, November 6 -- It was US election day when the US Mission to the UN got its chance to speechify on human rights in the General Assembly's Third Committee. Its turn came right after Venezuela, which raised the specter of "killer drones."

  The US, which is running for a second term on the UN Human Rights Council, did not address the drone critique in its speech, a hard copy of which it did not, unlike Australia, pass out to the audience including Inner City Press. Rather, it chose eight countries to criticize, and one to mostly praise: Myanmar, or as the US said it, Burma.

  The Evil Eight in the US speech - our term, not the US speaker's -- were in order Syria, Iran, North Korea, Sudan, Belarus, Eritrea, Cuba, China. Not mentioned, among others, were US ally Bahrain, which recently prohibited even peaceful demonstrations, and Sri Lanka, which after what the UN said were 40,000 civilians killings in 2009, has not punished anyone.

  In Geneva, the US spoke about Sri Lanka. But in its New York speech, not at all. Likewise, while earlier on Tuesday the US criticized South Sudan for throwing out the UN's human rights officials, this was not mentioned in its Third Committee speech.

  Of course there are priorities. Perhaps these "minor" issues -- Sri Lanka with its 40,000 dead, Bahrain, even South Sudan -- are mentioned in the longer, written version of the speech. 

   But some hope that the alongside the railing against countries over which it has little "soft power," the US applies some human right standards to its friends, at least behind the scenes. Watch this site.

President annoyed by a land advertisement

Wednesday, 07 November 2012

President Mahinda Rajapaksa has been annoyed by an advertisement on the sale of a land called Blue Mountain that is being telecast on the state owned Rupavahini and ITN channels. Sources from ITN say that the President had reprimanded the ITN Chairman over the telephone.

The advertisement shows a person clad in the attire of a holy person who claims to be the guardian of the area and for people to therefore have faith in the Blue Mountain area. The President had telephoned the ITN Chairman and said that there was only one guardian for the country and that it was him.

The President had said that people could not make such claims as they please and that TV stations should be mindful of what they telecast.

A directive had then been issued to stop telecasting the advertisement.

The Chairman had immediately ordered that the advertisement be stopped from being telecast on the station. A directive had also been issued to pay back the monies to the company. Shocked by the turn of events, ITN employees are currently discussing the serious situation faced by the President.