Statement on judgements by Court of Appeal and Supreme Court on impeachment process of Chief Justice

Jan 8, 2013

8 January 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) welcomes the judgment of the Court of Appeal quashing the decision of the majority of members of the Select Committee of Parliament delivered on 7th January 2011, and the determination of the Supreme Court issued last week in respect of the question of constitutional interpretation referred to it by the Court of Appeal. The determination of the Supreme Court held that the investigation and proof of charges brought against a judge in an impeachment motion must be exercised by a body established by an Act of Parliament, and not by one established by Standing Orders of Parliament. The Court further held that matters concerning the mode of proof, burden of proof and standard of proof relating to the charges in an impeachment motion must also be specified by legislation.

The Court’s robust defence of the “immutable Republican principle of the independence of the judiciary,” and its reiteration of the fundamental importance of the rule of law underpin its interpretive arguments. For this reason, the determination represents an important precedent for the supremacy of constitutional values over claims of parliamentary immunity. Moreover, by asserting the jurisdiction to review the legality of Standing Orders that affect the rights of citizens, the determination decisively rejects the notion that Parliament is supreme. The idea of parliamentary supremacy is as much colonial – being a feature of English constitutional law – as it is obsolete. The Court’s determination, which emphasizes the sovereignty of the people and the supremacy of the constitution, is an important judicial reminder that the plausibility of constitutional arguments must be judged by reference to first principles of constitutionalism, and not inappropriate invocations of unconstitutional values and outdated doctrines.

Of more immediate relevance, given that questions over the legality of the impeachment process against the Chief Justice have now been settled definitively by the Supreme Court and Court of Appeal, it is imperative that all parties concerned comply with the law. Failure to do so will not only be in open contempt of court, but will also precipitate a dangerous constitutional crisis that the country can ill afford. In this respect, we are deeply concerned that the government has taken steps to hold a debate on the Resolution against the Chief Justice. We express our sincere hope that the rule of law will prevail, and that judicial determinations will be fully complied with.

Download this press release as a PDF from here or view on the web here.

Attempt to appoint pro-Rajapaksa CJ, Masses need not be subjugated by ‘Medamulana’ theory – PMD

There is an attempt to appoint a pro-Rajapaksa as the chief justice but the masses need not be subjugated by the ‘Rajapaksa theory’ emphasized the speakers who addressed the rally held at Hyde Park in Colombo yesterday (7th).

Parliamentarian of the JVP Anura Dissanayake addressing the rally said, “Rajapaksa regime is attempting to end democracy and trod on a path to dictatorship. Today is the beginning of the movement to rally masses against this sinister attempt. This is only the beginning. One and a half years ago it was Mahinda Rajapaksa who appointed Dr. Shirani Bandaranayake to the post of Chief Justice. Now he is hatching conspiracies to drive her away from the post.  Mahinda Rajapaksa regime does not protect democracy, the law or tradition. It doesn’t fulfill the basic needs of the masses; doesn’t give solutions for issues of the farmers; no relief is given for issues of fisher folk. Their lives have been broken down. They have taken to the streets. For the first time in history university teachers carried out a protest march from Galle to Colombo. More than two million youths have no jobs and have to hang around in streets. Rajapaksa regime has failed to solve the issues of not only university students but students who are in schools. People of all sectors are distressed and have been dragged into a calamity. The economy has broken down and there are no solutions for issues of employees in the state, private and estate sectors.

What is being carried out is an administration of fury. The judiciary has been threatened.  Democracy, freedom and law have been shattered. Those individuals and organizations that work for democracy are pursued and hunted. Lasanthe Wickrematunga, the head of a media institution, was murdered. Poddala Jayantha’s limbs were broken. Media institutions were stoned, torched, threatened or bought over. The media was the first to be intimidated. The second was suppression of web sites. Now the hindrance to Rajapaksa regime is the judiciary. The judiciary took the side of the masses in giving the judgment on ‘Z’ score. As a result the government had to allocate Rs.4000 million more. The government had to take in more to universities. The government’s plan was to reduce the number of students taken into the universities; to slash allocations for education. However, the need of the government was set back by the decision of the judiciary. This is why Mahinda Rajapaksa took the sword into his hand. The other reason is Basil Rajapaksa, Mahinda’s brother, attempted to lay his hand on Rs.40000 million of Samurdhi money. This is money saved by the poor masses in the country. Would a government that excavates ancient treasures and doesn’t allow an ancient sword to be in the Museum protect Rs.40000 million of people’s money?

Rajapaksa family is now looking for a ‘Rajapaksa’ to be posted to the judiciary. They are attempting to bring a pro-Rajapaksa chief justice. The government does not have lawyers. Their only lawyers are in the mental asylum. It is such a group of lawyers that are around Rajapaksa. They are the ones who interpret the Constitution now. They say the parliament is supreme. We could assume that the concept of Parliament is supreme. How could the present Parliament be supreme? It is where Mervin Silva is; where MPs get sold. It doesn’t have a correct representation of the masses.  Many in the Parliament are utter thieves who jump from here to there. The 18th amendment was passed using the distorted 2/3rd majority. The amendment itself is distorted. It is a deadly blow to democracy carried out for the love of offspring. How could such a Parliament be supreme?

Rajapaksa family is moving along the road map they have unrolled. The impeachment was one of its requirements. It is for this purpose the PSC was appointed and its report compiled. The Supreme Court and the Court of Appeal have become obstacles in getting this report passed. It is to avoid the judiciary they say that Parliament is supreme. We need not be intimidated by this. It is for this reason a pistol was aimed at Gunaratne Wanninayake’s head.

What kind of a rage is it? It is a regime that is insane so that it goes on slinging mud at people and threatens to shoot others. A strong front should be built against this rage. At the meeting of party leaders today the government stated they would not accept the verdict of the judiciary. The opposition stated the PSC or its report would not be accepted. The opposition opposed the report being debated in Parliament. The government’s attempt is to go for a vote in Parliament on Friday and remove the Chief Justice. They want to appoint a new chief justice by Monday. However, judges and lawyers in this country would not allow this. A massive protest campaign would commence by next Monday. The new chief justice would not be able to hear any cases.

There is a big issue regarding democracy in this country. All democratic institutions are being bulldozed. Mahinda Rajapaksa is not a civilized leader. Rajapaksa does not have any feeling regarding the future of the country. He thinks only about his family. It is the ‘Madamulana theory’. What is being prepared is a ‘Madamulana’ constitution. The people need not be intimidated by it. Now Rajapaksa’s wish has become the law of this country. How could he be different from Hitler and Idi Amin? Mahinda Rajapaksa swore before the Chief Justice in 2010 to protect the Constitution. However, he himself violates the Constitution now. This is a government that violates the Constitution. This is an illegitimate Parliament and a government. The country would be ruled by an illegitimate government from next Monday. As such, the masses should struggle for a legitimate government.

Rajapaksa regime has become a regime that has the firearm in its hand. Democracy that is being bulldozed should be protected. There should be a struggle against the rule carried out by the rage of dictatorship. A massive and strong people’s movement should be built. This struggle should end in such a movement.”

Srinath Perera PC addressing the rally said, “There have been dictators like Pol Pot and Hitler in the world. The reason for the emergence of such dictators is wielding of power by one individual. Then the right of the people to live is restricted.  As such, civilized countries adopt various ways of preventing one individual wielding power. In our country power has been separated into three institutions by the Constitution. The legislature exists as the institution that enacts laws. The executive implements these laws; the President does this through various institutions. If the executive uses power arbitrarily the judiciary takes action to protect rights of the people. In Sri Lanka the President has executive powers. The government has got 2/3rd majority by giving various privileges and perks.

There was a time when the country was ruled with the participation of the executive, legislature and the judiciary. Judiciary too became politicized thanks to the former chief justice who preaches us now. Recently, the judiciary understood that the events that are taking place violate people’s rights. Since then the judiciary took the side of the masses and started giving independent decisions. Several people-friendly judgments were given that went against the government.

At this the government decided to bring down the judiciary. An impeachment could be brought against a judge if there is any wrongdoing. However, the impeachment should be reasonably investigated. We are struggling for an independent judiciary for the people.  It is not a struggle for Dr. Shirani Bandaranayake. Can a judge be ousted just because a judgment was given against the government? Then other judges could not be able to take independent decisions. The judiciary will become pro-government. This is why we struggle to build an independent judiciary.

Yesterday a Member of a Pradeshiya Sabha was shot dead. I would assure you that the perpetrators would not be arrested until this government is in power.  Sri Lanka’s police can arrest any criminal within 24 hours if it is given to act independently. However, if shooting is carried out with the protection of government stalwarts the police can do nothing.

Under this government certain individuals have license to kill anybody at anytime at anyplace. Do we need such a system of society? When we were born we had the protection of an independent judiciary. We should let our children too have the protection of such a judiciary.

Now, there is a constitutional expert in the government known as Wimal Weerawansa. It is like a blind person describing an elephant to those who could see well. Such persons try to brainwash people through state media. They are insulting the judiciary.”

The convener of People’s Movement for Democracy Parliamentarian Vijitha Herath, The President of Federation of University Teachers’ Associations (FUTA) Nirmal Ranjith Devasiri also addressed the rally.

Impeachment Misadventure and the Advent of the Spring in Sri Lanka

Impeachment Of The First Woman CJ And Beginning Of The Spring In Sri Lanka?

Impeachment Misadventure and the Advent of the Spring in Sri Lanka

Groundviews

Photo courtesy Dawn, by AFP
“Natural justice is a pledge of reciprocal benefit, to prevent one man from harming or being harmed by another.” Epicurus

The iniquitous ex parte guilty verdict of Sri Lanka’s first female chief justice—which according to the Parliamentarian Vijitha Herath is an order from above—is not primarily about her alleged misconduct.  Rather, it is about the Sri Lankan justice system’s struggle to maintain its ability to deliver natural justice independently and against the constraints of country’s Constitution, which has been evolving since British Colonial period, and also against the legislature which uses any means necessary to subordinate the Judiciary to its own particular interests, thereby denying the scope within which the Judiciary can deliver natural justice.

Impeachment is not a random blunder, but a survival strategy (a structural necessity) of a regime that derives its legitimacy and security from the forces of capitalism, ethno nationalism, executive presidency, militarism and nepotism, all of which are interconnected and some of which derive their legitimacy from (or unintended offsprings of) the Constitution.  Relaxing any of these, forces, means collapse of the others and begs significant constitutional changes.  To maintain the status quo, the State has effectively asserted itself as the interpreter of the Constitution.  It has appropriated the functions of the judiciary, and consequently, it has done away with one of the few remaining institutions that safeguards the country’s democracy and prevents a slide into despotism and lawlessness.

The protests against the impeachment are evidence that concerned people around the country, including some intellectuals who are ardent supporters of the state, are overcoming the ‘culture of fear’ and demanding that natural justice be upheld.  Perhaps, we are witnessing the end of the long winter of discontent and a beginning of spring in Sri Lanka.  Any compromise with the government — other than annulling the Parliamentary Select Committee report, holding the State accountable for its misconduct and allowing the courts to determine the best course of actions for the allegations against the CJ —  would miss this historic opportunity to restore democracy and would provide further legitimacy to the very forces that brought the crisis.

This three-part series takes a broad look at the tensions between the judiciary and the legislature to make the argument that at this moment in Sri Lanka, protecting the independence of the judiciary is of utmost importance because the tyranny of the legislature is a greater obstacle to natural justice than the alleged misconduct of the CJ.  Part I will draw on the findings of numerous legal scholars to outline typical methods used to interpret the Constitution while defending the argument that judges are better suited than elected officials for this task. Part II will be an account of how the Constitution and its reforms since the British colonial period limits the ability of the judiciary to deliver natural justice, particularly because of the Constitution’s affinity with capitalism, ethnoreligous nationalism, executive presidency, and national security.  Part III will outline a more concrete account of why the government lacks the legal and moral authority to impeach and that, therefore, the Parliamentary Select Committee Report must be declared a mistrial and those responsible for it must be held accountable.

Part I: Judges, not the politicians, should interpret the constitution.

Continue reading »

‘Bow down to the law’ mammoth protest march on 10th against Govt.- UNP too joins
(Lanka-e-News-07.Jan.2013, 11.55.PM) Colombo district UNP M P Ravi Karunanayake speaking to Lanka e news said, the main opposition party, the UNP decided this evening to take to the streets along with the other political organizations and the people against the Rajapakse regime’s wanton violation of the constitution stemming from a decision taken by the Govt. today. 

The UNP had decided to invite all its members to participate in the massive protest procession starting from the Courts complex and proceeding to the Parliament on the 10th , that is on the day the Parliament debate lasting two days , 10th and 11th is scheduled to commence. In this connection , the UNP Gen. secretary will be making a public announcement tomorrow , Karunanayake added.

Lawyer and spokesman J C Weliamuna , convening a media briefing yesterday said , this protest and procession for a just society had been organized jointly under the theme ‘ bow down to the law’ The sixth force in the country – the 14000 Lawyers Island wide will be in the vanguard of this campaign .The latter is having the blessings of the Ven . Maduluwawa Sobitha Thero who is leading, and many Sangha Prelates . Already, apart from the UNP, other political parties – the TNA , JVP, Peratugami socialists, Nava Sama samaji party Democratic people’s Front, Muslim Tamil National alliance and Nava Sihala urumaya are participating in this mammoth campaign, according to Weliamuna as reported to Lanka e news. 

According to Weliamuna , University Professors Federation ; Trade Union leaders , Linus Jayatileke, Saman Ratnapriya, Joseph Stalin , Srinath Perera, D W Subasinghe, Muditha Karunamuni, Thilakaratne Kariyawasam , Antony Marx and N Jengan have decided to join in this historic protest march along with their union members .
Weliamuna speaking further to Lanka e news said , more trade unions and civil Organizations are holding discussions to support this massive protest campaign.

The LSSP which is a constituent party of the Govt. alliance had yesterday decided not to extend support for the unlawful impeachment .It is most likely the two parties which are represented by Vasudeva Nanayakkara and DEW Gunesekera will also arrive at the same decision.

The political circles are eagerly awaiting the decision of Rauff Hakeem the Justice Minister and a Lawyer .

Has The Deputy Speaker Let The Cat Out Of The Bag?

By Elmore Perera -January 8, 2013 

Elmore Perera

In a comprehensive interview after the Supreme Court determination that the PSC (that found the CJ guilty) was unconstitutional, the Deputy Speaker who is an Attorney-at-Law asserted on 4^th January 2013 that “the government does not wish to see the country descend to anarchy”. He defended the PSC process by stating that “the PSC was only mandated to investigate and report” and “it was not mandated to make a “finding of guilt”. This is tantamount to an assertion that the purported finding of guilt in respect of three charges, arrived at by the PSC, is outside the mandate given to the PSC by Parliament, and therefore ab initio void. The irresistible presumption is that all advice tendered by him to the Speaker, the Chairman and Members of the PSC and anyone else who thought it fit to seek his opinion on this matter, prior to the aforementioned determination of the Supreme Court, would have been consistent with that unambiguous view of his.

That was indeed the mandate given to the PSC chaired by R. Premadasa and including Ranil  Wickremasinghe, appointed on 4^th April 1984 in terms of Standing Order 94 to investigate and report regarding allegations against Chief Justice Samarakoon. That PSC conducted an ex-parte investigation for more than four months and submitted their report on 9^th August 1984 recommending that appropriate action be taken.

In terms of Standing Order 78A which had been hurriedly adopted in Parliament on 4^th April 1984, a PSC with Lalith Athulathmudali as Chairman was appointed, also to inquire into and report to Parliament on the allegations referred to in a Resolution of 57 MPs placed on the Order paper of Parliament on 5^th September 1984.

Chief Justice Samarakoon had refused to recognise the right of the earlier PSC to question him. He was, in any event, due to retire shortly thereafter on reaching the age of mandatory retirement on 21^st October. He asserted that the action taken by the PSC was not in accordance with the Constitution and he had to protest at the very outset against the PSC proceeding with the inquiry as he did not want to be a party to the erosion of the independence of the Judiciary of which he was the Head. The six Government members of the PSC reported that the standard of proof required is very high and that they cannot come to the conclusion that the CJ was guilty of proved misbehaviour. The three opposition members, viz. Anura Bandaranaike, Dinesh Gunawardena and Sarath Muttetuwegama reported that “in seeking through this PSC to act under the provisions of Standing Order 78A, the Constitution of Sri Lanka was in fact being violated”, urged the President to refer this matter to the Supreme Court  for an authoritative decision and recommended amendment of  Standing Order 78A along the lines of the Indian provisions where the process of inquiry which preceded the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose.

That limited mandate to inquire and report was presumably the only mandate given to the PSC that Speaker Anura Bandaranaike appointed on receipt of the resolution to impeach Sarath N. Silva Chief Justice in 2001, and therefore could not be restricted by the Supreme Court. It was because Sarath N. Silva could not accept any other’s right to investigate what he considered to be his “squeaky clean” activities that, without making any attempt to have Standing Order 78A invalidated or amended, he prevailed on the President (who had appointed him as Chief Justice in spite of wide ranging protests) to prorogue and then dissolve Parliament exercising the powers vested in her by the same Constitution, as that was   the only possible means of his escaping impeachment. Not surprisingly, the said Sarath N. Silva is now pontificating on the virtues of Standing Order 78A.

On 31^st December 2012, Cabinet Minister and member of the PSC Susil Premajayantha, also an Attorney-at-Law, stated that “the impeachment inquiry is not a legal probe but a legislative process and therefore proving of charges is not necessary”.

On 2^nd January 2013 Leader of the House, Minister and member of the PSC, Nimal Siripala de Silva, Attorney-at-Law stated that the government was not worried about criticism by the International Community and would not, under any circumstances reverse the impeachment process.

On 3^rd January 2013 the Supreme Court determination that “the PSC has no legal power or authority to find a judge guilty, as Standing Order 78A is not law,” was announced in the Court of Appeal.

On 4^th January 2013 as aforementioned, the Deputy Speaker stated what he honestly believed were the limits of the mandate given to the Parliamentary Select Committee.

Even as the Court of Appeal is considering submissions in the Court of Appeal for the issue of a Writ quashing the purported findings of guilt made by the PSC, the Party Leaders have met this (7^th January 2013) morning, at the Parliamentary Leaders meeting. On being informed by the Speaker that the relevant Supreme Court determination was not recognised by Parliament, the representatives of all opposition parties walked out of the meeting. The Deputy Speaker, in a vain attempt to put the cat back into the bag, had stated that the  government representatives and the Speaker have decided to debate the PSC report on the 10^th and 11^th of January and take a vote at 6.30 p.m. on the 11^th.

The obstinacy displayed by the Government will inevitably translate into anarchy in the event that the Court of Appeal quashes the “findings” of the PSC and the Government insists on having its own way in this matter. We are, indeed, living in momentous, if not disastrous times. The clock keeps ticking.

Will sanity prevail? Or, will we have to moan, “Oh Justice, thou art fled to brutish beasts and men have lost their reason.”

Quo vadis, Mother Lanka?

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

SRI LANKA: The President and the parliament should desist from any actions that are unconstitutional and illegal by proceeding further on the impeachment

January 8, 2013

The Court of Appeal in Sri Lanka has issued a writ of Certiorari, declaring that the determination and the findings and/or the decision or the report of the Parliamentary Select Committee constituted to impeach the incumbent Chief Justice of Sri Lanka is unconstitutional, illegal and is therefore quashed. 

The decision ends all legal basis of the current process underway in Sri Lanka to impeach the Chief Justice, Justice Mrs. Shirani Bandaranayake. According to the Constitution of Sri Lanka, the President can address the parliament to impeach the Chief Justice only on the basis of proven misconduct. The Court of Appeal has declared in its judgment delivered yesterday, that no such finding exists. Thus today, the Government of Sri Lanka has lost its foundation to further proceed with the impeachment. 

It is elementary, that any further proceedings by the government, or the President of Sri Lanka and the parliament contrary to the Court of Appeal's writ is nothing less than an open and blatant violation of the Constitution of Sri Lanka. 

Contrary to the writ of the Court of Appeal, if the President proceeds to address the parliament urging it to impeach the incumbent Chief Justice on the basis of the report of the Parliamentary Select Committee (PSC), that is now declared to be unconstitutional and hence non est in law by the Court, the President will be openly negating the Constitution of Sri Lanka. In that his action will have no authority in law and is hence unenforceable. 

On a similar footing, if the parliament proceeds to debate or votes on the impeachment based on the report furnished by the PSC that is declared illegal by the country's court, the members of the parliament who participate in the debate will also be violating the constitution. Thereafter if the government physically proceeds to remove the Chief Justice and appoints another person as the Chief Justice, the President will again be openly and blatantly violating the constitution. 

If the government continues with the impeachment procedure according to its existing schedule, and the Chief Justice is removed from office by force, Justice Mrs. Shirani Bandaranayake, will continue to be the constitutionally appointed Chief Justice in office in Sri Lanka. Any person the President appoints, allegedly as the Chief Justice in lieu of the incumbent Chief Justice, will have no constitutional writ or cannot preside in a court as the Chief Justice of the country, nor would the decisions made, administrative or judicial by such person, have any binding in law. Lawyers or litigants will have no purpose to appear before a body presided by such a person.


Further, the presence of such fictitious and illegal authority within the Supreme Court of Sri Lanka, will be a mere usurper to the office of the Chief Justice and not the Chief Justice of Sri Lanka. No judge, lawyer, litigant or members of the court staff could be asked to serve such person, and in fact serving such person would be illegal and hence contempt of court. 

Besides in the event of any new "Chief Justice" is appointed this appointment could be challenged in the court on the basis of the judgment of the Supreme Court and the Court of Appeal. In such an event the court would have no option but to declare that the appointment unconstitutional and illegal. And thus there will be a constitutional deadlock relating to any further appointment to the position of the Chief Justice.

To prevent this situation, it is the obligation of the Bar Association of Sri Lanka, to oppose any further move by the President, the members of the parliament or by any usurper to the office of the Chief Justice. 

Any act that contravenes the decision of the Court of Appeal concerning the illegal impeachment process under way, whether it is carried out by the President, the members of the parliament or by any judge usurping to occupy the office of the Chief Justice will adversely affect the constitutional fabric of Sri Lanka, will be against the will of the founding fathers of the country, and illegal. Such acts will negate the legal fiction and constitutional authority upon which the country is declared a 'democratic, socialist republic'. 

It will wipe out forever, judiciary as an institution in Sri Lanka, and judges, irrespective of their ranks reduced to executive officers and lawyers having no profession to pursue. The resultant environment will certainly be chaotic, with litigants, whether it is individuals or a body corporate, having no place to pursue their lis or rights. The country could plummet into a rouge state where investments and businesses would have no guarantees and civil liberties having no meaning. 

Thus to further proceed on the impeachment is to open the country for a infinite sea of unconstitutional and illegal actions which will vitiate and pollute all aspects of liberties. The legal foundation of Sri Lanka will be threatened and fundamentally undermined by any further process relating to impeachment against the writ by the Court of Appeal. 

If the President and the parliament proceed against the writ of certiorari issued by the Court of Appeal, the very notion of judicial independence will loose meaning in Sri Lanka. This would mean the singular direction in which judiciary as an institution will be tread, that is to function under the leadership of an usurper, who claims to be the Chief Justice of the country and whose actions will have no constitutional authority or legality. That would affect all the judges and all the courts in all the actions. 

The Asian Human Rights Commission (AHRC) calls upon the President of Sri Lanka and all members of the parliament to respect and abide by the decision of the Court of Appeal, issued yesterday in the case C.A (writ) 411/2012.

The AHRC calls upon the Secretary General of the United Nations, the United Nations High Commissioner on Human Rights and the UN Special Rapporteur on the Independence of Judges and Lawyers to intervene in the situation and to prevail upon the Government of Sri Lanka so that the government abandons its destructive path, of bringing a democratic republic into stone ages. The intervention could prevent the incumbent government in Sri Lanka scotching the foundations of the country's judiciary.  

The AHRC calls upon the Bar Association and the Judicial Services Association of Sri Lanka to respond so that the very foundation of the legal profession and the concept of the rule of law will not be undermined. The AHRC also calls upon the people of Sri Lanka to understand the disastrous implications to their future, as a nation, should the impeachment proceeds as the government has planned, from what Sri Lanka is today, a country based on a constitution rooted in democracy and the rule of law.

The AHRC firmly hopes that sober reasoning and political wisdom will prevail in Sri Lanka and the impending creation of a chaotic and catastrophic environment that will affect the lives of the people in Sri Lanka for their entire future will be prevented. 

It is the fundamental duty of everyone to safeguard the rule of law and democracy and not to allow a nation to sink into the abyss of lawlessness and dictatorship.

Respect The SC Determination To Avoid Constitutional Crisis, Urges Judicial Service Association

By Colombo Telegraph -January 8, 2013

“The Judicial Service Association (JSA) of Sri Lanka urges all the parties concerned to respect the Supreme Court determination to avoid constitutional crisis which will ultimately lead to lawlessness in the country.” says The Judicial Service Association of Sri Lanka.

We publish below the statement in full;

The Supreme Court of the Democratic Socialist Republic of Sri Lanka exercising exclusive jurisdiction to interpret the Constitution vested under Article 125 of the Constitution has held that the Parliamentary Select Committee procedure which found the Chief Justice Dr. ShiraniBandaranayake guilty was unconstitutional.

The Judicial Service Association (JSA) of Sri Lanka urges all the parties concerned to respect the Supreme Court determination to avoid constitutional crisis which will ultimately lead to lawlessness in the country.  The JSA also urges the Parliament to enact necessary legislation as recommended by the Supreme Court to probe alleged misbehavior of apex court Judges.

The JSA is concerned about the media campaign aimed at vilifying the judges who discharge their duties according to law and their conscience.

‘Machang’, ‘Dasa Raja Dharma’ And The ‘Shape Niyaya’

By Charitha Ratwatte -January 8, 2013

Charitha Ratwatte

A newspaper quoted the President, speaking at a function of the Institute of Chartered Accountants of Sri Lanka, as follows: “I want to say something about today’s situation as well since it was mentioned earlier. People may misunderstand, the Chairman of the National Savings Bank (Pradeep Kariyawasam, husband of the Chief Justice) was appointed by us. We appointed the Chief Justice. There were allegations against the Chairman (NSB) that they bought shares at a higher value. It was making headlines every day. I called P.B. Jayasundera (Treasury Secretary) and the relevant people. I told them we will get the money back and managed to shape the matter. That’s the way things are done for our people. So we managed to shape the matter.”

Strangely, things have now become dramatically and drastically ‘un-shaped’! Kariyawasam has been charged with causing loss to a State institution by the Commission for the Eradication of Bribery or Corruption. This is well within the role of a righteous State which is pursuing the norms of good governance and the Dasa Raja Dharma and is to be welcomed.

A process has also begun to impeach the Chief Justice. The latter process has become rather confused by allegations that the principles of natural justice have been grossly violated in the case of the Chief Justice and some constituent parties to the Government, even a former Prime Minister, advising caution and a rethink of the fundamental issues, advising that the Government takes a step back and reconsider the whole process.

These bodies may attract some attention from the powers that be, rather than the other civil society and international organisations and countries which have expressed negative opinions. These include the Maha Nayaka Theras and other religious leaders, the Bar Association of Sri Lanka, the organisation representing the country’s Judges, the Ceylon Chamber of Commerce, the Organisation of Professional Associations and many, many others. Further the confusion has been confounded by reports of a sort of plea bargain offered to the parties concerned by the powers that be!

‘Shape Niyaya’                            Read More

AC discards Select Committee report as null and void: Govt. MPs react like terrorists trampling the court order
(Lanka-e-News -07Jan2013, 11.30PM) Following the verdict of the Supreme court (SC) based on the interpretation of the constitution that the Select Committee has no judicial power, the Appeal court today announced that the decision of the Select Committee is without validity in law. The appeal court made this announcement when delivering its verdict on the petition filed by the Chief Justice. 

This petition was heard before the panel of judges comprising justices , Sri Skandaraja (President) , A W A Salaam and Anil Gunaratne.

Meanwhile at a meeting of the party leaders, disregarding the SC verdict most barbarically it was decided that the Parliamentary debate shall be held on the Select Committee report on the 10th and 11th.

When the party leaders meeting was held today at 11.00 a.m. at the Parliament premises , the opposition stated , they accept the position that only the SC has the power to make a determination on the constitution , and therefore a parliamentary debate on the Select Committee report is unlawful. Despite so many elucidations and sound explanations being presented by the opposition , the Govt. party leaders reacted to them mentally, physically and stubbornly like donkeys which compelled the opposition party leaders to stage a walk out in protest . Among those who so walked out were the UNP , JVP and TNA leaders. Ravi Karunanayake, Lakshman Kiriella , Anura Dissanayake and Suresh Premachandran .

After the opposition leaders staged a walk out , the Govt. party members decided to have the debate on the 10th and 11th , while the voting was fixed for the 11th at 6.30 p.m.

Political analysts said , this conduct of the Govt. representatives clearly betrayed their baser qualities and that they are worse than terrorists while the Govt. itself they represent is a terrorist Organization for not abiding by the laws. Like the terrorists who do not abide by the constitution and the judicial Courts, and who follow their own ‘Kekille’(mockery) courts using their armed power, the Rajapakse regime too has demonstrated, from today onwards officially they have taken the place of the terrorists . The Rajapakse Govt. had trampled the constitution and is kicking away the court decisions . This brutality and barbarity were also well illustrated by the murders committed by the Rajapakse Govt. even on its own party politicos when they took an antagonistic attitude to the Govt. views, they added.

Respect The Judgment: Join The People’s March On 10th January

By Lawyers Collective -January 8, 2013

Lawyers Collective requests all those who value and uphold democracy to join hands to demonstrate, even at the eleventh hour, to take all peaceful steps to stop the unlawful impeachment against the Chief Justice.

We remind all Sri Lankans that this is the first time ever that a Supreme Court decision is deliberately violated by the Executive and Parliament, indicating the level to which democracy has deteriorated in our country.

We invite individuals, political parties, trade unions and civil society to join us for the People’s March on 10th  January at 10 am commencing from the Superior Courts Complex. Your participation will make the national and international community realise that the public do not approve the government’s decision to ignore the Supreme Court judgement.

A Constitutional Deadlock

By Basil Fernando -January 8, 2013

Basil Fernando

With the quashing of the appointment, report and any decisions of the Parliamentary Select Committee by the Court of Appeal, a serious question will arise in the event that the government proceeds with the impeachment, removes the incumbent Chief Justice and appoints a new Chief Justice. Such an appointment can be challenged on the basis of the judgement by the Supreme Court and the Court of Appeal, on the grounds of unconstitutionality and illegality.

The Supreme Court, by its interpretation dated 1.1.2013 (delivered by the Court of Appeal on 3.1.2013 as required by law), determined that Standing Order 78/A does, in fact, contravene Article 107(3) of the Constitution. When the case filed by the Chief Justice challenging the report of the seven members of the PSC came up in the Court of Appeal, the arguments were heard fully and the Court made a final order. A Writ of Certiorari was issued, quashing the report of the Parliamentary Select Committee.

On the basis of these two judgments, the removal of the incumbent Chief Justice will be invalid and therefore she will continue to hold office. Under such circumstances, a new person for the same post is unnecessary and therefore cannot be appointed.

Thus, there will be an unresolvable constitutional deadlock.

Mahinda appointed expert panel to examine select committee report. Assignments began from yesterday

Tuesday , 08 January 2013

President Mahinda Rajapakse appointed an independent inquiry panel including experts to provide him advice to examine the probe report by Parliamentary Select Committee against Chief Justice Prof.Shirani Bandaranayake.

 

The President's investigation panel commenced its first task from yesterday evening was said by President's media spokesperson Mohan Samaranayake.

 

Meanwhile Senior Banker Rani Jayamaha, former parliament Secretary General Dhammika Kithulgoda and civil and social edifice official Jeevan Thiyagaraja are members of the President's independent panel is according to reliable sources.

 

The charges against the Chief Justice concerning bank transactions will be examined by Senior Banker Rani Jayamaha and other issues would be handled by other members is according to government high level circles.

 

On conclusion of the probe panel study assignments, they would hand over a special report to President and President concerning Chief Justice issue will take a final decision is according to information.

 

Meanwhile Parliamentary Select Committee which probed the impeachment submitted its probe report on last 8th to Speaker Chamal Rajapakse.

 

At the time the report was revealed to President, he notified that he would appoint an independent panel to examine the probe report submitted by Parliamentary Select Committee.

 

This is not a legal procedure and according to his conscious he is carrying out was the interpretation given by him.

Sri Lanka’s war likened to wiping out British PM Cameron’s constituency

By Shamindra Ferdinando-January 6, 2013

British Labour Party member, Siobhain McDonagh has compared the last phase of the Lankan military offensive (Jan-May 2009) against the LTTE to the massacre of an entire population of Witney, Carterton and Chipping Norton after being herded into an area smaller than Prime Minister, David Cameron’s constituency.

MP McDonagh has alleged that thousands of her constituents had been indirectly affected by the atrocities committed by the Sri Lankan military. She represents Mitcham and Morden. In a hard hitting letter to Prime Minister Cameron, MP McDonagh has said that his government cannot ignore the Tamil community in the UK numbered more than a quarter of a million persons.

MP McDonagh warned PM Cameron that UK participation at the Commonwealth Heads of Government Meeting (CHOGM) 2013 in Colombo would be nothing but endorsement of the massacre of civilians. MP McDonagh stated in a letter to PM Cameron: "If a nation has systematically killed every single person you knew in Witney, Carterton and Chipping Norton, raping and murdering in cold blood, I do not think that you would find it acceptable for that government to host an event as prestigious as a Commonwealth summit, or for our Government to attend."

Reiterating her call for an international war crimes inquiry into the conduct of the Sri Lankan military, MP McDonagh urged PM Cameron not to allow Sri Lanka to host CHOGM 2013 in November. MP McDonagh urged PM Cameron to explain to the Tamil community how he intended to prevent Sri Lanka hosting CHOGM 2013.

MP McDonagh inadvertently revealed why she was pushing for an inquiry by mentioning in her missive to PM Cameron of the growing Tamil population in the UK, the official said. Contrary to media reports, the UK politician was not pushing the Cameron government to boycott CHOGM 2013. Instead MP McDonagh wanted the UK to sabotage the Colombo summit.

MP McDonagh secured a one and half hour parliamentary debate tomorrow (Jan. 8) to discuss the failure on the part of the UN to prevent atrocities during the last phase.

On same day, Lord Naseby also secured one hour debate in the House of Lords. Sources said that the focus would be on the implementation of the Lessons Learnt and Reconciliation Committee (LLRC) recommendations.

During Lord Naseby last visit to Colombo, the British politician told The Island that some of his parliamentary colleagues had been forced to act on the behalf of LTTE rump as it controlled Tamil voters.

British Foreign Secretary William Hague has told MP McDonagh that Under Secretary of State, Alistair Burt would be visiting Colombo early this year to discuss human rights concerns. Hague was responding to MP McDonagh’s stinging letter addressed to PM Cameron.

Hague told McDonagh that both PM Cameron and he emphasized the responsibility on the part of Sri Lanka in implementing the UNHRC Resolution on the accountability issue when they had the opportunity to meet President Mahinda Rajapaksa and External Affairs Minister Prof. G. L. Peiris, respectively in London last June.

Interestingly, Hague had asserted that the reconciliation process would have a greater chance of success if investigations were led by the GoSL rather than externally imposed.

The Global Tamil Forum yesterday said that ongoing action in the UK was necessary to compel the Sri Lankan government to address long standing accountability issues. GTF spokesman Surein Surendiran said: "President Rajapaksa and his regime are leading Sri Lanka to the brink of being a ‘failed state’. Introduction of the 18th amendment has removed even the limited parliamentary democracy features that existed and has made the executive presidency become almost dictatorial. The move to impeach the Chief Justice has now demonstrated to what extent the regime is prepared to go to even destroy the independence of the judiciary which is one of the very fabrics of democracy. If we, all people of the island who live in the island and outside let this regime continue without any serious impediment, not long before will we collectively regret like many other communities around the world have realized and suffered under such regimes"

Asked what the GTF expected achieve by raising the issue in UK parliament, Surendiran said that unfortunately, as historic opportunities were missed by the regime to resolve many of the grievances of the people due to lack of political will, absolute corruption at all levels, greed for power and nepotism, mismanagement of the economy, above all the prevailing abuse of human rights with impunity such as disappearances, lack of freedom of speech, inability to practice peaceful protest and demonstration and the existence of armed paramilitary activities - issues faced by our people have to be exposed externally. Unfortunately the weakness and disunity that exists within the opposition has disabled any kind of effective action against this scandalous regime and it has fallen on the Tamil Diaspora to bear this responsibility as well. 

"The significance of having such debates in Parliaments around the world and at international forums has become the only way to share with the rest of the world of the grievances faced not just by the Tamil people, but collectively by all people in the country." 

"This is one of the ways to expose the regime’s breaches of international laws and conventions in the past and even at present." 

Responding to query whether attacking Sri Lanka in UK parliament would help their cause, Surendiran said: "Of course it will as if not already, it won’t be long before even the majority community will realize the impact of this regime’s actions in their day to day lives and on their future generations. Suppression and oppression cannot anymore be owned only by Tamils and the Muslims of Sri Lanka. The same has been practiced at different levels against the Sinhala community as well and spreading. This will only result in wider conflict and internal instability rather than reconciliation." 

"By exposing the current ground reality internationally through which bringing external pressure to bear on the regime has the slim chance of making them change course."

 "As far as the past breaches of international laws and alleged commitment of war crimes and crimes against humanity, unless these are resolved and justice is served to people who have lost their loved ones and suffered during the war, it will be almost impossible to ask them to move on. Therefore unless this serving of justice is done via an independent international investigation of the alleged atrocities by both sides during the end of the war, it will be impossible for the parties in conflict to reconcile and move on."

"Finally only by addressing the Tamil National question will you achieve peaceful and prosperous communities in Sri Lanka."