Monday, January 21, 2013

Shirani can get her security back – Police

By Binoy Suriyaarachchi-2013-01-21

Impeached Chief Justice, Dr. Shirani Bandaranayake, can get her security reinstated, if she makes a request to the relevant officials, Police Spokesperson, SSP Prishantha Jayakody told Ceylon Today.

Dr. Bandaranayake was provided with seven police guards while she was serving as the Chief Justice. All of them were withdrawn after she was impeached.

He said, “If she requests for security it could be provided without any delay.”

The spokesperson pointed out the ousted Chief Justice had neither requested nor lodged a complaint with the police, claiming she required her security back. However, sources close to Dr. Bandaranayake said she had already appealed to Inspector General of Police, N.K. Illangakoon, in a letter requesting to reinstate her security.

When Ceylon Today questioned the Police Spokesperson he said such a request has not been made yet and added the police regularly take steps to withdraw security of judges and even the Chief Justice, after they retire or resign from their posts, and security would only be afforded if they request it officially.

Foreign Policy Chief of the European Union, Catherine Ashton, in a statement urged the Sri Lankan Government to respect the right to peaceful protest and to ensure the safety of both impeached Chief Justice and all human rights defenders.

When Dr. Bandaranayake was leaving her house at Wijerama Mawatha, Colombo recently she said, “My life and the lives of my family members are in danger.”

Female lawyer supporting ex-CJ strangled

Published on Monday, 21 January 2013 13:38

Mirror

(Mirror) – A female lawyer who has supported the impeached chief justice Shirani Bandaranayake has been strangled by a stranger on the road, Lawyers Collective member Sunil Watagala said.

She had gone to Kirulapone police station to lodge a complaint regarding an assault of a person and his mobile phone being dashed to the ground, at court premises.

On her way back, a motorcyclist had stopped her vehicle and told her to down the shutters and strangled her.

She had honked her horn and people had assembled, when the assailant had fled.

Mr. Watagala declined to reveal the name of the female lawyer, as she is in a state of shock and fright.

He said leading lawyers Jayampathy Wickramaratne, Romesh de Silva and MP M.A. Sumanthiran have received threatening letters for having supported the sacked CJ.

Lawyers have decided to collect signatures for public petitions seeking protection for their threatened colleagues.

Transparency International director Shan Wijetunga said they have also asked the government to provide protection to lawyers who had supported the ex-CJ.

Colombo hosting CHOGM hangs in the balance?

With Canadian plans to report Sri Lanka

January 19, 2013, 7:17 pm

By Sujeeva Nivunhella in London

With Canada planning to report Sri Lanka to the Commonwealth Ministerial Action Group (CMAG) following the impeachment of Chief Justice Shirani Bandaranayake, the chances of Colombo hosting the Commonwealth Heads Of Government Meeting (CHOGM) this year appears to hang in the balance, observers here warned last week.

Canada initially accused for its human rights record and threatened to boycott the CHOGM summit, to be held in Colombo from November 15-17, if there was no improvement.

The next CMAG meeting is scheduled to be held in London in April this year. The Sunday Island learns that Canada has already written to CMAG members seeking their intervention to place Sri Lanka on the agenda of the forthcoming CMAG session.

If Canada succeeds, the investigation process would take months and years in which time Sri Lanka will not be able to vote in any Commonwealth meetings. If that happens the Commonwealth Secretary-General Kamalesh Sharma has no option than to cancel Sri Lanka holding the summit, the observers noted.

If Sri Lanka is edged out, Mauritius has shown interest in hosting this key parley.

The current members of CMAG are Australia, Bangladesh, Canada, Jamaica, Sierra Leone, Tanzania, Trinidad and Tobago, Vanuatu and Maldives. However, Maldives now cannot participate in the sessions as the country is under investigation following the resignation of President Mohamed Nasheed on February 7, 2012.

According to the CMAG website, CMAG was established by Commonwealth Heads of Government in Auckland, New Zealand, in 1995. It deals with serious or persistent violations of the Harare Declaration, which contains Commonwealth’s fundamental political values.

CMAG’s task is to assess the nature of infringements and recommend measures for collective Commonwealth action aimed at speedy restoration of democracy and constitutional rule.

The Group is convened by the Commonwealth Secretary-General and made up of a representative of the Commonwealth’s Chairperson-in-Office and a rotating group of foreign ministers from eight countries. It is reconstituted at every Commonwealth Heads of Government Meeting. Ministers generally serve two terms. CMAG’s composition, terms of reference and operation is decided and reviewed every two years.

CMAG was given an enhanced mandate at the 2011’s Commonwealth Heads of Government Meeting in Perth, Australia.

CMAG has remained a unique body since it was established. Its authority to suspend a member country from the association is unique amongst international organizations.

It can be convened by the Secretary-General when required to deal with a perceived violation of the Commonwealth principles and values. CMAG meets annually in the margins of the United Nations General Assembly in New York. It can, however, meet in extraordinary session, when required.

A Swift First Step: AG Appeals SC Decision Over Turned

By Colombo Telegraph -January 21, 2013

The Attorney General today appealed to the Supreme Court to appoint a five judge bench to reconsider the ruling given by a three judge bench last month to allow lead to proceed in a case where three petitioners had asked that Parliamentary standing order 78A- under which Chief Justice Shirani Bandaranayake was tried and impeached – be declared null and void, the Sunday Times reports.

Attorney General

The newspaper said; “Senior Lawyer MA Sumanthiran who appeared for the petitioners in the earliar Supremem Court case said the new Chief JusticeMohan Peiries had not been legitimately appointed and was a usurper. Heobjected to the Attorney General’s application for a hearing by a divisional bench which would be appointed by the new Chief Justice. The bench which heard the case today refered the issue to the new Chief Justice.”

According to the Sunday Times, legal analysts said today’s move appeared to be a swift first step by the government to legalise what the Supreme Court declared to be illegal and unconstitutional, when it last month heard the petition challenging the impeachment process and the parliamentary select committee trial against Ms Bandaranayake.

FUTA Condemns Patriotic Taskforce’s Death Threats Against Lawyers

By Colombo Telegraph -January 21, 2013

FUTA unreservedly condemns the recent death threats made against activist lawyers by a group calling themselves the ‘patriotic taskforce’, says Dr. Rohan Fernando, the General Secretary of the Federation of University Teachers Association.

Issuing a statement the FUTA says; “The crisis generated by the impeachment launched against Chief Justice Shirani Bandranayake and the consequent actions of the government flouting the decisions of the judiciary have given rise to an extremely serious situation. The deployment of armed thugs by parties supporting the impeachment and the inaction of the police in controlling the situation have arguably given rise to speculation that these actions are being supported by those in the highest positions of authority. Sri Lanka barely 3 years ago came out of an extremely violent civil war. The country cannot afford more civil unrest. However, incendiary statements made by public figures purporting to be supporters of the ruling regime may generate the kind of violence that could easily spiral out of control. That leading members of the government are silent on these issues is extremely alarming.”

“FUTA has always stood for democratic values and the right to dissent. During the recent FUTA trade union action, many of its members were also intimidated and threatened and FUTA looked to the judiciary and the law enforcement authorities for protection. It is extremely worrying to note that these very institutions and persons are now being attacked. It suggests an intolerance and level of suppression that is not worthy of a country that claims to be democratic and respectful of human rights. FUTA calls upon the law enforcement authorities to conduct impartial inquiries into these threats and for the government to take strong action against those who incite violence in the name of patriotism and loyalty to the ruling regime.” the FUTA further says.

Photo courtesy CPA/Vikalpa

Sri Lanka: Is Delhi Dumb?

Guest Column: Dr Kumar David

Dumb is used to describe a person who is bereft of brains, and of course its literal meaning is to be deprived of the faculty of verbal articulation. Not many people fit both definitions at the same time, but the Government in Delhi has managed a Double First! The international community (IC) has expressed itself in no uncertain terms and the governments of the United States, UK, Canada, and even Australia in low key because of other sensitivities, International Commission of Jurists, UNHCR, International Crisis Group, Asian Human Rights Association, Bar Associations of several countries including UK and even Indian newspaper leader writers. There has been universal condemnation and expressions of shock at the flagrant violation of the constitution, an unheard of kangaroo-trial of a Chief Justice (CJ), a witch-hunt, and finally a lynching by Executive President Mahinda Rajapakse and the sycophant parliament that kneels before him. Through it all Delhi has remained brain dead and voiceless!

The common explanation is that India has enough on its plate both internally and with Pakistan and China that is does not want anymore and does not wish to intervene in the internal affairs of a neighbour. This is unacceptable when matters go so much out of hand that the fabric of democracy is ripped and freedom of life and liberty of the people of Lanka imperilled. Don’t take my word for it; here are abbreviated extracts from what an international body located in Geneva, the Office of the UN High Commissioner for Human Rights, with no particular axe to grind on behalf of CJ Shirani Bandaranayke, stated on 18 January.

“The removal of the Chief Justice through a flawed process is gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka. Chief Justice Shirani Bandaranayke was served notice of her dismissal and removed from her chambers and official residence on 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."

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.

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 Bandaranayke, and the rulings of the Supreme Court and Court of Appeal on her case”. END QUOTE.

And this is by no means the strongest statement made by international commentators; it seems that the Government of Canada has decided to boycott the Commonwealth Heads meeting scheduled for late this year in Lanka and has been backed by the Canadian Bar Association in the decision.

It would be too repetitive to summarise what has happened in the last four months or to add to the avalanche of criticism. Indian readers will find a good cross section of views and comments and a ball-by-ball commentary of events on the Colombo Telegraph website (www.colombotelegraph.com/). Those who do not have time to go to original sources must take my word for it; flagrant trampling underfoot of the constitution, a rushed, botched “trial” by a parliamentary select committee that violated the norms of natural justice, and a comedy in parliament where a government Minister (Vasudeva Nanayakkara, MP) even shouted “We have told the judiciary to go to hell.”

And why did Rajapakse fling the Chief Justice out? The reason is that when the Divineguma Bill came to the Supreme Court for determination of its constitutionality, a three judge bench presided over by the CJ decided that it was inconsistent with the constitution and would need a 2/3 majority for passage. I discussed the Bill (now enacted) in this column on 26 October 2012 (“Queer happenings in Serendib”; Paper 5265) and pointed out that thereafter 64% of the budget of the Sri Lankan government is controlled by departments and/or ministries under three of the siblings (Mahinda, Basil and Gothabaya Rajapakse). The fourth sibling Chamal Rajapakse, parliamentary speaker, steered the impeachment through the House. His Master’s Voice cabinet ministers have now been instructed to tout his name as the next Prime Minister. Even a hat-trick is not enough for these power gluttons; they want all four top-order slots.

However, these were not the grounds on which the Supreme Court held that the Bill violated the constitution. That was because it attenuated the powers of the Provincial Councils and infringed on the Thirteenth Amendment. This is a matter that should interest India, but does not. In a rather chronic David and Goliath act, it is Delhi that has become the vassal of Colombo. The latter can do no wrong in Delhi’s eyes. My guess is that India is anxious about Colombo because the latter may reveal information about Delhi’s aid to Sri Lanka in the 2007-09 civil war that will destroy the Congress in the Tamil Nadu electorate. Otherwise there is no adequate explanation for India’s deaf and blind stance, complementing its dumbness.

A worst case scenario

Sri Lanka, god forbid, seems close to a worst case scenario; a new constitution entrenching the worst elements of autocracy, media control, infringement of political freedoms and, I don’t know how they are going to formulate it, but something equivalent to life-presidency for Mahinda Rajapakse. Every few days there is a “leak” of government “thinking”, meaning the public is being softened for what is coming. It has “leaked” that the tenure of the current parliament, due to expire in 2016, will be extended to 2023; it has “leaked” that the division of powers between the Executive, Legislature and Judiciary is not well arranged and should be “rationalised” – meaning the now powerful Executive is to be given dictatorial powers; it has “leaked” that the lower judiciary (magistrates) will no longer be under the control of the Judicial Services Commission but under the president, and so on. I do hope foreign readers will not take it as scare mongering when I say a truly alarming situation may be taking shape.

The regime is crafty and will capitalise on unpopularity and antipathy to the current constitution (the JR Jayewardene, 1978 Constitution) to sell its repugnant alternative. “Why, all of you rejected the JR Constitution and now when we bring you a shining new one, you childishly reject it!” That is the cunning trick that will be used to catch democratic critics with their pants down. It seems that this regime will go all the way to provoking an uprising, and counts it can crush it by force. It is confident that a Lankan Spring, were it to come, can be turned to winter on the barrel of a gun.

The international community, unfazed by Delhi’s truancy, should do all it can to aid the people of Lanka preserve what they have left of 60 years of albeit imperfect democracy before it is shackled further.

NfR holds the government accountable for any violence that may take place against pro democracy lawyers or independent judges

Sunday, 20 January 2013

(NFR’s statement on the need to re-establish the rule of law and the independence of the judiciary following the illegal impeachment of the Chief Justice.)

NfR Sri Lanka, a net work of Sri Lankan journalists and human rights defenders, believes that the time has come for all Sri Lankans to come together to vehemently denounce the present regime’s moves following the illegal impeachment of the Chief Justice Shirani Bandaranaike, which has negated the power of the judiciary.

By such an action the Government has taken away the confidence people had in the judiciary to obtain redress when their rights a violated, and has unleashed terror campaign against all forms of dissent against the Government.

The regime not only disregarded the judgements of the highest court of Sri Lanka regarding the impeachment process but has also openly encouraged thugs and unruly mobs whom they mobilized against legitimate democratic protests in the country.

The Judges who upheld the independence of judiciary and the senior lawyers who led the pro-democratic campaigns against the illegal impeachment process have been threatened with death. So far four eminent lawyers have received letters with death threats. Even Chief Justice Shirani Bandaranayke has expressed fear that violence may be directed against her and her family. NfR condemns these intimidatory tactics and death threats, and holds the government accountable for any violence that may take place against such persons.

By disregarding the ruling of the courts that the impeachment process against the Chief Justice is unconstitutional and by unleashing its goon squads on protestors, the regime has once again revealed that it will continue to act with impunity against those who indulge in legitimate protests.

The Government has proceeded to appoint Mohan Peiris to the post of Chief Justice despite opposition to such a move by many among who was one of the Cabinet Ministers. He is a man who had deliberately lied to the UN in defense of Sri Lanka’s human rights abuses, and is yet to extricate himself from that untruthful statement. He had claimed that journalist Prageeth Ekneligoda who is missing since January 2011, is alive and living in a foreign country. While he was the Attorney General, he had withdrawn serious charges against persons who happened to be associates of the government who were on remand pending trial, without giving any valid reasons for doing so. Recently, even a complaint had been lodged against him at the Bribery Commission. The fact that he was serving as the Chief Legal Adviser of the President, is enough proof of his proximity to the regime.

By the appointment of such a person as Chief Justice, the Rajapakse regime has blatantly ruined the image of an independent judiciary which was until then one of the few democratic institutions that remained in the country. This regime continues to thumb its nose at every democratic institution in the country, and pays no heed to the concerns raised by persons of eminence locally or the international community that is seeking accountability for war crimes and the implementation of a genuine process of reconciliation to the ethnic conflict that has seen thousands killed and displaced.

The emerging scenario in the South of the disregard for the rule of law and rule by threats and intimidation is the situation that existed in Tamil dominated North and East for quite some time. This scourge has now spread to such an extent in the South that even local government members of the ruling party are complaining that Minister Mervyn Silva is behind many murders and is plotting to kill some of them. Further the Tamil and Muslim communities are at the receiving end of government sanctioned Sinhala Buddhist extremism. Even though incidents such as the breaking down of mosques have taken place in broad daylight, no action is taken against the perpetrators.

NfR reiterates that there cannot be democracy in the country while North and East of the country are under the military rule. Lately the military have even been appointed as teachers in some of the schools in the North. The impeachment process disregarding court orders, mob rule, death threats, illegal arrests, slander campaigns etc., are nothing but a continuation of the politics of the Rajapakse regime. Any genuine attempt to re-establish democratic governance in Sri Lanka needs a holistic view. But that is apparently not in the mind of this regime.

NfR is of the view that time has come for all Sri Lankans to rally together as one force to wrest back their democratic rights and ensure that all citizens are treated as equals, the rule of law is upheld and the independence of the judiciary is restored.

Pillay Statements Sought To Undermine The Office Of Chief Justice – Foreign Ministry

By Colombo Telegraph -January 21, 2013

Acting Secretary of the Ministry of External Affairs and former Permanent Representative to the UN in Geneva, Kshenuka Senewiratne yesterday hit back hard at the UN High Commissioner for Human Rights, Navi Pillay saying her remarks at a recent briefing were biased and erroneous and amounted to interference in the internal matters of a sovereign country.

Foreign Minister

In a hard-hitting letter to High Commissioner Pillay, the Acting Foreign Secretary Pillay’s comments were indicative of “unequal and invidious treatment of Sri Lanka”, the Ministry official said.

Last Friday, the UN Human Rights Commissioner charged that the impeachment of Chief Justice Shirani Bandaranayake was a calamitous setback for the rule of law in Sri Lanka and criticized the appointment of Mohan Peiris as Bandaranayake’s successor.

Seneviratne said the UN High Commissioner’s remarks “sadly demonstrates that neither you nor your office has the understanding of the provisions of Sri Lanka’s Constitution, and the related procedures for the removal of judges of the superior courts.”

The letter warned that Pillay’s statement could damage engagement between the UN and Sri Lanka. It comes just over a month before Sri Lanka is back in the hotseat at the UNHRC in Geneva, when the resolution adopted by the Council against Sri Lanka is reviewed. Pillay is also expected to submit a report on Sri Lanka to the UNHRC, regarding Sri Lanka’s progress on reconciliation and accountability issues.

“The Government of Sri Lanka as a sovereign country has followed the due procedure that is set out in the Constitution of our country. This procedure is indeed in conformity with principles which govern disciplinary proceedings against judges contained in the Basic Principles on the Independence of the Judiciary endorsed by the UNGA in 1985,” Seneviratne’s letter to Pillay stated.

Pillay’s concerns about the independence and impartiality of the new Chief Justice Mohan Peiris was “reflective of the complete bias and negative mindset manifested and nurtured by parties inimical to Sri Lanka and with vested interests,” the Acting Secretary of the MEA said.

Seneviratne said Pillay had adopted a sustained practice of prejudgment in matters relating to Sri Lanka and said the High Commissioner’s statements sought to undermine the office of Chief Justice.

“With regard to your reference to the new Chief Justice Hon Mohan Peiris, you are undoubtedly aware that he has been a member of the Sri Lanka delegation to the Human Rights Council sessions, originally in his official capacity as the Attorney General of the country, to handle legal issues required for our engagement in Geneva, which is not an uncommon practice amongst States. Subsequent to Hon Peiris relinquishing the office of Attorney General, based on his experience and expertise in the field, he was appointed Legal Adviser to the Cabinet of Ministers and therefore continued to serve in the Sri Lanka delegations to Geneva. It was by virtue of the offices he held at the time, which has direct relevance to the issues at hand, that Hon. Peiris served on the Sri Lankan delegation to the Human Rights Council Sessions,” the letter states.

According to Seneviratne said that Pillay’s remarks on Friday were reminiscent of the action taken by Mr Hanny Megally following the visit of the OHCHR team to Sri Lanka in September 2012, when he deviated from the accepted practice, by de-briefing third parties, even before briefing the High Commisioner for Human Rights. “It may also be recalled that when the latter pointed out the impropriety of this unacceptable conduct of Mr. Megally at that juncture, you accepted our Representative’s submission. However, your action in resorting to unwarranted comments with a series of innuendos on an issue which is entirely a domestic matter for Sri Lanka, and that too without first engaging with our Permanent Representative or the delegation of Sri Lanka in Geneva, demonstrates yet again the deviation from established procedure, amounting to blatant interference in an issue of a sovereign country,” the letter said.

Read the letter here

A Response By Govt: Letter To Navanethem Pillay

By Kshenuka Senewiratne -January 21, 2013

Kshenuka Senewiratne

21 January 2013

Ms. Navanethem Pillay,

United Nations High Commissioner for Human Rights,

Office of the High Commissioner for Human Rights,

Geneva.

Dear High Commissioner,

The Government of Sri Lanka notes, with deep regret and concern, your statement delivered at the OHCHR Press Briefing on 18^th January 2013 where reference has been made to Sri Lanka. At the outset, I wish to reject categorically the contents of this statement, as it lacks any semblance of objectivity, steeped as it is in bias, marred by erroneous facts and further compounded by the inappropriate tenor of its language, all of which are indicative of unequal and invidious treatment of Sri Lanka.

To me this is reminiscent of the action taken by Mr Hanny Megally following the visit of the OHCHR team to Sri Lanka in September 2012, when he deviated from the accepted practice, by de-briefing third parties, even before briefing you, in your capacity as High Commissioner, or the Permanent Representative of the country concerned. It may also be recalled that when the latter pointed out the impropriety of this unacceptable conduct of Mr. Megally at that juncture, you accepted our Representative’s submission. However, your action in resorting to unwarranted comments with a series of innuendos on an issue which is entirely a domestic matter for Sri Lanka, and that too without first engaging with our Permanent Representative or the delegation of Sri Lanka in Geneva, demonstrates yet again the deviation from established procedure, amounting to blatant interference in an issue of a sovereign country.

With regard to the impeachment of the former Chief Justice, the Government of Sri Lanka as a sovereign country has followed the due procedure that is set out in the Constitution of our country. This procedure is indeed in conformity with principles which govern disciplinary proceedings against judges contained in the Basic Principles on the Independence of the Judiciary endorsed by the UNGA in 1985.

I wish to point out that it was following submission of the motion signed by 117 (out of 225) Members of Parliament, that the Speaker constituted a Parliamentary Select Committee to examine the issues involved in the allegations made against the former Chief Justice. Subsequently, the Report of the Select Committee was submitted and the matter was debated for two days in Parliament, with the active engagement of Opposition political parties. Thereafter, once the resolution to impeach the former Chief Justice was passed in Parliament with a majority of 106 votes (155 voting for and 49 against) the required address was made as our law requires to H.E. the President. It was only thereafter that the former Chief Justice was dismissed from office. Following this constitutional act, the former Chief Justice withdrew from her Chambers and official residence on her own accord. Your contention regarding the removal of the former Chief Justice from her Chambers and residence is, therefore, erroneous. It may also be noted that Sri Lanka prides itself on a Parliamentary democratic tradition and a judiciary of the highest standard. Moreover, the Constitution of the country enshrines adequate safeguards to ensure the independence of these vital arms of a functioning democracy, which are upheld by the Government of Sri Lanka.

The content of your statement sadly demonstrates that neither you nor your office has the understanding of the provisions of Sri Lanka’s Constitution, and the related procedures for the removal of judges of the superior courts. These provisions have been applied on several occasions in the past. For your information I annex a copy of the speech made by the Minister of External Affairs, Professor G.L. Peiris, on 10^th January 2013 in the Parliament of Sri Lanka which sets out the legal framework within which the impeachment process was carried out and responds to opposing views on its legality.

Your assertion that “Sri Lanka has a long history of abuse of executive power” is offensive to this nation, and is clearly beyond your mandate. In this regard, you have transgressed the basic norms which should be observed by a discerning international civil servant, by bringing into question the constitutional governance of a sovereign State.

With regard to your reference to the new Chief Justice Hon Mohan Peiris, you are undoubtedly aware that he has been a member of the Sri Lanka delegation to the Human Rights Council sessions, originally in his official capacity as the Attorney General of the country, to handle legal issues required for our engagement in Geneva, which is not an uncommon practice amongst States. Subsequent to Hon Peiris relinquishing the office of Attorney General, based on his experience and expertise in the field, he was appointed Legal Adviser to the Cabinet of Ministers and therefore continued to serve in the Sri Lanka delegations to Geneva. It was by virtue of the offices he held at the time, which has direct relevance to the issues at hand, that Hon. Peiris served on the Sri Lankan delegation to the Human Rights Council Sessions.

It is most unfortunate that you have chosen to raise concerns about the independence and impartiality of the new Chief Justice just as he commences his term in this high office. In my view, this is reflective of the complete bias and negative mindset manifested and nurtured by parties inimical to Sri Lanka and with vested interests. By such an allegation, you have sought inexcusably to undermine the Office of Chief Justice. Further, this position articulated by you is a prejudgement on your part, which has been a sustained practice adopted by you, in relation to Sri Lanka. Regrettably, this cavalier statement brings into question the standards of impartiality and equality expected of the UN System.

With regard to the allegations of death threats and acts of intimidation against lawyers, you may wish to note that any complaints received in this regard by the law enforcement authorities are being and will be investigated. The Government of Sri Lanka is fully committed to upholding the rule of law and has been continuously taking steps to achieve this objective.

I wish to state that Sri Lanka has engaged with the UN System consistently and transparently, and therefore expects reciprocity from your office. No doubt you would appreciate that it is imperative to base this engagement on the fundamental right of States to be treated equally. A statement of this palpably biased nature could hurt the engagement between Sri Lanka and the UN System.

I look forward to our continued engagement in keeping with the principals I have set out in this letter.

Yours sincerely,

Kshenuka Senewiratne

Acting Secretary

SC Directs Registrar To Forward Challenges To Standing Order 78A To Beneficiary, Mohan Pieris For Decision

By Colombo Telegraph -January 21, 2013

Three fundamental rights applications bearing Nos. SC (FR) 665/2012, SC (FR) 666/2012 & SC (FR) 667/2012 filed by an artist, a trade unionist and a trade unionist cum lawyer seeking declarations from the Supreme Court that Standing Order 78A of the Constitution is ultra vires and null and void and of no force or effect in law in terms of the petitioners’ fundamental rights guaranteed under the Constitution, came up for hearing today (21.01.2013) in the Supreme Court before Justices Nimal Gamini Amaratunge, P. A. Ratnayake and Eva Wanasundera.

Mohan Pieris

The petitioners in the three cases are Chandragupta Thenuwara (actor), Janaka Adikari (lawyer and trade unionist) and Mahinda Jayasinghe (trade unionist). They urge court through their petitions that the applications are made not merely in their own right but with the higher objective of safeguarding the rights and interests of the general public and securing due respect, regard for and adherence to the Rule of Law and the Constitution, which is the supreme law of the land. They urge that unless the court grants relief as sought, they and the citizens of Sri Lanka would be deprived of due protection of their fundamental rights by denying them the right to an independent judiciary.

The respondents are Chamal Rajapaksa (Speaker of Parliament), Anura Priyadharshana Yapa, Nimal Siripala De Silva, Susil Premajayantha, Rajitha Senaratne, Wimal Weerawansa, Dilan Perera, Neomal Perera, Lakshman Kiriella, John Amaratunga, R. Sampanthan and Vijitha Herath (Chairman and Members of a Parliamentary Select Committee appointed for the impeachment of Dr. Shirani Bandaranayake) and the Attorney General.

The Supreme Court had almost two months earlier, heard the counsel for the petitioners and the Deputy Solicitor General on behalf of the Attorney General and granted leave to proceed with these three applications, after they were supported (on 23.11.2012). The respondents were granted time to file objections (if any) to the grant of relief to the petitioners and the cases were fixed to be taken up for final hearing today (21.01.2013).

However, the respondents had not filed any objections to the grant of relief despite being granted the opportunity. Instead, when the cases were to be taken up for hearing today, Shavindra Fernando, Deputy Solicitor General made an oral application to court that steps be taken under Article 132(3)(iii) of the Constitution to refer the cases to the Chief Justice to constitute a divisional bench (comprising 5 or more judges) in view of the importance of the matter.

Counsel appearing for all three petitioners objected to this application, which they submitted should not be made on behalf of the Attorney General for several reasons, which they outlined through submissions.

M. A. Sumanthiran, appearing for one of the petitioners urged that the matter could not be submitted to the Chief Justice, in view of the fact that the actual holder of the office of the Chief Justice (de jure Chief Justice) in terms of the findings and pronouncements of courts (Dr. Shirani Bandaranayake) was being excluded from her Chambers and it was now being occupied by a person (a de facto Chief Justice) who is not the legitimate Chief Justice, in what amounts to a usurpation of that important office. This was an obvious reference to the controversial Mohan Pieris who is said to have been appointed by President Mahinda Rajapaksa to fill a vacancy claimed to have been created for the position of Chief Justice through a process that has been widely condemned and strongly criticized locally and internationally as unconstitutional, lacking in due process, illegitimate, violating judicial independence and undemocratic. Therefore, he urged the court to hear the matter today and make judgment accordingly. He submitted that his position was based responsibly and purely on material findings of court which should be respected and given effect to by all citizens, and nothing else.

Viran Corea, appearing for another petitioner submitted that while he agreed with the submissions made by Sumanthiran, in any event, it was most improper and inappropriate for the Deputy Solicitor General to make such an application for postponement at this stage, given that he had appeared and strenuously opposed the grant of leave in November last year and if he considered it necessary to make such application, it should have been done much earlier with notice to the petitioners, rather than to raise it on the date fixed for the final hearing of the matter. He pointed out that in such circumstances, the court should reject the application by the Deputy Solicitor General which seemed to be designed to prevent the case from being taken up today. Even today, the Deputy Solicitor General is unable to set out the precise basis on which he urges the matter should be referred under Article 132(3)(iii). He urged that in terms of the provisions of Article 126(5) of the Constitution, the court is required to take up and conclude the matter as early as possible. For this reason as well, he urged that the case should be taken up and heard as originally fixed, today. He urged that the cases were important for the protection of judicial independence, in that no judge of the Supreme Court or Appeal Court should be ‘subjected’ to the blatantly unconstitutional process set out in Standing Order 78A, which he argued is ultra vires and could not be validly acted on.

Suren Fernando appearing for the third petitioner submitted that while he agreed with the submissions of both counsel for the other two petitioners, he wished to further point out that the respondents, though given ample time to file any objections to the grant of relief had not done so, and none of the respondents (including the Attorney General) had even filed written submissions one week before the date fixed for hearing as required under Rule 45(7) of the Supreme Court Rules relating to Fundamental Rights applications under Article 126 of the Constitution. In these circumstances, he submitted that the court should not entertain such an unacceptable application by the Attorney General and urged that the matter be taken up for argument without delaying the matter as sought by the State. He also submitted that by not filing objections, the Speaker and the Parliamentary Select Committee members had effectively conceded to the grant of relief and no contrary position could now be taken on their behalf. He also submitted that several of the matters relevant to the application had already been clearly determined and pronounced upon in the petitioners’ favour in other court cases filed by other parties.

After hearing submissions, at the request of the Deputy Solicitor General, the court directed the Supreme Court Registrar to transmit the cases to the Chief Justice for consideration, as soon as the Attorney General indicates in writing the basis on which an application is made under Article 132(3)(iii) of the Constitution. No date was given for the cases to be taken up next.

M. A. Sumanthiran with Ermiza Tegal and Juanita Arulanantham appeared for Mahinda Jayasinghe.

Viran Corea with Bhavani Fonseka and Sarita De Fonseka appeared for Janaka Adikari.

Suren Fernando with S. A. Beling appeared for Chandragupta Thenuwara.

The Petitions were filed through Instructing Attorney, Sunil Watagala.

Shavindra Fernando, Deputy Solicitor General with Sanjay Rajaratnam, Deputy Solicitor General and N. Pulle, Senior State Counsel appeared for the Attorney General.