Night Races: CMC Takes A Hit

 Monday, 24 December 2012

The Colombo Municipal Council (CMC) lost Rs. 2.9 million from the Colombo Night Races after Western Province Chief Minister Prassana Ranathunga gave instructions for the CMC not to charge a tax on the tickets sold for the event.

Under local laws when such an event or carnival is staged in the Colombo Municipal Council limits a tax is imposed on each ticket sold.

However Ranathunga had issued instructions to the CMC not to charge the tax on tickets sold for the night races at Galle Face recently.

The CMC had approved tickets to the value of at Rs. 29 million for the night races and stood to gain Rs. 2.9 million by way of a 10 percent tax on each ticket.

Deputy Mayor Titus Perera said that Ranathunga had issued similar instructions for the night races last year as well which resulted in the CMC losing out on much needed revenue.

A CMC official said that when tickets are approved by the CMC a seal is placed on each ticket printed for the event.

Separately a CMC official monitors the event to ensure extra tickets are not printed and sold without the knowledge of the CMC.

When The Sunday Leader contacted Chief Minister Prassana Ranathunga, he confirmed that instructions were given to exempt taxes from the tickets sold fpr the night races. He said that as the Chief Minister he had every right to take such a decision in the best interest of the city and the country

The almost forgotten LLRC report and the Sri Lankan psyche

The almost forgotten LLRC report and the Sri Lankan psyche

Groundviews ‏

24 Dec, 2012

Publicity shot from late-2011, depicting the President of Sri Lanka ‘reading’ the LLRC’s Final Report. Comprehension and cognition remain suspect. 

Some years ago while on a visit from abroad, my niece was entertained and perhaps a little shocked when she overheard comments broadcast over the loudspeaker from a nearby school. It was the day of their annual sports meet and a teacher, obviously short – tempered, screamed into the microphone at some hapless students, “Magay yakaawe aussande epaa”. When translated into English, “Don’t rouse the devil in me” it loses colour and pith but in its original Sinhala form, her words and tone of voice, packed quite a punch. Reading the newspapers today, I am reminded of the words of that teacher. It seems that it takes very little to raise the sleeping devil in the Sri Lankan psyche. Any hint of criticism directed at our fragile egos and we are ready and willing to take umbrage. Is this part of our Sri Lankan psyche? If so, it does us a disservice.

Some of these thoughts on the Sri Lankan psyche ran through my mind when I attended a seminar on Wednesday 12 December, on the all- but- forgotten Lessons Learnt and Reconciliation Commission (LLRC) Report. Interestingly, I learned that there was a measure of dissatisfaction with the report among some hard—line Tamils in the North as much as there was among many Sinhalese in the South, though for different reasons. The Tamils feel that due to the narrowness of its scope, the report fails to address the root causes for the war of 30 years, a crucial and significant omission. The hard- line Sinhala stance is in line with that of the government, and this is not to re-revisit the events that took place in May 2009, but instead to  assert its confidence in the armed forces, the acknowledged heroes of the nation who saved the day. Leave alone rooting among the debris for evidence of war crimes, such hard liners find themselves unable even to consider the relatively mild and non threatening recommendations of the LLRC. In the meanwhile, the government is in the unenviable position of having commissioned a report which is a veritable Pandora’s box in its hands. For instance, Chapter 3 of the report focuses on how the war was conducted during those last crucial days, while among its many recommendations at the end of the report, the commission also emphasizes the need for an independent body to investigate the channel 4 videos, the killings of 5 teenage boys in Trincomalee, the murder of 23 Aid workers in Muttur and the people who went missing during the course of the war. Rumour has it, that these disappearances and killings could be connected to the echelons of power and privilege. What does a government do with a report it commissioned to stave off mounting international pressure, but which could prove to be a powder keg in its possession? What it has done so far has been exactly what previous governments too have done with embarrassing facts, and that is, to sit it out. This brings me to the second significant aspect of the Sri Lankan psyche – our short attention span. We flog an issue to death on the streets and in our homes as long as it is “hot hot” but a few months down the line, we forget about it and focus on the next sensation.                                             Continue reading »

Speaker attempting to mislead the community


Monday , 24 December 2012
“Constitution is the highest level in the country. However parliament is in the foremost out of everything” are statements made by Deputy Speaker by giving erroneous explanation, as if he is not aware of law was mentioned by Tamil National Alliance Parliament Member and Lawyer M.A.Sumenthiran. He said such statement is condemned.

He made this statement at the opposition parties media briefing held at the Opposition party leader's official bungalow in Colombo yesterday.

He said, On behalf of the Chief Justice a writ application was filed appealing interim order to implement the issues mentioned in   the final report submitted by the Parliament Selective Committee which probed the impeachment against the Chief Justice was inquired by the Appeal court made an announcement to the Speaker, Parliament Secretary General and Selective Committee members.

Deputy Speaker while giving his opinion in regard to the Appeal court announcement said, parliament is the supreme in a country. His opinion should be condemned.

Deputy Speaker is a Lawyer. He is revealing opinions as if he does not know law. Constitution is the level in the country and parliament is extremely in the foremost is an erroneous opinion stated by him which is misleading the community.

Appeal court did not issue summons to Speaker and Selective Committee members, but only made an announcement. Accordingly,  if desired, Speaker and Selective Committee members can present at the Appeal court. But Lawyer Deputy Speaker is giving statement as if he does not aware about this.

Deputy Speaker who is misleading the society should be condemned was mentioned by him.

Rajapakse regime releases murder convict, latest is another Rajapakse by name
(Lanka-e-News-24.Dec.2012, 6.00PM) Readers will be aware that Lanka e news had already reported on the illegal measures the despotic and murderous Rajapakse regime is proposing to take. That is , use the criminals in prisons who are facing murder charges. One such instance was exposed by us where the Welikade prisoners were taken out clandestinely after covering them with cloths brought by the murderous regime’s criminal officials on the day of the recent Welikade prison attack. 

The latest in this criminal action of the despotic regime is the release of R Devage Somaratne Rajapakse ( not of the special Rajapakse family) who was in the special B 3 ward of the Welikade prison . He was the chief suspect in the murder of Krishanthi Kumaraswamy and was a most controversial criminal during the tenure of office of President Chandrika Kumaratunge.

This Rajapakse was a Lance Corporal in the intelligence division of the Forces. He was among the five suspects who were sentenced . The others were serving their sentence in the Bogambara prison. One of the suspects escaped from prison , and the case was heard without him and death sentence was passed. Three others were sentenced to 20 years in prison . All of them are soldiers of the Forces, while one suspect is a police officer.
During the trial it was proved that in 1996 , 18 year old Krishanthi Kumaraswamy , a student who went missing was raped and killed by these soldiers at the Kaithady security post. Later her body was discovered at an army camp . 

These suspects were sentenced after a long trial and in the panel of judges that heard the case , Dr. Shiranee Bandaranayake , the present CJ was one of the judges. In the past , the Govt. carried on a campaign that this judgment was politically motivated and accusations were hurled against the CJ.. The sordid individual , a pro MaRa lackey who spearheaded this campaign most was a media personnel attached to the Divaina newspaper , holding a high position in the SL telecom Co. 
This unscrupulous individual took pains to go to the prison and conduct a live interview with this convict. Though it is impossible legally to meet a prisoner who is facing a death sentence , this individual was allowed to conduct the wrongful and unlawful interview to fulfill the needs of the MaRa regime .

Yesterday, the so called CID officers and another supposed to be from the Attorney General’s (AG’s) Dept . who arrived at the prison had after meeting this prisoner obtained his signature on some documents . After the officers had left , this murder convict, former Corporal Rajapakse Devalage Somaratne had bragged to others ‘ you can see my photo and name in the front page headline news in the newspapers tomorrow or day after. I am doing something towards that’. 

May we recall that we reported on two occasions that the CJ had been receiving death threats from the MaRa regime.

Apparent Bias And Prejudice Of Prof Carlo Fonseka

By Laksiri Fernando -December 24, 2012 

Dr Laksiri Fernando

I never contemplated that I may have to contradict or dispute Prof Carlo Fonseka one day whom I admired in my young days, and even thereafter, as an impressive ‘fire walker’ and an exponent of rational views on many matters, social and natural. But on many previous instances, I doubted his political views or judgements, but not on the reason of bias or prejudice. Now the things have changed. While pretending to be preaching a ‘Sermon on the Mountain’ on this Christmas eve on ‘personal bias,’ ‘prejudice’ and ‘conflict of interest,’ he has himself shown his bias and prejudice from his very first sentence in his article titled “Why I urged my friend Chief Justice to apply for leave” (Colombo Telegraph, 24 December 2012).

He says, “I believe that it was in the practice of scientific medicine that humanity perfected the technique of avoiding personal bias and prejudice in the conduct of human affairs.” Of course he is free to have his own ‘beliefs’ that are by definition closely associated with biases and he is obviously bias towards his own discipline, ‘practice of scientific medicine,’ in this instance. It is my understanding (not belief) that the ‘techniques’ of avoiding personal bias and prejudice are highly developed in jurisprudence, law and justice, although jurists might not claim that they have perfected these techniques. There are so much of debates still going on and some of the matters are to do with impeachment processes; political biases in impeachment procedures. Let me add that jurisprudence is not my academic discipline and therefore I don’t have any ‘professional biases’ in making this statement in claiming its advancements.

I cannot pretend to have any knowledge on the practice of scientific medicine either. However, what he has written is supposed to be for the ordinary laymen like me and therefore I am inclined to make the following further observations on his article.

First is that I consider it completely erroneous for him to come to the conclusion that the “practice of medicine has perfected the techniques of avoiding personal bias and prejudice” and he has tried to demonstrated this through his training as a medical practitioner or student. The experience he has related is extremely vague, sketchy and subjective to the core. He has not done any comparison with jurisprudence, psychology or sociology and jurisprudence is the most advance in my opinion on this matter.

Secondly, I don’t see any connection between the conclusion of his article finding fault with the Chief Justicenot taking leave irrespective of his advice and the four sections that he has outlined as ‘pre-medical,’ ‘pre-clinical,’ ‘pharmacology,’ and ‘randomization and blinding.’ As far I can understand, avoiding bias or prejudice is more central to the application of justice whether in criminal, civil, human rights, labour, disciplinary or impeachment cases or tribunals than in the case of practicing of medicine. Then how can he assume that it is unknown? All law students are aware of or taught about these matters (whether they practice or not) not to speak of the Chief Justice and other judges.

In the Sri Lankan context, the recent presentation by CV Wigneswaran to the Judicial Services Association is most instructive to read also dealing with many other aspects of the independence of the judiciary. More theoretical as an introduction might be by David Luban, “Laws Blindfold” in Michael Davis and Andrew Stark (eds.), Conflict of Interest in the Professions. It is available on line.

Thirdly, in passing I also like to raise some doubts about what he mentions as the 10 factors affecting the application of medicine quoting a Bennett and a Brown. Although he has mentioned about 10, he has only given 6 factors. As a patient of some acute medical problems, my experience has always been that the medicine that applied to me worked perfectly well irrespective of the doctors or my attitudes under the circumstances. Here he has not talked about blindness but positive attitudes. I am not at all saying these factors are not relevant in the practice of medicine, centrally or marginally. My point is that Prof Fonseka is trying to concoct a medicine or a very rigmarole story perhaps not that relevant in medicine but in politics – politics that he is indulged in at present. If I may use a strong criticism, he is trying to prostitute his professional knowledge for the benefit of a political power scheme to destroy the independence of the judiciary. This is plain and clear.

It is in this context that his concluding paragraph is quite farcical. (My Dear Sir, sorry to say that). There is no question that some of the things that he says are ‘truths’ and ‘home truths.’ He talks about ‘blinding.’ This is rudimentary knowledge. The classical iconography of justice is a goddess, Justitia, equipped with the Sword, the Scales and the Blindfold. To ensure the blindfold, in certain jurisdictions there are direct ban rules. Then there are indirect rules. Then there is discretion that all judges should apply before being part of a bench or hearing a case. Any conflict of interest should be avoided. All these are accepted.

I also cannot completely blame Prof Fonseka for his apparent advice to his friend Chief Justice to apply for leave when her husband was charged for bribery (if this was written then) because I myself initially thought perhaps she could even resign to avoid any possible conflict of interest. The complete background was not clear at that time. But why this article and advice now? Many people also suspect that some of these friendly suggestions to the CJ then were part of a scheme to pressure her to step down or succumb. I am not saying this to Prof Fonseka without knowing the facts. Then the things changed very rapidly. The impeachment was brought in and there were 14 charges and not one. If she had resigned, it could have construed as admission of guilt. The pressure was for her to resign.

Let me ask Prof Fonseka the first question: what he thinks about the whole impeachment motion against the Chief Justice and the impeachment process? It would be useful for the readers if Prof Fonseka expresses his opinion on the whole matter without confining himself to one issue in a devious manner.

As SL Gunasekera and many others who were supporting the government before (even perhaps now) have very clearly expressed there are serious issues of independence of the judiciary and impeachment is only a part of it. I wonder whether these matters of independence of the judiciary also come under Prof Fonseka’s medical training. Whether for example there is any theory to say that the judiciary should organically be a part of the executive like pancreas and something else in biology?

Whatever that be, he should be obliged to comment on those matters of the independence of the judiciary since he has put his finger into the ongoing debate. When there are serious issues of the independence of the judiciary, in my view, the Chief Justice simply cannot step down and wash her hands. That is dereliction of duty as the Chief Justice. Justitia should wear not only the blindfold, but also should hold the sword and the scales. The blindfold also means her resistance to pressure. As she said in her key note address to the Judicial Services Association on 22 December 2012 “the worst judge is not merely one who is deaf; but one also succumbs to pressure.”

Also when there are impeachment charges, any judge should face them. The resignation is not the right way. It may be pleasing to the government, but not good for the judiciary or to the principles of accountability. We need to stop the political culture of ‘cover ups’ in Sri Lanka. Otherwise there is no democratic future. Any conflict of interest in respect of the CJ’s husband’s case should be avoided and it is still possible. The case has not yet commenced and all indications are that it is a framed up trail. In the case of the impeachment, all blindness that Prof Fonseka talks about also should have applied to the inquiry process. But it has not been done for the whole world to see.

This is my last question. The CJ has raised a conflict of interest in the case of two particular members of the PSC, Rajitha Senaratne and Wimal Weerawansa, and both are I believe friends of Prof Fonseka. Applying the same medical principles, I wonder whether Prof Fonseka ever asked them to take leave from the impeachment process?

It would be too strong for me to ask whether Prof Fonseka himself has a conflict of interest, prejudice or bias in commenting on the Chief Justice’s conflict of interest by being a government paid Chairman of the National Authority on Tobacco and Alcohol. This is not however a question.

TOWARDS STABLE HOPE

A Christmas reflection

December 22, 2012, 7:15 pm 

by Bishop Duleep de Chickera

Enemies of hope

Jesus was born in circumstances of political and economic oppression. Palestine had been occupied and subdued under Roman imperialism. Caesar Augustus reigned supreme over a vast empire. His pomp and power knew no limits; and he was even made out to be a god.

The people of Palestine experienced hardship and harassment under this regime. They were taxed heavily to maintain the extravagance of the Emperor’s court and the might of its military machine. Those who dared to call for freedom and justice were brutally crushed. Some were thrown to the lions or crucified in public. This was to instil fear and prevent further uprisings.

A second level of local rulers assisted Caesar’s court to oppress their own. In Jesus’ time these were the Herods and the Chief Priests. They had traded their integrity for the crumbs of pomp and power that fell from Caesar’s table. The one thing they dared not do was to disagree with the philosophy of the empire.

Caesar’s court and its collaborator-opportunists despised each other but needed each other. They were compelled to stay together to serve each other’s interests. Together, they imagined that the Empire would last forever.

The gift of hope

The coming of Christ challenges the pomp and power of the empire and the myth of its invincibility. In time, the baby, born in a stable, grows up to offer a higher alternative to the violence and greed of the empire. His life and teaching stirs the human conscience and opens the way to liberating truth and fullness of life. This truth and life sets people free from the impulse to violate and victimise others, and awakens a yearning to include and safeguard the dignity and freedom of the other, now seen as sister and brother within one human family.

It is this new release of perspective and energy rooted in the human conscience which relentlessly discovers ways of overcoming barriers that deprive and divide humans. The human instinct to protect and care for each other is much stronger than the sum of greed of the violent empires of the world.

This then is the strong message of hope that Christmas brings; the oppression of empires, whether yesterday or today, do not last forever. When contested with the much more dynamic forces of truth, love, justice, humility, forgiveness, healing and reconciliation they are destined to collapse and give way to a higher order. The prophetic words of the late Martin Luther King that "the arc of history is bent towards truth and justice" are a precise summary of this reality.

Windows of hope

This Christmas message opens several windows for us all. It is for us to decide at which of these six we are to stand.

1. The stable born baby grows up to love the vulnerable and include the marginalised.

The liberating freedom that Christ offers cannot be confined to personal or institutionalised religion. The heart of Christianity is justice for the vulnerable and the oppressed; everywhere and always.

2. The peace and goodwill that the birth in the stable ushered, was first announced to poor and socially excluded shepherds.

Violence and injustice is never the end of the story. New signs of hope will always emerge in lowly and unexpected places like the stable and the open fields. When modest humans take on the responsibility to protect each other through solidarity, integrity, self-denial and self-scrutiny, ripples of change can grow into waves, and the tears of the violated will be wiped away.

3. The wise visitors, who were led to the stable and cooperated to save the saviour, were from other religious cultures.

Human resilience, values, passion and perseverance for social justice cannot be confined to any one religious tradition or ideology. It spans all boundaries and includes all cultures at all times.

4. The happenings in the stable did not immediately oust the Caesars and their accomplices.

In fact it made them more violent. There will always be those who resort to violence and injustice for the love of pomp and power. Empires replace empires. This is why the work of social justice never ends. Those who work for a safe, just and reconciled world have no rest; they are to be alert always, till the end.

5. The modest and the wise, unknown to each other but in a common search for truth and life, meet at the stable of hope.

Many from different backgrounds, prompted by different reasons and unknown to each other are in search of truth and life. Even if they think so at times, they are not alone in this search. Hope is generated when such persons meet in a common place. In this search, each has much to offer and all are to cooperate in a spirit of openness and generosity.

6. The message that grew from the stable is inclusive and universal.

It offers hope for the perpetrators of injustice as well. Those who build empires always have another chance to give up their violent and unjust ways and turn to a life of integrity through repentance and remedy of the damage done. When this happens victims and violators will be able to share the shade of the same tree.

With Peace and Blessings to all!

LfD Condemns The Attempt To Mislead The Masses And To Push The Country Towards An Authoritarian Regime

By Colombo Telegraph -December 24, 2012

“It is to be reminded that Speaker, Deputy Speaker and every member of Parliament has under oath of office as set out in schedule 4(a) to the constitution undertaken to uphold the Constitution.” says Lal Wijenayake, the Convener Lawyers for Democracy.

Lal Wijenayaka -Convener LfD

Issuing a statement he says; “We ‘Lawyers for Democracy’ condemns the attempt to mislead the masses and to push the country towards an authoritarian regime.  This dangerous trend has to be checked to prevent a lawless, chaotic situation developing.  We demand that all concerned respect the Constitution and honour its allegiance to the Constitution.”

We publish below the LfD statement in full;

Statement by ‘Lawyers for Democracy’ on the statements by the Deputy Speaker of Parliament and Media Spokesman for the Government:

The statement made by the Deputy Speaker of Parliament regarding the notice issued by the Court of Appeal on the Speaker and members of the select committee of Parliament in the case filed by the Hon. Chief Justice for a writ of certiorari to quash the findings and/or the decision contained in the report of the PSC, that the speaker and Parliament is not bound by orders of Courts and the simultaneous statement made by the media spokesman for the government that Parliament is Supreme and that the Supreme Court cannot interpret the Constitution has to be taken seriously as both of them hold responsible positions in the government.

Article 3 of the Constitution clearly lays down that sovereignty is in the people and is inalienable and Article 4 of the constitution sets out how the sovereignty of People shall be exercised.  Article 4(a) vests the legislative power of the People in Parliament and Article 4(b) vests the executive power of the People in the President.  Article 4(c) vests the exercise of judicial power of the People in the courts, tribunals and institutions created and established by the Constitution or created and established by law.  The only exception is in regard to matters relating to privileges, immunities and powers of Parliament and its members where the judicial power can be exercised directly by Parliament according to law.  Therefore, it cannot be stated with any stretch of imagination that Parliament is Supreme.  Article 125 of the Constitution lays down that the Supreme Court shall have Sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution.

Therefore irrespective of his position every citizen is bound by the interpretation of the Supreme Court of any provision of the Constitution and the constitutionality of  any law, statute, rule or standing order.  Under Article 74(1) which confers in Parliament the right to frame standing orders clearly states that such standing orders has to be subject to the Constitution.

It is to be reminded that Speaker, Deputy Speaker and every member of Parliament has under oath of office as set out in schedule 4(a) to the constitution undertaken to uphold the Constitution.

We ‘Lawyers for Democracy’ condemns the attempt to mislead the masses and to push the country towards an authoritarian regime.  This dangerous trend has to be checked to prevent a lawless, chaotic situation developing.  We demand that all concerned respect the Constitution and honour its allegiance to the Constitution.

We call upon all sections of civil society to voice their condemnation of these statements.

Lal Wijenayake

Convener Lawyers for Democracy.

‘Lawyers for Democracy’ (LfD) is a representative body of legal practitioners throughout the island.  Conveners include Lal Wijenayake, Chandrapala Kumarage, J. C. Weliamuna, K. S. Ratnavale, Sudath Netthisinghe, Sudarshana Gunawardana.  It was established on 10^th December 2009’.

Opposition PSC members could appear before CA – BASL chief

Impeachment process:

By Shamindra Ferdinando-December 24, 2012,

 President of the Sri Lanka Bar Association (BASL) Wijedasa Rajapakshe, MP, said yesterday that Opposition members of the 11-member special Parliamentary Select Committee (PSC), which investigated allegations against Chief Justice Dr. Shirani Bandaranayake, could accept the Court of Appeal summons issued on them regardless of the UPFA decision to ignore it.

UNP Colombo District MP Rajapakshe said that the Opposition could appear before the Appeal Court next month. The BASL chief was responding to a query by The Island in the wake of the Court of Appeal last Friday (21) issuing notice on Speaker Chamal Rajapaksa and PSC members in respect of the writ application filed by CJ Bandaranayake against the findings of the PSC which found her guilty of misconduct.

Asked whether Rajapakshe, in his capacity as BASL chief, would recommend to the Opposition to appear in court, the UNPer said that decision should be taken by political parties which joined the PSC. MP Rajapakshe stressed that he wouldn’t try to interfere with the UNP’s decision. However, the Opposition could accept Appeal Court directive, even though the SLFP-led UPFA was likely to ignore the judicial process, the MP said. He favoured the opening of a new parliamentary session.

The 11-member PSC appointed by Speaker Rajapaksha comprised seven UPFA members (Anura Priyadarshana Yapa, Nimal Siripala de Silva, Susil Premjayanth, Dr. Rajitha Senaratne, Wimal Weerawansa, Dilan Perera and Neomal Perera) and four members -R. Sampanthan (TNA), John Amaratunga, Lakshman Kiriella (UNP) and Vijitha Herath (JVP).

MP Rajapakshe said that he was yet to discuss the issue with the UNP leadership. Responding to Sunday’s media reports regarding the possibility of the ruling coalition prorogating parliament to pave the way for a fresh inquiry, the BASL President said that it would be the best course of action to avoid a damaging constitutional showdown. The MP pointed out that the call for the prorogation was made by a section of the government. Rajapakshe recalled the circumstances under which the then President Chandrika Kumaratunga prorogued parliament when the then UNF government moved to impeach Chief Justice Sarath Nanda Silva.

TNA leader Sampanthan and John Amaratunga are out of the country. Lakshman Kiriella and Vijitha Herath, were not available for comment yesterday.

Deputy Secretary General of the UNP Dr. Jayalath Jayawardana told The Island yesterday that a decision would be taken once party leader Ranil Wickremesinghe, returned from overseas. Gampaha District MP Jayawardana, too, said that the Opposition didn’t have to follow UPFA stand on the Appeal Court ruling, though it would be the prerogative of the decision making bodies of the UNP, JVP and TNA to decide on the issue. The MP said that the country hadn’t experienced a similar situation in the past and the PSC, too, seemed divided over the impeachment of the CJ.

Both Rajapakshe and Jayawardana said that the UNP strongly endorsed the right of the parliament to initiate impeachment proceedings, though the party couldn’t accept politically motivated witch hunt.

MP Rajapakshe said that the government should go for a proper inquiry if it was confident of allegations contained in impeachment motion submitted by a group of 117 members of parliament.

General Secretary of the Communist Party Dew Gunasekera emphasized that prorogation of parliament would be in the best interests of the ruling coalition as well as the country. Asked whether the left alliance comprising Ministers Vasudeva Nanayakkara, Prof. Tissa Vitharana and himself was on a collision course with the SLFP, the main constituent party of the UPFA, national list MP Gunasekera said that no one could afford to play politics with the impeachment issue. It would be irrational on the government part to allow the situation to develop into a crisis. "We are heading for a disastrous situation. Obviously prorogation of parliament seems to be the only way out," the veteran politician insisted, adding the left alliance was confident the continuing protests could be tackled by ordering a fresh inquiry. The senior minister said that a review of strategy was needed to prevent those waiting to undermine the government from exploiting the situation.

The MP said that the left party alliance briefed the President regarding the prorogation proposal.

Referring to the recently held LSSP convention attended by Economic Development Minister Basil Rajapaksha, MP Gunasekera said that Prof. Vitharana in his address stressed that CJ Bandaranayake should be punished if she had done something wrong, though the LSSP couldn’t accept what was going on. Minister Vitharana found fault with the current PSC process.

Minister Gunasekera expressed confidence that constituent partners of the UPFA would help to defuse the crisis.

SRI LANKA: State media Editor Rajpal Abeynakaye calls Chief Justice John Marshall a “cunning” and “devious” person and Justice Vigneshwaran a schizophrenic

SRI LANKA: State media Editor Rajpal Abeynakaye calls Chief Justice John Marshall a “cunning” and “devious” person and Justice Vigneshwaran a schizophrenic

John Marshall became one of the most influential leaders of the era of
the American Revolution and the founding of the United States. 

Basil Fernando-

MONDAY, DECEMBER 24, 2012

In today’s ( December 24) SLBC program, most inappropriately called “People’s Power” – a better name would have been “A Voice from the Political Gutters” – Rajpal Abeynayake, the commentator, labeled America’s greatest judge a “cunning” and “devious” person. The commentator also called one of the most respected retired judges of the Supreme Court, CV Vigneshwaran, a schizophrenic.
Abeynayake stated that a well-respected lawyer, SL Gunasekara, is somehow a person who has been misled by those who are political opponents of the government. Abeynayake also accused one of the best known human rights lawyers in Sri Lanka, JC Weliamuna, of attempting to cause a street uprising to overthrow the government.

This SLBC program is a totally politically program, designed to do Squealer’s function, as described in Animal Farm by George Orwell. The character of Squealer represented the Russian media, which spread Stalin's version of the truth - meaning lies - to the masses. What this SLBC program does is to mention the names of persons who have written articles or otherwise talked against the impeachment move by the government, and then the commentator gives the government version. The commentator, while calling all critics “political”, claims that he has an utterly objective view that is not coloured by politics at all. In actual fact, there is nothing in the program except an inept attempt to create an excuse for the government’s move for impeachment. The appropriate translation for Squealer’s role in Sinhala is “wandi battaya”. Rajpal fits into the role quite well.

He says that the only thing that the critics say against the impeachment is regarding the process. This means that the criticism is that, on the removal of the Chief Justice of the country, there has not been a fair inquiry done by a competent tribunal. Rajpal fails to even grasp the importance of a fair and impartial tribunal to arrive at any conclusion regarding the guilt or innocence of any person. When this elementary truth is ignored, any person can be hung by the clamour of anyone who makes some allegations. The judicial function is all about fair trial. A fair trial could be conducted only by a competent tribunal. If even a criminal were to be “sentenced” to death by anyone other than a competent court, it would be ridiculous to say that the only thing that is lacking is a verdict by a competent tribunal and that it is just a trivial matter. That is exactly what this program keeps on repeating a thousand times over, day and day after.

The commentator conceded to the argument by SL Gunasekara that, prior to the 1978 Constitution, the decisions of courts by way of judicial review was respected. And then the commentator argues that, after 1978, a new order has come into being and that JR Jayawardene certainly did severely undermine the judiciary. Then he argues that what this government has to do is to follow the recent practice, that is, the practice after 1978, and that the government cannot be expected to go back to a period before that. Thus, he concedes to the argument made by everyone that the impeachment move severely undermines the independence of the judiciary.

The gist of Justice CV Vigneshwaran’s argument was that the 1978 Constitution is a product of constitutional tomfoolery, and that the 18th Amendment completed the process started by the 1978 Constitution, creating a situation of political destablisation in the country. SLBC’s commentator does not disagree with that view. In fact, he seems to quite happily agree with that view, and his whole argument is that we are doing what JR Jayawardene did. He wants to know what else anyone would expect a government to do than to follow the more recent example over the examples from a remoter time (one decade previous to the time he recommends), despite the fact that during that time things may have been done more appropriately.

The most ludicrous part of his monologue was on the greatest judge in American history, Chief Justice John Marshall, who Rajpal repeatedly called a “cunning” and “devious” person. In doing this, Rajpal showed not only his ignorance of history and law, but also showed why he should not be taken seriously at all.

John Marshall understood that the separation of powers made the judiciary a separate branch of government. The most central function of this separate branch was to protect the dignity and the liberties of the individual against the all powerful executive. Article 3 (1) of the constitution of the United States gives that, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” It is this judicial power that John Marshall used against the executive power. When the executive or legislature did any act which interfered with the liberties of the individual, it was the duty of a judge to use his judicial power to oppose and to annul such acts of the executive or the legislature.

The constitutional provision granting judicial power would have no meaning if it could not oppose the legislative power or the executive power when appropriate and when the law requires it to do so. What this comes down to is the ultimate power of the judiciary to interpret the law. This presupposes that the law is supreme and, if the legislature or executive does any act that contravenes law, the judges have the power to declare what the law is and to annul any act that is contrary to law.

Rajpal also failed to understand CV Vigneshwaran’s reference to the appointment of judges in the United States. Vigneshwaran referred to the practice since 1978 of abusing the presidential power to appoint judges. He stated that in the United States, even the President of the United States does not have such power, as Presidential nominations are reviewed by the Senate. Then Rajpal goes onto say that the Parliamentary Select Committee is similar to the United States Senate; so we not only have constitutional tomfoolery but also media tomfoolery, with Rajpal Abeynayake and his like to play the jester’s role.

All this could have been taken as comic if not for the fact that it is taxpayers’ money and the citizens’ valuable time that is wasted by such political lying and absurdities.

Listening to Rajpal shouting justifications for the indefensible, one is reminded of Aesop’s fable about the ass who tried to develop an association with a lion.

One day, when the lion was going for a hunt, the ass asked, “Sir, may I come with you?”

Rather amused by the request, the lion agreed. When the other animals felt the presence of the lion, they fled and hid themselves in the hollow of a tree. The lion, who thought of using the ass for a good purpose, asked the ass to go behind the tree and shout as loud as he could. Having got an opportunity to impress the lion, the ass shouted with all the strength in his body. The sound was so abnormal that the other animals feared that some new animal had come to the jungle and fled from the tree and started running. The lion, who was waiting some distance away, did his hunt easily and started his meal.

A little later, the ass approached the lion and asked, “Sir, how did you like my shout?”

The lion replied, “If I did not know that you were an ass, even I would have gotten frightened.”

Of course, when Rajpal tries to take on persons like the late Chief Justice John Marshall, or retired Supreme Court judge CV Vigneshwaran and senior lawyers like SL Gunasekara and JC Weliamuna, one cannot help thinking about the ass who wanted to impress the lion.

‘Justice Weeramantry Misquoted’ – A Response

By Elmore Perera -December 24, 2012 

Elmore Perera

The ‘Opinion” of Mr. K.K.S.Perera of Panadura published in the Island of Saturday 22^nd December 2012 is patently hasty and erroneous. Not only is Judge Weeramantry “an acclaimed legal personality who held the prestigious post of the President of the International Court of Justice, he is also the senior-most retired judge in the country who has been associated with the law both locally and internationally for 65 years.

A few days after delivering the Lilith Athulathmudali oration  referred to by Mr. Perera, Judge Weeramantry felt compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary – “a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally”

He opined, inter alia that:

“An independent judiciary is vital to democracy, for without it citizens lack the basic protections without which a democracy cannot exist. The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the State to respect and protect the independence and security of tenure of judges. The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.”

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

1. There can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
2. The rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
3. There cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
4. If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.
5. The rule of law demands that every person investigated by a tribunal has a right;
   1. to be informed of the charges
   2. to know the evidence against him or her
   3. to have a full and fair opportunity to scrutinize that evidence and to respond to it

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

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

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

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

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

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

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

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

Mr. Perera, cannot but agree that his allegation of “twisting and turning of the observations of Judge Weeramantry” is due to his not being aware of the aforementioned observations and therefore wholly misleading.

Mr. Perera will, no doubt realise that in making these unequivocal assertions re the current impeachment process, Judge Weeramantry has ruled out the possibility of  his participation in “the prestigious body” proposed by the President to “go through the whole process.”

*Elmore Perera, Attorney-at-Law, Past President OPA, Founder of CIMOGG