SL “Terrorist” division abducts 18-year-old student in VVT, Jaffna
[TamilNet, Saturday, 08 December 2012, 11:37 GMT]
SL military deployed together with SL police at Kaladdi junction, close to the University of Jaffna
An investigator attached to the so-called Terrorist Investigation Department (TID) of the Colombo regime, which functions under the direct command of the Sri Lankan Defence Ministry, on Friday, phoned the family of an 18-year-old Tamil student, Arulampalam Dishokraj, who was abducted the previous day in Valveddith-thu'rai (VVT) in Jaffna. The TID official has informed the family that their missing son was under the custody of the TID for investigations. Another youth from Oo'ra'ni in VVT, 24-year-old Prasath Sivasampu, who was an ex-LTTE member, has been reported missing since December 01 when he left for Colombo. Meanwhile, the presence of SL military in the environs of the University of Jaffna was still threatening the students of the Jaffna university, the student union said Friday announcing that it will continue the protest till the students are released by the TID. 

SL military patrols the area carrying automatic rifles. Photo taken earlier this week at Kaladdi junction
The abduction and detention of the 18-year-old student of VVT Sithampara College in Jaffna is viewed by the student community in Jaffna as part of the larger terror campaign waged against the Tamil students.

Upon the abduction of their son, the family had complained to the SL Human Rights Commission and the SL Police in VVT. 

In the meantime, the alleged TID officer has made a call to the cell phone, which was at the house of the missing student, claiming that the student was being interrogated by the TID. 

Apart from the phone call, there was no official record of his arrest, news sources in VVT said.

Some of Dishokraj's siblings had sacrificed their lives as the members of the LTTE in the armed struggle, the sources further said. 

Reason for attacks against students is military rule. Alliance points out to UN panel.

Saturday , 08 December 2012

The attacks against the Jaffna university students arrest and threaten incidents which are now prevailing in the north is due to the existing military rule. Owning to this, the educational activities of the university students have got disturbed, but government had not taken any action to curtail this.

 

Tamil National Alliance parliament members brought this to the attention of United Nation panel.

 

Tamil National Alliance Leader R.Sambanthan headed parliament members panel and the panel consisting UN permanent representatives met in Colombo two days back.

 

Regarding this meeting, Tamil National Alliance parliament member Mawai Senathiraja was contacted and he mentioned the above.

 

He said attacks against the university students and arrests are continuously in occurrence. These activities focus in the manner of threatening the students.

 

Jaffna university students and their parents are desperate what would happen next. The learning activities have come to a standstill due to the arrest of students. Tamils students’ education has got affected.

 

The root cause for this is the continuous military rule prevailing in the north. Government had not taken any action to get rid of this and to create a peaceful atmosphere.

 

We have clearly informed to the UN panel, and have requested them to directly visit and observe the situation.

 

Meanwhile Tamil National Alliance will continuously take attempts to release the university students. We would also discuss of taking legal action by discussions with the students’ parents.

Saturday , 08 December 2012

Jaffna University student union secretary and another unconscious following brutal assault and torture at TID: TID team to leave for Pooneryn tonight for the conspiracy

(Lanka-e-News -08.Dec.2012, 10.00PM) The Secretary of the Jaffna university students general union , Dharshanath and another student who were arrested, had been tortured and assaulted mercilessly by the Terrorist investigation Dept. (TID) Colombo, consequent upon which they are in an unconscious state, as revealed to the Lanka e news by a top notch TID officer . Under the directions of the chief of the TID , DIG Chandra Wakishta, this brutal assault and torture had been inflicted by a TID OIC, a IP and a sergent. They have hanged the two students by their legs and fiercely assaulted them . Due to these ruthless torture and assaults the students are in an unconscious state . Since these torturers had feared that the students may die, they have summoned a Police Hospital doctor to the TID and subjected them to a medical examination. The Doctor had warned them that the two victims are in an unconscious state, and therefore to look after them most cautiously. In spite of this , the students had not been given any treatment , and DIG Wakishta had not made any report about this to the IGP. All reports had been made direct to defense Secretary Gotabaya Rajapakse the devil incarnate who is now a byword for murder and cruelty tin respect of his his own country men. Upon instructions from Gotabaya , a TID team is to leave for Pooneryn tonight to the burial place of those who died in a plane crash during the period of the war , and exhume the bodies . It is the plan of Wakishta and Gotabaya to exhume these bodies with the objective to drown and suppress the issue of the mass graves that had been discovered in Matale , in which connection the media reported that Gotabaya must be held responsible. It is the conspiracy of Wakishta and Gotabaya to introduce some weapons into the venue and allege that those are LTTE weapons discovered , while implicating these two tortured students in it , and claim that they are in custody because of these reasons.

Because of the organized cruelties and tortures inflicted on students by Wakishta and Gotabaya after arresting them whimsically without valid grounds even after the war is over, Gotabaya the byword for murder and cruelty who cannot survive without a war ,and his clan are once again sowing the seeds of ethnic hatred and war , the top notch TID officer stated with deep regret.

It is reported that plans are afoot to forward a report at the next security Council founded on the false ground that there is confirmation that Jaffna university students are getting ready to resume terrorist activities , and invoke the emergency regulations. This plot has been hatched by Wakishta and Gotabaya , and Wakishta is to forward this report at the next security Council at the behest of Gotabaya.
The Jaffna University students general union secretary Dharshanath and four other students were arrested initially in connection with a death anniversary meeting at the University on the occasion of the commemoration of those who died in November which is a ceremony conducted by Hindu devotees in that month. Later a medical student among them was released. Thereafter another seven students who were identified by their names were asked to surrender to the police. Accordingly those seven students surrendered to the Vavuniya and Jaffna police. By now ten students are in the custody of the TID. Dharshanath and another student were the victims of the brutal assault at the TID.

Sri Lanka: Chief Justice’s impeachment hearing violates due process

December 6, 2012

The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.

The ICJ urges the government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.

Today, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.

Protests supporting and opposing the impeachment process erupted on Tuesday 4 December 2012 as the Chief Justice appeared before the Parliamentary Select Committee for the second time.

Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.

Opposition members of parliament publicaly called on the Government to adhere to principles of fair trial and due process in the impeachment process.

Reportedly the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.

The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.

“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”

As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed only in exceptional circumstances involving incapacity or gross misconduct.

A cornerstone of judicial independence is that tenure of judges be secure.

“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.

The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights.

The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of parliament, the majority of which are drawn from the Government coalition.  No members of the judiciary are permitted to sit on the Select Committee.

Comparatively in India, an impeachment hearing is presided over by a three-member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.

In South Africa, a judge may only be removed after a hearing by the Judicial Service Commission, a body composed of members of the judiciary.

In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.

The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.

The timing of the impeachment motion raises questions.  The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill – before Parliament.

If the bill passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD).

Attacks on the judiciary have been escalating in recent months.  In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse.

In early October, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.

In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of state accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.

The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.

Contact:

Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66(0) 807819002; email: sam.zarifi@icj.org

Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan@icj.org

The Shameful Ending Of A Prefab Impeachment

By Tisaranee Gunasekara -December 8, 2012

“The first waves of a sea of fire….” Ivo Andrić (The Bridge over the Drina)

The Rajapaksas, those Wonder-Brothers, have wrought another miracle. They have beaten Usain Bolt, hollow.
The impeachment of Chief Justice Shirani Bandaranayake deserves to enter the annals of world history and the Guinness Book of World Records as the fastest impeachment proceedings, ever.

The impeachment motion was handed over to the Speaker on 1st November 2012. The Parliamentary Select Committee was appointed on 15th November 2012. The PSC commenced impeachment hearings on 23rd November 2012. The PSC, sans its 4 opposition members, concluded its hearings on 7th December 2012 – though this fact was not formally announced either in parliament or outside. The truncated PSC handed over its impeachment report to the Speaker on 8th December 2012.

The PSC completed the impeachment hearing in 14 days and prepared its report in less than 24 hours!
Such breathtaking efficiency! Such dizzying speed! Bravo!

If there is any justice in this world, the seven UPFA members of the PSC, who did such a stellar job on behalf of their Masters, should receive top-notch ministries at the upcoming cabinet reshuffle. And they should always be found innocent, ipso facto, by the Rajapaksaised-judiciary which the impeachment aims to usher in.

117 Rajapaksa serfs signed the impeachment motion, even though they were not allowed to read it. 7 Rajapaksa serfs conducted an impeachment investigation, knowing that they must find the CJ guilty as charged, irrespective of evidence. The same seven Rajapaksa serfs concluded the investigation without even informing the parliament and placed their signatures on a pre-cooked impeachment report, with the pre-decided guilty verdict.

All was done on the orders of the Rajapaksa liege-lords, who took care to keep themselves officially insulated from the impeachment process, while ordering their serfs to do the dirty work from behind the scenes. Interestingly, revealingly, neither Uncle Basil nor Nephew Namal signed the impeachment motion.

The Rajapaksas could have taught the inquisitors and the witch-hunters a thing or two, about speedy and unnatural injustice.

A Regime sans Shame or Justice

The final outcome of the impeachment drama was never in doubt. The Rajapaksas are hell-bent on getting rid of the CJ; therefore the UPFA majority in the PSC would have found her guilty as charged, with or without evidence.
Still, had the Rajapaksas so wanted, they could have handled the impeachment process with at least a pinch of restraint and a touch of finesse. For instance, the PSC Chairman could have agreed to the removal of Ministers Rajitha Senaratne and Wimal Weerawansa since they could have been replaced by two other invertebrates. Or the CJ could have been given the five week period she asked for to prepare her defence, since whatever evidence she came up with would not have mattered an iota to the final verdict. Or the Opposition’s request for a pause in the impeachment proceedings during parliamentary vacation could have been acceded to.

All these concessions could have been made without jeopardising the Rajapaksa goal of impeaching the CJ. Being nuanced and restrained would not have prevented the Rajapaksas from achieving their heart’s desire of getting rid of Shirani Bandaranayake and appointing a completely supine acolyte to that position. In fact had the Rajapaksas cloaked their inflexible goal with a nuanced approach, they could have generated a genuine public debate about the impeachment and gained themselves some badly needed legitimacy in international eyes.

But the Rajapaksas did the opposite. They used their two-thirds majority in the PSC with the finesse and the accuracy of a cudgel wielded by a mammoth, über-strong but ham-handed ogre. Their seven PSC-stooges rejected every single request made by the CJ and by the opposition members. And by acting in such a blatantly unfair and unjust manner the Rajapaksas exposed the impeachment for the travesty it is, to their own discredit.

Did the Siblings think that the CJ would not fight back? Did they assume that that the legal fraternity would be too divided to rally round the CJ and that the civil society would maintain its usual somnolence, in the company of the political opposition? Did they hope to use the likes of Wimal Weerawansa, Rajitha Senaratne and Dilan Perera to reduce the CJ to a weeping wreck, too demoralised to fight back? Did they believe that a suitably chastised CJ would gratefully accept an offer of freedom from persecution and another job – and fade away into oblivion?

Are the Siblings too inane to realise that their original script looks extremely out-of-place in the new conjuncture created by the CJ’s determination to resist and the growing sympathy and support she seems to be gaining from the legal fraternity, the polity and the civil society? Don’t they understand that the impeachment travesty will undermine their credibility nationally and destroy whatever is left of their reputation internationally?

The UPFA majority in the PSC, left to its own devices, would have delivered the guilty verdict the Rajapaksas wanted in a far more credible way. But that is not how the Rajapaksas rule. They want things their way. And their way is the way of the Humanitarian Operation; ensuring zero-civilian casualty not by taking precautions but by imposing a blanket censorship and labelling every dead Tamil (man, woman, child or baby) a Tiger.

Under Rajapaksa tutelage the impeachment was transferred from a constitutional act into a political chainsaw massacre, with blood and gore galore. And the message it sends is clear: if you stand in the Rajapaksa way and not only will you be removed, but you will removed in a manner which maximises your pain, your suffering and your humiliation.
Obviously the Rajapaksa idea of a proper trial is exactly the same as the Rajapaksa idea of a proper election – a manifestly biased process with prearranged outcome, characterised by power-abuse and impunity.

Anti-democratic and unjust conduct has become a visceral habit of the Rajapaksas, something in their political-blood. The Rajapaksas abuse power blatantly and act with manifest injustice during any election, including the ones they can win very easily. It is as if they have forgotten that there can be other, more intelligent and less destructive, ways of achieving their goals.

According to Greek mythology, Zeus sent two gifts to mankind to help men in the task of governance: aidos – shame – and dike – justice. That the Rajapaksas lack both qualities is clear from the manner in which the impeachment process was conducted. (Ministers Wimal Weerawansa and Dilan Perera treated the CJ with uncouth rudeness because that was what their puppet-masters expected them to do. Had they been told by the Rajapaksas to treat the CJ with the deference her position demands and the politeness which is due to every human being, they would have done so. Their ‘brief’ was the opposite – confound and demoralise the CJ by subjecting her to verbal abuse).

Rulers who have neither a sense of shame nor a sense of justice can plummet to the lowest of depths, unhesitatingly and repeatedly. For them everything is permitted. Such leaders are a disgrace to the country they rule and a danger to the people whose destinies they control.

Ongoing Concerns on Rule of Law in Sri Lanka

The United States remains deeply concerned about actions surrounding the ongoing impeachment trial of Sri Lankan Chief Justice Shirani Bandaranayake. As Embassy Colombo’s statement noted earlier today, we urge the Government of Sri Lanka to guarantee due process, and to ensure that all investigations are conducted transparently and in accordance with the rule of law.

These latest developments are part of a disturbing deterioration of democratic norms in Sri Lanka, including infringement on the independence of the judiciary. The United States, along with our partners in the international community, continues to urge Sri Lanka to uphold the rule of law and democratic governance and to continue to address outstanding accountability and reconciliation issues.

We Are Told That CJ Is A Rogue And A Cheat But It Is Crystal Clear That The Decision Is Political

By Vickramabahu Karunaratne -December 8, 2012 

Dr. Vickramabahu Karunaratne

Among the first modern authors, to give principle theoretical foundations to the notion of ‘rule of law’ were Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the law is king” and reverses the traditional “the king is the law”. In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Pain wrote in his pamphlet that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” In 1780, John Adam enshrined this principle by seeking to establish “a government of laws and not of men.” Thus we see that the rule of law came in to satisfy the needs of market economy of the bourgeoisie society. Market can survive only if promises and assurances are upheld in a formal manner. Such bindings should be sacrosanct; thus giving the necessity to take the law away from human personality to be a thing in itself. All government officers of the United States including the President, the Justices of the Supreme Court and all members of Congress, pledge first and foremost to uphold the Constitution. This formality, with a deep meaning, has been adopted in many countries including Lanka. These oaths affirm that the rule of law is superior to the rule of any human leader. The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. World over, authorities define the rule of law as: “the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence.” on this definition a government based on the rule of law can be called a “nomocracy.”

It is true that the parliament in general is responsible for making laws and in the form of a constituent assembly it can dismiss the current constitution and inaugurate an entirely new constitution. But having said all that we have to agree that even the parliament and all political organs are bounded by the constitution; the fundamental law of the country. No way can we accept the idea that parliament as the law maker stands above the law of the country. Lankan constitution has empowered the Supreme Court as the sole authority to interpret the constitution. In effect it is a power bestowed by the parliament. In fact it is a privilege of the parliament to be able to consult SC when ever the need arises. If so how can the notice of the SC indicating its participation in an interpretation problem, relevant to the parliament activity, could create a breach of parliamentary privilege issue. On the contrary it is a privilege for the parliament to be notified and there is no room to consider that some kind of a warrant has been issued. 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 and advice the political leadership. Government is very sensitive on this impeachment issue as it is aware that its action is completely subjective and vindictive and also at a tangent to the constitution. Government leaders have accepted that this attempt to dislodge the CJ came because of her ruling in the Divi neguma case. Even otherwise it is crystal clear to any body that the decision is political and nothing to do with ethics and morals of CJ. If not they should have brought this out long time back.

Already huge campaign of posters, leaflets and booklets combine with hearsay was launched to discreditShirani Bandaranayke. It shows that the government has no trust in their own legal strategy and hence resorted to a terror campaign to make her resign and go away. We are told that she is a rogue and a cheat; hence not fit to act as a judge. This campaign shows that impeachment is just a façade to initiate pressure to push her out. Government action has created a reaction that has spread through out the Lankan society. It has drawn the attention of international democratic forces including the trade unions. Here too, trade unions have started a campaign to arrest the villainy of the government. It has disturbed the bourgeoisie society too. Not only lawyers but also other professionals and business mangers have come out condemning the actions of the government. It is the government that has taken the first step to draw this issue in to the streets. Disregarding threats of the government people have come out in support of judiciary. People who were angry over budget proposals are now coming out on this issue which has attracted all classes in society. We must expect a civil unrest that could challenge the authoritarian regime of Mahinda.

SRI LANKA: The fight against reducing the judiciary to a government stooge

December 8, 2012Basil Fernando

The letter written by the senior and well-respected lawyer SL Gunasekara provides a very thought-provoking approach to dealing with the present impasse created by the government’s wish to proceed with the impeachment against the Chief Justice Shirani Bandaranayake, which they are doing irrespective of the request made by the Supreme Court to delay proceedings on this matter until they make a determination on the question for reference made by the Court of Appeal. The government is also ignoring objections taken on the basis of serious legal grounds – that the removal of a superior court judge should be preceded by an inquiry of an impartial tribunal consisting of judicial officers.

In short, the suggestion made by Mr. SL Gunasekara is that the Bar Association should resolve that none of its members would accept the post of Chief Justice in the event that the incumbent Chief Justice is impeached without proper process, and that no other judge should sit with such a person who may accept such a position, and that the lawyers should boycott appearing before such a person.

SL Gunasekara is a lawyer with many long years of practice in many capacities and his book The Lore of the Law and Other Memories reflects a very deep disappointment in the manner in which the judiciary and legal profession has sunk to the lowest depths in recent decades.

The way he tells the story of “the good old days” and about the present day practices should be read by anybody who wishes to grasp the kind of crisis the rule of law is facing in Sri Lanka. It is on the basis of such deep reflection that the present resolution has emerged and I am sure that any sensible lawyer or judge would not find it difficult to agree with the proposal he has made.

His proposal reminds me of the lawyers’ movement in Pakistan. Mr. Muneer A. Malik, one of the leaders who provided the perspective for this movement, has provided many insights into the strategy that the lawyers’ movement adopted when General Musharraf called their Chief Justice Iftikhar Muhammad Chaudhry and asked him to resign from the post of Chief Justice, threatening him with impeachment if he did not comply.

As this news reached Mr. Muneer Malik, who was then the President of the Supreme Court Bar Association in Pakistan, he has said in public that he immediately called the Chief Justice and told him that if he does not succumb and give into this request, the lawyers in Pakistan would stand by him to the end. He also said that he told the Chief Justice that if he were to betray them, they would also not hesitate to expose him.

He and others have said that they were not great admirers of Chaudhry as Chief Justice as he had taken some compromising decisions in the past. However, what they were defending at that moment was the independence of the judiciary. One of the Pakistani lawyers’ methods was to withdraw cooperation from those interim judges who were appointed by General Musharraf. Thanks to that bold support, soon a movement grew from among the lawyers and judges, many of whom dared even to face prison terms in pursuit of this cause. Mr. Muneer Malik himself was imprisoned and even denied medical treatment.

As SL Gunasekara has pointed out, the challenge at the moment is to stop the process of the sinking of the judiciary to a stooge judiciary. This aspect has been raised by many others, including myself, who have participated on this issue since the impeachment motion was announced.

The Sri Lankan judiciary has gone down a long way towards becoming a stooge judiciary. In fact, at the time when SN De Silva was the Chief Justice, it was indeed reduced into a thoroughly stoogelike position. Beginning with the 1972 Constitution, continued through the 1978 Constitution, there has been a campaign to reduce the independence of the judiciary and turn it into less than a separate branch of government. Even the wording of the 1978 Constitution, that the people’s sovereignty would be exercised by the parliament through the judiciary, was a formulation that tried to create a doctrine that the judiciary was a lesser branch of government as compared to the legislature.

The bitter experience of the last few decades has given rise to very profound reflections among legal practitioners, as well as the informed public. There are times when the self-understanding of follies leads people to wisdom. Perhaps what we are facing at the moment in terms of justice in Sri Lanka is such a moment. On such occasions, it is possible to forge a will to counteract even the harshest odds and to turn events to better achieve what the people consider to be the good and the right thing to do.

It is better than lamenting the past and cursing the villains; better to take a bold step to turn the course of events. In the suggestion made by SL Gunasekara, such a position has been suggested. I am sure that the great legal minds of the past who have walked the Hulsdorf, such as HV Perera, HL De Silva, Sir Sidney Abrahams and Neville Samarakoon and many others would, in a situation like this, have found this proposal made by SL Gunasekara to be the appropriate and proper decision to take under the circumstances. It is to be hoped that the Bar Association will soon adopt this resolution and mobilize the lawyers to implement it.

Mahanayakes and the other senior representatives, the academics and professionals, and people from many other walks of life who, in the recent weeks, have taken a very active interest in the impeachment issue, could now give moral support to this proposal and exhort that no one should accept the position of Chief Justice in the event of an impeachment until this matter is properly resolved.

Click here to read the letter written by S.L. Gunasekara

‘Tell Her To Resign, I Will Give Her Some Other Position’ President Rajapaksa Called CJ’s Instructing Attorney

By Colombo Telegraph -December 7, 2012

Mahinda Rajapaksa

President Mahinda Rajapaksa last night called Chief Justice Shirani Bandaranayake’s Instructing Attorney Kandiah Neelakandan to express his “disgust” at the behaviour of his MPs at the PSC which resulted in the Chief Justice’s walkout.

Making the call around 8 p.m. yesterday, President Rajapaksatold Neelakandan the senior partner of the firm Neelakandan and Neelakandan that is representing the Chief Justice to ask Bandaranayake to ‘go quietly’ by resigning. “I will give her some other position somewhere. Tell her to resign. I think there has been some injustice done to herhusband as well, all that can be dropped,” Rajapaksa assured the senior lawyer.

“I had no idea these jokers had behaved like this,” the President told Neelakandan (mama danneth na me yakala karala thiyana wada)

The President also made a call to UNP MP  on the Parliamentary Select Committee, urging him to refrain from withdrawing from the PSC process.

“You people oppose it. But stay inside and oppose it. Don’t leave the committee,” the President said. However  Lakshman Kiriella is reported to have told the President that the opposition would make a collective decision on the matter.

The four Opposition members on the PSC today quit the committee citing a lack of clarity in the process and the biased behaviour of the Government MPs on the committee. Colombo Telegraph learns that the Rajapaksa Government is concerned that the boycott by opposition members on the committee would further de-legitimize the impeachment probe undertaken by the PSC, since the Chief Justice’s walkout yesterday will effectively make the proceedings and the judgment ex-parte.

Related posts;

Impeachment Process Has Become A Political Exercise With Some Despicable Clowns

By S L Gunasekara -December 8, 2012 

S L Gunasekara

The following letter was written and sent to the President of the Bar Association of Sri Lanka and to the all members of the Executive Committee by S L Gunasekara on November 28, 2012. – Colombo Telegraph 

By S L Gunasekara -

BY REGISTERED POST

28^th  November 2012

Mt.WijayadasaRajapakse PC,

President,

Bar Association of Sri Lanka,

153, Mihindu Mawatha,

Colombo12.

Dear Wijayadasa,

Impeachment Of Chief Justice

As you are presumably aware, I am not and was never an unqualified admirer of the Chief Justice.  Indeed, I was one who publicly opposed her appointment as a Judge of the Supreme Court way back in 1996 and expressed my views forthrightly in a television `talk show’ on TNL.  At the same time I was and continue to be a supporter of the present Government, not because I have any illusions about it’s claims to perfection or competence etc but for the simple reason that I cannot see a credible alternative thereto or any persons/set of persons who is/are in any way suited to take over the reins of power from Mahinda Rajapakse and his government.  That is solely by way of introduction.

Despite the aforesaid I am deeply concerned about the Resolution for the Impeachment of the Chief Justice which is currently being inquired into by a purported Select Committee. My concern is not for the CJ personally – I believe that if she has misconducted herself &/or behaved in a manner unbecoming of the holder of her office she must go or be dismissed. However I am very strongly of the view that she must have a fair trial  and given a fair opportunity if defending herself. As things stand, I have no doubt that she will get neither because now the whole `impeachment process’ has become a political exercise with some despicable clowns who, to our Country’s sorrow and shame, are MPs sinking so unbelievably low as to sign an `impeachment resolution’ that contained no charges leaving it to the `managers’ of the `drama’ to insert what charges they like !!!

I see the Resolution for the Impeachment of the Chief Justice as being one giant step taken by the present government to control the judiciary and/or bring it under its heel and/or destroy its independence.  This fact was firmly confirmed by a statement made by a coterie of ignorant ministers [two of whom were `purchased’ from the UNP in the not too distant past] who held a press conference after the last sitting of the purported Select Committee and are alleged to have said that the judiciary should lay off and/or keep their hands off Parliament.

This to my mind is nonsensical.  The issue with regard to judicial intervention in the impeachment process revolves round the question of whether Standing Order 78A is or is not ultra vires the Constitution. The Standing Orders of Parliament, it must be remembered, do not constitute law. Had they constituted law the Courts would have been powerless to intervene or pass any judgment with regard to the Impeachment process.  At the same time, had the provisions contained in Standing Order 78A (which is the impugned Standing Order) been incorporated in a Bill as a prelude to making such provisions a part of the law of the land, that Bill would have had to be gazetted consequent to which the Bill for the introduction of such law which would have to be submitted to the Supreme Court for a  determination whether it needed to be passed by a 2/3 majority or by a 2/3 majority and approved at  a referendum.  Accordingly, any law providing for the procedure of trying a judge of a Superior Court on a resolution for his/her Impeachment would be subject to judicial review prior to enactment.  Standing Orders however, are essentially internal rules of Parliament governing its debates and they do not have to be scrutinized by the Supreme Court prior to their enactment.

Thus, the warning given by the coterie of ministers to the judiciary to keep their hands off Parliament which was uttered vis-à-vis the several actions pending before the Supreme Court in respect of the vires of Standing Order 78A and hence the appointment of members of the Select Committee was ominous.  It would mean for instance that Parliament would not tolerate any Court declaring to be invalid, a Standing Order which, to take a hypothetical example, decreed that any person who criticizes a Minister or the President should be subject to a death penalty.  This of course is an extreme example but one cannot rule out the occurrence of such an extreme eventuality, particularly in the present day.

These, I believe are matters of which the Bar Association should educate the public.  They should also educate the public about the fact that if the Government succeeds in subduing the judiciary they would be at the receiving end of a stooge judiciary when they are out of power.  It would be stupid for them to presume that they would remain in power for good.  I believe that is  a delusion under which several dictators laboured till they were thrown out.

I have seen a barrage of criticism about the stance taken by the Bar Association in respect of this matter where many have felt that the Bar Association has not taken sufficient meaningful steps to oppose the Impeachment.  I tend to agree with them.

I do not, for a moment mean that the Bar Association should organize strikes or noisy demonstrations such as those staged by some exhibitionists of the Bar by congregating, around the car of the Chief Justice when she was going to Parliament and returning therefrom or that the Bar Association should organize the members of legal profession to engage in such childish acts as breaking coconuts which as we all know brings no results.  Even at the risk of sounding  presumptuous.  I suggest that the Bar Association takes some meaningful steps to oppose this madness of the incumbent government.

My suggestion is that the Bar Association adopts a resolution and/or makes a public pronouncement that it requests all its members to refrain from accepting appointment as Chief Justice in the event of the incumbent Chief Justice being impeached.  Similarly I believe that the Bar Association should call upon all others who are not members of the Bar Association also to decline to accept that post if it was offered to any of them; and also that the Bar Association should call upon all its members and others to boycott and boycott completely, both socially and professionally, any person whoever it may be who accepts appointment as Chief Justice in the event of the Impeachment of the incumbent Chief Justice being effected.  Such boycott should in my considered view go to the extent of refusing sit with such new Chief Justice (if any) on the Bench of the Supreme Court [if a Judge], or to appear before such new Chief Justice (if any) as the case may be. [if an Attorney-at-Law].

I realize that adopting such a course of action would be fraught with danger, particularly to the person who proposes it and those who take the lead in executing it. However, such dangers are as nothing when compared to the dangers to the entire populace of living with a `stooge judiciary’ and hardly anything worthwhile can be achieved without some measure of sacrifice. While devices like instituting actions and organizing/sponsoring demonstrations will only bring publicity, I cannot see them being effective. Indeed such demonstrations could result in counter demonstrations [such as that which we witnessed today -28.11.12] which could only result in the further demeaning of the judiciary and/or the position it holds and/or should hold in the minds of the People.

Having regard to the importance of this matter I wish to copy this letter to all members of the Executive Committee but I have been unable to do so because I am unaware of their names and addresses.  Accordingly, I shall be grateful if you would kindly instruct the office of the BASL to furnish copies hereof to every member of the Executive Committee or to send me urgently, the names and addresses of every member of the Executive Committee so that I may send copies thereof to them.

Thanking you.

Yours sincerely,

S L Gunasekara

CJ’s lawyers demand suspension of PSC proceedings

December 7, 2012

Lawyers for Chief Justice Shirani Bandaranayake, attorneys-at-law Neelakandan and Neelakandan have urged Speaker Chamal Rajapaksa to suspend the proceedings of the Parliamentary Select Committee (PSC), inquiring into the conduct of Chief Justice Dr. Shirani Bandaranayake, until the appointment of an independent and impartial panel.

The following is the full text of the letter sent to Speaker Rajapaksa: "As you are no doubt aware, our client has withdrawn from the proceedings of the Select Committee and the reasons have been given.

"We write to request you to deter any further action until an independent and impartial panel is appointed to inquire in to the allegations.

"Our Client is absolutely innocent of the allegations and is convinced that she will be exonerated of any wrongdoing by an independent and impartial tribunal.

"Our Client re-iterates that the charges are baseless and groundless and can easily be refuted. The issue is of broader and of wider relevance than our client’s rights and affects the integrity and independence of the judiciary.

"Thus in the interests of the judiciary and in the interests of the country and in the interests of our client, we request that our client be given the opportunity of vindicating herself before an independent and impartial tribunal.

The people of the Country (the Sovereign) have an inalienable right that their Chief Justice be given a fair trial by an independent and impartial tribunal in keeping with the universally accepted rule’s and norms.

"We annex herewith, for your ready reference, the proposal contained in the draft Constitution of the year 2000 with regard to the procedure for removal of the Judges (Chief Justice).

"Thus, we request you to defer from taking any further steps until an independent committee is appointed to inquire in to the matter."