A new battleground in Sri Lanka

Activists in Colombo condemned a panel for finding top judge Shirani Bandaranayake guilty of misconduct [AFP]

Tension is building between Sri Lanka's parliament and judiciary.

The government's attempt to remove the Chief Justice Shirani Bandaranayake has lead to the face off.

The current regime has found the country's highest ranked judge guilty of financial irregularity, abuse of power and bias in a case involving her husband – reasons they say she must be impeached.

The problem is that neither the Chief Justice nor the opposition members had much say in the deliberations that led to the guilty verdict.

Justice Bandaranayake and her lawyers walked out of the Select Committee last week saying they had no faith in the process.

'Baised process'

A statement from her lawyers said the walkout was, "in protest in the face of hostile and biased conduct of the government members of the PSC so as to ensure the dignity of the judiciary of Sri Lanka. The Chief Justice reiterates that she is innocent of the false charges made against her and is always willing to face any impartial tribunal in order to vindicate herself."

Opposition representatives on the Select Committee also withdrew saying the process was unfair.

All this unfolded while supporters of either side, staged demonstrations outside court and parliament.

But the controversial proceedings continued regardless, with the government members wrapping up proceeding one day later and informing the Speaker of the guilty verdict.

The government's undue haste to wrap up the proceedings has drawn howls of protest from the legal community, civil society and the international community.

A number of cases challenging the Committee's appointment were filed in the country's superior courts - these will be heard in January. Rather than issue Stay orders against the committee the Supreme Court took the non-confrontational, and more diplomatic route of 'recommending' that the Select Committee differ its inquiry till the Court came to a decision on the matter.

Supreme Court ruling

But reflecting the government's belligerent attitude, the Speaker announced that parliament was supreme and not bound to follow the Supreme Court.

The country's highest court holds exclusive jurisdiction on interpreting the constitution. Should the Court rule that the PSC process violates the constitution, the entire impeachment process will be rendered null and void – but if parliament insists on its supremacy – a constitutional crisis is inevitable.

But concern is building. Today members of civil society, representatives of the clergy, senior opposition figures took to Colombo's streets to protest the impeachment.

They held placards that said 'Do not grab the sovereignity of the people', 'Today the judiciary - tomorrow?' Chants of "Down with this law of the jungle", "The beginning of the end of the judiciary - the end of freedom of speech".

Most Sri Lankans don't understand what this would mean.

But if they did – they wouldn't wish for it, because the future of democracy as they know it depends on it.

As Soon As The PSC Report Is Made Available CJ Will Demonstrate Findings Are Incorrect And She Is Innocent – CJ’s Lawyers

Chief Justice

By Colombo Telegraph -December 12, 2012 

“She will as soon as the report of the Government Members of the Select Committee is made available respond to the findings, demonstrate that the findings are incorrect and she is innocent of the charges.” says Chief Justice’s lawyers.

Chief Justice’s lawyers issued a statement on behalf of her a short while ago. We publish below the full text of the statement;

The media has quoted the Government Members of the Parliamentary Select Committee as having stated that they have found the Chief Justice Dr.Shirani Bandaranayakeguilty of the 1^st, 4^th and 5^thallegations in the impeachment motion while exonerating her of the 2^nd and 3^rd allegations.

The Chief Justice is yet to be issued a copy of the evidence and the findings of the Government Members of the Select Committee. It is understood that the Report was submitted just hours after the Government Members of the Select Committee concluded hearing witnesses.

As soon as she is furnished with the same the Chief Justice will respond to the report of the Government Members and to the ex-parte evidence which was given in her absence, without any notice being given to her and which was given devoid of cross-examination. The Chief Justice re-iterates that if the said witnesses were cross-examined by her counsel, she would have been able to demonstrate the untruthfulness of the evidence of the key witnesses hurriedly summoned.

The Chief Justice’s position is that the findings of the Government Parliamentarians in the Select Committee do not constitute a report of the Select Committee since the Opposition Members on the Select Committee had withdrawn from the proceedings and they were not given an opportunity to submit their observations.

The proceedings before the Government Members of the Select Committee are fundamentally flawed since the proceedings were unfair, conducted without a proper procedure being adopted, conducted without giving the Chief Justice an opportunity to cross-examine witnesses and without observing the rules of natural justice or the elementary standards of fairness. In fact after the Chief Justice was informed that only documentary evidence will be used at the inquiry, after the Chief Justice walked out of the Select Committee, the very next day sixteen witnesses were called and their evidence led without any notice to the Chief Justice and without making them available for cross-examination.

Yesterday’s observations made by Sri Lanka’s most eminent Judge and Jurist Dr. C.G. Weeramanthry, confirm the Chief Justice’s contention that she never received a fair or impartial hearing from the Government Members of the Select Committee.

It is noteworthy that even when evidence was led ex parte (that is, in the absence of the Chief Justice and her lawyers , in the absence of cross examination and in the absence of evidence being put forward by the Chief Justice) yet there was no evidence to justify allegations 2 and 3 which were made without supporting evidence and the question arises as to the basis in which 117 Members of the Parliament signed the impeachment motion putting forward the said charges.

The Government Members of the Parliamentary Select Committee have also stated that they will not even look in to the charges bearing numbers 6 to 14, although the Select Committee was mandated by the Speaker to look in to all charges including the said charges numbered 6 to 14.

The Chief Justice has at all times maintained that she is innocent of all charges which are baseless and framed purely with malicious intent. She has always stated that there is no evidence whatsoever in support of the charges framed against her. Her stance is now vindicated. It is hoped that suitable action would be taken against the aforesaid parties for framing charges against a sitting Chief Justice which could not even be maintained at an ex parte hearing.

She will as soon as the report of the Government Members of the Select Committee is made available respond to the findings, demonstrate that the findings are incorrect and she is innocent of the charges.

12^th December 2012

Island wide protest by Lawyers today. Court proceedings boycotted in north from yesterday.

Wednesday , 12 December 2012

In protest of the impeachment of the country's top judge Chief Justice Prof.Shirani Bandaranayake and in urge of protecting the independency of the judiciary, the Lawyers in Sri Lanka will be on a protest today.

 

Meanwhile the northern lawyers from yesterday were engaged in boycotting court proceedings and this has caused the court proceedings to come to a standstill. This protest will continue today too.

 

Lawyers refraining from attending court activities will continue until Friday hence the court inquires in the Northern Province have been postponed for other dates.

 

Lawyers in Sri Lanka has decided to refrain from attending court activities island wide from today 9.00 a.m to 10.00 a.m, meanwhile the Colombo Magistrate court and Supreme Court  judges decided to protest the whole day.

 

Sri Lanka Bar Association yesterday urgently met at a meeting in Hultsdorf office and regarding this was discussed and a decision was taken for one hour protest.

 

Even though it was notified that all lawyers island wide will be on a protest today, but it was not informed officially.

 

The Parliament Selective Committee which was appointed to probe the impeachment against Chief Justice Prof.Shirani Bandaranayake on Saturday submitted its report in parliament to the Speaker.

 

PSC that probed the impeachment motion against the Chief Justice and found her guilty on three charges last week.

 

Government sector Selective Committee members organized a special media conference on last Saturday and informed that they probed the impeachment motion against the Chief Justice and found her guilty on three charges against five.

 

 

However Opposition party and the judiciary informed that the report cannot be accepted because the probe was biased.

Wednesday , 12 December 2012

பிரதம நீதியரசருக்கு ஆதரவாக சட்டத்தரணிகள் யாழில் போராட்டம்

பிரதம நீதியரசர் ஷிராணி பண்டாரநாயக்காவுக்கு எதிராக கொண்டுவரப்பட்டுள்ள குற்றப்பிரேரணைக்கு எதிர்ப்பு தெரிவித்து வட பகுதி சட்டத்தரணிகள் அமைதி நிலை போராட்டத்தில் ஈடுபட்டனர். இன்று இந்தப் போராட்டம் நடைபெற்றது.  வடக்கில் வவுனியா கிளிநொச்சி, முல்லைத்தீவு, மன்னார் மற்றும் யாழ் மாவட்டத்தை சேர்ந்த சட்டத்தரணிகள் இணைந்து கொண்டு தமது எதிர்ப்பினை வெளியிட்டனர். இந்தவகையில் யாழ். மாவட்ட சட்டத்தரயிகள் இன்று நண்பகல் 12 மணியளவில் இந்த அமைதியாக  தமது எதிர்ப்புப் போராட்டத்தினை முன்னெடுத்தனர்.  நீதி தேவதையின் படத்தை தாங்கியவாறும் தமது வாயினை கறுப்புத் துணியால் கட்டியபடியும் அமைதி நிலை போராட்டம் ஒன்றிணை நீதிமன்ற முன்றலில் ஆரம்பித்து சுப்பிரமணியம் பூங்காவை சுற்றியுள்ள வீதியூடாக வந்து மீண்டும் நீதிமன்றத்தினை வந்தடைந்தனர்.

LfD Urges Rejection Of Report Of 7 Members Of PSC On Impeachment

By Colombo Telegraph -December 12, 2012 

“In the circumstances, we urge that no further proceedings or steps be taken on this  report, which is the report of the Government MPs of the PSC.  LfD and all its affiliates unreservedly reject this report as being bias, made contrary to Rules of Natural Justice, basic principles of Rule of Law.” says Lawyers for Democracy.

Lal Wijenayaka -Convener LfD

We publish below the full text of the statement;

After carefully monitoring how the impeachment proceedings were conducted and studying the developments based on confirmed media reports, LfD is of the view that the Report of the 7 Member of Parliament (representing only the Government) is totally unacceptable in any standards. We have learnt how the Chief Justice was humiliated by two MPs in the Committee and how the CJ was compelled to withdraw from the Proceedings before the Committee. Thereafter the 4 Opposition MPs also withdrew due to lack of procedure and unfair treatment meted out to the Chief Justice. The Opposition pointed out that the procedure adopted is contrary to the basic practices and courtesies that should be extended to the highest judicial officer of the country.

LfD is shocked to hear that the Government MPs of the PSC had called witnesses, contrary to their own ruling that the witnesses were not to be called. Basic rules of natural justice and Rule of Law requires that a e defendant be given sufficient time to prepare for the trial, which right was not given to the Chief Justice.

In the circumstances, we urge that no further proceedings or steps be taken on this  report, which is the report of the Government MPs of the PSC.  LfD and all its affiliates unreservedly reject this report as being bias, made contrary to Rules of Natural Justice, basic principles of Rule of Law.

Singed On behalf of Lawyers for Democracy

Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan , K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe ,Sudarshana Gunawardana, Lakshan Dias , Sunil Jayaratne, Harin Gomas, S.G. Punchihewa

SRI LANKA: SLBC questions whether the rule of law is so sacrosanct

December 12, 2012

On the SLBC radio, in the mornings, there is a program that is inappropriately entitled "People's Power." It is just political stooge programming, which tries to take up some current issues and create justifications for government positions. It is a dull and boring presentation but, since some of the issues discussed and the interpretations given throw some light on the kind of thinking that is promoted in favour of repressive measures, it is worth a short reflection.

In one of the programs (11th of December), the main topic discussed was on the Chief Justice's impeachment.  The commentator attempted to give some of his own musings on some matters discussed. Seemingly irritated by constant references to the abuse of the rule of law, he posed a question as to whether the rule of law is so sacrosanct. If you take a lighter view on the separation of powers and the independence of the judiciary, it is quite natural to challenge the fundamental basis of all such notions.

If one has doubts as to whether human liberty is so sacrosanct, then of course it is natural to regard rule of law and all other consequent notions as of little or no importance. The reason why the removal of the Chief Justice of the country is being challenged is to preserve the principle of irremovability of superior court judges, which is central to all such notions related to the protection of human liberty. The contest, therefore, is not about an individual but about an institution. For individuals, to be safe from the greed and carelessness of rulers, there need to be institutions that create limits to what the rulers can do. If these institutions cease to exist or exist only in name, but are incapable of performing their functions, the rulers will have their heyday and the people will have their most miserable times.

That there should be limits to power, as power tends to corrupt, and that absolute power corrupts absolutely, is so axiomatic that hardly anywhere where reasons prevails is this idea ever challenged. But in Sri Lanka, it is now under challenge. To ask whether the rule of law is sacrosanct is to ask whether the rulers have to be bound by rules at all.

This attitude is manifest in almost all the expressions of every government spokesman on the issue of impeachment. Everyone admits that there is something wrong in the standing orders relating to impeachment, namely that it does not provide for an impartial inquiry by a tribunal. While agreeing with this, the government spokesmen tried to make the issue quite a trite and unimportant one. For example, Vasudeva Nanayakara, a one-time radical with Marxist claims, in an interview with the BBC, said that he was of the view that there is something wrong in the Sri Lankan procedure as compared, for example, to that of India, where it is a tribunal consisting of three judges who will conduct the inquiry.

However, he said that since we have to take what we have, it is good enough. On the one hand, to admit that the Sri Lankan procedure is unfair, on the other hand to state that it is good enough, is of course contradictory, but this veteran politician saw not much significance in such contradictions.

The SLBC radio program took it even further. The commentator quoted some articles which have raised an issue as to how judges conducting an inquiry into a fellow judge's misconduct can be impartial. The judges meet each other privately, he went on to say, and therefore there is no guarantee of impartiality. Of course, the commentator failed to mention that any judge who is called upon to an inquiry who feels that he has some personal interest in the matter is under obligation to recuse themselves, or face penalties. The idea that a judicial inquiry is so called because the inquiry would be conducted according to universally accepted norms was not considered significant enough to be mentioned.

The idea was to say that seven party members conducting an inquiry into allegations that the same party has made is no problem because whoever conducts an inquiry, there may be some objections that may be taken. That is how far the trivialization of rules and norms has sunk for people who are defending the indefensible.

In the BBC interview, when Mr. Vasudeva Nanayakara was asked how a person who is given over 1000 pages to answer to the following day could do so, he took the same approach of making it into a trifling issue by saying that, well, she could have answered two or three pages on one day, and asked for more time to answer the rest.

Mr. Vasudeva Nanayakara was aware of the list of accusations filed by the four opposition party members against the manner in which this inquiry was being conducted. However, none of those matters on very basic and fundamental issues mattered to him at all. The principle on which his triflings were based was that the rules do not matter.

In such an intellectual atmosphere, it is no wonder than the government allows the state media to be used to propagate the idea that the rule of law is not that sacrosanct.

Impeachment: ‘Chief Justice Was Denied Natural Justice – LAWASIA

By Colombo Telegraph -December 12, 2012 

“LAWASIA observes that developments in Sri Lanka lead the international community to conclude that there is a serious challenge to the independence of the judiciary. It urges the Sri Lankan government to take all steps to ensure scrupulous and fully transparent adherence to due process in this matter without compromise, in order to dispel such conclusions.” says the Australian based Law Association for Asia and the Pacific.

Malathi Das - President LAWASIA

“LAWASIA makes no comment on the charges brought against the Chief Justice, nor any observation about how or why these charges arise. However, it records its concern for circumstances that appear to indicate inappropriate procedures and a lack of fairness in the proceedings against her.” issuing a statement it further says.

We  publish below the full text of the statement;

LAWASIA, the Law Association for Asia and the Pacific, has observed with considerable concern developments in Sri Lanka with regard to the impeachment of the Chief Justice.

It notes the view of its member organisation, the Bar Association of Sri Lanka, that the Parliamentary Select Committee appointed to investigate the charges was unconstitutional and that the Chief Justice was denied natural justice by the process of investigation that has now concluded that she is unfit for office.

It notes the United Nations Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 which, at Article  17, indicate:

17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed
expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The
examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

LAWASIA makes no comment on the charges brought against the Chief Justice, nor any observation about how or why these charges arise. However, it records its concern for circumstances that appear to indicate inappropriate procedures and a lack of fairness in the proceedings against her.

Where impeachment is faced by the senior-most judicial officer in any democracy, it indicates a very serious development and one that must be dealt with by the authorities with the utmost caution to ensure that the rule of law is strictly observed.

LAWASIA observes that developments in Sri Lanka lead the international community to conclude that there is a serious challenge to the independence of the judiciary. It urges the Sri Lankan government to take all steps to ensure scrupulous and fully transparent adherence to due process in this matter without compromise, in order to dispel such conclusions.

Malathi Das (Ms)
PRESIDENT
December 12, 2012
Contact: LAWASIA Secretariat
T: +61 7 3222 5888
E: lawasia@lawasia.asn.au

Read the original statement here

How did confidential banking information of chief justice leak out?

Wednesday, 12 December 2012

An Open Letter from Mr. Chandra Jayaratne, former Chairman of the Ceylon Chamber of Commerce.

I write this note to you as a client and a shareholder of several commercial banks, who are members of your Association, a collective with a proud heritage and high recognition both in Sri Lanka and overseas.

I have been a director of two of the commercial banks, who are members of your Association. I have in addition been closely associated with committees engaged in banking and finance sector reforms and the development of codes of best practice and good governance for the banking sector.

As a client and a shareholder of commercial banks, I have a continuing interest in the public image, stability and growth of such banks, as well as in ensuring that these banks operate strictly in accord with the expected standards of best practice and codes of good governance. I would certainly expect all such banks to strictly abide by their commitment to banking secrecy and contractual agreements with their customers.

The recent news reports of purported violations of the expected standards of best practice and codes of governance, including banking secrecy, by a member or members of your Association, have made me highly disturbed and disappointed. The purported failure to abide by time honoured professional standards of banking and client commitments worries me as a client and a shareholder of banks. It is especially so, in the context of the enhanced risks now attaching to banks and their customers, due to the probability that similar violations could be a reality even in the future, negatively impacting clients , shareholders and other stakeholders of commercial banks.

Your silence and inaction in the face of arrogant, egoistic, foolish steps taken by those in politics and governance, in openly violating the expected best practices of governance, rule of law and natural justice, may lead to you and your Association being impeached by your members, clients, shareholders and stakeholders!

Your members, clients, shareholders and stakeholders have witnessed their property rights being negatively impacted by those in politics and governance, with the passage of the Expropriation Act.

They have now witnessed the flagrant violation of another property right, the right to the secrecy of banking details with licensed banks in Sri Lanka. This reported violation was in connection with the personal banking account details of a customer ( in this case the personal banking account details of the Chief Justice of Sri Lanka) of a licensed commercial bank, believed to be a member or members of your Association. It is reported that in this instance, the relevant information have purportedly been made available by a member or members of your Association directly or indirectly to third parties (in this instance purportedly to 117 members of Parliament who were thus able to originally sign the impeachment motion handed over to the Speaker, based on the details of the banking accounts of the customer of the said licensed commercial bank or banks operating in Sri Lanka).

It is reported that the aforesaid information had been publicly made available by the bank or banks, without the knowledge and authorization of the client concerned and outside the permitted instances for any such information to be made available as provided for in the statute.

If the above presumption be correct, then this purported release of banking information normally subject to secrecy commitments, is a flagrant violation of the rights of the concerned client of the bank or banks. It further violates the strictly upheld principles of banking secrecy and best practices of banking governance.

In the light of the above, I appeal to you and the Sri Lanka Banks' Association (Guarantee) Ltd. to take immediate steps to publicly notify all Members, Clients, Shareholders and Stakeholders of all banks, who like me have a continuing interest in all such banks strictly abiding by their commitment to banking secrecy and contractual agreements with their customers;

1. Whether a member or members of your Association have in fact released any personal banking account details of the client concerned as reported in the media?

2. If the member or members concerned have released such information directly or indirectly to a third party,

a. Whether the bank or banks concerned had informed the client concerned prior to release of the information?

b. Whether the authorization and agreement of the client concerned for such release had been obtained prior to the release of the information?

c. Under what provisions of the law or client banking agreement conditions were such information released?

d. Did the bank or banks in releasing such information lay down any conditions and obtain any commitments from the persons who received the information?

e. Who asked the bank or banks concerned for such information and under what authority was such information requested?

f. Have the person or persons with whom such information was shared acknowledged receipt of same?

g. Who in the bank or banks concerned actually released the information and on whose authority?

h. Was this exception reported to the Risk Manager, Internal Auditor, General Manager and the Board of Directors of the said bank or banks?

i.Was this exception reported to the Bank Supervision Department of the Central Bank by the bank or banks concerned?

j. Have the Board of the Bank or banks concerned carried out an investigation and taken all such steps so as to prevent any such recurrence in the future?

k. Have the Bank or banks concerned even at this stage formally informed the client concerned of the purported violation?

l.What consequential action has been or will be taken by your Association against the member or members concerned for this flagrant violation of banking standards and good governance practices?

m. What compliance commitments and future assurances of good governance by your members could your Association be able to provide clients, shareholders and stakeholders of banks?

n. Will action be taken by your Association to assure all present and future clients, shareholders, correspondent banks and other stakeholders that necessary controls, compliance processes and codes of ethics and governance will be in place to assure that no similar instances will happen in the future?

I earnestly appeal to you, the Secretary General and the immediate past President of your Association in network with the Ceylon Chamber of Commerce and the National Chamber of Commerce, to address the issues of significant importance to the Banking Industry set out herein above and collective be the oversight assurance platform, ensuring rights of and obligations to clients being strictly upheld and no breaches of confidence will occur in the future.

I trust that you will uphold the interests of the Private Sector, Investors both local and foreign, Correspondent Banks and the country as a whole, by placing the future sustainable interests of the nation and the people of Sri Lanka as one of your Association's core commitment.

Yours Sincerely,

Chandra Jayaratne

“I’ll Be The Judge, I’ll Be The Jury….”

By Ravi Perera -December 12, 2012

Ravi Perera

“There is a higher court than courts of justice and that is the court of conscience. It supersedes   all other courts.” Mahatma Gandhi

Most Sri Lankans would have been hit with a sense of disbelief on learning that their Chief Justice had been found guilty of “misbehavior” by a Parliamentary Select Committee. It is not that Justice Shirani Bandaranaykeis beyond reproach. Even when in 1996, at the young age of 38, she was appointed to the Supreme Court   many well informed persons including the legal fraternity were concerned that the appointment was   ill-considered. Their objections were brushed aside with the argument that the President knows best. In Shirani Bandaranayke’s subsequent   career in the Supreme Court ,it will not be wrong to say, her judicial pronouncements have been quite unremarkable , the recent judgment on the 18th Amendment being a case in point. This was an opportunity to rein in the unbridled ambitions of the political leaders of this country.

A good number of her  years in the Supreme court were  under the stewardship of Sarah Silva that most controversial of Chief Justices  , a period  when everything that touched the courts  ,the law, legal reasoning , applicable  ethics and standards seem to have been twisted and warped . But nary a judge, including Shirani Bandaranayke objected to his domineering regime then. Even when delivering judgments there were hardly any dissenting judgments, a mediocre court compromised its conscience for baubles of office, foreign assignments and obligatory religious/cultural rituals .It was even said that in that era when the court wanted to send a “message”, a convenient petitioner was found at its behest. The judgment was a foregone conclusion.

Justice Bandaranayke, like many other judges of that court,   did not apparently shy away from obtaining benefits and advantages on account of her position. In a country with a per capita income of less than US $ 3000, none of the judges raised objection when an administration which had vulgarized  the concept of public service, offered the judges the plushest of cars, foreign assignments and armed bodyguards.  When the Supreme Court could have set an example of a selfless service, it chose to be a mirror image of a fundamentally corrupt culture. The judges became yet another set of “elite” to whom the traffic laws do not apply, whizzing past the overloaded buses and harassed pedestrians in their limousines, with a pilot car clearing the way. They could   not resist the invidious   influences and inducements of an administration hell bent on subverting and diminishing every institution in the country. Where the road forked, the judges took the lower road.

People’s sense of disbelief at the impeachment motion is not on account of the allegations against the Chief Justice. They know there is very little “good” in the system, particularly at the top. It is the commonplaceness   of the alleged offences that affronts their intelligence. Today unless he is deaf, dumb as well as   blind, no Sri Lankan will believe that a conflict of interest situation    or the failure to fill a prescribed form in a particular manner or undeclared bank accounts is ‘misbehaviour” on the part of a public officer. From the President downwards they have sent their children for foreign education. Their life styles are far in excess of the reach of their meager salaries. Public assets are used like private property. It is evident that practically everything they do places them in conflict of interest situations. And almost every appointment they make is of a family member, a political stooge or a financier. But they are all above the law. Only the Chief Justice must be punished. As a result a middle aged woman, a citizen of this country, with no organization behind her, no media under her control, with no power to reward her supporters   stands against a howling mob demanding her blood.

We are not told how and why the Chief Justice was investigated and so speedily brought before a Parliamentary Select Committee. Just a few weeks before that, she headed a judicial bench that delivered a judgment which was frowned upon by the government (The Divi Naguma Bill). A few days later the Secretary of the Judicial Services Commission was assaulted on a public road, with the assailants still to be found. Then, out of the blues, a large number of PA members (government party) signed an impeachment motion against the Chief Justice which led to the sittings of the Parliamentary Select Committee.

By any measure it was a hastily conducted inquiry. Pleas by her lawyers for adequate time to prepare their case were disregarded by an intransigent Committee. Requests by Justice Shirani Bandaranayke for the list of witnesses testifying against her and the evidence proposed to be given by them, except for a huge bundle of documents, were unavailing.  Although the members of the Parliamentary Select Committee could be considered to be performing a quasi-judicial function , and one concerning the highest judicial officer in the land at that , it is reported   that they  heckled and  slighted  the Chief Justice. Unable to bear the indignities   she walked out of the proceedings. Her legal team also walked out in protest. Finally, all the other members of the Select Committee save for the government Members, walked out denouncing its patent   bias.

Evidently, all the witnesses summoned before the Parliamentary Select Committee gave their evidence in one evening. We are not certain whether they were under oath but in the absence of the defense team, for sure not subject to a cross examination. These hearing were not open to the public.

It is said that when a court is trying an accused, the court itself is on trial by the public it is supposed to serve.  Some of the questions that legitimately arise in the public mind would be, was that court representative of a more civilized culture? Was it a fair trial? Were the basic tenets of a due process complied with?  And, what manner of judges were they?

One requisite ingredient of any judge/inquirer is an open mind. If the verdict is pre-determined or if it is obvious that the judge cannot act independently, there is little purpose in going through the motions of a trial. If in this case, the general view is that there was no open mind, what we had was a mockery of a judicial process. Equally, it is a fundamental tenet of justice that one cannot be both the accuser and the judge. In the impeachment proceedings, members of the same political party were both the accuser and the judge.

Undeniably, there is much which is blameworthy in Justice Shirani Bandaranayake, particularly in relation to the appointment of her husband to head a government bank. It has hugely compromised her role as a judge of the Supreme Court.  But since the beginning of the impeachment proceedings, Justice Shirani Bandaranayke   has remained steadfast.  Where many have succumbed to the pressures and inducements, she stood as a symbol of defiance against a   howling oppression orchestrated by those with a stranglehold on the levers of power. These are a dangerous lot, with control over the armed forces, connections with underworld figures and no scruples whatsoever. And in challenging such an establishment   she seems to have crossed a Rubicon.

Obviously, this crisis has brought the legal profession of this country to a cross road. Unlike most other professions, the practice of the law can never be separated from the hallowed concepts of justice which every civilization has searched for. Time after time, judicial systems may fall short of the ideals of justice. But if lawyers understand the deeper dictates of their profession, they can never abandon the   search for that elusive concept which forms the bedrock of their calling. That is what so ennobles the practice of the law.

If the legal profession of this country cannot ensure a fair trial for their Chief Justice, how can they assure the public of a just legal system?

Put in another way, until Justice Shirani Bandaranayke is accorded her inherent right to a fair trial, can there be a legal practice in this country?

“Nobody can give you freedom. Nobody can give you equality or justice or anything. If you’re a man you take it”   Malcolm X

Video : MR betrayed 116 MPs - JVP

WEDNESDAY, 12 DECEMBER 2012 

The JVP said today that President Mahinda Rajapakse was pretending he was innocent in the whole process of the impeachment and thereby had betrayed the 116 odd MPs who were the signatories to the motion.

Addressing a media briefing MP Anura Kumara Dissanayake said at a time when the masses and the Opposition were vehemently agitating against the government, the President had now decided to refer the PSC report against the Chief Justice to an independent commission for review.

The president had declared that he had been reluctantly compelled to submit this impeachment motion.

It is now apparent that after suppressing the demand made by the masses and the lawyers to refer the impeachment motion to an independent commission, president has now decided that an independent committee study the report of the PSC and make their recommendations.(Darshana Sanjeewa)

Watch
 

Either Bring Enabling Legislation For A Fair Inquiry Or Withdraw The Impeachment – AHRC

By Colombo Telegraph -

“As the former judge, C.G. Weeramantry has pointed out the issues involved in this present debate are of importance to the country as well as all institutions. Therefore it is only proper that the president should clearly state as to whether a new legislation in terms of Article 107 (3) is envisaged or whether the government will withdraw the impeach motion altogether.” says the Asian Human Rights Commission.

We  publish below the full text of the statement;

President Mahinda Rajapaksa stated yesterday that he will initiate a review of the impeachment issue and that he will ensure an independent and fair inquiry. He said that his conscience is not at ease about the issue and that before he will act on the impeachment issue he will ensure that a group of independent persons intervene in the matter.

The president made this remark as an unprecedented local protest gathered on the manner in which the Parliamentary Select Committee conducted its inquiry by seven members from the government. Four members of the opposition walked out and made a public statement giving a long list of defects contributing to the unfairness of the impeach inquiry. The Chief Justice Shirani Bandaranayake and her legal team also walked out of the inquiry stating that it did not guarantee an inquiry by an impartial tribunal as required in the removal of a superior court judge. She also cited the proposals contained in the draft constitution of the year 2000 which incorporated a provision for judges of the Commonwealth to conduct an inquiry in the case of the Chief Justice and three other judges in the case of superior court judges.

The protest included many strikes by local bar associations throughout the country yesterday (December 11) and a nation-wide strike of lawyers proposed for today. Some bar associations such as that of Vavuniya declared a strike for the entirety of this week.

Meanwhile, the Bar Association is to have a general meeting on the coming Saturday to discuss a resolution proposing that no member of the Bar Association will accept the post of Chief Justice if the incumbent CJ is impeached without an inquiry by an impartial tribunal. Please see: SRI LANKA: The fight against reducing the judiciary to a government stooge

Adding to many condemnations of the impeachment process followed so far Justice C.G. Weeramantry, a former judge of the International Court of Justice and the senior-most surviving former judge of the Supreme Court of Sri Lanka issued a statement strongly condemning the impeachment process and pointing to serious consequences to the country and to all its institutions.

Meanwhile the worldwide condemnation of the impeachment proceedings is continuing. Never has there been such an intense level of international condemnation of a matter relating to the independence of the judiciary in Sri Lanka.

It was in a background of such a crisis that President Rajapaksa talked about a review of the process. However, he failed to state clearly as to whether enabling legislation will be brought about in terms of Article 107 (3) of the Constitution to ensure that there will be an impartial tribunal by a competent body into investigations relating to the impeachment of the chief judge or other superior court judges.

The opposition United National Party suggested that if the president is sincerely giving an undertaking on this issue the best course would be to support the private member bill submitted by a UNP MP Wijedasa Rajapaksa proposing legislation for the appointment of judges from Commonwealth countries into an investigation on allegations against the Chief Justice and such other provisions relating to the impeachment process.

As the government has the required majority and also is likely to have the full support from all parties in the parliament to bring about such legislation it is possible to pass unanimously such a law within quite a short time. Therefore if the government has the political will to do the right thing then the course open to the government is quite clear and all the ground work has already been done by way of the private member bill. The author of the bill is also the current president of the Bar Association.

However, the government’s message was quite mixed. The Hon. Maithripala Sirisena, the Minister of Health and the secretary of the SLFP was quoted by the Sri Lanka Broadcasting Corporation this morning as stating his support for the Parliamentary Select Committee. Meanwhile the same broadcast also urged the Chief Justice to resign as it is improper for a person found guilty by the PSC to continue in office. In the same state media a morning program inappropriately titled Peoples’ Power continued to justify the impeachment process as proper and correct. It tried to create the impression that there is no difference between the process followed in the United States to impeach a president and the process followed in Sri Lanka for the impeachment of the Chief Justice. By providing inaccurate information the program attempted to misinform the public and justify the impeachment process as it has happened so far.

President Rajapaksa did not give specific details of which he intends to do to ensure an impartial tribunal to inquire into the impeachment. Neither did he make any concrete proposals on how and when would take any such action.

Under these circumstances any responsible government would place its proposals if it has any concretely before the people as they are all focused on this issue at the moment. People angered by what appeared to be a political persecution of the Chief Justice for making some adverse judgments, for example in the Divineguma case will not be appeased by a vague promise by the president on this all important issue.

As the former judge, C.G. Weeramanthry has pointed out the issues involved in this present debate are of importance to the country as well as all institutions. Therefore it is only proper that the president should clearly state as to whether a new legislation in terms of Article 107 (3) is envisaged or whether the government will withdraw the impeach motion altogether.