Darusman, LLRC, Petrie Conundrum And The Trial By Media

By Charitha Ratwatte -December 11, 2012

Charitha Ratwatte

To do or not to do – is that the question?

A conundrum is a confusing problem or a question that is very difficult to solve. Sri Lanka, in the view of some analysts, faces a conundrum in relation to three reports concerning the situation of the end of the civil war in May 2009.

The first such document is entitled the Report of the Secretary General Panel of Experts on Accountability in Sri Lanka. This was chaired by Marzuki Darusman, an Indonesian, and is commonly referred to as the Darusman Report. The Darusman Report was presented to the Secretary General of the United Nations in March 2011. The second report is the report of the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Government of Sri Lanka. This report was issued in December 2011. The third report is one issued by an Internal Review Panel appointed by the UN Secretary General as recommended by the Darusman Commission to examine the UN’s actions during the final months of the civil war in Sri Lanka in 2009 and its aftermath. This Internal Review Panel was chaired byCharles Petrie a retired senior UN diplomat and presented to the Secretary General in November 2012. It is referred to as the Petrie Report.

The Darusman Report

The Darusman panel was appointed by the Secretary General of the United Nations to advise him on the issue of accountability with regard to any alleged violations of international human rights and humanitarian law during the final stages of the civil law. The panel states that its report revealed ‘a very different version of the final stages of the war than that maintained to this day by the Government’.

The panel found ‘credible allegations’ which, if proven, indicated that war crimes and crimes against humanity were committed by the Sri Lankan military and the LTTE. The conclusion of the panel was ‘the conduct of the war represented a grave assault on the entire regime of international law designed to prevent individual dignity during both peace and war’.

The panel found that as many as 40,000 civilians may have been killed in the final months of the civil war, most as a result of indiscriminate shelling by the Sri Lankan military. The panel also found ‘credible allegations ‘ that the Sri Lanka military killed civilians through widespread shelling, shelled hospitals and humanitarian objects, denied humanitarian assistance, violated the human rights of civilians and combatants and it violated the human rights of those outside the conflict zone such those of the members of the media.

Regarding the Tamil Tigers the panel found ‘credible allegations’ that they used civilians as a human buffer, killed civilians attempting to escape Tiger control, used military equipment in the proximity of civilians, forcibly recruited children, used forced labour and killed civilians using suicide attacks. The panel called on the UN Secretary General to conduct an independent international investigation into the alleged violations of international humanitarian law and human rights law committed by both sides.

The background to the Darusman Report was that immediately following the end of the civil war in May 2009 the Secretary General of the UN visited Sri Lanka and the President and the Secretary General issued a joint statement in which the Sri Lanka government agreed to take measures on accountability of violations of international humanitarian and human rights law. As months of inaction by the Government stretched out, pressure grew for an international inquiry and the Secretary General appointed a three-member panel of experts in June 2010 to advise him on accountability issues relating to alleged violations of international human rights and humanitarian law in the final stages of the civil war.

The Sri Lanka Government reacted angrily to the panel being appointed, calling it ‘an unwarranted and unnecessary interference with a sovereign nation’. The Government also stated that the panel would not be allowed to enter Sri Lanka. Predictably the panel’s appointment was welcomed by the USA and the EU and criticised by Russia and China.

After the panel handed over a copy of their report to the UN’s Secretary General, a copy was given to the Government of Sri Lanka. The Government rejected the report as ‘fundamentally flawed’ and ‘patently biased’.

The LLRC Report                                          Read More

Elizabeth Haq: Why does the world ignore Sri Lanka’s crimes? 

  Elizabeth Haq, Special to National Post | Dec 11, 2012

Civilians escaping from the last remaining Tamil Tiger rebel-held patch of coastline in the northeastern district of Mullaittivu, Sri Lanka, in 2009.

No one knows how many thousands of people died in Sri Lanka in 2009, the year that marked the end of a decades-long struggle between the Sri Lankan government and the secessionist Liberation Tigers of Tamil Eelam (known more commonly as the Tamil Tigers). Certainly, it was one of the bloodier conflicts that the world has witnessed in recent decades. But no one outside Sri Lanka really seems to care.
After years of bitter conflict between the two sides, one that witnessed the inaugural use of the suicide belt in the 1980s, the Sri Lankan government launched a no-holds-barred offensive against the Tigers in the latter years of the last decade, resulting in enormous carnage. Both sides committed serious war crimes and crimes against humanity. But the United Nations did little to help. (A recently leaked internal inquiry report commission by the UN Secretary-General produced an admittance of the UN’s “grave failure” during the conflict.) Only with the death of the Tigers’ leader, Velupillai Prabhakaran, was the conflict finally brought to a close.
In her new book, Still Counting the Dead, former BBC correspondent Frances Harrison details the events that occurred in Sri Lanka during the final few months of civil war. She kicks off the collection of heartbreaking survivors’ stories with a chapter titled “The War the United Nations Lost.”
Harrison maintains that in a post-9/11 world, the Sri Lankan government found it easy to rebrand its struggle to eradicate the Tigers as just another extension of the war on terror; not the protracted, deeply entrenched ethnic conflict that it truly was. Thus, the Sri Lankan army was able to secure the unflappable support of UN member states including the United States, Canada, China, India and Israel. She cites China as the largest arms seller to Sri Lanka by 2008.
An earlier UN report cited an estimated 40,000 dead during the final stage of the conflict, when the Sri Lankan government was laying siege to the small sliver of land still held by the Tigers. But the true number may well have been closer to 70,000.
In Still Counting the Dead, Harrison compiles accounts from 10 Tamil survivors. If history is written by winners, the author sought out the ones who she believed lost the most.
She uses chapter titles such as The Priest, The Nun, and The Rebel Mother; punctuating the highly emotive prose with bullet-point war statistics meant to validate their stories. Her rendering of these tales is elegant and grim — but also makes for difficult reading. Harrowing accounts of dead infants hanging from trees, reports of rape at government checkpoints, and speculations of attacks on hospitals in prescribed “no fire” zones are commonplace throughout the book.
Ultimately though, the reader is left with a collection of tales of horror that likely will have little consequence on a global level — because few global actors have taken much interest in this area of the world.
The book is not one-sided. While highlighting the horrific methods employed by the Sri Lankan military, she also describes the Tigers’ recruitment of child soldiers and their use of extortion and threats on the Tamil diaspora in an effort to raise funds.
Harrison participated in an interview for TamilNet, a pro-Tiger media outlet, in which she consistently refused to label the final few months of the conflict as a genocide of the northeastern Tamils, despite the blatant coaxing of the pro-Tiger anchor to do so. “There are huge implications. Academics and lawyers should debate it,” she recently commented.
Aparna Sundar, a professor in the Department of Politics and Public Administration at Ryerson University, is less reluctant about that designation: “If genocide is the intentional of wiping out of a community, directly or through long-term means, was this genocide? I would say yes.”
Sundar also is appalled at the corruption and inefficiency of the Sri Lankan government, which has had something of a free hand since the war ended: “It’s now not just a Tamil or a Sinhalese thing, it’s a suspension of basic civil rights. Nepotism is rampant, elections are unfair. There are no grounds to test the government. It’s repressive and quite brutal. The general population is beginning to recognize how deeply rotten the system is.”
In a world that has raised the hue and cry about Palestinians and Syrians, it seems odd that there is so little concern about the even greater carnage in Sri Lanka. It is a disparity that reflects poorly on the state of the West’s conscience.
Prime Minister Stephen Harper’s threat to boycott next year’s Commonwealth summit in Sri Lanka is a start, but it’s essential that the rest of the world open its eyes to the country’s bloody deeds as well.
National Post
Elizabeth Haq is a Toronto writer.

Bar Rejects President’s Offer Of Review

By Colombo Telegraph -December 11, 2012

“The President’s statement that he would appoint an independent panel to review the report submitted by the 7 Government Members of the PSC on the impeachment of the Chief Justice, is an admission by the President that it was an unlawful process and that the report is flawed.” says  the Lawyers Collective.

“Therefore the said Report must be withdrawn immediately. Any future inquiry must take place only after a fair procedure and tribunal are lawfully introduced. Until then the agitation of the Bar will continue.” issuing a statement the Lawyers Collective further says.

Related posts;

The President has no legal authority to appoint a new Chief Justice or to remove the present CJ even if the Parliament passed the resolution

The International community has already declared and has warned the President that they will reject any new appointment of CJ

(Lanka-e-News -11.Dec.2012, 1.30PM) It is the international law that when there is no due process or fair hearing the proceedings are voidable and not binding the parties. This principle is a fundamental right as stated in the Sri Lankan constitution. Therefore any actions against the constitution deem void not voidable. It is the opinion of the international legal community that a written constitution is supreme not the Parliament. At the time the constitution is formed, the Parliament has given up their parliamentary sovereignty to the judiciary. The Sri Lankan constitution is no different than Pakistan and the Super power of the United States Constitution. In the United States the Supreme Court has legal authority to strike any law that is unconstitutional or any act that violates the Constitution. The U.S. Supreme Court has found such acts unconstitutional. However the Speaker and the Sri Lankan Parliamentarians wrongly believe that they have power to dictate terms to the Judiciary and can interfere with Judiciary. Executive President that was created by the constitution and has no power to remove CJ based on the unconstitutional finding of the PSC. I am inserting a case as it is an important case for our lawyers and the members of Sri Lankan parliament to learn how the constitutions mandate the power to the Supreme Court. Sri Lanka is facing a similar situation today. Our Supreme Court has to learn how much power they have been given by the Sri Lankan constitution, which they do not. Marbury v. Madison, became one of the most important Supreme Court decisions in United States history. “ Circumstances of the Case --------------------------------------------- In November 1800, President John Adams, a Federalist, lost his bid for reelection to Thomas Jefferson, a Republican. The Federalists also lost control of Congress in the election. For the few months before the new President and Congress took office, however, Adams and his Federalist Party still had control. During these months, Adams persuaded Congress to pass a new law, the Judiciary Act of 1801. This act gave Adams the power to appoint several new federal judges. The Federalists hoped to fill the nation's courts with people who would be opposed to the policies of the incoming Republican administration. Adams was generally successful in this effort, appointing some 39 new judges. Adams's Secretary of State was to deliver the commissions, or official documents authorizing the appointments. The Secretary of State, though, failed to deliver the commissions to three new justices of the peace before Adams's term of office ended. One of the commissions was to go to William Marbury. When Thomas Jefferson became President in March 1801, he learned of Adams's attempt to pack the court with Federalist judges. He also discovered the failure to deliver the remaining commissions. To prevent these Federalists from becoming justices of the peace, Jefferson instructed his Secretary of State, James Madison, to refuse the appointments. Marbury went to the Supreme Court in an attempt to gain his post. He wanted the Court to issue an order forcing Madison to give Marbury his commission. The Judiciary Act of 1789 had given the Supreme Court the power to issue such an order.

The Court's Decision In a unanimous decision, written by Justice Marshall, the Court stated that Marbury, indeed, had a right to his commission. But, more importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's opinion, Congress could not give the Supreme Court the power to issue an order granting Marbury his commission. Only the Constitution could, and the document said nothing about the Supreme Court having the power to issue such an order. Thus, the Supreme Court could not force Jefferson and Madison to appoint Marbury, because it did not have the power to do so. While Marbury never became a justice of the peace, the Court's ruling in Marbury v. Madison established a very important precedent. A precedent is a legal decision that serves as an example in later court cases. Chief Justice Marshall's ruling interpreted the Constitution to mean that the Supreme Court had the power of judicial review. That is, the Court had the right to review acts of Congress and, by extension, actions of the President. If the Court found that a law was unconstitutional, it could overrule the law. Marshall argued that the Constitution is the“supreme law of the land” and that the Supreme Court has the final say over the meaning of the Constitution. He wrote,“lt is emphatically the province and duty of the judicial department to say what the law is.” Recent Pakistan Decision ----------------------------------- Recently on July 18, 2012 KARACHI: Chief Justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry said the constitution, not parliament, was the supreme entity in Pakistan and that Article 8 of the constitution empowered the Supreme Court to strike down any legislation which encroached upon the basic rights of the citizens. “ Both in India and Pakistan, all political institutions get their powers from the written Constitution. According to both the Constitutions, the superior judiciary has the power to nullify any law passed by the parliament. The Supreme Court of Pakistan has declared laws passed by parliament unconstitutional. But the right of the judiciary to declare any law unconstitutional does not make the Constitution supreme because parliament can amend the Constitution.” However the Sri Lankan constitution is not like the Indian and Pakistan constitution. The Sri Lankan Constitution is similar to American constitution as the Parliament has no power to amend some the provisions of the constitution. The impeachment CJ triggered when the “ The Divi Neguma Bill” rejected by CJ. She declared that the parliament even if had been passed by 2/3 majority, The Neguma Bill further required a mandate of the people as the People are Supreme under the constitution. As the PSC is unconstitutional the Parliament even if passed the resolution to remove the Chief Justice is void as the Parliament brought the resolution based on the decision of the unconstitutionally appointed committee which does not have judicial power. Further assuming arguendo the PSC has judicial power the procedure adopted by the PSC is again unconstitutional as the committee has failed to adhere due process and a fair trial as the constitution dictates. Further if the Sri Lankan President removed the Chief Justice and reappoints a new CJ, that appointment is deemed unconstitutional as his decision was based on the unconstitutional act of the Parliament as described above. Premalal Ranasinghe (New York)

National Action Plan for the Protection and Promotion of Human Rights

PROTEST AGAINST CJ’S IMPEACHMENT…

December 11, 2012  

Hundreds of people including Opposition lawmakers, lawyers and rights activists hit the streets in Colombo on Monday (10) to protest against a parliamentary committee that found the Chief Justice guilty of three charges including unexplained wealth and misuse of power. The protesters demanded that the government halt an impeachment process against Chief Justice Dr. Shirani Bandaranayake. (Pic by Sanjeewa Lasantha)

Senior Most Judge Seeks Fair Trial For CJ

C. G. Weeramantry

By Colombo Telegraph -December 11, 2012

Justice C. G. Weeramantry, former senior vice president of the International Court of Justice and the Senior Most Retired Judge in Sri Lanka, said yesterday it was essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing, the Sunday Times reported today.

If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing, that tribunal ceases to be impartial, Justice Weeramantry said in a statement amidst a growing controversy over the impeachment of Chief Justice Shirani Bandaranayake.
Justice Weeramantry said:
“As the senior-most retired judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.
“An independent judiciary is vital to democracy, for without it citizens lack the basic protections, without which a democracy cannot exist.
“The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the state to respect and protect the independence and security of tenure of judges.
“The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.
“The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.
“In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
“In the second place the rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
“In the third place there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
“In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.
“In the fifth place the rule of law demands that every person investigated by a tribunal has a right;
to be informed of the charges
to know the evidence against him or her
to have a full and fair opportunity to scrutinize that evidence and to respond to it.
“A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.
“So fundamental and universal are these principles that even the Universal Declaration of Human Rights spells out in Article 10, that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations …’ Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.
“Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.
“Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.
“It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.
“As I have said in many of my writings and lectures, all three branches of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinizing and refuting it.
“In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the judiciary with a resulting undermining of the rule of law and of democracy itself.
“This should be a cause of concern to every citizen and every institution in the country.
”

Recent developments adverse to Independence of Judiciary

Recent developments adverse to Independence of Judiciary

Written By Sri Lanka Guardian on December 11, 2012 

FACT SHEET

( December 11, 2012, Colombo, Sri Lanka Guardian) 

(This document contains recent developments affecting independence of judiciary Sri Lanka)

01.  Threatening the Mannar Magistrate and attack on the Manner Magistrate Court and High Court

a)      On 16^th July 2012 case bearing number B 396/12 was filed by the police in the Magistrate court Mannar where the learned Magistrate made certain orders against named suspects.

b)      On the following day a cabinet minister of the government Risad Badhiutheen telephoned the Magistrate and demanded that the Magistrate reversed the said order.  The Magistrate declined to change his order and complained to Judicial Service Commission (JSC)[1] about the interference.  There were further threats made by the minister and Magistrate made police complaints.

c)      On 18^th July 2012 the Minister personally met the Secretary of the JSC and required that Magistrate of Mannar be transferred forthwith.

d)     Thereafter on or about 17^th of July 2012 a mob instigated by the said Minister attacked the Magistrate Court and High Court of Mannar and part of the Court house was burnt.

e)      This led all the court of Sri Lanka striking court sittings on 20^th July 2012 from their work and all the courts were closed. In the meantime Bar Association of Sri Lanka (BASL) passed a resolution condemning the intimidation and urging stern action against the minister.

f)       Lawyers for Democracy (LfD)[2] issued a statement on 21^st July 2012[3] condemning the interference and urging that the minister be removed forthwith from the cabinet minister to create conducive atmosphere for an impartial investigation.

g)      Soon thereafter the President of Sri Lanka made a statement to the effect that he regrets that the judges have no confidence in one of his minister. Neither the President nor the government apologised for the attacks and instead state media was extensively used to criticise the Mannar Magistrate, even suggesting that he was a LTTE sympathiser.

h)      On 25 June 2012 seven senior lawyers with high standing and reputation in the profession moved the Court of Appeal under the Article 105(3) of the Constitution of Sri Lanka to deal with the Minister for contempt of Court.  On 26^th July 2012 court issued a Rule Nisi requiring the Minister to show cause as to why should not to be punished with contempt of court.  The case is still pending. BASL in the meantime decided to move for contempt of court or to intervene into the contempt of court case.  Thereafter series of demonstrations were held instigated by the Minister himself to support the minister portraying him as a saviour of certain displaced people in Mannar.  In strange move several intervention papers were filled into the pending Contempt of Court case but the decisions on interventions have not been made.

i)        Investigations into the attack were initially conducted by the Mannar Police but later it was handed over to the Criminal Investigation Department (CID).  While the investigations were pending,  strangely several officers who were conducting the investigation were transferred.

02.  Response of the Government on the Supreme Court determination on  “Divineguma Bill”

a)      Draft law (Bill) was presented to the parliament on 10^th of August 2012.  The purpose of the draft law was to centralize the provincial rural development programme and to be brought under a cabinet minister.

b)      Several petitions were filled in the Supreme Court challenging the validity of Bill and the matters were taken up in the Supreme Court before Chief Justice (CJ) and two other judges. The determination of the Supreme Court was communicated to the President and the Speaker of parliament.  The judgment of the Court was to the effect that the Bill cannot be passed by the parliament without the sanction from all the provincial councils as required under Article 154G of the Constitution.

c)      On the 18^th September 2012 the determination was placed in the parliament.  There were about 3000 protestors, organized and transported by the government, kept outside parliament indirectly critical of the Supreme Ccourt’s determination.  In the meantime, the government media mounted an attack on the Supreme Court.

03.  Interference with the JSC

a)      On 12^th September 2012[4] the media reported that a District Court judge had been interdicted by the JSC on the ground of financial impropriety.  i.e. not settling series of loans obtained from banks and his name appearing in the Credit Information Bureau (CRIB) and still hearing cases against the banks etc. 

b)      The President had requested the JSC members to come for a meeting, scheduled by the President,  but disclosing reasons in a written communication and upon the insistence of the JSC,  the request was made thereafter in writing[5]. There were however little  doubt that the meeting was to discuss few important case and the above mentioned disciplinary case against a district judge who is politically connected. 

c)      Thereafter the JSC officially decided not to meet the executive and informed the President about their decision as such a meeting would amount to an unconstitutional conduct.

d)     These event took place in the backdrop of several people attempting to influence the decisions of the Judicial Services Commission.

e)      Thereafter the Secretary to the President had  informed the JSC that the scheduled meeting had been concluded.  

f)       Thereafter in a clear afterthought that the President has informed the JSC that the meeting was to decide the financial allocation for the Judiciary.  However there had never been such precedents before and such allocations are generally handled by the Ministry of Justice.

g)      On 18^th September 2012[6],  JSC issued a  statement to the effect that there were attempts to interfere with judiciary and particularly JSC and that there were unfair malicious propaganda against the judiciary.  The statement also suggested that a high official had attempted to influence the JSC in relation to disciplinary matter that JSC had taken.

h)      In response to the JSC statement LfD and several other lawyers made public pronouncements supporting JSC and judges. On or about 22^th September 2012[7]BASL passed three resolutions supporting the JSC and resolving to deal with the state media organizations who were maliciously inciting against the Judiciary.

04.  Attack on Secretary JSC

a)      In late September the Secretary of JSC issued a statement that his family is under threats. There were no responses from the police or the Executive on this matter though it received wide publicity.

b)      On 7^th October 2012, the Secretary to the JSC was attacked by a group of people, who had first identified him as the Secretary to the JSC. He was held at gun point and was subsequently assaulted causing injuries to him. The crowd had taken one of his mobile phones.  He was admitted to the Colombo National Hospital with the injuries.

c)      There were wide condemnation on the attack and the judges struck work on 8^thOctober. The Judicial Services Officers Association decided to strike work on 8^th and the BASL decided to follow whatever the decision taken by the Judicial Services Officers Association. On 8^th there was a protest march near the main court complex. The Government had condemned the attack and insinuated that there is a conspiracy by an unknown party. No successful investigations are taking place upto now.

05.  Bribery Investigation against  Chief Justice’s  Husband

a)      The Media in early 2012 revealed a share scandal, involving the Central Bank of Sri Lanka and a state bank (National Savings Bank - NSB) and several high worth investors. At the time material, husband of the CJ was the Chairman of the NSB bank.

b)      There was a complaint filed by a political party at the Commission to Investigate Allegations of Bribery and Corruption (CIOBAC) requesting them to investigate into the scandal without naming the suspects.

c)      When the Divinaguma Bill (supra) came up before the Supreme Court, on the same day, CJ’s husband had been summoned before the CIOBAC to record a statement.   There does not seem to be any information on whether there was a frank investigation into a scandal. In the meantime CJ’s husband resigned on 21^st May 2012.

d)     Several judicial pronouncements were made to the effect that the tension between the executive and judiciary was growing. Thereafter CJ’s husband was summoned before the CID to recall a statement.

e)      The Media reported[8] that the President has addressed the Cabinet on the above statement of the JSC  and that the  Cabinet is considering  disciplinary actions against the JSC Secretary.  However under the law the JSC Secretary is only subject to the disciplinary control of the JSC and neither the President nor Cabinet has any such powers. In this instance, the Secretary to JSC had issued the statement on the instructions of the JSC.

f)       There was also a report that the government had made allegations against JSC Secretary that he had sexual advancements against a Lady Magistrate. The allegation was not only unsubstantiated but also clearly fabricated to silence him.  There had been no official complain or an inquiry on such allegation.

g)      On   28^th September 2012[9] the Secretary of JSC issued a statement that he and his family is under threat and the lawyers logged strong protests.

h)      Around the same time, the group leader of a political party (JVP), that  made the complaint at the CIOBAC against the CJ’s husband,  made a public announcement at a press meeting that their complaint is not being properly investigated but instead it is being used to twist the arm of the CJ.  There were several public announcements made by various individuals to the effect that share scandal is not have been investigated because politically connected high worth investors and The Central Bank was involved in the deal.

i)        The state media carried several programs ridiculing that judges and suggesting that CJ should resign.  It appears that government is taking extra judicial measures to compel the resignation of CJ whose tenure  is guaranteed until 65 years.

On The Current Crisis Facing The Sri Lankan Judiciary

By C. G. Weeramantry -December 11, 2012

Justice C. G. Weeramantry

As the senior-most retired judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.

The Independence of the Judiciary

An independent judiciary is vital to democracy, for without it citizens lack the basic protections, without which a democracy cannot exist.

The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the state to respect and protect the independence and security of tenure of judges.

The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.

The Rule of Law

The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.

In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.

In the second place the rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.

In the third place there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.

In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.

In the fifth place the rule of law demands that every person investigated by a tribunal has a right;

1. to be informed of the charges
2. to know the evidence against him or her
3. to have a full and fair opportunity to scrutinize that evidence and to respond to it

A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.

So fundamental and universal are these principles that even the Universal Declaration of Human Rights spells out in Article 10, that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations …” Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.

Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.

The Separation of Powers

Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.

It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.

As I have said in many of my writings and lectures, all three branches of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinizing and refuting it.

In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the judiciary with a resulting undermining of the rule of law and of democracy itself.

This should be a cause of concern to every citizen and every institution in the country.