Canada Renews CHOGM Threat 

By Easwaran Rutnam-

 Sunday, December 02, 2012

In a renewed threat, Canada says Prime Minister Stephen Harper will not attend the Commonwealth Heads of Government Meeting (CHOGM) in Sri Lanka next year unless there is an improvement in the human rights situation in Sri Lanka.
Canadian Foreign Ministry spokesperson Chrystiane Roy told The Sunday Leader that the Canadian government feels the Sri Lankan government continues to fail victims and survivors of the war.
The spokesperson also said that Canada is ‘deeply troubled’ by recent reports of intimidation of judges in Sri Lanka, and reiterate the importance of judicial independence.
“Prime Minister Harper has clearly stated that unless there is significant progress on political reconciliation, accountability and respect for human rights in Sri Lanka, he will not attend the CHOGM hosted by Sri Lanka in 2013,” Roy said.
Harper had initially made the threat in September last year to boycott the meeting and one year on the Canadian government feels that there is still no progress on the human rights issue on the ground.
Heads of government from the Commonwealth are scheduled to attend the key conference in Sri Lanka next year.
Chrystiane Roy quoted Canadian Foreign Affairs Minister John Baird as saying recently that the Sri Lankan government must finally put the people of the country first.
His comments were in response to the report by a UN panel on the action taken by the UN during the final stages of the war in Sri Lanka.
“Canada also notes the Secretary General’s comments and will work with the international community to ensure mistakes made in Sri Lanka are not repeated,” Roy quoted the Canadian Foreign Affairs Minister as saying.
On the move to impeach the Chief Justice, Roy said that Canada continues to follow developments with regard to the case very closely.
“It speaks to broader issues of concern, including judicial independence. We are deeply troubled by recent reports of intimidation of judges in Sri Lanka, and reiterate the importance of judicial independence. This means ensuring that judges are allowed to conduct their work professionally, in accordance with the law, and without any form of political interference,” the Foreign Ministry spokesperson told The Sunday Leader.

Heavy military presence around Jaffna University, more arrests feared

02 DECEMBER 2012

BY RAMANAN VEERASINGHAM

With the academic activities of the Jaffna University coming to a grinding halt in protest of police and military atrocities during the past three days, Sri Lanka’s defence authority has increased the military presence around the Jaffna University amid fears that there could be more arrests of University students on false charges of terrorism related activities.

It is reliably learnt that the Jaffna University administration has been given a wanted list of names of at least ten University students following the police-military joint attack on the students on November 27 and 28. Acting Vice Chancellor of the University Prof. Velnamby however, has refused to speak to the media in this regard.

According to media and academic sources in the island’s north, the military which was drastically reduced following the raid on the ladies’ hostels on November 27 and the unprovoked attack on the peaceful students’ march on November 28, has been visibly increased in the vicinity of University from the early hours of today (02). 

“The University area looks virtually like a battlefield with the unusual presence of heavily armed military personnel. You could see hundreds of soldiers guarding all the roads and lanes leading to the Jaffna University and carrying out random checks using sniff dogs on almost all the commuters in a threatening manner,” the sources told the JDS from Jaffna via phone.

“This has increased a very tensed atmosphere in the area and instilled fear among the students using the hostel facilities, especially after the arrest of four students by the Terrorism Investigation Division (TID). The students in the hostels are facing great difficulties even in getting their food as a result,” the sources said.

Attempt for more arrests

Meanwhile, a police team has visited the house of Management Faculty Union leader, Paranthaman Sabeskumar in the early hours of Sunday (02) to arrest him. As he was not present at home at the time of the police visit, his parents were ordered that he be produced at the Jaffna police station before noon to avoid them being arrested.

Sri Lanka’s police chief, DIG N. Illankakoon when contacted by the leader of the Tamil National Alliance (TNA) R. Sampanthan, had claimed no knowledge of the predawn move by the police to arrest Sabeskumar.

DIG Ilankakoon however, has confirmed to the TNA leader during his conversation via phone the arrest of the four other university students on Saturday, informing him that they were being kept and interrogated by the TID at the Vavuniya prison.

Secretary of the Jaffna Students’ Union Paramalingham Darshananth (24) of Kantharmadam, Arts Faculty Union President Kanakasundaraswami Jenamejeyan (24) of Puthukkudiyiruppu, Science Faculty Union member Shamugam Solomon (24) of Jaffna and Ganeshamoorthy Sutharshan (22) of Urumpirai were arrested by  the police on Saturday.

False charges

Police spokesman SSP Prashantha Jayakody has told the media in Colombo that these University students have been arrested “on charges of throwing petrol bomb at a pro-government Tamil party office in Jaffna and pasting posters supporting the militarily defeated Tamil Tiger rebels”.

The academic sources of the University, however, have rejected these charges as “fake, fabricated and politically-motivated to stifle the independency and integrity of the Jaffna University”.

“The military, which virtually runs the daily affairs of the north and the east despite the presence of a so-called civil administration, is hell-bent on establishing its administration even in the Jaffna University. It is unacceptable for the military to practise its anti-terrorism tactics on the innocent students’ society in the war-ravaged Jaffna,” he told the JDS from Jaffna.

“The University administrations are under the University Grants Commission and Ministry of Higher Education, and certainly not under the Ministry of Defence,” he said angrily reacting to the recent military activities.

The University students who boycotted their classes initially for two days in protest of the attacks have now decided to continue their boycott campaign indefinitely with the arrest of four fellow students. The students are demanding that the University Administration should ensure the safety and integrity of the University, instead of allowing the military to run the administration at their will.

Meanwhile, the TNA and the Tamil National People’s Front (TNPF) have decided to launch a joint protest rally in Jaffna on Tuesday (December 4) to condemn the ongoing military aggression on the Jaffna students’ society.

University students are instigated - Military spokesperson

Sunday , 02 December 2012

Jaffna people are well aware about the activities of military.  A group which has the separatism motivation has the necessity to disrupt the links between the people and military.

 

Due to this, the university students are provoked by them was mentioned by military spokesperson Brigadier Ruwan Wanigasooriya.  He made this statement while commenting on the recent incident occurred at the Jaffna university atmosphere.

 

In regard to the incident occurred at the Jaffna university, a request was made by the police and  the military was prepared on last 27th, and such request was not made by police on 28th was mentioned by him.

 

He said, Jaffna people and the military have developed long term close links. Forces captured the entire Jaffna after the “Rivirasa" military operation, and from that time, the links are existing. In year 2009 May month 18th, the country was completely released from the terrorist, and the links became stronger was stated by him.

 

Jaffna people are much aware about the operating system of military. Hence they coordinate with the military.  To disrupt this links between the people and the military, there is a need for one sector.

 

This group’s aim is separatism. It is much depressing, the  university students who are the responsibility holders for the future  are joined with them, was further mentioned by military spokesperson.

Jaffna university Student Union leader, three others arrested in midnight raid

02 DECEMBER 2012

BY RAMANAN VEERASINGHAM

Stepping up their terror campaign against the Jaffna students’ society, Sri Lankan police on Saturday (01) has arrested four Jaffna University Students, including its union leader P. Darshananth and his colleague, in a midnight raid.

According to media sources in Jaffna, a four-member team in police uniform has raided the house of the 24-year old Darshananth in the early hours of Saturday and taken him and another Medical Faculty student to the Jaffna police station, claiming to record a statement from them.

The wailing mother of Darshananth has said that the police team has not given the family any documents relating to his arrest.

In a separate incident, two more Jaffna university students were arrested when they turned up at the nearby Kopay police station on request, along with the Acting Vice Chancellor, Prof. Velnamby.

Prof. Velnamby has said that on the request of the Kopay Police, he took Arts Faculty Union leader K. Janamegan and Science Faculty student S.Solomon to the police station where they were kept and interrogated.

TID takes over

Former Jaffna district parliamentarian and leader of the Tamil National People’s Front (TNPF) Gajendrakumar Ponnambalam told the JDS that all four university students have now been transferred to Colombo and the Terrorism Investigation Department (TID) had taken over the investigation.

“We have requested the key diplomatic missions in Colombo to immediately intervene and ensure the safety of these students. The TID taking over the investigation is a matter of grave concern,” he said.

He said the Tamil political forces have decided to launch a massive protest rally in the next few days in Jaffna to condemn Colombo’s all-out campaign against the University students just for commemorating their heroes and lighting the commemoration lamp despite many threats and intimidation.

Continuous intimidation

The midnight arrest of the Students’ leader and three others have come barely a couple days after the police and the army unleashed a violent attack on a peaceful march by the university students, wounding seven of them on November 28.

The university students conducted a protest march condemning the previous day military raid on the university ladies hostels. Jaffna Newspaper editor and a Jaffna district Tamil parliamentarian were assaulted by the police in uniform and the state intelligence personnel in civvies for covering the raid on the ladies hostels on November 27.

Academic sources of the University of Jaffna said on Saturday that the students from the university hostels have started leaving their hostels for safety reasons.

Boycott campaign

“The university students who boycotted their classes in protest of the attack for the past two days have now decided to continue their boycott campaign with the arrest of four fellow students. They students have demanded the University Administration to ensure the safety and integrity of the University, instead of allowing the military to run the show at their will,” he told the JDS via phone from Jaffna.

Meanwhile, the US embassy issuing a statement, said “the November 28 beating of a reporter in Jaffna, harassment by Government of Sri Lanka officials of independent media outlets, and searches without warrants of journalists all serve to stifle media freedom.”

“We call upon authorities to exercise restraint and respect peaceful demonstrations,” the embassy further said. 

TAG Statement on Sri Lanka's Violence Against Tamil Students
30th November 2012
 
VIOLENCE AGAINST TAMIL STUDENTS, JAFFNA, 27 - 28 NOVEMBER 2012
 
Tamils Against Genocide (TAG) condemns the violent repression of Tamil freedom of expression by the Sri Lankan military and police forces and the accompanying destruction of collective history.
 
The violence against Tamil students, journalists and civilians in Jaffna on the 27^thand 28 Nov 2012, occurred around the Tamil National Remembrance day, a day of remembrance for soldiers who have died in the war. This day is known in Tamil as Maaveerar Naal which translates to ‘Great Warriors Day’.  The 27^th November has been widely marked as Tamil Remembrance day since the 1980s. It is often the culminating day of a week of mourning.
 
The Sri Lankan government has forbidden all forms of private and public mourning for those who died in the war, including any memorial or religious services as well as the private or public lighting of lamps or candles. This follows the widespread physical demolishing of tombs and cemeteries of fallen Tamil soldiers in the past 3 years in the Sri Lanka military occupied Tamil homeland.
 
This year the 27^th of November coincided in the Tamil almanac with the ancient Tamil festival of lights ‘Kartikeya Villakudu” meaning the ‘Lighting of lamps for the god Kartikeyan (Murugan)”.Thus this religious festival was also banned by the government.
 
However to drive the point home the Sri Lankan army organised a competing Sinhala Buddhist celebratory festival of Katina Perahera, replete with Kandyan Sinhala dancers and elephants in the mourning period in the Tamil homeland. Perahera has never been historically celebrated in the Tamil homeland.
 
Nevertheless on November 27^th Tamil people across Sri Lanka lit oil lamps and rang temple bells as cultural expressions of remembrance.
 
On the evening of 27^th November, we understand that the army entered Jaffna university and stood guard throughout the male student dormitories to prevent the lighting of lamps. Lamps were seen lit in the women student dormitories whereupon soldiers entered the dormitories and attacked the young women.
 
The following day Tamil students from the University of Jaffna assembled to peacefully protest the previous day’s attacks on students. The students were violently attacked without justification by the military and some have been taken into custody.
 
Journalists and parliamentarians who sought to report and/or intervene to prevent further military violence were themselves violently attacked by the Sri Lankan army. The journalists attacked included the editor of the well known Tamil paper Uthayan.
 
The violent response by Sri Lankan state authorities against the observance of Remembrance day by students and civilians comprises a brutal attack against the fundamental right to freedom of expression.
 
The attacks on the 28 Nov against a non-violent protest are reminiscent of the repeated historic crushing of the Tamil non-violent Satyagraha movement in the period following the 'Sinhala-Only Act' and other discriminatory state policies implemented from 1956 onwards. 
 
The attacks against journalists and parliamentarians in the prelude and aftermath of November 27 illustrate the state of repression forced upon the Tamil population in Sri Lanka.
 
As with the burning of the Jaffna library by the Sri Lankan army in past decades, the demolition of cemeteries and the banning of religious festivals and remembrance is an attempt to destroy the collective history of the Tamil people.
 
Further, in its attempt to deny the Tamil right to remember and mourn, through violently imposing a state of amnesia, the Sri Lankan Government is attempting to whitewash its recent war crimes and crimes against humanity.
 
It is critical that these latest instances of State perpetrated violence be seen not in isolation but in the context of the systemic and structural persecution by the Sri Lankan State.  
 
These acts of violently destroying national memory may be viewed as one of the ‘different coordinated actions’ referred to in Raphael Lemkin’s definition of genocide. Lemkin defines genocide as a ‘a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups.,. (where) The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups’
 
Whilst it is imperative that this latest instance of repression be condemned, it is also necessary that it be analysed within the historical context - the pattern of violence and wider genocidal intent of the Sri Lankan State. 
 
In this context, TAG requests Sri Lanka’s foreign donors to demand the immediate release of all students taken into custody following Tamil Remembrance Day and to with-hold further economic assistance and military cooperation until the government allows Remembrance Day to be marked by the families of the dead.

GTF moves to exploit UN recognition of Palestine

By Shamindra Ferdinando-December 1, 2012

The Global Tamil Forum (GTF) pushing for an international war crimes inquiry targeting Sri Lanka over accountability issues during the conflict here yesterday said that the Palestinian authority could use the newly gained UN recognition to take up Israeli atrocities at the International Criminal Court (ICC).

UK based GTF is widely believed to be the most influential Tamil Diaspora organization pushing western powers to haul Sri Lanka up before an international tribunal on the basis of ‘Darusman report’ which dealt with accountability issues.

The GTF was responding to a query by The Sunday Island. GTF spokesman Suren Surendiran said that they whole heartedly congratulated the Palestinians in achieving non-member observer state at the UN which was long overdue. 

The UN General Assembly voted overwhelmingly to recognize Palestine as a non-member observer state - a move strongly opposed by Israel and the US.Sri Lankan External Affairs Minister, Prof. G. L. Peiris yesterday told The Sunday Island that the government threw its weight behind the people of Palestine. President Mahinda Rajapaksa always backed the two-state solution for the Palestine-Israel issue in line with 1948 UN resolution.

International media quoted Palestinian President Mahmoud Abbas as having said it was the ‘last chance to save the two-state solution’ with Israel.

Israel’s UN envoy said the bid pushed the peace process ‘backwards,’ while the US said the move was "unfortunate".

The Palestinians can now take part in UN debates and potentially join bodies like the International Criminal Court.

The assembly voted 138-9 in favour, with 41 nations abstaining.

The Palestinians hope that access to UN bodies will bring new rights. A successful application for membership of the ICC could be used to accuse Israel of war crimes or make other legal claims against it.

The GTF told The Sunday Island: "Being able to participate as recognized observers in the UN Sessions now also gives the Palestinian Authority the opportunity to legally challenge at the ICC some of the worst atrocities committed against its people by the State of Israel and certain military and non-military individuals for breaching international laws.

However this shouldn’t be an impediment to achieving long term peace and reconciliation through negotiations between the Palestinian Authority and the State of Israel.

Recognizing the existence of the State of Israel and be responsible for the safety of all people of Israel by the Palestinians is vital at this juncture too, he said. 

Just as many believe a two state solution will bring long lasting peace and stability in the Middle Eastern region. GTF believes that there are similar circumstances when communities will be better off in the long term when distinct Nations are defined and acknowledged by both parties and the international community. 

In such instances mutual respect increases and reconciliation become more sustainable and durable. This also creates greater prospects for communities to respect each other better and more which ultimately results in building successful and friendly nations. In turn this creates stability, prosperity and peace in the region."

Still Counting the Dead: A welcome first step

Still Counting the Dead: A welcome first step

“We used to be a very proud people”¹ – Uma, The Teacher

IGroundviews

Few years ago, during a very wintery January weekend, at a Copenhagen hotel, I was scrambling to prepare a last minute Power Point presentation for a conference themed, violent conflict and health. The reason was one of the Mullivaaykkaal survivors had agreed to speak at the conference’s public symposium as an eyewitness of Vanni war (witnesses from Iraq and South Sudan also spoke at the symposium). The presentation was meant to aid the witness while speaking at the symposium. I was planning for a very brief video or photographic presentation followed by few slides with texts, therefore I was looking for pictures and videos both in my computer and online. Suddenly I remembered about this particular video, which I watched back in May 2009. I managed to get the YouTube link for that video with the help of a friend, in that video, a healthcare professional is attempting to resuscitate (cardiopulmonary) a toddler boy with abdominal injuries and he is gasping for breath few times and later video is showing his dead body, throughout this ordeal, boy’s mother’s faintish sobbing can be heard in the background. I was watching this video with another doctor and I stopped the video in halfway because it was excruciatingly painful to watch, there was a complete silence and we didn’t speak for few minutes. Eventually we decided not to use part of the video, which is showing the resuscitation of the boy. Due to my medical training, normally I am ‘comfortable’ in seeing blood, flesh and injuries but this particular video is extremely agonizing to watch, the irony is, unlike any other typical video taken during the Vanni war, this video doesn’t show much blood or graphic visualisation of bodily injuries.

Here I am recalling my experience for simply to highlight the courage and determination of those survivors of the Vanni war to come forward and share their tragic stories with wider world. They are courageous in two aspects, firstly, for defying the security risk to them and to their families and secondly, their willingness to revisit the memory – even for few hours – of one of the most brutal civil wars since Biafra conflict. The level of dehumanisation and brutalisation of human life during the last few months of the Vanni war is comparable with the conditions of Nazi concentration camps.

Therefore it is extremely important for every reader of this book to acknowledge the invaluable contribution of those survivor-witnesses to the post-war discourse on justice and reconciliation. Whatever their personal political views may have been but one cannot find fault with their desire to see justice for the thousands of victims perished during the war.

II            The battle for narrative                                        Continue reading »

State and Public Employees Federation condemn - systemically attacks.

"Udayan" Editor was assaulted from the Jaffna university compound and “ Sudar Oli" Administration Director E.Saravanabawan's vehicle  was smashed are much condemned was stated by the All Ceylon State and  Public Employees Federation Leader S.Loganathan.

 

 

The statement released on behalf of the Federation further pointed out the brutal attacks against the journalists mainly in the north, is continuing.  

 

A part of this is the attack incident occurred against the “Udayan” Editor who visited Jaffna university compound to collect information directly about the students protest was attacked.  

 

 

Those who are the protectors of law and peoples security are engaged in these nasty attacks which should be considered as a systemically action.

 

We have given ample media freedom which are only stated verbally, but the activities internally are functioning to suppress the medias, and to crush the voices,   which are currently intensifies in the country.

 

"Udayan" which a peoples voice in the north, function with media ethics is hatred by some sectors was the cause for the Jaffna campus incident.

 

Attacks against “Udayan” Editor and Administration Director's attacks are strongly condemned by our Federation, and whatever sectors are connected with this incident, appropriate action should be taken which we appeal was stated.

Sunday , 02 December 2012

Defence Ministry denies Army deserter’s claims

“WHERE IS PRAGEETH?”

         

Defence Ministry denies Army deserter’s claims

[ Sunday, 02 December 2012, 02:35.18 PM GMT +05:30 ]

The Defence Ministry yesterday lashed out at claims made by an Army deserter to a Canadian media that he was instructed to plant explosives at the residence of a prominent Tamil politician.

According to the Ministry, the officer identified as Captain Ravindra Priyashantha Watudura Bandanage, 38, had reportedly deserted after flying to Toronto in October 2009 to take part in a Wushu tournament. According to the Canada based National Post, he had told Canadian immigration officials that he was aware of torture and other crimes carried out by government forces against Tamils. He had also reportedly alleged that he was ordered by a colonel to place explosives in the home of former Tamil National Alliance (TNA) MP, M.K. Sivajilingam. The Defence Ministry in a statement claimed that Capt. Bandanage was “a man of dubious repute and questionable integrity towards his motherland,” and added that he was “one of the many characters in the tragedy that the LTTE rump is playing to the international audience”. The Ministry also revealed that the said officer was not deployed in operational areas during the final stages of the war and had primarily served in and around Colombo where he had been assigned for administrative duties.

On Removal Of Judges

By H.L.de Silva -December 2, 2012

H.L.de Silva -PC

Here is an extract from a lecture delivered by Mr. H.L.de Silva President Counsel, (Senior Counsel who appeared for Mrs. Sirimavo Bandaranayake and for the Sri Lanka Freedom Party in many instances)

The “theme “of the lecture was “THE ROLE OF THE JUDICIARY IN THE PROTECTION OF CONSTITIUTIONAL RIGHT DELIVERED AT SEMINAR ORGANIZED by the Council of Liberal Democracy.
Article could found in ‘IDEAS FOR CONSTITUTIONAL REFORMS” Edited by Dr.Chanaka Amaratunga -1989
Page 495-509 and paragraph could be found on pages 505 and 506,

On Removal of Judges

Chief Justice unveiled the bust of late H.L.de Silva - July 27,2011

Having regard to these far reaching powers it appears to be in congruous for Parliament determine a procedure under Article 107(3) by framing Standing Orders that give the power to Select Committee of the House to determine whether or not a judge of the Supreme Court or the Court of Appeal has been guilty of misbehavior or incapacitated, as ground for removal from office. The determination of guilt when a judge is charged with misconduct is clearly an exercise of judicial power by Parliament directly, which is inconsistent with Article 4(c), since it does not fall within the exception therein mentioned. I my submission, what is contemplated in Article 107(3) is prescribing procedure which enables the guilt of a judge to be determined by a body competent to exercise judicial power directly, namely a court, tribunal or other institution established for the purpose. It is only after a judicial finding by such a body that Parliament is empowered under Article 107 to vote on the question of his removal. The existing procedural anomaly needs to be remedied.
(This paragraph is also can found in “IDEAS FOR CONSTITUTIONAL REFORMS” , EDITED BY Dr Chanaka Amaratunga revised and abridged by Dr Rajiva Wijesinha-2007- IBH Publishers at page 239)

*Sent by Kamal Nissanka, Attorney-at-Law, Secretary General, Liberal Party of Sri Lanka

This is the Elmore's Petition against the unlawful trial in parliament

(Lanka-e-News -02.Dec.2012, 6.00PM) IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application under Article 126 of the Constitution Elmore M. Perera, 144, Vipulasena Mawatha. Colombo 10 Petitioner S.C. Application Vs. No. 682/2012 (FR) 1. Her Ladyship, Hon. Dr. (Ms.) Shirani Anshumala Bandaranayake, Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka, Supreme Court Complex, Hultsdorp, Colombo 12. 2. Hon. Chamal Rajapaksa, M.P., Speaker of Parliament. 3. Hon Anura Priyadarshana Yapa, M.P., Chairman, Parliamentary Select Committee (PSC) 4. Hon. Nimal Siripala de Silva, M.P., Member, PSC. 5. Hon. A.D.Susil Premajayantha, M.P., Member, PSC. 6. Hon. Dr. Rajitha Senaratne, M.P., Member, PSC. 7. Hon. Wimal Weerawansa, M.P., Member, PSC. 8. Hon. Dilan Perera, M.P., Member, PSC. 9. Hon. Neomal Perera, M.P., Member, PSC. 10. Hon. Lakshman Kiriella, M.P. Member, PSC. 11. Hon. John Amaratunga, M.P., Member, PSC. 12. Hon. Rajavarothiam Sampanthan, M.P., Member, PSC. 13. Hon. Vijitha Herath, M.P., Member, PSC. 2nd to 3rd Respondents all c/o The Secretary General of Parliament, House of Parliament, Sri Jayawardhenepura, Battarumulla. 14. Hon. Attorney General, Attorney General’s Department, Hultsdorp, Colombo 12. Respondents TO: HER LADYSHIP THE CHIEF JUUSTICE AND THE OTHER HONOURABALE JUSTICES OF THE SUPREME COURT OF SRI LANKA On this day of November, 2012. The Petition of the Petitioner above-named appearing in person states as follows: 01. The Petitioner is a citizen of Sri Lanka, 79 years of age. Burdened by a deep sense of gratitude for the extensive Education and Training afforded to him by the Sri Lankan State, he is committed to seeking strict observance of the Rule of Law and the Independence of the Judiciary in Sri Lanka, and therefore tenders this Petition in the public interest. 02. The 1st Respondent is the Hon Chief Justice of the Supreme Court, the 2nd Respondent is the Hon. Speaker of Parliament, the 3rd to 13th Respondents are the Chairman and Members of the Select Committee appointed by the 2nd Respondent in terms of Standing Order 78A of the Parliament to inquire into allegations of misconduct of the 1st Respondent, and the 14th Respondent is the Hon. Attorney General who is so named in terms of the Rules of the Supreme Court. 03. The Petitioner has served as an Independent Public Servant from February 1957, in various capacities in the Survey Department, as Additional Director Sri Lanka Institute of Development Administration (SLIDA), and as Surveyor General until his retirement in October 1991. He was enrolled as an Attorney-at-Law of the Supreme Court on 19th November 1992 and served in that capacity until he was suspended from practicing as such on 20th November 2006. He founded the Citizen’s Movement for Good Governance in April 2002 and served as President of the Organisation of Professional Associations in 2007/2008.                                                             Full story >>

SRI LANKA: Speaker's ruling has no bearing upon the substantive issues in the impeachment

December 2, 2012

The Speaker's ruling relating to the Supreme Court's notice to the Speaker and the members of the Parliamentary Select Committee does not in any way prohibits the constitutional right of the Court to entertain and to determine the Reference made by the Court of Appeal for a specific question relating to the scope of Article 107 (3) of the Constitution. Since the issue mooted is of utmost importance, various aspects relating to it should be reflected upon on the basis of constitutional principles and logic.

Based on this the following issues could be highlighted:

The basic structure of Sri Lanka's constitution as a democracy - It is beyond question that Sri Lanka's constitution is that of a republic and a democracy. In this there is no fundamental difference between the Indian constitution and the Sri Lankan constitution. The Supreme Court of India finally laid the issue to rest through a historic judgment, Keshavananda Bharati vs. Union of India and others. In going into the questions referred by the Court of Appeal to the Supreme Court, the issue of the basic structure of the Constitution of Sri Lanka is an unavoidable issue. All the maters arising out of the Speaker's ruling should be considered relative to the basic issue of Sri Lanka as a democracy. The Speaker's powers need to be looked at within the constitutional architecture that defines Sri Lanka as a democracy.

Any reference to the ultimate supremacy of the parliament should only be understood with reference to the overall consideration of Sri Lanka as a democracy. Such phrases as "supremacy of the parliament" should not be given any meaning that will be detrimental to Sri Lanka's constitutional structure as a democracy.

The Speaker's ruling cannot limit the power of the Supreme Court to decide on the constitutionality of any matter - It is a settled principle that the primary opinion on the question of constitutionality of any issue is with the judiciary. To hold otherwise would be to deviate from the basis that Sri Lanka is a democracy.

Even a decision of the parliament arrived through a vote in the parliament is subject to judicial review - There is no limitation for the Supreme Court's authority for judicial review concerning any decision of the parliament or that of a Select Committee constituted by the parliament. The Court has also the power to review the material on which the decision of the parliament or that of the Select Committee is arrived at. The Indian Supreme Court in the S. R. Bommai case has dealt with this matter in great clarity.

The cornerstone of the objection concerning the impeachment process is that a Parliamentary Select Committee cannot exercise judicial power and that such a Committee cannot be considered an impartial and a competent tribunal to decide on the matters relating to the charges against the Chief Justice. This being so from the beginning the functions of the Select Committee in this regard would have no impact on law and could not this lead to any valid decision relating to the impeachment. Therefore the Court has the jurisdiction to declare the legality and the constitutionality of such a process and to declare it void.

The Court has the power to examine the material on which the decision is made - the decision of the Select Committee that is acting as a tribunal cannot lead to a valid decision, and therefore even if the parliament is to vote in favour of an impeachment on the basis of such finding the court has the power to declare such a decision as one that violates the constitution.

The actions of a Select Committee or the Parliament are actions of the government and therefore the court alone has the jurisdiction to review the constitutionality of any such action by a government - The decision relating to the impeachment and the process thereto are not different to any other action by the government. These cannot be claimed as exceptions to the rule that the court has the power to examine the constitutionality of any action of the government.

On the basis of the above considerations the ruling of the Speaker is of no practical importance to the substantive issues relating to the impeachment - Since no substantive issue rests on the Speaker's ruling there is no reason to give any serious consideration to this ruling as a substantive obstacle to the Court entertaining its jurisdiction in the matter.

The Speaker's ruling may indicate that the government may not abide the decision by the Court in this instance - This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive. A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.

Two wrongs don’t make a right

By Sanjaya Nallaperuma-Sunday, 02. December 2012 

UNP Colombo district MP Wijeyadasa Rajapakshe said any power struggle between the judiciary and the legislator would greatly and seriously imperil democracy in the country.
Excerpts:

The present tussle between the judiciary and the executive is raging on. What is your take on it?
    This tussle has now spread to the legislature as well and it is the judiciary and the legislature that are at loggerheads right now. In fact these three institutions are now in a deadlock. It is tough to gauge how long these disputes will last, and what is clear to me is that none of these three institutions are ready to be dictated to by the other. But it is also clear that both the executive and the legislature are ganging up against the judiciary.

How would any possible power struggle between these three institutions impact on democracy in the country?
    I feel that any power struggle between these three institutions would greatly and seriously imperil democracy in the country. This could only be the tip of the iceberg. There had been similar instances previously as well. In the 1960s there were similar circumstances here and thanks to socialist speeches the 1971 uprising took place. That was the same thing that took place during the 1988-1989 period. Even former president J.R. Jayewardene filed an impeachment motion against the then chief justice Neville Samarakoon. The end result would be the law of the jungle ruling the roost.

The charges levelled against the chief justice have been released to the media as well. Not only that, the chief justice even gave her explanation to such charges in the media through her own attorneys. Do you see any justification in the charges levelled against the chief justice?
    It is not suitable to express my views on such issue when they have already formed a PSC to probe those charges. But there seems to be a great political upheaval like never before in the country over these issues. There are those who are expressing views, both for and against the impeachment motion. They are also using the media in this regard. Some are going on protest marches as well. Whatever is said and done the people have lost confidence in the executive and Parliament. The people had reposed their confidence in the judiciary. But if the judiciary also falls to the same level of the executive and Parliament, it might mean the end of democracy in Sri Lanka.

What will be the immediate impact on the country through this upheaval?
    Parliament has decided to probe the charges against the chief justice without an accepted mechanism. This is a process that has not been tried and tested. Today there are many justified legal systems that are taking place in most Commonwealth nations. And in a country like Malaysia, the charges against the chief justice are probed by three chief justices of Commonwealth countries. There is also a special system adopted in India. As per the Constitution that was amended in 2000, this particular mechanism has been accepted. But there appears to be no justified form of probing the charges levelled against the chief justice. There are no chief justices invited from any Commonwealth countries to sit in judgment on her case. And any verdict or ruling given by such a committee will not be accepted as justice by the people. There is no use in adopting such procedures for only judges and lawyers. The people too should have confidence in this system.

These charges are probed by a PSC that consists of MPs from both sides of the floor. Do they have the right to probe such charges against a chief justice?
    As per the Standing Order 78 such an authority has been given to them. But as per the 4th clause of the Constitution the legislature has no such power. This is where the crisis erupts. It is the legislature that has the power to give renditions to the Constitution. Right now the Supreme Court has been petitioned concerning the rendition of the Constitution and the Supreme Court will give its ruling after a two-month period. If they were to give a verdict on the impeachment motion before the Supreme Court gives its verdict it could lead to a crisis situation on a major scale.

But within the Constitution there is provision made for the ouster of a chief justice.
    It has been so stated as per the Standing Orders. But Standing Orders cannot be construed as law. The Standing Orders only concern the legislature. There are such orders in the Supreme Court as well and they are maintained to ensure internal activities of the institutions concerned.

But why is that through such orders the legislature cannot probe any charges against the chief justice?
    As I said, though it has been formulated by Parliament it does not become law. It is true that it is Parliament that formulates laws and acts. But Standing Orders are meant to ensure that internal activities of the institution concerned goes ahead without a hitch.

But former chief justice Neville Samarakoon too was subjected to this same mechanism. If it was good for him how is that it is not good for Shirani Bandaranayake?
    The Courts will only give its verdict if someone files a case and not otherwise. Verdicts given in the past could be changed to suit the present day. Therefore two ‘wrongs’ cannot be compared as a ‘right.’ Just because a wrong has been done in the past and if it were to be repeated, and if one were to say that it is the right thing, that is not the way it has to be done. Wrongs done in the past have to be accepted as wrongs and then rectified in the present day.

The charges against the chief justice have been brought by Parliament and it is that very same Parliament that is probing these charges. How ethical is this process?
    It is accepted in law that your own case should not be judged by you. Now through this process that mechanism has broken down irretrievably. Parliament is now judging its own case. Where is the democracy in such a process? We have already accepted about justified rulings being given through Courts. Especially, charges against the chief justice have to be probed by those with a sound knowledge of the law and I do not think such legal brains are present in the legislature to undertake such a task.

Are you opposing the composition of the PSC? 
    I feel that those chosen to sit in the PSC are not suitable for that task. There are those who are not even lawyers who are sitting in the PSC. Lawyers have some knowledge of the law but what can we expect from those who are not lawyers?

So far some have petitioned the Supreme Court requesting it to urge the legislature not to probe the charges against the chief justice till a verdict is given in the Supreme Court. But the legislature has decided to go ahead with its probe. What is your take on it?
    What this leads to is clear friction between the judiciary and the legislature. Democracy in a country will  survive as long as the three institutions understand their jurisdiction and try to co-exist. And when that breaks down, democracy will cease to exist.

The summons issued to the speaker and the PSC members by the Supreme Court to give their version on the impeachment motion against the chief justice have been rejected by the speaker. What will be the final outcome?
    This is only the tip of the iceberg and it is only the start of the law of the jungle becoming established here. Both the executive and the legislature, not being prepared to accept the orders given by the judiciary, means that there is no rule of law in this country. There is only an arbitrary law there.

But doesn’t the ruling given by the speaker also ensures its independence, and isn’t that a good thing?
    There is already independence there. To prepare laws, it is alright. But it is the judiciary that can give rulings on the law; not the legislature. But by this ruling it shows that Parliament does not agree with the ruling given on the law by the judiciary.

This same ruling was given by former speaker Anura Bandaranaike. Do you mean to say that successive speakers should not follow suit?
    He had given this ruling under different circumstances. He only accepted that the chief justice could be impeached.

Is the people’s independence ensured by the present Parliament?
    I don’t think so.

Don’t you think the time is nigh for the Constitution to be changed?
    From 1994 onwards all governments that came to power told the country that they will change the Constitution once they ascend to power. They even promised to do away with the executive presidency.  

Do you think that those serving in the PSC are acting contrary to the accepted laws and norms in the legal field?
    They are clearly acting contrary to the law and they are flouting all the regulations. Some of those sitting in the PSC have been even brought before the chief justice for certain cases and then a question rises on their impartiality.

What action could be taken against PSC members if they violate laws and regulations?
    That lies solely with the speaker. He has to control it. The chief justice’s issue is now in the national and international domain, and it would have been better if the government had included more members to the PSC from the opposition.