Take Care Of Three Of Us: A Call For Help

By Basil Fernando -January 16, 2013 

Basil Fernando

As the Chief Justice Dr. Shirani Bandaranayake left her official residence under duress from the heavy police squad that surrounded her and tried to prevent her from making any statement, she still managed to say a few words reaffirming her innocence and telling that all that she did was according to the law and that the interest of the people was what she cared for.

However, the most moving words of that brief comment were “take care of three of us” meaning her family. These words of a Supreme Court judge in Sri Lanka for 16 years should echo in the minds of every conscientious citizen because it is no surprise that even a person who is a Chief Justice of Sri Lanka and have been a Supreme Court Judge for such a long time lives under the threat of assassination and has to alert the people about their security.

She has a reason to be worried because the ones who have dissented with the government even in much smaller ways have had to pay a heavy price for their dissent. It is not surprising therefore that Dr. Shirani Bandaranayake who has put President Rajapaksa ’s regime to its biggest challenge in the last few months of her being in the office, should fear for the life of herself and her family.

There are many reasons for the Rajapaksa ( regime to want to silence her. The very issue of the falsity of the charges that were made against her will remain one of the great problems for the Sri Lankan government in the country as well as outside. The vicious intentions behind the charges having been exposed have already prevented the government from appointing a competent and impartial tribunal.  The same reason would trouble this government for a long time to come. She is able to expose the falsity of the charges and this will rubbish the claims of the government to have acted in a good faith and having removed her in the best interest of the country as the government propaganda machine has been trying to drill in the minds of Sri Lankan people through one of the most extraordinary mudslinging and character assassination campaign carried out through state media.

Her continuing capacity to challenge the conduct of the government and the claims of the government makes her an exceptional target for attack.

The impeachment debate preceding her forced removal has already brought very uncomfortable questions that include the issue of the independence of judiciary and the way the rule of law is being violated in the country to the foreground. With this act, even the very nature of Sri Lanka being a democracy or not is under scanner.  Yesterday (January 15^th), a US State department Spokesperson gave voice to international concerns while categorically stating that doubts have arisen whether Sri Lanka is still a democracy. Forced removal of Dr. Shirani Bandaranayake as well as appointment of a new Chief Justice has been severally condemned across the world.  The Commonwealth Secretariat and other associated initiatives have also questioned whether Sri Lanka still abides by the core values of the Commonwealth such as the independence of the judiciary and the rule of the law.

The debate, biggest since Sri Lankan independence, and the consequent embarrassment to the regime, is not going to die anytime soon both within Sri Lanka and in the international community. Further, what Dr. Shirani Bandaranayake has to say will matter a lot in all such debates.

In short, she is an embarrassment to the Rajpakasa government locally as well as internationally. The cause of concern is that this regime and particularly Its Ministry of Defense have demonstrated in the past that they do not lightly ignore those who cause such problems. They have always gone all out for   particularly those who gain the sympathy of the people. Dealing violently with the opponents has remained one of the most consistent principles followed by the regime, and that is what should make stand in defense of the life of Dr. Shirani Bandaranayake and her family.

The need of the hour is a response from the Sri Lankan people as well the international community to her call requesting “look after three of us”.  The ferocity with which the regime behaved in the courts as well as near her residence yesterday has made Ministry of Defens’s  intention of silencing her clear. It has also made the aggressive perusal of this agenda clear.

What we need to do was put out best by Frederica Jansz, former editor of The Sunday Leader. To paraphrase her what we need is not a dead heroine but a living person able to contribute to her family and society in the years to come.

Sri Lanka: Sliding further down the road of total authoritarian rule – Impeachment of Chief Justice and appointment of Mr. Mohan Peiris as the new Chief Justice

Wednesday, 16 January 2013

The impeachment of the first women Chief Justice Shirani Bandaranayke and the appointment of Mohan Peiris as the new Chief Justice is a serious blow to the independence of the judiciary and the functioning of democracy in Sri Lanka, said Asian Forum for Human Rights and Development (FORUM-ASIA), a regional human rights organization representing 47 human rights organizations from 16 Asian countries including Sri Lanka.

Mr. Mohan Peiris was the former Attorney General and subsequently served as the Legal Advisor to the Cabinet before being appointed as the new Chief Justice. In both positions, he had defended the present government in relation to allegations of grave violations of international law. He had gained notoriety for falsely stating before theUnited Nations Committee Against Torture (UNCAT) in November 2011, that the disappeared journalist Prageeth Ekneligoda was living overseas. When the wife of the journalist wanted him to appear before a Sri Lankan court, he resisted until the court issued a summon on him, which he attended and gave testimony in court denying the statement he had made before the UNCAT.

“We are gravely concerned with the manner Shirani Bandaranayke was removed from the position, a move that is clearly politically motivated,” said Yap Swee Seng, executive director of FORUM-ASIA. The UN Special Rapporteur on the Independence of Judges and Lawyers, Ms. Gabriela Knaul, has expressed concern that “the procedure for the removal of the Chief Justice of the Supreme Court is extremely politicized and characterized by lack of transparency, lack of clarity in the proceedings, as well as lack of respect for the fundamental guarantees of due process and fair trial”

During Sri Lanka’s Universal Periodic Review in November 2012, H.E. Mahinda Samarasinghe responded to recommendations by Poland, Slovakia and the United States regarding the need for the government to safeguard and strengthen judicial independence by stating that “due process would be followed” in the impeachment process.

Yap said the appointment of Mr. Mohan Peiris will now allow the Government of Sri Lanka to wrest full control over the judiciary, which should be totally independent from the executive in a functioning democracy to check abuses of executive powers. “With this new development, we fear Sri Lanka will slide further down the road into total authoritarian rule”, added Yap.

The move to impeach the Chief Justice, Shirani Bandaranayke came on the heels of a series of disturbing incidents that have pointed to intimidation of judges and lawyers as well as political interference in the work of the judiciary. Amongst these was the assault on Mr. Manjula Tilakaratna, the Secretary of the Judicial Service Commission (JSC), following his statement issued on 12 September 2012 alleging political interference from the executive on the commission that is mandated to appoint, suspend and transfer judges and magistrates. The incident led judges and lawyers of Sri Lanka to boycott the courts in a one-day protest on 8 October 2012. No arrests of the main perpetrators have been made so far in this severe interference of the judiciary.

In addition, the Mannar Courts came under attack by a mob, reportedly instigated by a government Minister, whom reportedly called up a judge requesting a particular judgment and threatened the judge when the request was rejected.

“The Commonwealth should seriously reconsider its decision to hold its Heads of Governments meeting in Sri Lanka in November 2013,” urged Yap, in responding to the deep disappointment expressed by the Commonwealth Secretary-General over the impeachment of the Chief Justice and his commitment to “consider further Commonwealth initiatives and responses as are envisaged in situations that could be perceived to constitute violations of core Commonwealth values and principles” on 13 January 2013 .

“This latest serious erosion of the independence of the judiciary will further encourage the climate of impunity that prevails in the country. We are extremely concerned that this does not reflect any of the claims of the Government of Sri Lanka that it  has made towards accountability and reconciliation in Sri Lanka, despite all its assurances to its own people and the international community”, said Yap.

Sri Lankan leader replaces chief justice 

with ally

KRISHAN FRANCIS | January 15,

COLOMBO, Sri Lanka — Sri Lanka's president on Tuesday swore in a trusted aide to replace the chief justice he fired, a move that could lead to a judicial crisis if lawyers and judges who say the move was illegal refuse to cooperate with the new head judge.

President Mahinda Rajapaksa swore in Mohan Peiris, a retired attorney general and a legal adviser to the Cabinet, after his nominee was approved by a parliamentary council earlier Tuesday, said presidential spokeswoman Anuradha Herath.

On Sunday, Rajapaksa dismissed Chief Justice Shirani Bandaranayake after a parliamentary committee found her guilty of having unexplained wealth and misuse of power.

Bandaranayake has denied the charges and accused the tribunal of not giving her a fair hearing. Courts have ruled in her favor, but the president and Parliament ignored the rulings.

Bandaranayake said in a statement Tuesday that she was still the legitimate chief justice of Sri Lanka, but that she decided to leave her official residence and office fearing violence.

"In the circumstances, in my country, which is a democracy, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly appointed legitimate chief justice," she said.

"I have suffered because I stood for an independent judiciary and withstood the pressures. ... The constitution of the republic recognizes the rule of law and if that rule of law had prevailed, I would not have been punished unjustly," the statement said.

Peiris has been prominent in defending Rajapaksa's government from allegations of human rights violations and enforced disappearances.

Rajapaksa's critics say appointing a confidante to the post of chief justice gives him control over the judiciary as well as Parliament, where more than two-thirds of the 225 members support him.

The critics also say replacing the chief justice is part of an effort to consolidate the government's power in the hands of the president's family.

Rajapaksa's older brother is the parliamentary speaker, and two of his younger brothers hold the powerful positions of economic development minister and defense secretary. Rajapaksa's eldest son is a lawmaker.

Many prominent lawyers have already said they still recognize Bandaranayake as the chief justice and have written to senior judges urging them not to recognize a new appointee.

Hundreds of policemen guarded the country's main court complex in Colombo, the capital, on Tuesday in an apparent bid to prevent Bandaranayake from entering the courts. Bandaranayake, however, remained at home.

Lawyers supporting Bandaranayake protested her dismissal by blowing out candles in unison in front of the Supreme Court to symbolize what they called the death of the judiciary. They chanted, "Let's rise against dictatorship."

"The legal community is not ready to accept a puppet appointed by this authoritarian (president)," said Srinath Perera, a lawyer who took part in the protest.

On Tuesday a local political think tank Center for Policy Alternatives and its executive director filed a petition in the Supreme Court challenging the appointment of Peiris as chief justice.

The petition said the post of chief justice is not vacant since courts have quashed the guilty verdict against Bandaranayake and asked for a declaration that a new appointment is a violation of the constitution and a breach of fundamental rights of the petitioners.

Many Sides Of Partiality Of Mohan Pieris

By Laksiri Fernando -January 16, 2013 

Dr Laksiri Fernando

Apart from being an illegal appointment to the post of Chief Justice, Mohan Pieris undoubtedly is a controversial character in many respects. His business connections and government appointments are well known and contrary to the independence and integrity expected by that highest position in the judiciary. He was the Chief Legal Advisor to the Cabinet. He himself is personification of ‘conflict of interest’ par excellence. The following is an article I wrote about his views on the ethnic question and reconciliation which was published in the Asian Tribune on 16 June 2012, seven months ago.

I wish the readers to pay attention to what he said about the ‘lawyers, constitutional jurisprudence and the Tamil community’ quoted in my paragraph 14 below. This is what I quoted:

“The whole problem with the Tamil community is that they have too many lawyers there. They just talk law. They are enjoying themselves talking constitutional jurisprudence.”

When he said that he was just the former Attorney General, but now he is supposed to be the Chief Justice. Look at his attitude about constitutional jurisprudence, lawyers and the Tamil community. His full interview appeared in the Asian Tribune under the title “Mohan Pieris: On the urgency of reconciliation for lasting peace” on 12 June 2012.

Dangerous Pronouncements of Mohan Pieris on ‘Reconciliation’

Dr Laksiri Fernando

When the Asian Tribune, probably the Editor KT Rajasingham himself, raised the important issue of ‘confidence’ as a possible barrier for the TNA and the UNP to so far nominate their representatives to the Parliamentary Select Committee (PSC), Mohan Pieris, in an interview on 12 June 2012, characterized it as “being selfish,” and lambasted saying “What is confidence? They are enjoying all the perks of their offices they hold. They enjoy all the material benefits every other government members enjoy. What is this confidence they talk of?”

Mohan Pieris is not only a former Attorney General of the country who recently lost his credibility by saying one thing to the UN Committee on Torture (CAT) on the disappearance of Prageeth Ekneligoda and then refuting it cheekily before the Homagama Magistrate, but also the Chairman of the Inter Agency Commission to Implement the Interim Recommendations of the Reconciliation Commission (LLRC). In addition he is also a Special Advisor to the Cabinet of Ministers.

To such an important person on reconciliation, ‘confidence’ or ‘confidence building’ in the reconciliation process equals to ‘perks’ and ‘material benefits,’ perhaps revealing his own mindset on matters that are well prominent nowadays in Sri Lanka. Thus he cannot understand why the TNA or the UNP cannot have confidence in the government, when they enjoy the official benefits of MPs, as if these benefits are given to them by the benevolence or as ‘bribes’ of the government. What is implied is the ownership of power and wealth within a small group of people, masquerading as Government, and the need for others to serve them with ‘confidence.’

When the interviewer commented on the TNA position that “they are not going to come as far as I am aware,” the answer was “well..well..well…then the Government will have to do the next best thing.” Mohan Pieris also spelled out this ‘next best thing’ saying that “there are other right thinking people in the Tamil community who will join with us and will come with a formula which we think is the next best.” It is perhaps in this context that he mentioned about the ‘perks’ and ‘material benefits’ that can generate confidence among some ‘dummies’ instead of the TNA.

Pieris also talked about ‘clapping’ and ‘Tango.’ “It takes two to Tango. You need two hands to clap,” he boldly said. But instead of a real Partner to Tango, as he revealed, the government is going to have a dummy as the second best. Why? The answer came when the Asian Tribune asked “why can’t the government try to persuade the TNA?”

First it was sheer arrogance saying, “You can take a horse to water, but you can’t get it to drink.” Then it was utter impatience when the need of ‘government again talking to the TNA’ was suggested. The answer was “What is there to talk…We are just talking, talking and talking.” This was the attitude of such an important person from the government side on ‘talks’ as part of a reconciliation process or political negotiations.

Pieris was somewhat taken aback when the “UNP also not joining the PSC” was suggested. “So that is because none has the country at heart” was the answer. He was not talking about a ‘second best’ in this instance. Instead, he was waving the ‘patriotic’ card.

When the Rajapaksa associates first brought the issue of ‘patriotism,’ many people who wanted to be critical of the government, including myself, were somewhat puzzled thinking whether they (we) were doing something wrong, because we all love the country. But now it has become an utter joke simply because of the scale of abuse, vendetta, plunder and deceit going on in the name of patriotism.

In the interview, Pieris very clearly refuted the possibility of reconciling with the TNA. That should be noted by everyone at home and abroad. “I can only reconcile with someone who wants to reconcile,” he categorically said. Perhaps he was ignorant of the political implications of the simile that he brought into the discussion. He said, “it is no different to – may be a family break up.” He should know better than anyone else the marriage law regarding separation or divorce when there is a family breakup. I am sure however he is ignorant of the theoretical literature on the subject of self-determination that equates political separation to family breakups.

There is no wonder why Mr R. Sampanthan was talking about the impossibility of having a ‘solution even within a united Sri Lanka’ at the ITAK convention in Batticaloa, if he has encountered utterances like Mohan Pieris’ during the “quantum of dialogue” with the government that Pieris referred to during the interview. Still I would persuade Mr Sampanthan to otherwise.

It was utter nonsense that Pieris talked about referring to amity among communities in the Galle Face Green! Almost like a senile ‘post-modernist,’ he said “in the evening you see the community living in peace. They are talking, laughing and enjoying themselves. There is no Sinhalese, Tamils, Muslims or Burghers over there.” Then he said “Nothing,” like what he said about “Ekneligoda’s whereabouts” before the Maharagama Magistrate: “only God who knows.”

Perhaps this type of self-deception must be going on in the inner circles of the Rajapaksa associates. It is entirely true that the ordinary Sinhalese, the Tamils and the Muslims have ever lived in peace and still wants to live in peace and amity. Then who is igniting communal ill feeling and violence like what we recently saw in Dilithura, Dambulla or Dehiwala?

At least we know for sure that Rev. Inamaluwe Sumangala who led the attacks on the Dambulla Mosque was a President’s delegate to Myanmar in June 2009 just after the end of the war and perhaps he learned those tactics from there (listen to ITN News on YouTube, 18 June 2009). It is equally known that many recent attacks on Muslim religious places, including the Dehiwala Musjid attack on 25 May 2012, were led by the JHU monks, a constituent partner of the Rajapaksa administration.

Most dangerous or vicious were Pieris’ comments on the TNA leadership and Mr Sampanthan. When the interviewer asked why doesn’t the government “talk to the TNA leader Sampanthan on all these issues,” the sarcastic answer was “in that case we will add another round of talks…The whole problem with the Tamil community is that they have too many lawyers there. They just talk law. They are enjoying themselves talking constitutional jurisprudence.” Mind you, these answers came not from an ordinary politician, but from a former Attorney General.

This is not what I exactly thought vicious, but his comments about the future of the TNA leadership. He said, “Sooner or later the present TNA and the whole existing political outfits will be no more due to natural causes(my emphasis).” Pieris didn’t explain what these natural causes might be but repeated even at the very end of the interview that “the present TNA and others will be no more due to natural causes (again my emphasis).”

I have met Mr Sampanthan several times and he is an extremely a gentlemanly and a pleasant person whatever the political differences that we may have. I call him ‘Mr’ because of his seniority and with respect. We all know that he is old with several health problems.

The world needs an explanation from Mohan Pieris what he meant by “natural causes.” What we know about him is his entanglement with disappearances in Sri Lanka, especially of Prageeth Ekneligoda. If he is involved with ‘natural causes’ as well, then he should explain them without dragging this time God into the whole affair.

Sri Lanka Chief Justice says her life is in danger

15 Jauary 2013 

Sri Lanka's first ever female Chief Justice has said her life is in danger after President Mahinda Rajapaksa's government evicted her from office and swore in a replacement.

Parliament had declared Shirani Bandaranayake guilty of corruption, but she has denied wrongdoing.

Charles Haviland reports from Colombo.

Read More

• Sri Lanka appoints new top judge

A damaging impeachment

January 16, 2013

 Lanka’s democratic institutions are in ferment once again. The impeachment of Chief Justice Shirani Bandaranayake and her quick replacement with former Attorney General Mohan Peiris come as an unsavoury climax to an unedifying standoff between the judiciary on the one hand and the legislature and executive on the other. The episode is one more instance of President Mahinda Rajapaksa placing his own and his regime’s interest over that of the country and its institutions. It is certain to contribute to institutional decay, attract international opprobrium and underscore the impression that Sri Lanka is ruled not by law but by the will of individuals. And the worrying fact about the country’s travails is that its chief executive, who ought to be the one most concerned about it and do more to strengthen them, is actively contributing to the undermining of its institutions. The country’s Parliament ignored judicial decisions against the validity of a parliamentary inquiry against Chief Justice Bandaranayake and went ahead with her impeachment. Mr. Rajapaksa lost little time in accepting the impeachment motion and appointing the Cabinet’s legal adviser to replace her. To external observers, the merit, or lack of it, in the charges said to have been proved against Ms Bandaranayake is of little consequence. Rather, the timing of the impeachment — coming close on the heels of a Supreme Court determination that a new law on development needed ratification by all provincial councils — is worthy of notice. The process, too, was of doubtful legitimacy, and the parliamentary vote, largely on party lines.

The legal fraternity in Sri Lanka is already up in arms against the appointment of a new Chief Justice, as large sections of it seem to believe that the impeachment is a nullity as the parliamentary report based on which it was pursued has already been quashed by the Court of Appeals. Even if Mr. Peiris settles down in his post, it is doubtful if his rulings will command credibility. President Rajapaksa may be unable to undo this irreversible action, but the latest institutional crisis might help remind him that cleansing the judiciary is not a perfunctory task; rather, it requires a well-thought-out process involving appropriate legislation that safeguards the institution’s independence while ensuring a truly independent inquiry into charges of misconduct against judges.

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Whether disputes are ended with the new appointment of Chief Justice?

Whether disputes have come to an end, after the impeachment against Chief Justice Prof.Shirani Bandaranayake, disagreements among the judiciary, executive and legislature after the removal of Chief Justice position and the appointment of new Chief Justice was queried and many political dignitaries gave their opinions.

 

Mano Ganeshan states, now only clashes begins

 

The clashes among judiciary, executive and legislature did not come to an end by appointing a new Chief Justice. But now only the clash has begun.

 

It is much transparent in our country and in the globe that autocracy rule is in existence in our country.   This government which had been doing many errors and crimes now has gripped  the courts and made it,  its own which was the ultimate place for the people to get justice.  This clearly establishes that government has kept its hands on people’s basic rights.

 

This government does not have the aptitude to speak about democracy, justice, honesty, and regime. Government will very soon face the consequences of eradicating the independence of judiciary was said by Democratic People’s Front Leader Mano Ganeshan.

 

Problems will be multiplied states Vijitha Herath MP

 

In future crisis will be multiplied and a massive dangerous situation will originate. Unnecessary problems will suddenly erupt.

 

In an illegal manner Chief Justice Shirani Bandaranayake was removed from her position.

 

The new appointed Chief Justice is not a member from the Supreme Court panel of judges. It is a major error of appointing a Chief Justice who is not a member in the panel.

 

The newly appointed Chief Justice is another Rajapakse. He is the advisor to the cabinet, holding the position as a member in many state organizations executive panels and is connected with many accusations.

 

Hence by appointing such a personality as a new Chief Justice, unnecessary problems will emerge in this country. People will  lose confidence in the judiciary. Many doubts will crop up amidst people towards   judiciary.

 

This will pave way to the downfall of democracy and judiciary of this country was said by JVP Propaganda Secretary, Parliament member Vijitha Herath.

 

A strong opposition party necessary states Palitha Rangey Bandaraja

 

 Clash among judiciary, executive and legislature clearly establishes that a strong general opposition party is necessary.

 

 Decision taken arbitrary is very easily executed by this government, and to topple this government, a strong general opposition party should be originated in this country. This is only a way to the ongoing crisis occurring in this country.

 

Government is continuously engaged in anti-democratic activities is a good example of its action of disabling the independence of judiciary. Hence not only for judiciary, executive and legislature but to all the drawbacks which are prevailing in the country, a strong united general opposition party is necessary to the country to bring an end to all the crisis which are prevailing in the country.

 

We do not have to contemplate about the leadership. Initially we will take action to originate a strong opposition party was said by United National Party Parliament member Palitha Rangey Bandara

Wednesday , 16 January 2013

Court complex barricaded; CJ Bandaranayake prevented speaking to media :Status Report of the Lawyers Collective

Court complex barricaded; CJ Bandaranayake prevented speaking to media :Status Report of the Lawyers Collective

The Chief Justice was told by Police Officers that she cannot speak to the media as she is no longer the Chief Justice ( Reuters photo)

On 14th January, around 7 pm the Secretary to the President and DIG Anura Senanyaka required the Registrar of the Supreme Court to pack all belongings of the Chief Justice (Dr. Bandarayaka) and send the same to her residence. 

He had also been told that the new Chief Justice would arrive on the following day and everything must be cleared for him. In the night, on 14th January, a large number of Defence personnel had occupied the Superior Court Complex.

On 15th January, early hours the Supreme Court Complex was cordoned off and riot squads, barricades and water cannons were kept in place. All the vehicles including that of the lawyers were checked to see whether Chief Justice Bandaranayaka was entering the Court premises. Police officers informed that they have ordered not to permit the Chief Justice Bandaranayaka. Around 9.45 am the road leading to Judges entrance to the Superior Court (Adhikarana Mawatha ) was sealed off. Armed police and STF personnel prevented anyone entering the Courts complex or its vicinity.

Around 10.30 am, approximately 200 people accompanied by Government politicians entered the cordoned off area, with active protection from the police. They stayed opposite to the main entrance to the Superior Court shouting slogans (cheering the President, new Chief Justice and Wijedasa Rajapaksa-President BASL and BASL).

The Media was not permitted within the Courts premises and was specifically prevented from entering the Courts premises. However, a large number of media personnel were present outside the main entrance to the Courts Complex. When two lawyers walked out of the Courts premises to talk to the media and to invite the media inside the Court Premises, the armed police and senior police officers prevented the two lawyers reentering into the Courts premises. Several lawyers gathered and protested to the Courts being barricaded. However, with the intervention of the Lawyers the two lawyers were permitted to re-enter. Around 12pm a large number of lawyers held a day light vigil which symbolizes the onset of darkness in the days to come.

Mr. Mohan Peiris PC was sworn in as a Chief Justice and arrived in the Courts complex around 1.30pm. He was received by a group of Sri Lanka Freedom Party Lawyers and several others.

Lady Chief Justice’s residence was cordoned off and senior Police Officers were seen even within the premises. The Chief Justice was told by Police Officers that she cannot speak to the media as she is no longer the Chief Justice. The media gathered outside the residence was asked to leave. They resisted and reminded the Police this is where the so called Golden Key depositors had camped and provided Police protection. When the Lady Chief Justice came out of the residence she was prevented from speaking to the media and thereafter she issued a written statement in all three languages

Press briefing on judicial crisis

WEDNESDAY, 16 JANUARY 2013 

A news conference was held today at the Azad Sally foundation Centre with the participation of TNA MP M.A. Sumanthiran, Wickramabahu Karunaratne, (UPFA) Colombo Municipal Council Deputy Mayor Azad Sally, Sirithunga Jayasurya and Sarath Manamendra to discuss the present situation in the country. Pix by Kithsiri de Mel

Cartoon of the day-WEDNESDAY, 16 JANUARY 2013

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An Open Letter To UN And Sri Lankan President

By Bijo Francis -January 15, 2013 

Bijo Francis

The Asian Human Rights Commission (AHRC) is writing this letter both to your goodself and to His Excellency, The President of Sri Lanka, to strongly urge an inquiry into the execution of Ms. Rizana Nafeek, a Sri Lankan citizen in Saudi Arabia. The Government of Saudi Arabia executed Rizana at 11:48 am on January 9.

The matters that we request your office to urge for an investigation are the following:

a.    What is the evidence upon which the court in Saudi Arabia sentenced Rizana for capital punishment?

b.    It is reported that the only evidence relied upon by the court is a confession statement, allegedly made by Rizana. If that is the case, we urge Your Excellency to request the Government of Saudi Arabia to inquire the circumstances under which Rizana made this statement.

c.    Under what circumstances was Rizana’s age (she being a minor) ignored? The Government of Saudi Arabia now claims that Rizana was 21 years of age based on the passport, despite the contrary evidence placed before the court. Your Excellency has also confirmed that Rizana is a minor vide Your Excellency’s letter to His Royal Highness, King Abdullah of Saudi Arabia.

The AHRC is certain that you are aware that Rizana’s execution has led to an international outrage against the trial and the sentence. For a period of five years, the world protested against the unjustness of the death sentence. It is widely held, and the facts reported so far strongly suggests that the case charged against Rizana does not meet the requirements of a charge against murder. It is also globally reported that when Rizana was handed over to the Saudi police, she had been subjected to duress and there was no translator to assist her.

The AHRC has confirmed that Rizana spoke only Tamil and the inquiry conducted by the Saudi police was in Arabic. The AHRC also has information that the letter allegedly signed by Rizana is written in Arabic, a language that Rizana does not speak, read or write. In these circumstances, Rizana could not have made the confession. There is a report that the translator provided to Rizana, at some stage of her trial or investigation, is a person from Karnataka, India, who speaks only Kannada and not Tamil.  Furthermore, at trial Rizana did not receive any legal assistance.

All these factors were brought to the notice of the Saudi court that heard the appeal against conviction, and to the Government of Saudi Arabia. Furthermore, the Government of Saudi Arabia denies none of the above.

The global outrage in this case is justified since Rizana’s execution is nothing less than murder. Under these circumstances, it would not suffice only to condemn Rizana’s execution. What is required is a thorough investigation in this case.

The AHRC therefore requests you to initiate a process with the cooperation of the Government of Saudi Arabia, so that an international expert is appointed to inquire into the case. The expert should visit Saudi Arabia and be allowed to examine all records concerning the case, from the time the complaint against Rizana was made to her execution in Saudi Arabia.

The AHRC calls upon you to demand this inquiry, since in this case as the rights of young girl, a subject of Sri Lanka, were violated in Saudi Arabia. The mere payment of money by a Saudi citizen to Rizana’s family is not a substitute for a proper inquiry.

In this context, the AHRC also wishes to state that the statement by the official Saudi press as reported by the CNN that: “the Kingdom of Saudi Arabia categorically rejects any interference in its affairs or in the provisions of its judiciary under any justification“, is unacceptable and amounts to Saudi Arabia’s rejection of its obligation under international law to respect the universal human rights norms and standards. All responsible governments are under obligation to be accountable to the verdicts of the death sentence pronounced by courts under their jurisdiction.

The issues arising out of Rizana’s case are known worldwide. Not to seek clarity on the case thus would amount to complicity. Furthermore, such an inquiry could provide an opportunity for your office, as well as the international community, to ensure that similar violations would not occur in the future.

Additionally this is a duty that the United Nations owes to Razina and her family, to clear her name. Rizana’s honor must be restored.

Sincerely

Bijo Francis
Interim Executive Director
Asian Human Rights Commission

Country at low level-CBK

WEDNESDAY, 16 JANUARY 2013 

Former Sri Lankan President Chandrika Kumaratunga yesterday said change was vital for Sri Lanka as the country had reached such low levels with leaders promoting criminals and drug dealers into power.
Kumaratunga made these comments at the Sirimavo Bandaranaike Memorial Oration organised by St. Bridget’s Convent under the theme ‘Educating Women for Leadership.’ Kumaratunga said she was devastated about the present situation of the country but she does not have a recipe to take the country out of the situation it is in.  

Speaking about the present political situation of the country Kumaratunga said it had reached such low levels that she didn’t want to talk anything about it. “The barrier of ethnicity and everything else had been taken over by the concept of animalism,” she said.

Referring to the qualities which make a good leader Kumaratunga said true leaders possess the gift to inspire other persons to subdue and control the animal within and to lift out the good and humane in them.

“I believe that good leaders are the ones who make better humans of others, giving them a vision of a better world, inspiring them to greater achievements. Such a leader has the ability to give a nation the strength to reach unconquered heights. On the other hand bad leaders have destroyed not only individuals but also entire nations” she said.

Speaking further Kumaratunga added that a true leader was fully aware that the power bestowed on him was held by him in trust on behalf of those who gave him power and does not abuse that power for his personal benefits.

“He should possess the humility to heed the voice of others, even his opponents and generosity to engage with them in free discourse and the courage to say “I was wrong” and self-confidence to arrive at compromises. We need to do some hard work to bring forth the good in us and to subdue the horrid,” she said.
Kumaratunga also said that women can become corrupt when in power but that morality and ethics is what would make that person honest or dishonest. “The gender is irrelevant when democracy is concerned. But it is the morality and ethics that matters. Today the value system has completely broken out and unfortunately the only thing that seems to matter is money and more money,” Kumaratunga said. (Jayashika Padmasiri)

Appointment of Mohan Peiris as CJ illegal: UNP

WEDNESDAY, 16 JANUARY 2013 

Impeaching Dr. Shirani Bandaranayake is a clear attempt by the government to gain full control of the judiciary and to administer it according to its whims and fancies, the United National Party (UNP) said today.

UNP General Secretary Tissa Attanayake said the removal of Dr. Bandaranyake from the post of Chief Justice was illegal as the vote taken up in Parliament on January 11 was not to remove her but to appoint a select committee to look into the charges against her.

He said this was the proposal that was included in the Parliament Order Paper on that eventful day and therefore Mohan Peiris could not be accepted as Sri Lanka’s Chief Justice.

“Shirani Bandaranayake is still the Chief Justice of the country,” Mr. Attanayake said. (Yohan Perera

Impeachment And The Misconceived Reliance On CJ Corona’s Case

By Reeza Hameed -January 16, 2013

CJ Shirani

The case involving the impeachment of Chief Justice Corona of Philippines has been cited in some places in support of parliament’s move to impeach our own Chief Justice. It was most recently invoked during the recently concluded impeachment debate in parliament when, speaking favour of the motion, ourMinister of External Affairs said that the principle is that in respect of impeachment proceedings the responsibility is that of Parliament and not the Courts. He noted that when the Filipino CJ went to court, the Court had declined jurisdiction and said: “This is not a matter for us to get involved in because this belongs to the domain of the legislature”.

Justice Corona’s impeachment did not proceed without controversy because of its political undertones. There it was alleged, inter alia, that

1. the signatories to the complaint had signed it without reading and evaluating its contents

2. failing in their duty to verify the sufficiency in form and substance of the existence of a prima facie case to pursue

3. the inordinate speed with which the complaint was filed prevented such verification

4. the CJ was impeached in respect of collegial decisions.

Interestingly, Justice Corona’s case bears many similarities to that of our own CJ’s case.

The Supreme Court of the Philippines dismissed the case brought by Chief Justice Corona on the ground that the matter had become academic, given the fact that the impeachment trial had been concluded and the petitioner had accepted the verdict of the Senate without any protest and vacated his office. In fact, in the case of Francisco v the House of Representatives of the Philippines, the Supreme Court had previously asserted its power of judicial review even over impeachment proceedings.

The Philippines has never been considered by Sri Lankan constitution makers as a model worth emulating, and the Philippines constitution does not provide any assistance for the interpretation of the impeachment clause in article 107 of the constitution because in the Philippines the “sole power of impeachment” is vested in the House and the “sole power to try all impeachment” is vested in the Senate. However, even in the Philippines, a comparably better safeguards have been built into the impeachment procedure. Impeachment proceedings may be commenced on a “verified complaint or resolution of impeachment filed by at least one-third of all the Members of the House”.  Furthermore, the existence of a bi-cameral legislature acts to avoid the problem of the same body initiating the impeachment proceedings and trying the allegations.

Clearly, Justice Corona’s case provided no precedential value to support the proposition that was being asserted against Mrs Bandaranaike. She has neither refused to stand trial nor walked away from facing the charges, but protested that the proceedings were unfair and did not give her a fair chance to defend the allegations against her.

The suggestion in Sri Lanka that the courts by quashing the Select Committee’s report trespassed into parliament’s territory was made to try to discredit the court’s ruling on the validity of those proceedings. InFrancisco, the Philippines Supreme Court rejected similar arguments stating that the political defence argument can never be raised to cover up abuse of power. The Court in that case said: “The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy is patently without basis in fact and in law.” The court also referred to the US Supreme Court’s opinion in United States v Smith (1932) where Justice Brandeis declared that where the construction to be given to a rule affects persons other than members of the legislature, the question becomes judicial in nature.

*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva.