Appeal court rules PSC probe into CJ’s deeds void

Supreme Court says standing orders not law

By Chitra Weerarathne-January 3, 2013

The Court of Appeal yesterday said the steps that had been so far taken and would be taken by a Parliamentary Select Committee appointed under Standing Order 78A were prime facie void. The Court of Appeal read out the Supreme Court interpretation in respect of Article 107/3, where the apex court had said that Standing Orders were not law and that the PSC appointed under an Act of Parliament were legally sound.

The Supreme Court on January 1, 2013 declared that in a State ruled by a Constitution based on the rule of law, no Court, tribunal or other body, had authority to make a finding or a decision affecting the rights of a person, unless such Court, tribunal or body had the power conferred on it by law to make such finding or decision. Such legal power could be conferred on such a Court, tribunal or body only by an Act of Parliament, which was law and not by Standing Orders, which were not law, but rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Supreme Court had said  that Standing Orders were not law within the meaning of Article 170 of the Constitution, which defined what was meant by law.

A PSC appointed in term of Standing Order 78A, derived its power and authority solely from the said Standing Order, which was not law. Therefore the PSC appointed under and in terms of Standing Order 78A had no legal power or authority to make a finding adversely affecting the legal rights of a judge, against whom the allegations made in the resolution, moved under Article 107/2, was the subject matter of its investigation. The power to make a valid finding after the investigation, in Article 107/3, could be conferred on a Court, tribunal or a body, only by law and by law alone, the Supreme Court said.

The parliament could impeach a judge of an apex Court, subsequent to the finding by a body appointed under an Act of law framed by Parliament, being guilty of misconduct.

An address of Parliament was needed for the removal of a judge, the Supreme Court had said.

The Court of Appeal had referred to the Supreme Court, for interpretation, Article 107/3 and whether a PSC, appointed under Standing Order 78A could investigate allegations against the Chief Justice Dr. Shirani Bandaranayake. The need for an interpretation arose during the hearing of a writ application, filed against the suitability of the Parliament Select Committee, appointed under a Standing Order to investigate the conduct of the Chief Justice.

The interpretation was by Supreme Court Justices N. G. Amaratunga, K. Sripavan and P. Dep.

Consequent to the aforesaid declaration and interpretation by the Supreme Court, the Court of Appeal yesterday said that the proceedings against the Chief Justice, had been initiated by a PSC not established under the law. Therefore, the commencement of the proceedings and the furtherance of such proceedings were prima facie void.

Notice was issued on the respondents, the Speaker and the members of the PSC, returnable on Jan. 15, 2013. This was done as a legal obligation to hear all sides, the Court of Appeal said.

President’s counsel Romesh de Silva appeared for the petitioner party.

The Court of Appeal Bench comprised Justices Anil Gooneratne and A. W. A. Salaam.

Impeachment: TISL Must Objectively Analyse The Options Available

By Chandra Jayaratne -January 4, 2013 

Chandra Jayaratne

Chandra Jayaratne, a former Ceylon Chamber of Commerce Chairman and  a Fellow of the Institute of Chartered Accountants of Sri Lanka and of the Chartered Institute of Management Accountants, UK, a former President of the Ceylon Chamber of Commerce and LMD Sri Lankan of the year 2001, to day sent the following letter to the board of directors transparency international Sri Lanka. – Colombo Telegraph. 

Dear Mr . Ranuge,

I trust that you and your Team will kindly review this AHRC Press Release, especially the sections highlighted for emphasis by me in bold and consider whether there is a critical, urgent and nationally important role TISL must and can make in the current circumstances in association with the unbiased media institutions to awaken

• The leaders of the nation in the Executive and Legislative Branches
• The Officials and Regulators
• Business & Industry,
• Professionals and Academics
• Leaders of Civil Society
• Religious Leaders

to objectively analyze the options available in the current crisis, risks and challenges of these options, potential outcomes of following any of the options and following an independent intellectual debate determine openly and transparently the best way forward to manage the crisis in the optimum long term interests of this nation and its people.

Looking at it narrowly from the business eyes and taking the risks that may crystallize out of the crisis, just in order to bring to your attention my above suggestion to focus on some the consequential risks in the period ahead, I will detail just a few potential risks;

1. Could the country be classified internationally as a country where the rule of law is absent or upholding of the rule of law be held doubtful?
2. Could the Country risk ratings for business transactions, financial transactions, investments, trade and services be negatively impacted?
3. Could even past, current and future international contracts be negatively risk rated
4. Could 1, 2 and 3 above lead to
1. increased risk premiums having to be imputed in to transactions
2. current international lenders and guarantors demand renegotiation of term sheets?
3. our local  financial institution’s ratings be negatively impacted?
4. require independent guarantees of international financial institutions and first class banks resident overseas for acceptance of contracts, letters of credit etc?
5. Will there be a flight of capital out with consequential  balance of payment risks and dwindling reserves?

I trust that this short note, which I will share with the media institutions and business and civil society leaders, will receive your early attention.

Best Regards
Chandra Jayaratne

A Statement from the Asian Human Rights Commission

SRI LANKA: The debate now shifts from impeachment to the future of the rule of law

The Supreme Court in its decision made on January 1, 2013 finally put the debate on the issue of the impeachment of the Chief Justice to rest by providing the following answer to the question referred to it by the Court of Appeal.

In view of the reasons we have set out above we answer the question referred to us, as set out at the beginning of this Order, as follows.

“It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof or any alleged misbehavior or incapacity and the Judge’s right to appear and to be heard in person or by representative in addition to matter relating to the investigation of the alleged misbehavior or incapacity.”

In expressing their answer to the Court of Appeal’s decision the judges have also expressed the spirit in which they have dealt with this reference.

The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in a spirit of detached objective inquiry which is a distinguishing feature of judicial process that we attempted to find an answer to the question referred us. We have performed our duty faithfully bearing in mind the Oath of office we have taken when we assumed the judicial office which we hold.

The long debate on various aspects of the impeachment proposal by the government now comes to an end with the Supreme Court which has the final word on the interpretation of the law having declared what the law relating to this matter is.

The manner in which the government will respond to the Supreme Court decision is all that is left of this debate. The question is as to whether the government will respond within the framework of the rule of law, basing its decision on the principles of the rule of law or whether it will decide to discard the rule of law framework altogether. The Supreme Court citing a previous judgement: Visuvalingam vs Liyanage (1983) 1 SLR 203, reiterated that the “main aspirations of the Constitution are set out in its luminous preamble. The rule of law is the foundation of the Constitution”.

The entire structure of Sri Lanka’s legal system rests on the principle of the rule of law. The attacks on the rule of law are attacks on the very foundation of the legal system and the political system of the country. 

As mentioned through many previous articles and statements there have been continuous attempts to undermine this foundation by way of several constitutional aberrations beginning from 1972 and continued by the 1978 Constitution and finally through the 18th Amendment to this Constitution. The impeachment move was the latest of such attempts.

The Supreme Court has intervened and clearly interpreted the law for the nation. If the government now proceeds in any manner contrary to the interpretation given by the country’s apex court this would be a final and irrevocable assault on the rule of law. 

Therefore the future debate on this matter needs to be on the core issue as to whether Sri Lanka will remain within the framework of the rule of law or not. 

To decide that it will not remain within the framework of the rule of law is a momentous decision that would deprive the government of any claim of democracy. 

Therefore we suggest that the attention of everyone be directed towards the fundamental issue as to whether the people want their government to abandon the very framework on which the entire political heritage of the governance in Sri Lanka rests. 

The coming few days will be of tremendous significance both from the point of view of the political system as well as the legal system of the country.

It is true to say that Sri Lanka is in a crisis. However, it is more true to say that it has been in a crisis for several decades and what distinguishes the present moment is that the country is coming to a realisation of the crisis that envelops it. The interpretation of the law as expressed in this case by the Supreme Court is an expression that the Court’s has come to this fundamental realisation.

If the government is not wise enough to respect the growing collective realisation of a people of their condition that failure is the government’s own responsibility and if the government acts without respecting this collective realisation it is doing so at its own peril. The people should leave the government to make its own choice.

As for the people their responsibility is now to act on the basis of their own collective realisation of having lived through a crisis for several decades due to the constitutional tomfoolery of their leaders. It is now the time to respond with peoples’ wisdom to that tomfoolery. The people have paid a very heavy price due to these decades of crisis. It is now for them to chose whether this will be allowed to continue or otherwise. There is adequate collective realisation for the people to achieve what they want at this moment and the Supreme Court of Sri Lanka has at last, at last woken up to their responsibilities. 

It is indeed a great moment in the problem ridden history of Sri Lanka. If the government proceeds in its authoritarian schemes further it will have no one but itself to blame. The people are watching with open eyes.

For the full text of the Supreme Court decision please see here.
Basil Fernando
Director, Policy and Programme Development
Asian Human Rights Commission

SRI LANKA: The debate now shifts from impeachment to the future of the rule of law

Contributors: Basil Fernando-
January 4, 2013

The Supreme Court in its decision made on January 1, 2013 finally put the debate on the issue of the impeachment of the Chief Justice to rest by providing the following answer to the question referred to it by the Court of Appeal.

In view of the reasons we have set out above we answer the question referred to us, as set out at the beginning of this Order, as follows.

"It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof or any alleged misbehavior or incapacity and the Judge's right to appear and to be heard in person or by representative in addition to matter relating to the investigation of the alleged misbehavior or incapacity."

In expressing their answer to the Court of Appeal's decision the judges have also expressed the spirit in which they have dealt with this reference.

The reference made to this Court involves a matter which concerns the Judges of the Supreme Court and the Court of Appeal. In dealing with the question we therefore kept in mind that the objectivity of our approach itself may incidentally be in issue. It is therefore in a spirit of detached objective inquiry which is a distinguishing feature of judicial process that we attempted to find an answer to the question referred us. We have performed our duty faithfully bearing in mind the Oath of office we have taken when we assumed the judicial office which we hold.

The long debate on various aspects of the impeachment proposal by the government now comes to an end with the Supreme Court which has the final word on the interpretation of the law having declared what the law relating to this matter is.

The manner in which the government will respond to the Supreme Court decision is all that is left of this debate. The question is as to whether the government will respond within the framework of the rule of law, basing its decision on the principles of the rule of law or whether it will decide to discard the rule of law framework altogether. The Supreme Court citing a previous judgement: Visuvalingam vs Liyanage (1983) 1 SLR 203, reiterated that the "main aspirations of the Constitution are set out in its luminous preamble. The rule of law is the foundation of the Constitution".

The entire structure of Sri Lanka's legal system rests on the principle of the rule of law. The attacks on the rule of law are attacks on the very foundation of the legal system and the political system of the country.

As mentioned through many previous articles and statements there have been continuous attempts to undermine this foundation by way of several constitutional aberrations beginning from 1972 and continued by the 1978 Constitution and finally through the 18th Amendment to this Constitution. The impeachment move was the latest of such attempts.

The Supreme Court has intervened and clearly interpreted the law for the nation. If the government now proceeds in any manner contrary to the interpretation given by the country's apex court this would be a final and irrevocable assault on the rule of law.

Therefore the future debate on this matter needs to be on the core issue as to whether Sri Lanka will remain within the framework of the rule of law or not.

To decide that it will not remain within the framework of the rule of law is a momentous decision that would deprive the government of any claim of democracy.

Therefore we suggest that the attention of everyone be directed towards the fundamental issue as to whether the people want their government to abandon the very framework on which the entire political heritage of the governance in Sri Lanka rests.

The coming few days will be of tremendous significance both from the point of view of the political system as well as the legal system of the country.

It is true to say that Sri Lanka is in a crisis. However, it is more true to say that it has been in a crisis for several decades and what distinguishes the present moment is that the country is coming to a realisation of the crisis that envelops it. The interpretation of the law as expressed in this case by the Supreme Court is an expression that the Court's has come to this fundamental realisation.

If the government is not wise enough to respect the growing collective realisation of a people of their condition that failure is the government's own responsibility and if the government acts without respecting this collective realisation it is doing so at its own peril. The people should leave the government to make its own choice.

As for the people their responsibility is now to act on the basis of their own collective realisation of having lived through a crisis for several decades due to the constitutional tomfoolery of their leaders. It is now the time to respond with peoples' wisdom to that tomfoolery. The people have paid a very heavy price due to these decades of crisis. It is now for them to chose whether this will be allowed to continue or otherwise. There is adequate collective realisation for the people to achieve what they want at this moment and the Supreme Court of Sri Lanka has at last, at last woken up to their responsibilities.

It is indeed a great moment in the problem ridden history of Sri Lanka. If the government proceeds in its authoritarian schemes further it will have no one but itself to blame. The people are watching with open eyes.

For the full text of the Supreme Court decision please see here.

Audio: Minister Yapa ‘threatened’ by phone over ‘our lady’

FRIDAY, 04 JANUARY 2013

Chairman of the now defunct PSC Anura Priyadarshana Yapa said he had received an intimidating telephone call about which he made a complaint to the Colombo Crimes Division.

“There was a call to my wife’s phone at around 3pm yesterday and the person who called had asked to speak to me. When I got on the line he threatened me saying ‘if you do anything to our lady, we will take care of you”, the minister told Daily Mirror.

Mr. Yapa said he had lodged a complaint with the Colombo Crimes Division in this regard.

“I have never had a threatening call of this sort during my entire political career. The phone number of the caller and the details of the dialogue were reported to the CCD, and I await the outcome of the investigation” he said. (H.F)

Left Parties Not To Vote For Impeachment

By Colombo Telegraph -January 4, 2013 

The Executive Committee of the Samajawadi Janatha Peramuna (Socialist Alliance) which met at the Communist Party office on 01 January has decided that the Members of Parliament belonging to the Alliance should not take part in the vote on the impeachment of the Chief Justice.

Tissa, DEW and Vasu

Socialist Alliance sources told Colombo Telegraph that the Communist Party had taken a firm decision not to participate in the impeachment process and this was endorsed by the other parties at the Executive Committee. The constituent parties of the Socialist Alliance are the Lanka Sama Samaja Party, Communist Party of Sri Lanka, Democratic Left Front, Sri Lanka Mahajana Party and Deshavimukthi Janatha Peramuna.

A Communist Party activist told the Colombo Telegraph that the decision of the Supreme Court is a vindication of the position taken by the late Sarath Muttetuwegama, Communist Party MP for Kalawana. Muttettuwegama, along with Anura Bandaranaike and Dinesh Gunawardena, were members of the Select Committee appointed under Standing Order 78A to investigate into allegations made against Chief Justice Neville Samarakoon. The three Opposition MPs stated that the constitutionality of Standing Order 78A was in doubt and proposed that the President refer to question for determination by the Supreme Court. However, the majority of the Select Committee over-ruled them.

Impeachment a total flop: Select Committee is absolutely anti constitutional –SC decides (Lanka-e-News -03.Jan.2013, 8.30PM) The appeal court a little while ago declared that it has been decided by the Supreme court(SC) that the Select Committee appointed by the Parliament Speaker under standing order 78A to decide on the impeachment motion is without a foundation in law, against the constitution and unlawful. Accordingly the Supreme Court had given a verdict that through the select committee proceedings judges cannot be punished. It is only the SC that has the exclusive power to make determinations on and interpret the constitution. This power cannot be divested.  In the circumstances the entire impeachment process is a violation of the constitution and is invalid. Senior Lawyer Saliya Peiris commented as follows on this issue :  Today, the appeal court announced the verdict of the SC from which court an interpretation was sought on the constitution in regard to the impeachment motion. Based on the verdict of the SC , the select committee appointed under standing order 78 A has no powers or authority to take decisions which are against a judge or the rights of judges because a standing order is not a judicial order . Such a Committee can only be appointed only by a legal process. That is, a standing order of Parliament is not judicial under the constitution. It was the verdict of the SC that a select Committee appointed under a standing order has no judicial power or authority to give verdicts. It is only the SC which has sole and final power to interpret under section 125 of the constitution. That power is vested with the SC alone. It is in accordance with this that the SC had interpreted the constitution and delivered this verdict.This interpretation conveyed by the SC was announced by the appeal court today when the latter took up the case for trial where the chief Justice (CJ) Dr. Shiranee Bandaranaike had filed a petition against the report given by the Parliament select Committee following the examination of the impeachment.Because of a petition filed before by another petitioner , the appeal court referred it to the SC for a clarification . This petition was heard by the SC last month , and the Attorney General (AG) on behalf of the Govt. advanced lengthy arguments . Subsequently written submissions were called from both sides. The SC finally conveyed its decision to the appeal court. Today , when the petition of the CJ was taken for trial , the appeal court announced that decision. Vijitha Herath of the JVP and MPs of the TNA were present in the appeal court today in view of this petition.  Though the UNP leader boycotted the court , Karu Jayasooriya, Ranga Bandara, Ruwan Wijewardena, Dayasiri Jayasekera, Dr. Harsha De Silva, Eran Wickremeratne, Ajith Perera , Niroshan Perera and a large number of UNP MPs saw to it that they are present in court. Dr. Bahu of the opposition and Azad Sally too were present in court  The petition of the CJ was postponed until the 15th.  Though Basil Rajapakse made grandiose plans to create an unruly uproar with his groups of hooligans and henchmen in the court premises , because his conspiracy leaked out ahead , like on the earlier occasion he was compelled to abandon his plan. Nobody could stage protests or create turbulent scenes.

‘Who Is To Know CJ Is Corrupt Till We Make The Appointment’ – Vitarana Goes Against The Left

By Colombo Telegraph -January 4, 2013 

“I feel this lady is not fit to hold the office she is holding. Look at the charges against her. Is it alright to get that ‘Millennium transaction’ 1.6 million reduction in price? Then transfer a case that has been going for three years under a very able judge successfully which they only wanted number of people on the bench to be increased from three to five so that it will be strengthened? She takes it into her courts. This is very wrong. This may be genuine money she got from her sister. We are not bothered about that. But if she withdraws that amount of money from the bank account and has it as cash, she must include that in her declaration. But sadly it is not in her declaration.” says the Senior Minister Tissa Vitarana.

Vitharana

The Minister who is also the leader of the Lanka Samasamaja Party (LSSP) made above remarks when asked his views about the present developments with regard to the impeachment motion against the Chief Justice by Daily FT.

In an interview with Daily FT journalist Chamitha Kuruppu,  when asked ‘is it justifiable to come to such conclusion by looking into only one side of the case?’ Viatarana said; “How can you say it is one-sided? This is all documented. What she should have done was, if she had evidence, produce that evidence to refute it. She was given time to produce written evidence. She didn’t do that. Giving evidence,Shiranee Tilakawardena said that this case was taken off her without her consent. Where in the world is a judge who is peculiarly interested in a particular case going and taking it from another judge and putting it into her court? Is it fair to do that? Do you justify that? Look at the bank statements. The amounts there are withdrawn in middle of March and statement at the end of March is blank. And then in April that amount of money is put back in the bank. If even a Government official had acted in that manner, it would be taken against that person. Here we are having the Head of the Judiciary doing that. We raised this matter at the party leaders’ meeting with the President. We asked President Rajapaksa why he appointed Shirani Bandaranayake’s husband Pradeep Kariyawasam as the Chairman of the NSB. The President said he did it under her specific request. President Rajapaksa did not want to antagonise her and therefore had to accommodate her request. Where in the world does a judge go and make such requests? When judges retire they are not supposed to take any posts, otherwise they will be offered things while they are acting as judges so they will be biased in those cases in anticipation of some reward later. These are ethical standards a judge has to maintain. Here we are talking about the Head of the Supreme Court of our country.”

“Who is to know she is corrupt like this till we make the appointment? It is only when they get the power that they show their true colours.” he said.

We are not only having local reactionary forces led by the UNP and the JVP, but there are also American-led British and European forces, he further said.

Read the full interview here

Meanwhile the Executive Committee of the Samajawadi Janatha Peramuna (Socialist Alliance) including LSSP which met at the Communist Party office on 01 January has decided that the Members of Parliament belonging to the Alliance should not take part in the vote on the impeachment of the Chief Justice.

Further observations  on impeachment

By Izeth Hussain

January 3, 2013

Far and away the most impressive feature of the 1977 UNP Government was the depth of its dedication to injustice. I am not being ironic as the reader might suppose, I am being factual. I note two facts: there is in humanity a thirst for justice; there is also in humanity a thirst for injustice. It pleases us to note that everywhere in the world people think in terms of right and wrong, that they want the right to prevail over the wrong, and they want a just society in which justice reigns supreme. We have to note however that quite often, too often in fact, the wrong prevails over the right, and there is no justice worth speaking about. We tend to think of this as a failure, a failure to reach the ideal of justice. The facts suggest otherwise: there are people for whom injustice, not justice, is the ideal. When such people predominate in the State, even a paradise isle becomes a hell on earth for a substantial proportion of the people.

I will now note some hard facts that point to the 1977 UNP Government’s immensely impressive dedication to injustice. As soon as it came to power the mobs went on the rampage against the fallen supporters of the SLFP. Nothing novel about that because post-election violence has been a fact of our political life for decades. What was novel in 1977 was that the UNP leader had in advance of the elections declared that the police would be given leave in their aftermath, obviously meaning that the mobs were to be given license to go on the rampage with impunity. There followed within three weeks the first of the State-sponsored pogroms against the Tamils, inaugurating an era of anti-Tamil violence that rose to a mad genocidal crescendo in 1983. Today it has come to be widely recognized that the imprimatur of the State was clearly writ on the 1983 pogrom. It is a significant fact that there were no anti-Tamil riots between 1958 and 1977. It becomes arguable that the Tamil quest for Eelam took a militantly violent form as a consequence of the UNP Government’s dedication to injustice taking a violent form against our Tamils.

JRJ government

It had to be expected of course that with the 1977 Government’s dedication to injustice the Judiciary would come in for special attention. So it did. Not long after coming to power, the Judiciary was cast into a new form with several judges being kicked out of office, clearly signifying that the independence of the Judiciary would be tolerated only within limits circumscribed by the new Government. It proceeded later to humiliate the Supreme Court Judges by getting hooligans to stone their houses. I will not go into all the details about action by that Government in its endeavor to hold the Judiciary on a tight leash. Instead I will point to just one horrifying episode.

Gonawila Sunil, a notorious gangster, was convicted along with others of gang rape and jailed. It turned out that he was a devoted UNP member, and was evidently highly esteemed by the top brass of the 1977 Government because very quickly he was given a Presidential pardon. I am told that he was escorted out of jail by a leading member of the Government. Thereafter he was made an All-Island Justice of the Peace, and I am told absorbed into the UNP’s Central Committee. It is known of course that when Governments go rotten and start stinking they use gangsters for their nefarious purposes and reward them in various ways. But usually that is done clandestinely and with subtlety, without affronting and outraging the requirements of the rule of law and elementary standards of morality. The 1977 Government didn’t give a damn about any of that. The enormity of its behavior can be brought alive to the reader by considering the recent gang rape in Delhi which has provoked demonstrations all over India. Can anyone imagine that after the leader of that gang is convicted and jailed he will be given a Presidential pardon, be escorted out of jail by a top Cabinet Minister, be appointed a Justice of the Peace, and then be appointed to the Congress Party’s Central Committee? I am not being excessive in holding that the most impressive feature of the 1977 Government was the depth of its dedication to injustice.

Tradition continues?

I come now to the impeachment problem. The way the impeachment process has been conducted prompts a very important question: Is the present Government going the way of the 1977 Government? Consider the fact that a couple or more PSC members reportedly subjected the CJ to grossly insulting treatment. It is arguable that that was in keeping with a Parliamentary tradition established by the 1977 Government. As a Foreign Ministry official I attended for decades Parliamentary debates on the Budget. What I saw during the 1977 Budget debate was unprecedented and stunning. There were only about four or five Opposition members, but the MPs on the Government side kept on heckling them so that they could hardly present their case. The UNP dedication to injustice had transformed its Parliamentarians into hooting howling hooligans. The heckling of the CJ was in keeping with that grand and now hallowed tradition. There might be a case for holding that the CJ and her supporters should not have taken it amiss.

Far more important than our hallowed Parliamentary hooliganism was of course the disregard, indeed contemptuousness, shown by the PSC for the most elementary requirements of natural justice. Requiring the CJ to provide answers to a thousand pages of documents well within twenty four hours, the refusal to allow her a proper hearing, trying to beat the speed of light in presenting the PSC findings – the details about all of that are available in the public domain and I don’t need to recapitulate them. What is important is to understand the possible implications of showing contempt for universally accepted standards of natural justice. Several important Governments may refuse to attend the Commonwealth Heads of Government Meting in Sri Lanka this year if the CJ is impeached on the basis of the PSC "findings". Sri Lanka could become a pariah state. But I am more concerned with what contempt for natural justice implies for the people of Sri Lanka.

Natural justice

What are the universally accepted standards of natural justice? One certainly is that no one should be a prosecutor in his/her own cause. In this case Parliamentarians made charges against the CJ and proceeded to hold enquiries on those charges. That may be in accordance with the Standing Orders of Parliament but it outrages the sense of natural justice all the same. Another standard requires that no one should be convicted without being given a full hearing. These are standards of natural justice that apply to all human beings at all times in all societies, something that pertains not just to democracy but to the human condition. To deny them to a human being would be tantamount to denying his full humanity, and a society that accepts that acquiesces in its own dehumanization. The 1977 Government in elevating to high positions its esteemed gang rapist was trying to dehumanize us. We, the sovereign people of Sri Lanka, must never allow anything comparably outrageous to our sense of natural justice to ever happen again.

Parliamentary supremacy

The most important question that we now have to confront is this: Will the present Government go the same way as the 1977 one? Before addressing that question we must have clarity on certain matters. Our MPs keep on referring to Parliament’s "supremacy" and even "sovereignty". That’s all nonsense because the Constitution clearly and unambiguously asserts that the people are sovereign. Our MPs, as well as most other people, seem to believe that what we are witnessing is a tussle between the Legislature and the Judiciary. That too is nonsense. It is widely known that the great majority of the 117 MPs who signed the impeachment document did not know what they were signing. They were obviously obeying what they understood to be the will of someone who had power over them. But why go into details when according to the Constitution the President can, at any time of his choosing, dismiss Parliament after its first year in office. The predisposition of most MPs will therefore be to make themselves door-mats of the President. What we are witnessing is not a tussle between the Legislature and the Judiciary, but between the Executive and the Judiciary. The drive seems to be to destroy the independence of the Judiciary. The drive therefore is towards dictatorship.

I don’t believe that we already have a dictatorship, under which all the hostile criticism directed at the Government and the President would simply not be possible. We still have a democracy, though a deeply flawed one, which might be described as a quasi-democracy or – depending on your political predilections – as a quasi-dictatorship. I don’t believe either that the President is deliberately moving towards a dictatorship. The umbrage taken over the CJ’s decision on the Divineguma Bill might suggest otherwise. But that umbrage is open to another reading as well: the President and the Government may sincerely believe that effective action for the welfare of the people can be taken only by the Centre, not by the notoriously inefficient white-elephant Provincial Councils. We cannot be sure either way.

But we can be sure on one point: social and political actions usually have unintended consequences, and therefore the political system can slide into dictatorship without that being quite intended. In relation to the division of powers, Parliament is already a nullity, and it will remain so under the present Constitution as long as the President has a solid Parliamentary majority on his side. To destroy the independence of the Judiciary in this situation would mean that we have a virtual dictatorship. But it is not only the destruction of democracy that we have to fear. With the destruction of democracy will go an excess of State power which will lead to contempt for the rule of law, and even contempt for natural justice. This society might then be dehumanized.

Izethhussain@gmail.com

On Vitarana’s Disclosure; MR Was Introduced By CJ To Appoint Her Husband As NSB Chairman

By A Concerned (Fomer) Civil Servant -January 4, 2013 

Pradeep Kariyawasam

Senior Minister Professor Tissa Vitarana (see here), claims that President Rajapakse appointed The Chief Justice’s husband, Pradeep Kariyawasam as Chairman, National Savings Bank at her specific request.

This disclosure gives rise to more serious allegations against the Head of State, than the Chief Justice.

Very serious questions arise of the following nature, in the wake of the said assertion:

(1) Demands such as appointment of family members are generally made only when partiality exists or is on offer. Justice (Dr.) Shirani Bandaranayakewas appointed by President Rajapakse as Chief Justice without an independent mechanism for appointment of Superior Court judges (after the 17th Amendment was disregarded by him and his Government). By doing so, does the President and his Government expect such appointees to act partially?

(2) Has President Rajapakse acted wrongfully by appointing Pradeep Kariyawasam as Chairman, National Savings Bank?
- If such a request was acceded to, has the President acted in a manner that was calculated and/or likely to influence the conduct of the Chief Justice?

(3) Has President Rajapakse acted wrongfully by failing to have timely steps taken against such a corrupt and inappropriate request by a sitting Judge?
- No action was taken against Shirani Bandaranayake until she made certain rulings which were contrary to the ambitions of the Government, especially the making of the Supreme Court Determination on the Constitutionality of the “Divineguma Bill“. In such circumstances, the action towards impeachment cannot be viewed as a clean act.

(4) Why was such a wrongful, judicial independence undermining transaction between the Head of State and the person selected by him to be Head of the Judiciary not made the subject matter of the impeachment motion?
- The Public would expect an elected President to uphold Independence of the Judiciary (and thereby the Constitution). The integrity and suitability to hold high public office of both parties to such a transaction are rendered highly questionable by such conduct.

(5) Has President Rajapakse violated the Sovereignty of the People (and thereby the Constitution) by hiding the fact of such a serious, wrongful request from the citizenry and accommodating it?
- The fact of such a request being made is not disclosed to the Public – especially when such a wrongful request is accommodated. This is quite in contrast to the manner in which the State Media has been deployed to make various allegations and aspersions after the impeachment motion was tendered.

(6) Has President Rajapakse betrayed the People by acting in the manner disclosed by his own senior Minister, Prof. Tissa Vitarana?

(7) Has President Rajapakse acted in a similar manner in relation to other senior judicial officers?

(8) In the given situation, can all judges given post-retirement appointments and/or whose relatives have been granted various high appointments in the past rendered suspect in terms of integrity?

(9) Is this why President Rajapakse is afraid to have suitable steps taken to have an independent judicial body comprising Retired Chief Justices from the Commonwealth go into allegations against Chief Justice Shirani Bandaranayake as was sought on an earlier occasion when a Motion was submitted for the impeachment of (then Chief Justice) Sarath N. Silva?

The full answers to the above questions are of the utmost importance, in view of the centrality of the Independence of the Judiciary to the Rule of Law and the need for all citizens including the President to respect and uphold the Constitution.

In the meanwhile, amidst all the ambiguity, the following appears clear enough:
(a) If Prof. Tissa Vitaarana, Senior Minister has disclosed the truth, BOTH Mahinda Rajapakse and Shirani Bandaranayake should relinquish their public offices as President and Chief Justice of the Republic.

(b) If the disclosure by Prof. Tissa Vitarana, Senior Minister is untrue, then he should resign from the position of Senior Minister and Member of Parliament, having demonstrated unsuitability to hold such office. In addition, he would be amenable to be tried for contempt of court for uttering such serious untruths in relation to a sitting superior court judge.

The citizens of Sri Lanka have a right to know the answers to the above questions, and to proper action to be taken against all those complicit in wrongdoing that affects judicial independence. It is also most apparent that there is a need for legal mechanisms to ensure judicial independence which at present appear to be negatively affected by the means of appointment, promotion and control of judges of the Supreme Court and Court of Appeal.

Boyer Introduces New Genocide Denial Criminalization Law in France

Posted by Weekly Staff on January 3, 2013 

PARIS, France—French Parliament Member Valerie Boyer, who spearheaded last year’s effort to pass a bill criminalizing the denial of the Armenian Genocide, submitted a new draft of the bill last week.

Boyer

The bill stipulates the introduction of amendments to the 1881 law on freedom of press, setting legal foundation for countering racism and denial of Genocide.

The bill envisions a 45,000 euro fine and a year in prison for denial of crimes against humanity, including the Armenian Genocide, reported the Paris-based Nouvelles d’Arménie.

After successful passage of the bill in the French Parliament in December 2011, on January 23 of last year, the French Senate passed the bill criminalizing the Armenian Genocide.

Later, the French Constitutional Council ruled that the bill was unconstitutional.

However, in July 2012, French President Francois Hollande confirmed plans for a new law criminalizing denial of the Armenian Genocide with representatives of the Armenian community.

Tamil activism and the international community’s responsibility to protect
As Sri Lanka’s violent repression of Tamil civil society intensifies, the international community must clearly and unequivocally extend concern, protection and legitimacy to all Tamil activists – including those who demand self determination.

Editorial Tamil Guardian 03 January 2013

As Sri Lanka’s violent repression of Tamil civil society intensifies, the international community must clearly and unequivocally extend concern, protection and legitimacy to all Tamil activists – including those who demand self determination.

Recent reports from Sri Lanka make disturbing reading for those familiar with the country’s history and its pattern of silencing Tamil political figures and activists. Last week Sri Lanka’s Terrorism Investigation Department (TID) summoned Gajendrakumar Ponnambalam, leader of the TNPF for an interview. This is undoubtedly connected to his outspokenness over recent clashes between security forces and students in Jaffna. Jaffna University students’ peaceful attempts to observe Tamil National Remembrance Day in November led to a violent and ongoing crackdown by the security forces. Scores of students have been arrested by the military and sent for 'rehabilitation'. Another TNPF figure, Gajendran Selvarajah, and TNA MP Saravana Bhavan who have also been outspoken over the crackdown and have been branded in leaflets circulated in southern universities as alleged leaders of a ‘Pro-LTTE & TNA/TNPF Network in Jaffna University.’

Although Sri Lanka proclaimed the defeat of the LTTE in May 2009, it continues to deploy the ‘terrorist’ label to criminalise all Tamil political activism. The state’s ‘war on terror’ targets any individual or organisation, whether on the island or abroad, daring to challenge the government’s line. Recently the TID detained Jaffna physician Dr. Sivashankar. His crime is to have sought the release of a Tamil woman forcibly recruited by the Sri Lankan military. The Sri Lankan state uses the spectre of terrorism to malign, intimidate and silence Tamil civil society as a whole. Crucially, however, it has been encouraged by the international community’s history of silence and apparent lack of concern over attacks on figures associated with the demand for Tamil self determination.

Kumar Ponnambalam, Gajendrakumar Ponnambalam’s father and then leader of the ACTC, the oldest Tamil political party, was also an outspoken advocate of Tamil self-determination. In January 1999 he was summoned for interrogation by the Criminal Investigation Department (CID) and assassinated a year later. A few days before his murder he had written an open letter to the then President Chandrika Kumaratunge, criticizing her policies. Joseph Pararajasingham, MP for Batticaloa, another high profile advocate of Tamil national rights, was gunned down by Sri Lankan paramilitaries at Christmas mass in 2005, days after her successor, Mahinda Rajapaksa, took office.

The Sri Lankan state has always met Tamil critics and non-violent resistance with murderous violence. And Sri Lanka’s attacks are not restricted to its shores. In November a senior Tamil activist, Mathinthiran Nadarajah, was shot and killed in Paris. The assassination of a Diaspora figure was clearly intended to silence and intimidate global Tamil activism. Such brazen attacks repeatedly sent a clear message: there will be no place of safety for those who dare to stand up for Tamil rights.

The international community’s unwillingness to recognise and engage with Tamil demands for self rule have only served Sri Lanka’s agenda of repression, and its history of toleration has facilitated the continuation of state attacks on Tamil activists. For too long the international community has worked with the fiction that successive Sinhala leaders were willing to transform Sri Lanka from a violently repressive ethnocracy into an inclusive liberal democracy. Thus Tamil voices who peacefully advocated Tamil self determination were characterised as ‘extremists’ and marginalised by the international community. Three years after the end of the war, it should be clear that these policies have failed.

Amidst Sri Lanka's accelerating violent campaign against Tamil civil society, international actors and institutions must clearly and unequivocally extend their concern, protection and recognition to all Tamil activists – including those who demand self determination. In doing so the international community must also make clear that it will no longer acquiese to the Mahavamsa based principles of ethnic hierarchy that have underpinned Sri Lanka’s governance for the past sixty years.

In the absence of meaningful international action, Tamil voices challenging the Sinhala order will continue to be violently targetted. Meanwhile, the parallels between the current dynamics and those of the 1970s, when the futility of non-violent Tamil resistance paved the way for armed movements, are clear. The international community must act decisively if it is to convince both the Tamils and the Sinhala state that the island’s future will not be like its past.