A Mendacious President And A Profaned State

By Tisaranee Gunasekara -December 13, 2012 

“We were like people marooned on a dissolving floe of ice; we dare not think of the moment when it would melt away”.Czeslaw Milosz (The Captive Mind)

President Mahinda Rajapaksa is lying.

The President is lying when he says that he was not in favour of the impeachment, initially. The President is lying when he says that he knew nothing about the impeachment until it was signed by 117 of his parliamentarian-serfs.

The President wants ‘We, the People,’ to believe that he and his siblings stand above the impeachment quagmire, that they are not tainted by the most unjust trial in the history of Sri Lanka. He thinks a few barefaced-lies would suffice to convince us of the Rajapaksa-ability to play the role of ‘honest and impartial mediator’ in this Rajapaksa-made imbroglio.

That is a measure of the total contempt he has for our intelligence. Do we not deserve it?

The impeachment is a 100% Rajapaksa project. Its aim is to subjugate the judiciary to Rajapaksa power and turn the courts of law into tools of Rajapaksa rule.

The brutally unjust modus operandi of the UPFA dominated Parliamentary Select Committee (PSC) was not accidental or even incidental. It was the result of a Rajapaksa plan to destroy the CJ and to frighten every other judicial officer into compliance. The impeachment is an act of political terrorism which targets the CJplus the entire judiciary; and presidential dissimulation cannot efface the Rajapaksa-fingerprints inundating the scene of carnage.

The multiple experiences of the past seven years conclusively prove Mahinda Rajapaksa’s visceral incapacity to appoint or tolerate a truly independent anything. The man, who destroyed independent commissions, assaulted the media and regards judicial independence on par with treachery, is not going to appoint a committee which has the capacity to negate the work of his hand-picked PSC.

If the President appoints a committee its mandate will be clear: find the CJ guilty on at least one count, while, for appearances sake, exonerating her on all others. That way the Rajapaksas can maintain their veneer of ‘impartiality’ while getting rid of the CJ. It will severely embarrass the seven UPFA members of the PSC, but for the Rajapaksas they are nothing but expendable pawns, to be used and discarded as need commands.

President Rajapaksa’s blatant untruths about non-responsibility and his false promises about an ‘independent’ committee do not signal a real volte face. They merely aim to dissemble and deceive, confuse and confound, divide and conquer. Their sole purpose is to discourage national dissent and prevent the internationalisation of the issue; especially the latter.

The Commonwealth Weak-link

When Mangala Samaraweera directed his appeal to the Commonwealth, he touched a raw-nerve of the regime. It is no secret that President Rajapaksa is looking forward to the 2013 Commonwealth Summit in Hambantota with the same juvenile yearning of a child anticipating a visit to Disneyland. The Chinese can satisfy Rajapaksa-cupidity; but Rajapaksa-vanity requires ministration by the West, especially by our former Colonial Ruler. (That is why Mahinda Rajapaksa earned the dubious distinction of being the sole President at the Commonwealth lunch for the British Queen).

The Commonwealth Summit is thus of enormous emotional and psychological significance to Sri Lanka’s ersatz Royals. And in this irrational yearning, the Rajapaksas are at their most vulnerable. The Siblings know that they are safe at the UN, because they enjoy Beijing’s protection. With the Security Council rendered ineffective via the Chinese veto,Genevacan do nothing more than pass resolutions. But the Commonwealth is quite another matter; there the Rajapaksas lack the weighty protection of a veto-wielding patron. Even if the venue of the summit is not shifted to another country, the boycott call can gain traction because of the impeachment travesty. And the possibility of a British-snub must be giving the President nightmares.

Thus the sudden pretence at reasonableness, the seeming willingness to compromise; the President will maintain this ‘pose’ until the impeachment issue is lost in the quicksand of time. Once the veneer of reason and impartiality succeeds in gutting national dissent and muting international reactions, the Siblings will move with flummoxing speed to impeach the CJ and appoint a new chief justice who is willing to place Rajapaksa needs/interests above the constitution and Rajapaksa whims/fancies above the law, all the time.

President Rajapaksa claims that he moved to cover-up the questionable share-transaction of the then NSB Chairman (and the CJ’s husband) because “that is how it should be done; after all he is our man” (Colombo Telegraph – 12.12.2012). That presidential statement reveals all about Rajapaksa justice. It explains why Duminda Silva and Mervyn Silva never went to jail while General Fonseka did; it also explains the impeachment. A regime which abuses the law to cover-up for friends will abuse the law to hound enemies. Clearly the Rajapaksa notion of justice dovetails perfectly with the Nazi notion of justice, as explicated by Hermann Göring, “I know two sorts of law because I know two sorts of men: those who are with us and those who are against us” (Quoted in The Monthly Review – March 2009).

The PSC violated natural justice because its mandate was to act according to Rajapaksa justice.

Victor Klemperer argued that the psychological occupation of Germanyby the Nazis commenced with the corrupting and poisoning of words and concepts. For example, the Nazis changed the meaning of heroism, so that the fanatic became the new hero: “If someone replaces the words ‘heroic’ and ‘virtuous’ with fanatical for long enough, he will come to believe that a fanatic really is a virtuous hero and that no one can be a hero without fanaticism” (The Language of the Third Reich).

The Rajapaksas aim to forge a similar transformation in our notion of justice and injustice; the impeachment is a critical step in that dystopian journey.

Imagine the plight of the absolute majority of citizens if Lankan courts begin to follow the example of the PSC. Imagine judges like Wimal Weerawansa (abusively partial) or Anura Yapa (silently partial). Imagine trials in which a suspect is always presumed guilty and never given the time and the opportunity to prove otherwise. Imagine a judicial system in which the judge prosecutes and the prosecutor judges. Imagine living with Kekille justice for the rest of our lives.

The impeachment imperils more than the judiciary. As Chandra Jayaratne has pointed out, by making available the account details of a client to the parliamentarians who signed the impeachment motion, in blatant disregard of the due process, the CJ’s bank/s violated principles of banking secrecy and best banking practices. Are the Rajapaksas planning to replace normal banking principles and practices with Rajapaksa banking principles and practices? The havoc such a process will wreak on the economy and the investment climate is easily fathomable.

Clearly nothing is safe from the Rajapaksa-contagion. In their pursuit of power, the Siblings will despoil all. Every Lankan institution, public or private, will be profaned. Can anything less extreme be expected from a regime which is persecuting an aged-grandmother for not betraying her grandson?

Are we willing to risk such a future? Are we ready to live in such a country?

Sri Lanka lawyers boycott courts over impeachment

By Ranga Sirilal and Shihar Aneez-COLOMBO | Thu Dec 13, 2012 12:08am IS

Lawyers march as they boycott court proceedings during a protest in front of the Supreme Courts in Colombo December 12, 2012.

Credit: Reuters/Stringer

(Reuters) - Sri Lankan lawyers boycotted courts on Wednesday, crippling the judicial system in a protest at what they call an unfair impeachment move against the chief justice and is viewed abroad as a blow to judicial independence.

A parliamentary panel found the first woman to lead Sri Lanka's Supreme Court, Shirani Bandaranayake, guilty last week of financial irregularities and failing to declare her assets.

The United States, the United Nations and the Commonwealth have raised concerns about the process - which could see parliament voting next month on whether to sack her - and have called on the government to ensure the independence of the judiciary.

"Lawyers are staging a protest today in protest that the chief justice had not got an impartial, just and fair trial," said Wijedasa Rajapaksa, an opposition legislator and the president of the Bar Association.

Hundreds of lawyers in official uniform marched in different parts of the island nation.

Some carried placards reading "hands off from judiciary" and "today judiciary, tomorrow?", while others put up posters warning of the risks from what they called an unfair trial.

The government said the impeachment panel proceedings were in line with the constitution and the protest was not a success, as lawyers claimed.

"Their expectation was to cripple the entire judiciary. But it didn't happen as some court houses functioned," government spokesman Keheliya Rambukwella told Reuters.

Impeachment moves began after Bandaranayake ruled against a bill proposing a budget of 80 billion rupees for development, saying it had to be approved by nine provincial councils.

The ruling angered some of President Mahinda Rajapaksa's backers, who accused the judiciary of overstepping its authority, while Bandaranayake's supporters complained of political interference.

The ruling party filed a motion against Bandaranayake last month.

Parliament is expected to vote on the panel's finding in January. The president, whose party has more than two thirds of the 225 seats, needs a simple majority to remove her from her post.

Saliya Pieris, a lawyer who represented her before the panel, issued a statement on behalf of the chief justice saying she could have proven her innocence but had not been allowed to cross examine witnesses.

Parliament speaker Chamal Rajapaksa, the president's brother, appointed the panel, seven of whose 11 members were from the ruling party, to investigate 14 charges against Bandaranayake. On Friday she was found guilty on three of the first five charges.

The four opposition members on the panel quit on Friday, before its ruling, citing injustice, and the entire opposition party left the parliamentary chamber en masse. A day earlier Bandaranayake withdrew from the proceedings.

Lawyers and rights groups have challenged the legality of the select committee in the courts.

Diplomats who spoke to Reuters on condition of anonymity said the impeachment review had been conducted without due process or transparency.

"This gives the effect that the executive can do anything in the supreme court using its parliamentary two-thirds majority," a diplomat from a European country said.

"We don't have any problem with removing the chief justice. But we are concerned on the process."

(Writing by Shihar Aneez, editing by Michael Roddy)

Ehemane Karanne Ape Minihata: President Reveals True Nature Of His Governance!

By Laksiri Fernando -December 13, 2012 

Dr Laksiri Fernando

It was shocking, outrageous and deplorable, but not necessarily surprising. It was shocking since he didn’t have any qualms to reveal it openly. It was outrageous and deplorable because it came from the country’s Head of State more than the Executive President! It was not surprising however since many people had come to doubt or know about it for a long time.

Here we have a President who says “we tried to cover it up quietly since he was our man. That is how we do things, No.” His speech was in Sinhala and this is a reasonable translation or interpretation.

The matters he was referring to were not only on the impeachment motion against the Chief Justice, which has already boomeranged on the government, but also about one of the most publicised corruption cases against the Chief Justice’s husband in the history of the country, excessively publicised by the state media. The occasion was the opening ceremony of the new building for the Institute of Chartered Accountants (ICA) at Malalasekera Road, Colombo, on 11 December 2012. All quotations here are translated from and the interpretations are based on the Final Cut unedited on 11 December 2012 from News First (MTV). This is undoubtedly a minefield of spicy political material; I would have given this for my final year Political Science special students for their analysis in terms of ‘good governance and ethics of politics.’

General Comments

He started with general comments on development and achievements of the ICA. Commenting on the accountants, he said they are perceived as obstacles particularly in the government sector, as they raise so many questions and rules. This is the same in semi-government corporations. Then he came to the point of referring to some corporation Chairmen and said that “they even hoodwink the Accountants.” “Then the opposition shouts and we go and punish them. But when we punish, the opposition goes and defend them.” The whole system of democracy, dissent and criticism appeared a joke to him.

He further claimed that “we most of the time listen to the opposition and when we listen and try to punish, they say the procedures are wrong.” This was like a rehearsal to blame the opposition for the impeachment! He added that “when a wrong is done what we have to look at is the facts and facts alone.” He implied that the procedures are not that important and that was obvious from his gestures. In essence he questioned the legal principle that “not only must justice be done; it must also be seen to be done.” The question of a fair trial was not at all referred to although he soon started talking about ‘laws and the importance of the constitution from a different point of view.’

He emphasised that “under the present JR’s constitution, if I do wrong only the Parliament can punish me. I cannot be taken before the courts,” he laughed. “Parliament can bring an impeachment. But when an impeachment is in motion, I cannot dissolve the Parliament. That is a limitation I have. Likewise, if a superior judge does any wrong he/she cannot be taken before a court, there is no higher court, and the method is also an impeachment.”

He also referred to a case against a judge in Kegalla rather hilariously who was apparently forced to resign by passing a resolution in Parliament perhaps as a precedent that needs to be followed in the future. Then you don’t possibly need a Judicial Services Commission (JSC), independent or not. Then he referred to the case of impeachment against Neville Samarakoon and emphasised that “it was only due to a word that he stated against the President of that time.” He implied that the powers of the President are that powerful. He asked someone in the audience whether he is correct or not also adding that “I am subject to correction, because what I say should be correct.” He also referred to the impeachment against Sarath N Silva briefly. But what was important at this juncture was how he referred to politics and opposition politics.

“In general, whatever the impeachment is about, the opposition is always against it. We are the people who shouted when the impeachment was brought against Samarakoon; it was unreasonable and so on. That is the task of the opposition; otherwise it is not an opposition. When I was in the opposition, whatever the matter, I used to go to the street and shout. That is the duty of the opposition, whether it is correct or not. That is not a concern for me, when we were in the opposition. It is the same at present.”

Apart from an effort to discredit the current opposition, the whole attitude on politics and opposition politics was alarming. The impression cultivated is that democratic politics is a joke or at best a game.

Impeachment Issue

He said that he is commenting on the issue of impeachment because it was raised. Otherwise he didn’t want to. That can lead to misunderstandings. He said that it was the opposition who raised the issue first. The full text of his declaration was the following.

“They were our appointed Chairman and our appointed Chief Justice. There was an allegation about the Chairman, who was at the NSB, I believe, about financial matter that he sold some shares, at a lower prize when they were higher. There was a big shout, in the newspapers and in newspaper headlines every day. I urgently called the people and asked them to take the shares back by giving money back. It was covered up with difficulty. That is how we do it for our man, no.” (yanthan eka vahala dala shape kela. Ehemane keranne ape minihata).

Apart from being incorrect in his interpretation of the NSB scandal, the way he had concealed or tried to conceal the matter was outrageous. The interpretation was incorrect as it was not a case of selling NSB shares but buying The Finance Company shares at a higher price (Rs. 50 per share) when the market price was mere Rs. 20. It was reportedly was a question of NSB being forced by the government to buy a stake (13 per cent) in the bankrupt The Finance Company involving Rs 390 million rupees. Non-executive Chairman possibly could have been a mere scapegoat.

The main effort of the President was to blame the opposition for the impeachment motion. The argument went as follows, reminiscent of the famous King Kekille. “The opposition not only went and made a complaint before the Bribery Commissioner. They also said that for the wrong that the Chairman had done, the wife also should be punished. That is also something the opposition said and not me. The governing party was silent. It was also the General Secretary of the UNP that said first that they would bring an impeachment motion.”

It is a fact that the opposition raised the NSB issue and also raised some issues against the Chief Justice. But what triggered the impeachment process on the part of the government is not the NSB issue but the Divineguma issue as many discussions on the subject has already established. The President wanted the public to believe that the 117 members signed the impeachment motion because of the pressure from the opposition!

If that is the case then it would be very easy for the government now to withdraw the impeachment motion without confusing the people, disrupting the judicial process and creating a bad name for the country within the international community. If the impeachment motion is withdrawn by the signatories even now the whole report of the PSC will become defunct. Instead what the President has proposed is another Committee, allegedly an independent one, to scrutinize the already completed PSC report! It is in effect is a government report.

Other Issues

There are two other statements which are quite alarming in the President’s speech. One is about how misdeeds of people should be handled in the country or in the judiciary in general. Second is about why he has come to the conclusion of appointing another committee. The two are not necessarily one after the other but all mixed up as usual.

He said “When I was silent, members of Parliament signed an impeachment motion saying that we cannot be at the receiving end all the time (meaning the opposition criticism). I was not happy even at that time but after it has been gone through the Parliament what is left is to appoint a committee and get a report.”

He gave the impression that he didn’t believe the charges were grave. He made a comment saying that “when somebody is fallen, then all the enemies give a hammering and that is the status of the country.” He in fact betrayed all the MPs who signed the impeachment motion sans the Rajapaksas who cunningly evaded signing the motion for some reason. He also said that “I regret the situation, I am also a lawyer and a professional, I don’t like to demean (helluwata lakkaranne) the judiciary. If somebody has done wrong, I don’t think it should be discussed openly, it is not good for the judicial system. Things have gone to that extent and regrettably though we are forced to discuss these matters. He also said that the matter has become unnecessarily politicized.”

He said that “before I take action on the report I want to get the opinion of an independent committee.” The reasoning went like the following. “I am only answerable to my conscience (mage hadawatai mama uththera diya uththay). I have to satisfy myself before I act, that it is correct. This is my own conviction and it is not there in any book or law.” This comment has already generated criticism people asking whether the President is not answerable to the people or not.

There were of course few other comments at the end referring to the duties of the people to the country and professionals going abroad and sending or not sending money back to the country, but those were not directly relevant to the theme of this article.

Conclusion

It was undoubtedly a remarkable speech, a minefield for further study, revealing rather unashamedly how Sri Lanka is governed today. There is clear cynicism regarding dissent, political criticism and opposition in the country, based on his own experience as an oppositional agitator and even the leader of the opposition. Even the present agitators and leaders of the opposition should do a soul searching exercise to see whether they come under the same category or not.

Most alarming is the way he has revealed how he was trying to fudge a scandalous share deal between the NSB and the TFC without thinking of punishing the culprits especially when the savings of pensioners and ordinary people were at stake. This undoubtedly is the way the whole economy is run. The President is also the Minister of Finance. Even in respect of the judiciary, he said that the wrongs (varadha) should not be made public in his opinion, at a second occasion in the speech.

To him the procedures are not very important in a disciplinary case, only facts are important. He appeared to view that the Parliament could punish the judges, referring to a dismissal of a judge in Kegalle in the past. He however washed his hands like Pontius Pilate to show he is not responsible for the present impeachment. He even betrayed his Parliamentarians, like Judas Iscariot, who prepared the impeachment motion, apparently on his behalf or on behalf of the family.

Many times he pointed out his powers as the Executive President under the ‘JR’s Constitution’ and that is the phrase he used. He said he is responsible only for his conscience or heart (hadavata). He is apparently not responsible for the people. The President revealed the true nature of his governance in a single speech.

The President tried to argue that the impeachment motion was brought because of the opposition. If that is the case then it would be very easy for the government now to withdraw the impeachment motion without confusing the people, disrupting the judicial process and creating a bad name for the country within the international community.

Liberator Becoming A Monster

By Mahendra De Silva -

At least now the Sinhalese Buddhists should understand the damage happening to our county under the present corrupt leadership.

December 12, 2012 
Today Sri Lankans who are living abroad watch with sadness and anger what is happening in our country. Whenever I meet Sinhalese Buddhist Rajapakse supporters they ridiculed me for expressing my views about Sri Lanka. They say that one should come to the county to understand the developments taking place.  They talk of new roads, sky rise buildings, overhead bridges, luxury cars and also the cleanliness of Colombo city. According to them very soon Sri Lanka will be far ahead of Singapore When I ask about freedom and level of democracy, media freedom in the country they again get excited. What freedom? When Tamil Tigers were killing our people daily, did you talk about freedom? We all lived in fear. How many innocent people were killed by Tiger bombs, in trains, busses and everywhere? No one talked about our democracy and freedom then. It is Rajapakses who saved us from a disaster. None of the other leaders, JR, Chandrika, and Premadasa could not save us. We have to worship Rajapakses for saving our country. They deserve to rule the country for generations. –  I have come across even highly educated and intelligent Sinhalese professionals who subscribed to this viewpoint. It appears that this regime can continue for generations to come even if it becomes a total dictatorial state like North Korea so long as mentality and attitude of majority Sinhalese Buddhists remains same in tolerating injustices of Rajapakse regime.

I was thinking to myself the rationality of this argument in support of Rajapakses which is quite prevalent with Sinhalese ordinary people. It is a fact that ruthlessness of Rajapakses had a positive effect in completely eliminating Tiger menace from Sri Lanka temporally. But Sri Lanka had to pay a huge price in terms of thousands of innocent Tamil civilians who had to sacrifice their lives in Vanni during last stages of the war and adverse publicity Sri Lanka received. War could still have won more respectably if they were little sensitive to human casualties. But brutality of the way it was conducted damaged the reputation of Sri Lanka as well as Sinhalese who are known as peace loving followers of Lord Buddha. Further War Crime charges were repeatedly made against the Armed forces who made a great sacrifice to liberate the country. In my view we could have minimized the damage to great extent if the Sri Lankan Rulers of the day acted intelligently. A good leader, who has all the powers needed to make a difference to other people’s lives, should have understood the sufferings of Tamil people due to decades of war. How great it would have been for Sri Lanka if Rajapakse made use of the golden opportunity he got to unite the country.  His heart should have felt for the over hundred thousand refugees in camps in Vanni.   If he was intelligent enough first thing MR should have done after the war was to admit that innocent civilians were lost in the war.  If there were claims of misconduct or war crimes a proper enquiry should have been made, and culprits punished.  A rapid compensation and settlement process should have taken place immediately after the war. Instead of wasting billions of dollars to build unproductive ports and airport at places like Hambantota or creating airlines in his own name like Mihin Air, wasting billions of public money,   an intelligent ruler would have spent that money to develop North and East ruined by war and also to uplift the morale of Tamil people who had lost everything in their procession due to war.  It is natural that they would harbor an ill will towards Sri Lankan government for what has been happening there. Goodwill gestures by government would have done a huge attitude change in Tamils within the country as well as diaspora outside Sri Lanka. Our Buddhist priests and Sinhalese ordinary people should have been the forefront in refugee camps helping Tamil people who lost everything due to the war. Act of Kindness by Buddhist priests and Sinhalese towards Tamils would have done much more to spread Buddha’s message across North and East, than building Buddha statues and temples all over Northern peninsula. Even the war crimes charges and the very bad publicity Sri Lanka and Sinhalese Buddhists received after the war would have been minimised if Sir Lankan government took concrete steps to achieve real national reconciliation and rebuilding of war-torn territories.  Rajapakse would have been hailed like Nelson Mandela, if he acted as a statesman at least after the war. If he worked towards winning hearts and minds of all the people including Tamils after the war, Rajapakses could have stayed in power easily without having to do all the bad things he does today to stay in power.

Again coming back to the rationality of the argument that Rajapakse’s can do anything because they liberated the country from Tamil Tigers, counter argument could be made that if someone saves a another from a disaster in order to pay gratitude is it necessary to allow liberator the liberty to do anything as he likes to the victim.? In Sri Lanka the liberator who saved the county from the clutches of Tiger monster is turning to be a monster. Liberator has shut down the free media in the country. Liberator has killed, harmed or chased away any one challenging his decisions. Remains of democracy and independence of judiciary which have been still surviving in the country is to be taken out completely. Liberator has eliminated any opposition in the Parliament by buying out Parliamentarians by offering lucrative deals using public funds. Parliament has become a rubber stamp of Rajapakse, who has ensured a Parliament with his clowns who would do anything for him. He is also in the process of buying members of judiciary with various bribes. Liberator would try to attack people who do not bow down to his wishes or try to work according to their consciousness.  Liberator would take revenge from people who becomes a threat or likely to be a threat to him   with fictitious or made up criminal proceedings. Best example was former army commander Sarath Fonseka or present CJ, Shirani Bandaranayke. Liberator will ensure that all his die-hard followers and admirers are protected from the arm of law irrespective of whatever they do. Liberator has released rapists, murders and drug dealers from criminal proceedings because they are his supporters.

Rajapakse supporters who boast about Sri Lanka becoming a Singapore, does not realize although democracy is restricted in Singapore, one thing certainly happening is the rule of law applying to everyone equally. After former Singapore Prime Minister Lee Kuan Yew left his office after making Singapore one of the greatest and rich countries in the world, he did not  appoint his son or a relative  to be his successor. Corruption is lowest in Singapore compared to rest of Asia. Can anyone believe Sri Lanka becoming a Singapore with the level of corruption, nepotism, and indiscipline rulers of present day Sri Lanka?

At least now the Sinhalese Buddhists should understand the damage happening to our county under the present corrupt leadership. They should realise that democracy we enjoyed under British rule and post-independence governments all this time is in last stages today. Are they allowing the liberator to continue to undermine our traditional values, rule of law, independence of judiciary and a public service? Are we allowing liberator to use the police and armed forces as his private army. Are we allowing liberator’s puppets to be the judges of Supreme Court and other courts?  We also should remember that birth of another Prabakaran is not far away if we alienate Tamils the way we do now and the birth of another Wijeweera if the Liberator runs the country this way. The mentality that Sri Lanka belongs to only Sinhalese Buddhists should be done away in modern 21^st century. Treating everyone equally irrespective of community or religion is an accepted norm of a democratic country. Devolution of power and allowing people in a particular region to take its own decisions on administrative, development matters is also a recognized component of democracy. Because of foolish communal minded Sinhalese politicians SriLanka had to suffer from communal disharmony and violence and unrest among minorities. At least now we should learn from past experience that real peace is possible only when there is communal harmony and satisfaction among all communities. We should realise that one of the culprits of present day unruly behavior of governing politicians is the monster constitution which gives unlimited powers to the President. These powers would make even a good man an evil dictator.  Even if we change the present rulers very soon we will find the new rulers would make use of the huge executive powers vested in the Executive President fully to continue the same path of dictatorial rule. Politicians promise to change the constitution when they come to power, but when they get the taste of power, they do  want to continue to enjoy it and make as much as personal gains, not only to themselves but also to their generation. Therefore the most important task would be to make sure that whoever takes over power again do it under a new democratic constitution model with full of safeguards to protect Sri Lanka from corrupt politicians in future.

Janaka Ratnayake exposed by Shirani Thilekawardena’s evidence

Wednesday, 12 December 2012 

The President has had to face an unexpected situation following the evidence given by Supreme Court judge Shirani Thilekawardena before the parliamentary select committee (PSC) that probed the impeachment motion, it is learnt.

Thilekawardena was brought to record evidence against the Chief Justice and she had revealed the truth behind the Ceylinco Shriram deal. The evidence had revealed that the irregular activities in the transaction had been carried out by the heads of the bank and Presidential relative, Janaka Ratnayake.

Head of the PSC, Minister Anura Priyadharshana Yapa had immediately informed the President about Thilekawardena’s evidence and had directed the amendment of her evidence. The President had directed Central Bank Governor Ajith Nivard Cabraal to go before the PSC and give evidence to clear Janaka Ratnayake from the Ceylinco Shriram deal.

The Central bank Governor had carried out the directive by going before the PSC and handing a document prepared by him to clear Ratnayake.

Midweek Politics: Report In Haste, Repent At Leisure

By Dharisha Bastians -December 12, 2012 |

Dharisha Bastians

Floored by the almost unanimously negative reaction to the lack of due process and the haste with which the report on impeachment was drafted and submitted to Parliament, the ruling UPFA coalition is suddenly mulling its options. The rulers would like nothing more than to forge ahead with the removal of Chief Justice Shirani Bandaranayake. But with the legal fraternity mobilizing at warp speed in solidarity with the CJ and opposition to the move building both at home and abroad, the political cost of the fallout may just prove a little too high

“This is the chairman we appointed. This is the Chief Justice we appointed. When the papers started screaming about the NSB share deal, I summoned people, invalidated the purchase and returned the money. We quietly hushed it up. That’s how it must be done after all, he is our man. So we shaped it up.”

– President Mahinda Rajapaksa at the inauguration of Chartered Accountants of Sri Lanka building on Tuesday

During the inauguration of a four storey building for the Institute of Charted Accountants of Sri Lanka at Malalasekera Mawatha in Colombo, President Mahinda Rajapaksa blithely asserted that he would appoint an independent committee to review the report by the Parliamentary Select Committee submitted to parliament on Saturday (8). For a nation that has been bristling over the process undertaken to remove the Head of Sri Lanka’s Judiciary the statement came as resounding shock. In his speech to the Chartered Accountants gathered there, who he acknowledged as being largely supporters of the opposition UNP, the President said that he had not been in favour of the impeachment motion from the beginnings, but a group of MPs had ‘gathered the evidence’ and put the resolution forward in parliament. “As a lawyer and a member of the legal profession, this whole situation is saddening me. After all, I do not wish to undermine the judiciary,” President Rajapaksa explained, saying that in accordance with his conscience, although not mandated to do so by law, he would be appointing an independent body to study the report on the impeachment submitted by the seven remaining members on the PSC, all of them ministers or deputy ministers in the Government.

PSC – setback after setback

The President’s conscience-stricken assertion about not wanting to play a part in the undermining of the judiciary at the public event, puts the seven Government members of the PSC and the 117 members who signed the impeachment motion – many of them telling the media later that they signed the motion without seeing the contents or the charges – in a sticky situation.

The legal fraternity reacted instantaneously, claiming that it was an admission by the President no less, that the process was unlawful and the report of the Committee flawed. Mobilizing at break neck pace, the Lawyers Collective demanded the immediate withdrawal of the PSC report and an independent and fair trial for the Chief Justice.

SLFP seniors annoyed

The President’s statements have irked Government representatives on the PSC who hastily pronounced on the Chief Justice’s guilt only three days ago. SLFP seniors are reportedly angered by attempts by senior members of the ruling regime to absolve themselves of the fallout from the impeachment drama. Some SLFP seniors who wished to remain unnamed, said that the entire impeachment process was set in motion by a senior presidential aide in charge of parliamentary affairs, who was irked by the Judicial Services Commission decision to take disciplinary action against a magistrate friend. The issue intensified following the Supreme Court position on the Divi Neguma legislation.

I Was Not In favour Of Impeachment

The PSC has suffered setbacks from the get-go. Litigation has piled up against it at the Court of Appeal and the Supreme Court, and notice has been served on the 11 members of the PSC who are cited as respondents in almost all the petitions. Legal challenges to the PSC spring from an interpretation of Article 4 (c) of the constitution which vests judicial power of the people in the courts of law. Then the committee attempted to conduct its deliberations behind the cloak of parliamentary privilege, exercised through the controversial Standing Order 78Awhich pertains to the removal of judges of the Superior Courts. The Standing Order stipulates that unless the judge in question is pronounced guilty on any of the charges in the motion, proceedings of the PSC may not be made public. The closed proceedings were an attempt to safeguard the reputation of a judge under investigation, until such time his or her ‘misbehaviour’ or ‘incapacity’ was proven. Chief Justice Shirani Bandaranayake’s lawyers in the interest of transparency, during her second audience before the Committee, waived her right to privacy and asked for an open trial. Government members of the PSC refused the request. The Chief Justice then requested observers from the Commonwealth or even the Bar Association of Sri Lanka. Once again, the Government majority in the Committee refused.

Public proceedings

In the end it did not matter in the least. Proceedings were made public from the moment they concluded for the day, splashed all over the websites that are immune from the confines of parliamentary privilege that govern the mainstream media. Along with the revelation that Government members on the probing committee were vetoing every request of the Chief Justice’s lawyers, including that for additional time to prepare her defence, were other exposes that put the PSC in an awkward position, especially following Chief Justice Bandaranayake’s final audience before the Committee on 6 December. The Lawyers Collective, an umbrella organization for several legal associations and senior lawyers, provided excruciating detail about the proceedings at the PSC on the afternoon of 6 December that prompted the walkout by the Chief Justice and her lawyers. The details included certain derogatory remarks cast at Bandaranayake and even the head of her legal team, President’s Counsel, Romesh De Silva by two Government members of the PSC. At a media briefing this week, the Lawyers Collective said that the Chief Justice was compelled to quit the PSC proceedings in order to maintain the dignity of her office and her dignity as a woman, because the slurs cast upon her proved beyond endurance. Officially, representative of Bandaranayake’s legal team, Attorney at LawSaliya Pieris said that submissions by the Chief Justice’s senior lawyer, De Silva PC, had been repeatedly disturbed by Government members on the panel and that some members of the ruling party had got abusive with the Chief Justice. Citing a lack of faith in the proceedings and the belief on the part of his client that she would not receive a fair trial at the hands of the PSC, the Chief Justice walked out of proceedings and informed the Committee through her lawyers that she would not return, Pieris said.

PSC Chairman Anura Priyadarshana Yapa flatly denied the allegations of abuse being hurled at the Chief Justice

PSC Chairman Anura Priyadarshana Yapa flatly denied the allegations of abuse being hurled at the Chief Justice but DNA MP Vijitha Herath, who walked out of the Committee with his three other opposition colleagues on Friday (7) said the official transcripts of the proceedings would soon be made public. “Repeatedly, the PSC Chairman told the Chief Justice’s lawyers to speak to him. He told them not to listen to the remarks being made from his colleagues, so there is no way he can say those things were never said,” Herath said.

Less than 24 hours after the Chief Justice and her lawyers walked out of the PSC, the four opposition members on the committee – John Amaratunga (UNP), Lakshman Kiriella (UNP), R. Sampanthan (TNA) and Vijitha Herath (DNA), quit the committee protesting the unfairness of proceedings and the undignified way in which the Chief Justice had been treated. In order to remain in the Committee, the Opposition committee members demanded that due procedure for the investigation by the Committee be laid out, that the Chief Justice’s legal team (and the four opposition members) be allowed time to peruse the evidentiary documents presented to them on 6 December and that she be invited back into participate in the proceedings on the guarantee that she would be treated with the respect due to the office she holds. All the demands were rejected by PSC Chairman Yapa, culminating in all four members from the opposition quitting the Committee. Not only were the proceedings from then on effectively ex-parte, but with the opposition boycott, the PSC’s legitimacy was further eroded since any ‘verdict’ by the committee now would be seen as entirely one sided, senior lawyers warned. The gravity of this situation was not lost on President Rajapaksa, prompting him to call UNP Senior Vice President and Committee member, Lakshman Kiriella on Thursday (6) night and urging the opposition to stay on and fight for a fair trial for the Chief Justice.

The witnesses

Be that as it may, the sequential walkouts firstly by Chief Justice and subsequently by the Opposition did nothing to stem the enthusiasm of the seven remaining Government members on the PSC. With renewed vigour, the PSC deliberated late into the night on Friday (7) in Committee Room 1 of the parliamentary complex. Following the opposition walkout earlier that day, the PSC hastily summoned 16 witnesses, including Supreme Court Justice Shiranee Tilakawardane, a several representatives from Trillium Residencies, Immigration Controller, Chulananda Perera, Judicial Services Commission Secretary, Manjula Tillekaratne, Central Bank Governor Ajith Nivaard Cabraal and even Presidential Secretary, Lalith Weeratunga. Also on the witness list presented in the 29 page report to Parliament by the PSC were several officials from state banks, including the NSB, Bank of Ceylon and Peoples’ Bank. The editor of a Sinhala newspaper that publishes both daily and weekly was also summoned to give evidence. The witnesses were issued last minute summons yet all of them managed to appear before the Committee which conducted proceedings well into the night on Friday.

According to the PSC report, now in the public domain thanks to the state media, Justice Tilakawardane gave evidence primarily about the Golden Key case that was first pending before a three judge bench headed by her and subsequently transferred to a bench headed by Chief Justice Bandaranayake. The Committee report hails the Supreme Court Justice’s testimony as being ‘greatly useful’ to reaching a correct conclusion. The report says Justice Tilakawardane swore an oath before the Committee and gave evidence that former Chief JusticeSarath N. Silva had urged her to remain on the bench hearing the Golden Key case before he retired, in order to ensure justice is done by some 9000 depositors in the case. According to the Report, Justice Tilakawardane testified that while she was hearing the case, a motion had been filed requesting for a fuller bench of the Supreme Court to hear the case. However the report quotes the response submitted by Bandaranayake’s lawyers which says that the Chief Justice ordered that the case be continued to be taken up before the bench comprising Justices Tilakawardane, Chandra Ekanayake and Priyasath Dep. The report then concludes the following:

“This Committee concludes that the Chief Justice’s conduct in having maintained close ties to and obtained a Rs. 1.6 million discount on the Trillium apartment from Executive Director Janaka Ratnayake who was found by Justice Tilakawardane during her investigation into Trillium to be suspect in major fraud, having refused to make an order appointing a five judge bench to hear the Golden Key case as per the constitution and subsequently removing Shirani Tilakawardane who had worked with dedication for 3 ½ years from the bench hearing the case and appointing herself and two other justices to the relevant bench was systematic and for some purpose. She (Justice Tilakawardane) stated that she did not remove herself from hearing the case voluntarily and she was surprised to hear she had been removed from the bench.”

To support this charge, the PSC report also quotes transcripts of the proceedings, specifically with regard to questions posed by Committee members to Trillium’s executive director. The line of questioning when perused, legal experts opine, indicates that the prosecution and the jurists in the PSC were one and the same.

Guilty on three counts

the case pertaining to Pradeep Kariyawasam filed in a Magistrate’s Court and the Chief Justice’s potential to abuse power as Chairperson of the Judicial Services Commission and how her position as Head of the Judiciary hearing the case could hinder or be perceived as hindering the administration of justice.

After hearing from these witnesses, the PSC members stayed back very late to conclude their findings and draft the report with the assistance of several clerical officers in the complex, all of whom were sequestered for the purpose. The report investigated the first five charges in the impeachment motion, and found the Chief Justice to be guilty on three charges: 1, 4 and 5. It has exonerated her on charges 2 and 3 in the impeachment motion which deals with money the Chief Justice said in her response to the charges were transferred from her sister for the purpose of purchasing an apartment in Colombo and an alleged transfer of Rs. 34 million into her bank account, which the Committee has been unable to prove. The PSC said it had not gone into the other nine charges in the motion. Charge 1 pertains to the Chief Justice having purchased an apartment at Trillium while hearing a Ceylinco case using her sister’s power of attorney, Charge 4 deals with non disclosure of some 20 bank accounts she maintained at NDB bank. Charge #5 deals with the case pertaining to Pradeep Kariyawasam filed in a Magistrate’s Court and the Chief Justice’s potential to abuse power as Chairperson of the Judicial Services Commission and how her position as Head of the Judiciary hearing the case could hinder or be perceived as hindering the administration of justice.

The report was handed over to Parliament on 8 December, in keeping with a trend by the ruling powers to pick dates that add up to the number 8 for elections and other significant political events. By any standards, with the PSC having commenced deliberations on 23 November, the report has been handed over with undue haste, despite the fact that Standing Order 78A makes allowance for an extension of the Committee’s tenure if it required more time to probe the charges. Government Members on the PSC said they could not tarry because the Speaker had mandated that the Committee must deliberate and submit a report within a period of a month. Had the Committee taken its time, studied the evidence and make provision for a fair trial, its legitimacy would not be in such furious question today.

Ex-parte evidence led

The announcement that several witnesses had appeared before the PSC on Friday evening drew a furious reaction from the Chief Justice’s lawyers and across the board. Issuing a statement on behalf of Bandaranayake, Attorney at Law Saliya Pieris said that the Committee had consistently maintained since 23 November that no oral evidence would be led during the proceedings and the Chief Justice’s legal team would not be permitted an opportunity to cross examine witnesses and those submitting documentary evidence to the PSC. “Despite our demands to cross examine the witnesses we were not given the list of witnesses or documents and were told that there will be no witnesses called. This same observation has been made by the Opposition Members of the Select Committee today at 2.30 pm. We now find that after the Chief Justice and her lawyers walked out of the Select Committee, the Committee has called for witnesses and led their evidence. We understand that all those witnesses were summoned today (the 7th) after the lawyers walked out. It appears to us that as long as the Chief Justice and her lawyers were present witnesses would not have been called,” he said.

Even UNP Leader Ranil Wickremesignhe came out strongly against haste with which the report was submitted and the treatment meted out to the country’s most senior judge at the hands of the Government members on the committee.

The calling of witnesses after the Chief Justice had quit the proceedings exacerbated problems for the PSC, which was already burdened by allegations about a lack of due process and fair trial. Attorney at Law Srinath Perera told a media briefing on Tuesday that no matter how high profile a witness, a defendant in a case had the right to cross examine a witness testifying against them to ascertain the truth or otherwise of the testimony. “It is a well recognized principle, that a witness no matter how high profile has to be tested in cross examination by counsel for the defendant. This is a weapon given to a person against whom charges are brought. The Chief Justice was denied this right and the PSC led ex-parte evidence against her,” Perera charged.

The Government faced a hailstorm of criticism from all quarters after the report from the PSC was submitted to Parliament. The Opposition has condemned the lack of due process and transparency and the PSC’s inability to guarantee a free trial. Even UNP Leader Ranil Wickremesignhe came out strongly against haste with which the report was submitted and the treatment meted out to the country’s most senior judge at the hands of the Government members on the committee. Wickremesinghe who told Parliament on 29 November that there was no way the PSC could submit a report on 8 December because procedures had to be followed, during the infamous privilege debate regarding notice served on the PSC by the Supreme Court, charged this week that Sri Lanka was at risk of losing Commonwealth membership by failing to follow due process in the removal of a judge. The main opposition also mobilized a small protest at Lipton Circus on Monday (10) to protest against the impeachment process.

Over to the black coats

But the major mobilization is occurring in the legal fraternity, where zonal bar associations and legal societies are striking work in solidarity with the Chief Justice. Constitutional Lawyer and Activist, J.C. Weliamuna said that for the legal fraternity, this was not about protecting an individual. “This is about protecting the office of the Chief Justice, the judicial system and the people from undue interference by the executive that is deeply damaging to democracy and the rule of law,” he said. On Saturday, lawyers are engaged in massive efforts to ensure a large turnout at the Bar Association General Meeting, which Weliamuna says will make major, drastic decisions on the way forward. Some lawyers, he said were preparing a resolution to be moved that would refuse to recognize the appointment of a new chief justice. The Lawyers Collective and Lawyers for Democracy are mobilizing the black coats to boycott ceremonial sittings by a new Chief Justice and file contempt charges if demonstrators are mobilized to insult the judiciary at Hulftsdorp again. The solidarity of the Tribe of Black coats in this instance has proved unshakable for a Government that is accustomed to being able to win over influential members of any fraternity over to its way of thinking. Instead, even Government proponents such as S.L. Gunesekera, Attorney at Law, are coming out strongly against the impeachment process, saying it was a pseudo trial by a kangaroo court and posed a threat to the judiciary at large. Lawyers are also working on mobilizing judges and retired judges to agitate against the proposed impeachment and the lack of fair trial afforded to Bandaranayake.

Instead, even Government proponents such as S.L. Gunesekera, Attorney at Law, are coming out strongly against the impeachment process

On Tuesday, Sri Lanka’s senior most judge, and former vice President of the International Court of Justice, Christopher Gregory Weeramantry set out in a measured statement the pre-requisites for fair trial. According to the eminent Justice, who has remained silent on the impeachment process thus far, “The Rule of law demands that every person being investigated by a tribunal has the 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” and a denial of any of the factors “vitiates the inquiry and its findings.” Justice Weeramantry observed that unless these principles are involved in an inquiry, where the security of judicial tenure is involved, there is profound damage to the independence of the judiciary. In his statement, Justice Weeramantry notes that he felt compelled to make observations on the current crisis facing the judiciary in Sri Lanka.

Pressure abroad

Internationally too, the pressure is mounting, with observers saying it is likely that the repucussions of the trial held with undue haste to remove the country’s most senior judge, would certainly be felt when Sri Lanka’s case is re-examined at the UN Human Rights Council sessions in March next year. The undermining of an independent judiciary is particularly pertinent in terms of the challenges Sri Lanka is facing internationally, especially with regard to its alleged lack of commitment to going into accountability issues in the final phase of the war with the LTTE in 2009. With the world crying out for a war crimes inquiry against the Sri Lankan state, the Government has maintained that it has both the will and the capacity through its judicial system to investigate any alleged excesses. Analysts point to the fact that not only has one year gone by with Sri Lanka refusing to show any true commitment to going into accountability issues, but the impeachment motion and resultant fallout, including the compromised independence of the judicial arm which will from here on out fear political reprisals, will also demonstrate that Sri Lanka’s judicial system no longer has the capacity to go into an accountability investigation – that is patently an investigation of alleged state excesses. For the setting up of an international independent war crimes tribunal, two conditions must be fulfilled – the state must show unwillingness to investigate and its own judicial system must be proved incapable of independent decisions. Last week, the US State Departmentfollowed up a statement from the US Embassy in Colombo expressing grave concern about the rule of law and challenges to judicial independence in the country.

All this posturing is not lost on the Sri Lankan Government. Hemmed in from all sides, the independent panel to review the PSC report is a face-saving mechanism. It remains to be seen who will comprise the ‘independent’ panel and whether it will necessarily invalidate the findings of the PSC and demand a new trial for the Chief Justice. If so, all the hard work of the Government members of the PSC would have been for nought, with the President Rajapaksa and his family effectively disassociating themselves from both the impeachment motion and the PSC report that pronounced on the guilt of Chief Justice Bandaranayake. If the impeachment saga is folding like a pack of cards, the joke is on the seven UPFA members of the Parliamentary Select Committee, those tried and tested political acolytes that will be the first victims of a hasty Government retreat.

Courtesy Daily FT