US Court to hear oral argument on Rajpakase war crime case

[TamilNet, Saturday, 19 January 2013, 02:35 GMT]
United States Court of Appeals for the District of Columbia circuit has scheduled March 8th, 9:30 am for the oral argument in the appeal case against Sri Lanka's President Mahinda Rajapakse for civil damages on war-crimes charges filed by three Tamil plaintiffs whose relatives were extra-judicially executed or unlawfully killed under the "command responsibility" of Rajapakse. "The key legal issue in this case is whether the U.S.'s Torture Victims Protection Act (TVPA) deputed the Executive Branch with authority to extinguish TVPA claims against sitting heads of state based on professed foreign policy concerns," plaintiff-appellants' attorney, Bruce Fein, said. Judges Merrick Garland, Janice Brown, and Brett Kavanaugh have been assigned to hear the case, according to Court papers. 

• US motion to participate in oral argument

Defendant-Appellee Rajapakse's counsel from Patton Boggs, a large law firm in Washington D.C. is likely to depend on the United States Justice Department lawyers to save Rajapakse in the legal battle, the motion filed the U.S. Government indicates. "Counsel for the defendant-appellee informs us that he has not yet determined whether he will participate at the argument but that the defendant-appellee will, in any case, cede time to the United States," the U.S. Government motion said in a footnote.

"All U.S. Tamils should attempt to attend the hearing as the case symbolizes the urgent need to hold President Rajapakse accountable for his despicable and criminal acts under international law. The case is at the frontiers of the human rights law, and we are guardedly optimistic that independent federal judges will not permit President Rajapaksa’s international crimes to evade justice," Fein told TamilNet.

"The U.S. Government has affirmatively exercised its discretionary option, first in the trial court, and now in the appellate court, to intervene to save Rajapakse from legal action by legitimate victims of his allegedly murderous conduct. Ambassador Blake architected policy of appeasing Sri Lanka overlooking the killing more than 80,000 Tamil civilians in Mu'l'livaaykkaal, appears to have even trumped Sri Lanka's continued dismissal of the chorus of disapproval from the West on autocracy-leaning governance matters in Colombo," a spokesperson for Tamils Against Genocide (TAG), a US-based activist group, said.

Judge Merrick Garland

Judge Janice Brown

Judge Brett Kavanaugh

Two of the judges, Brown and Kavanaugh, were appointed by Republican President, George Bush, and Judge Garland was appointed by President Bill Clinton, a Democrat.

Merrick Brian Garland (born November 13, 1952) was widely seen as a leading contender for a nomination to the Supreme Court in the Obama administration following the announced retirement of Justice John Paul Stevens. On September 6, 1995, President Bill Clinton nominated Garland to the D.C. Circuit.

Garland was touted as a possible successor to retiring Supreme Court Justice Paul Stevens. Before taking a seat as a U.S. Circuit Court judge, Garland was a respected Justice Department official who supervised the investigation of the 1995 Oklahoma City bombing and prosecution of the Unabomber. As a jurist, the Chicago native and graduate of Harvard Law School is considered a centrist. Soft-spoken yet engaging, Garland is said to ask lots of questions.

Janice Rogers Brown (born May 11, 1949) previously was an Associate Justice of the California Supreme Court, holding that post from May 2, 1996 until her appointment to the D.C. Circuit.mPresident George W. Bush nominated her to her current position in 2003. 

Brett Michael Kavanaugh (born February 12, 1965) was formerly the Staff Secretary in the Executive Office of the President of the United States under President George W. Bush. Kavanaugh himself was nominated to the D.C. Appeals Court by Bush in 2003. 

The complaint was filed first in 2011 at the District Court for this case alleged multiple violations of the Torture Victims Protection Act (TVPA) based on Sri Lanka's President Rajapaksa’s command responsibility for the extrajudicial killings of Ragihar Manoharan, the son of Plaintiff Dr. Kasippillai Manoharan, of Premas Anandarajah, a humanitarian aid worker for Action Against Hunger, and husband of Plaintiff Kalaiselvi Lavan, and four members of the Thevarajah family, all relatives of Plaintiff Jeyakumar Aiyathurai.

Death threats from Deshapremi Balakaya to the 4 Lawyers who are against the impeachment

(Lanka-e-News -18.Jan.2013, 11.30PM) The lawyer , PC Romesh De Silva who appeared on behalf of the chief justice against the most stupid impeachment motion of most eccentric MaRa propelled in gross violation of the constitution , Lawyer Sumenthiran M P and two other senior lawyers , PC Jayampathy Wickremeratne and J C Weliamuna who spearheaded the Lawyers collective campaign for independence of judiciary had received death threat letters , according to reports.

These letters have been sent by post under the name Deshapremi Balakaya and had been received during the course of the day .The letters state that ‘this is the final warning to you and the lawyers with you’. In the second page of the letter , the details of the registration numbers of the vehicles by which each Lawyer , his wife travels and the Schools of the children have been indicated.. Accusations mentioned are against each of the Lawyers separately, and it is stated that this is the last warning.

When eccentric MaRa met with the Bar association officials who committed the worst betrayal on that occasion , MaRa told them , it cannot be allowed to rule a country by a piece of paper. But , these threatening letters are an index it is that very reign against which MaRa spoke is now holding sway. 
It is significant to note that the very next day after Lanka e news reported recently that Lawyer Weliamuna is being targeted for murder , and an underworld criminal is stalking him and that the criminal is provided with STF security protection that these letters of threats had been sent .

Beware! After Impeachment He May Look Towards An “Election-less Miracle” !!

By Kusal Perera -January 19, 2013

Kusal Perera

“I am no Messiah ! No fortune reader !! I am only proposing, no matter where, events from history can be chosen to be replayed in the future, if the people decide, wise !!!” – Wonder who’d said it, before.

Anyway, the BIG FIGHT over the Impeachment is now over and so is the “call” from the legal fraternity, not to accept a new CJ. The BASL backed out on that call and so did President of the BASL. The new CJ is selected, appointed, sworn in and has assumed office. All Courts are now functioning, as they did for many many years. Hulftsdorp is as normal as it was, before JSC Secretary Thilakaratne was attacked by goons on 07 October last year. How does the political map of Sri Lanka look like, now ?

• What ever there is as follow up to the LLRC Recommendations in the government’s “Action Plan”,

- the military still controls all aspects of life in Jaffna, in the Vanni and very much in the East too. Arbitrary arrests, disappearances, assaults on every protest, land grab, illegal armed groups continue, unabated. Civil administration and now even schools are entrenched and embedded with security forces personnel. Extensive intelligence networks haunt civil life.

• President’s 07 year old offer of a “home grown” governing system to the Tamil people’s demand for democratic life in their majority areas, is yet to come as a proposal for any worthy discussion and instead is now overtaken by the demand for annulling even the existing 13 Amendment, a token Constitutional acceptance for provincial administration.
• While Sarath N Silva as CJ was using the judiciary for his own personal agenda, the cross-overs and buy-overs in parliament was made possible on a SC determination. That allowed President Rajapaksa to create his now available 2/3 majority in parliament, after which the 18 Amendment was made into the Constitution.
• Emergency regulations though lifted, the PTA was further strengthened and it is the PTA that works for this regime for all arrests and detentions, with the special unit in the police department, the TID given priority in all political suppression.
• The new bill “Code of Criminal Procedure (Special Provision) Bill” becoming law (after 22 January, when passed in parliament) would provide the police the legal right to hold any person in police custody for 48 hours without an arrest warrant, as a suspect. Legally, this is only 24 hours as at present, though there are previous reports of persons being held without any written records that can then end with custodial killings, or even involuntary disappearance.
• A gazette notification in August 2011 allows this government to establish security forces camps in all 25 districts, out of which the 08 Northern and Eastern districts already have security forces camps in all types and sizes and in plenty. Therefore this gazette notification in effect is for other districts in Sinhala South.

That list needs other inputs to have a more detailed map of political power as usurped and accumulated with the Rajapaksa “plundocracy”. A very brief addition would thus be as follows.

1. As provided for by the Jayawardne Constitution, Rajapaksa sits as President and Head of State with all executive powers under him and with total immunity from law that allows him to violate the Constitution and still continue without any legal challenges. That did happen many a time during the past few years.
2. With such unchallenged power under his belt, the parliament is maintained with a set of 150 plus government MPs who take “orders” as decided by the Speaker, the elder brother. That was how the whole impeachment process rolled out in parliament as planned and decided by the Rajapaksa regime, turning Ranil W into a “parliament joke” with his politically ignorant, but stubborn insistence for “parliamentary supremacy”.
3. The whole of urban Sri Lanka is under the Ministry of Defence that has no Deputy Minister, now given the tag, “…. and Urban Development”, handled unchecked and unquestioned by the Ministry Secretary who is a younger brother. The Coast Conservation Department initiated in 1963 under the Ceylon Ports Commission and left with the Ministry of Fisheries since 1978, is under the MoD controlling the entire 1,340 km coast with the navy stationed where ever it wants. The MoD also has the UDA, the Land Reclamation and Development Board, all handled with security forces. Added are, Registration of Persons Department, The Rakna Lanka Security firm, the NGO Secretariat, the Civil Defence force, also under the MoD. With an annually increasing budget allocation after the war now reaching USD 2.2 billion, of which only 05 per cent goes for urban development, whole urban life is under MoD.
4. Rest of the country, the whole of rural Sri Lanka is now completely centralised under the other brother, Minister of Economic Development, with the passing of the “Divi Neguma” bill in parliament, a week ago.
5. Finance ministry has with the 2013 Budget usurped the power the parliament had in controlling public finance, with Ranil W agreeing to debate and vote on the budget without the amendments the SC determined as necessary to keep the budget proposals within the Constitution.

Summing up all of the above into one single, descriptive sentence in introducing this Rajapaksa regime, it would read as, “A Constitutionally assembled Presidential family rule that has taken control over all finances in the country, keeping parliament under the elder brother, the whole urban and coastal life including security forces under another brother, rural life in its entirety centralised under yet another brother, now has the apex of the judiciary firmly under its dictates in addition to the Attorney General’s Department, also bringing organised thuggery on to city streets to break up protests and opposition to its rule, that treads beyond the Constitution as a “Plundocracy”, with an impotent Opposition leadership both in and outside parliament.”

Sounds too bleak and pessimistic ? For those who think this regime has to be defeated at the next parliamentary elections, “YES”, it is a bleak and a disappointing political mapping. But stands justified, when considering the fact that this impeachment concluded, not only within parliament, but also in the chambers of the Presidential Secretariat and in the Hulftsdorp SC Complex, had all muscles flexed from the police to the security forces to mobilised urban goons taking to the streets, to ensure the exit of one CJ and the entry of the pre selected other, purely as a calculated political gamble.

Bringing everything under their family dictates in establishing a constitutional rule with an almighty Executive Presidency, the Rajapaksas have started loosing their urban Sinhala power base, President Rajapaksa is now willing to give up on. The 100 day long second FUTA struggle within an year, left a disappointed, disgruntled middle class both urban and rural. The policy issue of 06 per cent for State funded education raised by FUTA, did have its impact on parents, especially the middle and not very low social segments who take education as the most important requirement for social mobility. On the heels of it came the impeachment against the CJ, that dislodged the urban middle class from the Rajapaksa “fan book”. This time even the pro War Sinhala elements were jolted out of their “patriotic” comfort of supporting this Rajapaksa regime. The post war decency these urban gentlemen thought they could have under this romanticised Sinhala Buddhist Rajapaksa, is now proved indecently impossible.

President Rajapaksa is one who would not miss such shifting of loyalties and alliances. Yet he went ahead with his choice of appointing Mohan Peiris as the new CJ, despite his closest stooges publicly crying out against that choice. From Weerawansa to Vasudeava to Sarath N Silva and Dentist Amarasekera, this retired AG and Advisor to the Cabinet, Mohan Peiris a Christian, was not the favoured and the best choice. Yet it was, for Rajapaksa. He was after  proven talent in stooging.

Peiris was the Rajapaksa appointed Attorney General (AG) who amended charges in 02 court cases. One, to have Duminda Silva freed from being examined in a Court case for sexual abuse of a minor and two, to have Kesbewa SLFPer Kathriarachchi’s murder charges removed, for Kathriarachchi to have a 05 month suspended sentence. He is the Legal Advisor to the Cabinet of Ministers, who had the audacity to go in front of the UN Committee Against Torture as the official representative of this Rajapaksa regime and say, missing media activist Ekneligoda “….has taken refuge in a foreign country. .. it’s something that we are reasonably certain of.”

Later questioned in a Magistrate’s Court on a “habeas corpus” case filed by Ekneligoda’s wife, the same Mohan Peiris had no qualms, saying on oath, “I have no information that the corpus is alive or not and I do not think the government does either and that God only knows where Ekneligoda is”. Mohan Peiris is also accused of professional misconduct and for misuse of public office in a case that involves over 75 million rupees as tax and surcharge due to Sri Lanka Customs from Royal Fernwood Porcelain Ltd. He was retained by the company as its legal Counsel before Peiris was appointed AG. Its that quality the Rajapaksa regime now wants as CJ to sit over their issues on political power.

Rajapaksas know for sure, they would never have another election victory that could give them the possibility of putting together 150 MPs as government benchers for a two thirds majority in parliament. May be with all State power in their hands and with no effective opposition, they would still form a government. But with a government that can only have a very slender majority, the possibility of a few MPs exchanging loyalties would be too much of a risk for Rajapaksas. The safest therefore would be to go the JRJ way and if possible, even without a “Referendum”. That’s when the CJ and his SC becomes extremely important.

The same office becomes important again if President Rajapaksa decides to have a presidential election in 2014. As it is, with very conspicuous shifting of social loyalties against the regime and the economy clearly proving it is not growing as Cabral says, it would not be too surprising if Rajapaksa decides early presidential elections instead of a parliamentary election. The Constitution allows for presidential elections in 04 years and that would be after January 2014 or November 2014, depending on how he calculates his advantage. It would be safer to have the presidential elections early in a constituency that now has previous loyalties sliding away. It would be safe to get over elections before other social forces like the already agitated working class gets mobilised over wages and cost of living issues. He also knows best, the UNP can not field a presidential candidate more formidable than Wickramasinghe. A candidate, Mahinda Rajapaksa believes is no match for him in Sinhala peasant society, where numbers decide the winner. Thereafter his third term could commence, as interpreted by his own CJ appointee. It could be in November 2016, he swears to begin his third term.

This is what this whole impeachment saga was, politically and left all legal, constitutional and parliamentary supremacy irrelevant to the Rajapaksas. It may be a political gamble, but one this regime can not afford to avoid, if they wish to continue in power. Power is what matters and not how it is gained and maintained.

This leaves the question, “What can the people do, then ?” An answer has to be found. The present UNP and the JVP proves they don’t have answers, only rhetoric. The next step is thus a “people’s step” that needs a popular discourse on a programme.

“Besides the fact that tourists are not coming back in huge numbers, there are also many deep structural problems such as dependence on tourism over trade … Much of the Tunisian uprising was about jobs and social issues, but there was no sufficient change to really address the deep economic and social issues which is really fostering ‘Islamic radicalism’…(‘Saffron robbed fundamentalism’ is how this should be read here – KP)” Quotes on Arab Spring – [Source: Mike Hitchen online 2013-01-18 06:41:00]

That provides the reason why a realistic programme that could provide answers to fundamental issues – Democracy, Devolution and Development – is necessary here in Sri Lanka

ENSURE SAFETY OF FORMER CHIEF JUSTICE - EU

January 19, 2013 

The European Union has followed with considerable concern the recent impeachment process against Chief Justice Shirani Bandaranayake of Sri Lanka, EU High Representative Catherine Ashton said.

“The separation of powers is inherent in any democracy which respects the rule of law. It follows that the independence of the judicial branch cannot be made subject to actions by any other branch of government,” commented Ashton in a statement.

She called on Sri Lanka to ensure that its international obligations, and in particular the International Covenant on Civil and Political Rights, are implemented.

The EU foreign policy chief also urged the Sri Lankan government “to respect the right to peaceful protest and to ensure the safety both of Dr. Shirani Bandaranayake and of all human rights defenders.”

Impeachment And Intimidation: Law Council of Australia Urges Australian Government To Intervene

By Colombo Telegraph -January 18, 2013 

“I am writing to express the Law Council of Australia’s concern regarding reports of threats and intimidation against the legal profession and judiciary in Sri Lanka, and  to request that the Australian Government encourage the Sri Lankan Government to respect the important roles that an independent legal profession and the rule of law play in democratic societies. The Law Council is particularly concerned about recent reports that the Sri Lankan President, President Rajapakse, has dismissed Chief Justice Shirani Bandaranayake based on a process which does not appear to have been conducted in a fair or transparent manner.” the Law Council of Australia writes to the Minister for Foreign Affairs, Bob Carr.

Bob and Rajapaksa | Picture by Sudath Silva

“The Law Council considers the existence of an independent, impartial and competent judiciary to be an essential component of the rule of law.  The Law Council also considers that any impeachment process regarding judges must involve strict observance of the rule of law. Based on the information available to the Law Council, it does not appear that the process that the Sri Lankan Government has relied on to date to impeach the Chief Justice has involved such strict observance.” wrote Joseph J Catanzariti, the president of the Law Council of Australia.

“The Law Council is aware that the International Bar Association, the Bar Association of Sri Lanka, the Canadian Bar Association, the International Commission of Jurists, Commonwealth Lawyers’  Association, LAWASIA  and the Bar Human Rights Committee of England and Wales have expressed concern about the impeachment proceedings against the Chief Justice. The United Nations Special Rapporteur on the Independence of Judges and  Lawyers,  has  raised similar concerns in this regard.” he further wrote.

Read the original letter here

UK should exert pressure on Sri Lanka: BTF

[TamilNet, Friday, 18 January 2013, 21:28 GMT]
Referring to the systematic repression and attacks on Eezham Tamil political activists, civil society and students by the Sri Lankan state, the BTF called on the British government to “to exert serious diplomatic pressure on Sri Lanka.” Speaking to TamilNet, BTF Coordinator Ravi Kumar said that since the so-called ‘independence’, concentration of powers in the Sinhalese rulers has systematically increased and that after a successful genocidal war on the Tamil nation in 2009, now all powers in the Sri Lankan state, executive, legislative and judicial powers are concentrated under the President. “Under such circumstances, UK and the International community should not focus on internal mechanism to provide justice to the Tamil Nation. This is the time for the UK government to call for an external mechanism towards an international independent investigation,” he added. 

The full text of the British Tamils Forum release follows:

Ravi Kumar

UK must exert serious diplomatic pressure on Sri Lanka Sri Lankan State is systematically suppressing the defiant voice of Tamil people in the Island of Sri Lanka. Continuous attack on University Students, Press and systematic suppression of Tamil political leadership must be stopped immediately.

Jaffna University Students arrests, recent attack on Uthayan Daily News distributer, Sri Lanka’s Terrorist Investigation Division’s (TID) summons to the leader of Tamil National People's Front (TNPF) Gajendrakumar Ponnambalam and raid on Tamil National Parliamentarian S Shritharan’s constituency office were systematic and calculated attacks to suppress the last remaining defiant voices of Tamils in the Island of Sri Lanka.

The British Tamils Forum urges Her Majesty’s Government to exert serious diplomatic pressure on Sri Lanka. The last week’s impeachment of chief justice has once again highlights the grave dangers of evolving Sri Lankan dictatorship.

University Students were arrested on baseless charges and sentenced to rehabilitation without any legal proceeding or produced in the court of law.

Uthayan paper was under attack several times in the past; journalists have been killed, attacked and abducted.

Members of Tamil political parties have been continuously intimidated in various forms by the Sri Lankan government and its military. Recently on 26 December 2012, TID sent summons to Tamil National People’s Front (TNPF) President, Gajendrakumar Ponnambalam, asking him to be present at its investigating office in Colombo on Saturday for inquiries.

Raid on Mr Shritharan MP’s office comes after the withdrawal of his office police protection in December 2012 by direct orders from the Defence Secretary Gotabaya Rajapaksa, brother of the President Mahinda Rajapaksa. Despite of various international and local efforts made by the foreign governments and NGOs including the involvement of the British Foreign and Commonwealth office Mr Shritharan’s police protection to his office has not been restored.

Mr Shritharan a TNA elected representative of Jaffna electorate narrowly escaped an assassination attempt On 7 March 2011 and yet no one has been charged in relation to this incident. In the past critical Tamil political representatives were assassinated to silence voices exposing the State oppression of Tamils.

International community has to realise the fact that the separation of power doesn't work in Sri Lanka. All the institutions have been brought under the direct control of Executive Presidency. Current developments clearly prove once again that any internal remedying mechanism (Judicial process) cannot work independently. This is akin to asking Hitler to investigate the crimes he committed against Jewish people. This is why; the international community has to establish external investigative mechanism to investigate the war crimes, crimes against humanity and acts of genocide committed in Sri Lanka. Also, the international community should intervene and protect the people to raise their voice in non violent means.

Moreover, we call upon the international community, establishments and Tamil Political organisations to prioritise this fundamental right of ‘right to live’ before engaging on political efforts with Sri Lanka.

While this is one of the upmost priority, to save the defiant voices of Tamils we should not fall into the Sri Lankan States diversion tactics. Once again we call upon international institutions and the United Nations to immediately pass a Security Council resolution to establish a tribunal to investigate continuous crimes against humanity and the crime of genocide of Tamils in the Island of Sri Lanka.

UK Bar Raises Grave Concerns At The Decision To Remove The CJ

By Colombo Telegraph -January 19, 2013 

The Bar Human Rights Committee of England and Wales (BHRC) raises grave concerns at the decision of the President of Sri Lanka, Mahinda Rajapaksa, to remove the Chief Justice, Shirani Bandaranayake, following an inquiry by a Parliamentary Select Committee which the Supreme Court has held to be unconstitutional.

CJ Shirani

Issuing a statement BHRC says; “The BHRC recalls its statement of 2 January 20131* expressing serious concerns about the inquiry conducted by the Parliamentary Select Committee (PSC), including findings made on 7 December 2012 that the Chief Justice was guilty of misconduct. The BHRC notes that many of these concerns were shared by the international community, including the United Nations Special Rapporteur for the independence of the judiciary and lawyers*.”

“On 1 January 2013, the Supreme Court of Sri Lanka ruled that the establishment of a PSC by Standing Order rather than by primary legislation was unconstitutional. The Supreme Court determined that the PSC had no legal power or authority to make a finding adversely affecting the legal rights of a judge. In so doing the Supreme Court echoed concerns expressed by the UN Human Rights Committee in December 2003 that the procedure for the removal of judges under the Sri Lankan constitution is ‘incompatible with article 14 [of the International Covenant on Civil and Political Rights], in that it allows Parliament to exercise considerable control over the procedure for removal of judges.’*”

“On 7 January 2013, the Court of Appeal of Sri Lanka, exercising writ jurisdiction, applied the Supreme Court decision and quashed the findings of the PSC as having no legal validity.On 10 and 11 January 2013, Parliament debated the findings of the PSC report and an impeachment motion against the Chief Justice and voted to impeach the Chief Justice by a majority of 106 votes (155 voting for; 49 against). On 13 January 2013, President Mahinda Rajapaksa dismissed Chief Justice Bandaranayake with immediate effect.”

“The BHRC reiterates that an independent judiciary, free of any interference from the executive and legislative branches, is a necessary precondition for the fair administration of justice and the promotion and protection of human rights. Furthermore, the principle of separation of powers is an essential component in any democratic society operating under the rule of law. “

“Indeed, in its order of 2 January, the Supreme Court of Sri Lanka cited the judgment of Sharvananda J in Visuvalingam v. Liyanage (1983) 1 SLR 203: The Rule of Law is the foundation of the constitution and independence of the judiciary and fundamental human rights are basic and essential features of the constitution. It is a lesson of history that the most valued constitutional rights pre-suppose an independent judiciary through which alone they can be vindicated.”

“The BHRC deprecates the Government of Sri Lanka’s disregard for the rulings of the Supreme Court and the Court of Appeal by acting to remove Chief Justice Bandaranayake from office on the basis of the PSC report. Due process declared the PSC report to have no legal validity; serious issues were raised -and ignored -with respect to basic fair hearing proceedings before the PSC. The Government of Sri Lanka has acted in breach of the country’s constitution and in apparent flagrant denial of the fundamental rule of law.”

1 Bar Human Rights Committee Statement: Sri Lanka: Impeachment of Chief Justice, 2 January 2013:

http://www.barhumanrights.org.uk/sites/default/files/documents/news/sri_lanka_statement_jan_2013_0.pdf

2 UN Special Rapporteur for the Independence of Judiciary and Lawyers, Statements of 14.11.12 and 31.12.12  http://www.ohchr.org/en/NewsEvents/Pages/NewsSearch.aspx?NTID=PRS&MID=SR_Independen_Judges.

3 UN HRC concluding observations of Dec 2003:

http://www.unhcr.org/refworld/publisher,HRC,,LKA,3fdc69a67,0.html

Related news;

‘We Hope Decision Of The Court Of Appeal Will Be Respected And Complied With’ – UK Bar

VIDEO: STILL SEEKING JUSTICE FROM JUDICIARY - SANDYA EKNELIGODA

Sandhya Eknaligoda, wife of disappeared journalist Prageeth Eknaligoda, today stated that there is a connection between the disappearance of her husband and newly appointed Chief Justice Mohan Peiris.

January 19, 2013 
She observed that the former Attorney General giving evidence at the UN Committee Against Torture (CAT) in Geneva claimed that Prageeth is believed to be living in exile in another country.  

However, after returning to the country he appeared before court and stated that he does not remember who the source of his information was and that “only god knows” the whereabouts of Eknaligoda, she said.

“I am still seeking justice from Sri Lanka’s judiciary. I will now have to ask Mohan Peiris for justice.” She said addressing the media in Colombo today.

Sandhya Eknaligoda further stated that it has been almost 3 years since her husband disappeared and that she is still waiting for his return.

“Please inform me when Prageeth will be returned to me, how you will ensure that justice will be served by the judiciary,” she pleaded to the Members of the Parliament and the Speaker. 

A cartoonist, political analyst and journalist, Prageeth was apparently abducted on his way home from office and has not been seen since 24 January 2010.

OHCHR press briefing note - 1) Mali 2) Sri Lanka 3) Zimbabwe 4) Iran

Saturday, 19 January 2013

The UN High Commissioner for Human Rights Navi Pillay is deeply concerned that the impeachment and removal of Sri Lanka’s Chief Justice has further eroded the rule of law in the country and could also set back efforts for accountability and reconciliation.

The removal of the Chief Justice through a flawed process -- which has been deemed unconstitutional by the highest courts of the land -- is, in the High Commissioner’s view, gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka.

Chief Justice Shirani Bandaranayake was served notice of her dismissal and removed from her chambers and official residence on Tuesday (15 January), in spite of a Supreme Court ruling that the parliamentary procedure to remove her violated the Constitution.

Sri Lanka has a long history of abuse of executive power, and this latest step appears to strip away one of the last and most fundamental of the independent checks and balances, and should ring alarm bells for all Sri Lankans.

The jurist sworn in by the President as the new Chief Justice on 15 January, the former Attorney-General and Legal Advisor to the Cabinet, Mr. Mohan Peiris, has been at the forefront of a number of government delegations to Geneva in recent years to vigorously defend the Sri Lankan government’s position before the Human Rights Council and other human rights mechanisms. This raises obvious concerns about his independence and impartiality, especially when handling allegations of serious human rights violations by the authorities.

We are also concerned that the impeachment process has caused bitter divisions within Sri Lanka, and that it sends an ominous signal about the Government’s commitment to accountability and reconciliation. It flies in the face of the strong calls by the Lessons Learned and Reconciliation Commission, and by leaders of Sri Lanka’s civil society and legal profession, to rebuild the rule of law which has been badly eroded by decades of conflict and human rights violations.

Just this morning we have received alarming reports from the Independent Bar of Sri Lanka of a series of death threats, acts of intimidation and even a couple of reported murder attempts against lawyers who have been supporting Chief Justice Bandaranayake, and the rulings of the Supreme Court and Court of Appeal on her case.

The High Commissioner will be issuing a report on Sri Lanka at the February-March session of the Human Rights Council, focusing on the engagement of UN mechanisms in support of the accountability and reconciliation processes.

The Country Has Two Chief Justices, I Don’t Accept Either – Sarath Silva

By Colombo Telegraph -January 18, 2013 

For the first time in its history, the country has two Chief Justices, which further damages the Judiciary, says former Chief Justice Sarath N. Silva. “I don’t accept either” said Sarath N. Silva when asked whether he thinks there are two Chief Justices at the moment and who is he willing to accept as Head of the Judiciary? “I believe there should be an entirely new person. I supported the Government on the question that the Chief Justice should answer and the Courts proceedings were hasty. My perception is that in this situation the Government should have considered the most senior person in the Supreme Court. This is why I say I don’t recognise either. If the Government wants Mohan Pieris as the Chief Justice and if it is hell bent of getting him, let them get him. But at least give a breathing period till the judicial system can settle down.” he further said.

Sarath N. Silva

Sarath N. Silva made above remarks in an interview with Daily FT journalist Chamitha Kuruppu.

Sarath N. Silva said;”With due respect to him, more than anything else, Mohan Pieris was seen as a Government spokesperson, especially at international forums and especially in matters relating to the United Nations Human Rights Council. This is a very serious situation. A Government spokesman will naturally have to oppose any allegations of human rights violations. There is nothing wrong in getting former Attorney General Mohan Pieris to defend the Government’s stand. He has been doing this since he was the Attorney General, which I believe is not correct. That should have been a diplomatic exercise, not an Attorney General’s exercise.”

We reproduce below the interview in full;

Q: How would you describe the present situation with regard to the country’s judicial system?

A: I see this as a turbulent period. This is something we have never experienced before. For the first time in the history of this country, we have two Chief Justices. The person who was purportedly removed also claims to be the Chief Justice. There is also a new appointee made hot on the heels by the President.

This whole process has been fast tracked from both sides. The Government also fast tracked this process. They lost no time in presenting the motion of impeachment and taking action. On the other hand, the lawyers and other public who supported the Chief justice also fast tracked. They went immediately to Courts. It is like a battle of two fronts.

I have absolutely no stake in this business but what I see as an independent observer is that both sides want to overtake the other. The Courts made a request for Parliament to stop, but Parliament went on regardless, as a result of which this whole thing got fast tracked.

There are certain charges that were presented. That was a matter of discipline. There has to be an inquiry. All these facts are documented. The Government need not fight shy of an inquiry. If the documents make out the charges they are supposed to make out, then there should be no need for an expeditious process.

On the other hand, it is the duty of the Chief Justice to explain. You can’t continue to hold office when there are such questionable matters. I am not saying for a moment that she is guilty of everything what is said. But I have perused that there are certain things that should be necessarily answered.
Under the system as it prevails this answering should have taken place in the Select Committee. We can’t change the procedure now. This procedure has been there from 1984. Now at this moment the Government can’t remove the Standing Orders and enact a new law because that law won’t have retrospective effect. Therefore that is also not a feasible solution. In my view, with great respect to the Courts, what was said in the Courts is not feasible. You can’t now enact a law and then start this same procedure; it is impossible. Normally it would be prospective; it applies to the future.

There were two distinct positions; Courts saying that there should be a law and Parliament saying that we can continue. The outcome is that we are in a situation of having two Chief Justices, which is a sad thing for the Judiciary and for the independence of the Judiciary. I believe that even at this late stage some remedial action should be taken.

Q: What are your views on the appointment of Mohan Pieris as the Chief Justice?

A: This is a hasty appointment. Appointing a person from outside as the Chief Justice cannot be accepted. With due respect to Mohan Pieris, he was a person who was in the Attorney General’s Department for about 15 years, then retired under a retirement scheme. When he retired he was a Senior State Counsel of the Attorney General’s Department. When someone retires under that scheme he should not assume public office. But somehow he was appointed Attorney General by the President.

At that time there was no Constitutional Council. So his appointment was challenged immediately by persons and case was pending. Then they enacted the 18th Amendment, which regularised this appointment. So the 18th Amendment really helped Mohan Pieris and the then Chief Justice Asoka Silva because his appointment was also made without the approval of the Constitutional Council. It is in such circumstances that Mohan Pieris continued as the Attorney General.

With due respect to him, more than anything else, Mohan Pieris was seen as a Government spokesperson, especially at international forums and especially in matters relating to the United Nations Human Rights Council. This is a very serious situation. A Government spokesman will naturally have to oppose any allegations of human rights violations. There is nothing wrong in getting former Attorney General Mohan Pieris to defend the Government’s stand. He has been doing this since he was the Attorney General, which I believe is not correct. That should have been a diplomatic exercise, not an Attorney General’s exercise.

Now the general perception is that Mohan Pieris is a person who defends the Government. In that situation, when the Government promptly appoint him as the Chief Justice, the perception is that the Government is now expecting him to continue defending them. I am not saying these are essentially the facts, but this is the perception. However, an ordinary person will pursue this as an effort on the part of the Government to install the person who is favourable to them, especially in respect of alleged violations of human rights at the helm of the Judiciary.

Now that perception is very difficult to erase. We have in our system a cardinal principal of law that ‘justice will not only be done, but must be seen to be done’. These perceptions are very important. When you get a person who has been defending you against allegations of human rights as the person who is now going to decide on that, the perception is that the Government is having its man as the final arbiter. That is the serious thing I am concerned about.

These challenges and counter challenges will go on. But from the Government’s point of view, some serious action must be taken if it is going to redeem its position in the international arena. I saw the Canadian Prime Minister himself has made certain observations. Now these are alarm bells that the Government should be concerned about. You can’t be in war with the international community all the time.

Q: A new Chief Justice has already been appointed. How can the Government rectify this?

A: That is exactly why I said the Government has fast tracked this. I don’t approve that. The rectification is the most difficult situation. Mohan Pieris has rushed to accept this appointment. That is not a wise thing to do. On Tuesday I saw these ugly scenes on television when Dr. Shirani Bandaranayake was not allowed to leave her residence. That is something that is not meted out even to the lowest level of employee. You have to give some time to leave with some respectability.
This Government must stop dealing with the former Chief Justice in this shabby manner. I think it is necessary to speak to her even at this stage and find out a dignified exit for her, which I hope should be voluntary. Then of course recreate these whole steps.

Now there is a Court order and the Government can’t just ignore that. I don’t agree with some of the findings of the Courts but we are duty bound as citizens to honour the verdicts of the Courts. Finally we have to accept the order of the Courts.

Q: Do you also think there are two Chief Justices at the moment? Who are you willing to accept as Head of the Judiciary?

A: I don’t accept either. I believe there should be an entirely new person. I supported the Government on the question that the Chief Justice should answer and the Courts proceedings were hasty. My perception is that in this situation the Government should have considered the most senior person in the Supreme Court. This is why I say I don’t recognise either.

If the Government wants Mohan Pieris as the Chief Justice and if it is hell bent of getting him, let them get him. But at least give a breathing period till the judicial system can settle down.

Q: Who are these suitable people who are fit to be the Chief Justice?

A: There are very senior judges. Justice Shirani Thilakawardena, who was an experienced officer in the Attorney General’s Department. She was a High Court Judge for a long period, Judge of the Court of Appeal, President of the Court of Appeal, and Judge of the Supreme Court for several years. So is the record of Amarathunga, who is there for just for a few months. So is the record of Saleem Marsoof, if we go by seniority. They are highly competent and highly educated persons. So is the record of Siripala. So we have people from all races. With this wide array they should have followed the seniority principal. Then no one can find fault.

There are incidents where they appointed the Attorney General to the position. That is how I came in. I came in a situation of a normal retirement. But today the ideal situation would have been to take the most senior person so that each one would have had one year or a few months. Then the Judiciary would have started flowing in its normal streams without causing these ripples, which have become whirlpools.

Q: Are you saying the Government still has the possibility to appoint a more suitable person for the post of Chief Justice?

A: Now what is going to happen is that they are going to file action in defence of this. This is where they question the authority of the person holding office. That is a remedy that is available.
Earlier there was no remedy against Parliament but there is remedy against the holder of the office. Now they are on a fairly safe track. In that proceeding at least some settlement can be entered into and then the verdicts of the Court can also be honoured. Then we can regularise this process.
Someone has to take a step back. The former Chief Justice also should realise that she cannot go on claiming to be the Chief Justice. With this kind of public exposure, now she cannot grace that office.

Q: Do you accept the manner in which the legal fraternity was involved in this entire struggle?

A: They are being quite emotional. May be they are well-intentioned. They want to uphold the independence of the Judiciary. I have no problem about that. But sometimes they are also taking hasty action. You must reflect on the broader picture.

I have been reflecting on the broader picture and I have been subject to heavy criticism. Some are saying that I am trying to accept office from the Government. I will never accept any office. Not from the Government, nor from the private sector, and not from anybody. However, I feel that a settlement should be arrived at within the framework of the law. If the settlement comes through Courts, then it is an excellent situation.

Now they are filing cases. They will keep on filing cases. In one of these cases there should be some settlement and Court will make an appropriate order on that. Then the ideal situation is that the appointment be made based on seniority. Let Mohan Pieris also come to the Supreme Court if he wants, but not as the Chief Justice at this present juncture.

Q: Are you saying Mohan Pieris should not have accepted this appointment?

A: Yes, he should not have accepted this appointment. You must give time for the former Chief Justice to leave. You don’t rush into office like that.

The former Chief Justice has to clear her chambers. She is not a person who retired under normal circumstances. Dr. Bandaranayake had no time to wind up. There must have been judgements to be signed. My ideal choice is that Dr. Bandaranayake should hold office and take leave and an acting person could have carried out the duties until things settle down. Later on Mohan Pieris or someone, on deep reflection, should assume this office. Instead of that, what have been done is entirely wrong.

Q: You were involved in this process from the beginning. People didn’t only question your involvement, but they also criticised the fact that you adopted different stances on various instances. Your comments?

A: At the beginning I was opposed to the impeachment process. Then I met the President after a long time. I told him and made a request not to do this. Then the President said there are serious charges against Dr. Bandaranayake. Then I told him that they should talk to Dr. Bandaranayake and I left at that. After meeting the President, addressing the media I said that the general perception is that the impeachment motion seems to be a result of the Z score judgement and Divi Neguma Bill. That was my reservation.  But when the charges came I found that Dr. Banadaranayake had some matters to answer. These are documented. So her explanation must come. She must answer. She must take a positive stance whether she is prepared to answer this or otherwise if she has a doubt on that to come to some adjustment.

I was not in favour of collateral proceedings in the Judiciary at that time. I felt that there cannot be proceedings in both places. Then there was bound to be a clash. That was the principal stand I took at that time. And that went on. Events overtook everything else. So hurriedly this was passed. And then I felt it was time for reflection. This was the time I felt the Government had acted hastily, imposing this whole thing on former Chief Justice Dr. Bandaranayake. She took some precipitous actions.
In appointing Mohan Pieris as the Chief Justice, the Government took even more precipitous action. That I don’t endorse at all. As and when an issue arises, I respond. I strongly believe that some kind of solution must be evolved, so that finally there should be a settlement – not only a political one, but also a judicial settlement.

Q: This entire process has caused a lot of damage to the judicial system in the country. How would you describe the future of the judicial system?

A: The immediate future is disturbed. Public perception is badly damaged. This is why I say there should not only be a political solution. So far there has only been a political solution. There should be a legal and judicial solution. Everybody must take a step back and allow wiser counsel to prevail. My ideal suggestion is that a breathing period should be given, so that the former Chief Justice can wind up her affairs but not function as Chief Justice.