Remote Control Of Justice

by Basil Fernando


Next Saturday, the Bar Association will meet to discuss the resolution of non- cooperation with anyone who may be chosen to be the next Chief Justice in the event that the incumbent Chief Justice is impeached.

While that matter is being considered, a question may also be asked as to whether any person with integrity and commitment to the rule of law and independence of judiciary would want to become the next Chief Justice, or a superior court judge for that matter, in such an event. The responsibility of the superior court is to uphold the rule of law and the independence of the judiciary. Their primary task, of course, is to safeguard the individual liberties of all citizens in the event of those liberties being threatened by the executive. Such a task would become impossible in if the judiciary


is reduced to being a stooge to the executive. There will be a fundamental contradiction  between  the  very  meaning  of  being  a  judge  and  meeting  the expectation of the executive to serve it wholeheartedly without regard to whatever implications that may have on the individual liberties of citizens.

It is an unfortunate fact that, in Sri Lanka, there is such an attraction for higher positions and status. In popular drama and other works of art, this is often depicted by the character of the “arachi”, who has such a great love for his black coat and the silver buttons. It is unfortunate that, in the past, when there was competition in the elite families, becoming a judge in a superior court was considered more from the point  of  view  of  family prestige  rather than from the  point  of  view of  onerous responsibilities that are inherent in holding such a position. The seriousness of responsibilities is symbolized by Thomas More, who has earned the title of “man for all seasons” due to his willingness to give even his life in defence of a principle.

When the judiciary is expected to play a stooge’s role, it will not be a symbol of honor or prestige, but rather a symbol of shame and willingness to sacrifice integrity for the sake of   demonstrating loyalty to the executive, irrespective of whatever burden the executive may cause on the liberties of the citizens.

For the legal profession and the judiciary, their role will significantly change as, by a final  act  of  callous  disregard  for  the  rule  of  law  and  the  independence  of  the judiciary, the Parliamentary Select Committee – members representing the government – have declared the Chief Justice to be guilty of some counts, despite the opposition  members  and  the  Chief  Justice  and  her  lawyers  have  refused  to participate in the committee proceedings after raising very serious matters of principle. The Parliamentary Select Committee report, according to a government spokesman,  is  supposed  to  contain  a  hundred  and  twenty  odd  pages.  The spokesman has also claimed that the document contains the arguments of law on the basis of which the PSC arrived at its conclusions. It is an amazing feat of genius for these  seven  members  from  the  government,  none  of  whom  have  any  claim  for proven intellectual excellence, to be able to write such a report within just a few hours.

The truth seems to be that the report was written by others and was already written before the inquiry was concluded. As for the finding, the public already knew that it was already predetermined from a higher source than the seven members of the PSC.

The  most  important  criticism  is  that  the  PSC  has  pretended  to  be  an  impartial tribunal when it is not.  Not only the conduct of the proceedings but also the manner in which the final written document was prepared demonstrated that it was not an impartial tribunal.

This matter is significant as, with the executive subordinating the judiciary to its will, even the basic procedural aspects that people are used to expecting from the courts are likely to disappear. I am reminded of watching a trial at a Cambodian court at the

time of the United Nations transitional authority in Cambodia, which was expected to assist Cambodia to recover from the losses suffered under Pol Pot’s regime.

It was a trial for theft. The evidence consisted of reading a confession supposed to have been made by the accused, who was still a teenager, and the only defense allowed was to give reasons for reducing the sentence. When this was done (trial lasted an hour or so) the judge retired to his chambers and returned in 10 minutes. Then he began to read from a written text consisting of several pages. Obviously, the verdict had been written before the trial. When this matter was raised with the then Minister of Justice in Cambodia by the UN officers, the Minister explained that he did not rely on these not very qualified judges and that the verdicts are written in the Ministry of Justice, in which he had a few more-qualified persons. He further explained that if a person was already not found guilty, they will not bring him to a trial. The trial presupposed that the person was guilty. This Minister later expressed this same position to a Phnom Pehn Post journalist, who reproduced it in an article during the time.

The implications of having a stooge judiciary are similar. In a recent PhD thesis, which was received with honors at the Australian National University, Dr. Nick Cheesman writes a whole chapter on court proceedings in Myanmar, which he described as juridical proceedings in a marketplace. Long years of dictatorship have caused the loss of fair trial In Myanmar and today the young lawyers with whom I had a few discussions with could not even grasp the meaning of what law is.

All these are the considerations that Sri Lankans should face now. In fact, sober reflection would reveal that the impeachment proceedings and the verdict have nothing new in them. The causing of the forced disappearances of Prageeth Eknaligoda, the killing of the Sunday Leader editor Lasantha Wickramatunge and all the other episodes that are so commonly known to Sri Lankans are illustrations of a radical transformation of the manner in which “justice is meted out”. In an earlier article I have mentioned that since the start of the forced disappearances of persons, which started with the large scale killings in 1971 under the coalition government, heinous crimes have begun to be considered as legitimate actions. What is new in the impeachment motion, proceedings and verdict is that this common phenomenon of lawlessness has found expression in a dramatic manner that no honest person can ignore.

The path for the rule of law and the independence of the judiciary lies now on the courage of the lawyers judges and citizens to actively engage in continuous non- cooperation with all schemes of illegality that the executive wishes to pursue. In the past, the great legal minds were tested by the cases they win and the precedents that they may help to create. However, in the midst of such lawlessness as now, the test of those who help to create the rule of law is a firm commitment to reforms. This alone is the only legitimate path open to anybody with a conscience and a sense of integrity who wishes to take any steps on the path of law.


Courtesy: Colombo Telegraph

Speaker, SLFP/UPFA Should Take Action against Two PSC Members!

by Laksiri Fernando

When I wrote my last piece on the impeachment debacle, “Parliamentary Select Committee Exposed,” I was extremely concerned and shocked about the fact that the Chief Justice was insulted and humiliated by two members of the Parliamentary Select Committee. These happened reportedly irrespective of protests by the CJ, the legal team and the opposition members, and unfortunately complete disregard or tacit approval of the Chairman of the PSC, Anura Priyadarshana Yapa, whom I so far considered a decent gentleman or politician.

The walk out of the Chief Justice was in protest against this outrageous situation and there   were   unfortunately   some   who   even   considered   the   walkout   itself   as impeachable completely approving the humiliation that she had to undergo before these two male hecklers.
 

It came to my attention how much pain or anguish that public humiliation could inflict on a person, a woman or a man and in both of these cases women, when I came to know about the suicide of a female nurse in London who was humiliated unintentionally though because of a ‘royal prank’ call during the same week from Sydney, Australia.

It is not my intention to say that both cases are same except the fact of humiliation. When Kate Middleton, Dutches of Cambridge, was in a private hospital in London for reportedly morning sickness, there was a call from two young broadcasters from
2Day FM, Sydney, pretending to be the Queen and Prince of Wales asking about Kate’s health early in the morning. A nurse of an Indian origin who was at the telephone  exchange  at  that  time  allowed  the  call  and  information.  She  was apparently gullible under the circumstances. The radio in Sydney without much consideration for the implications, broadcasted the prank in effect humiliating the nurse. The nurse, a mother of two young children committed suicide on Friday apparently because of the humiliation.

The humiliation inflicted in the case of the nurse was not intentional. Last night I saw the two broadcasters who gave the call apologising and virtually crying. But the humiliation  inflicted  on  the  Chief  Justice  was  not  unintentional.  Otherwise  an apology should have been in order by now. I am sure that some even would unashamedly justify the humiliation and some have already done so by trivializing the words used.

One is a nurse and the other is a Chief Justice and a recognized legal academic. There is of course a vast difference in education and background and hence stamina for endurance. The Chief Justice probably would like to forget about the insults given her stature, determination and courage. As the Buddha said, if you don’t take insults, the insulters have to take them back. But humiliation is humiliation whether it is a nurse or a Chief Justice. In the case of Sri Lanka this is a public interest issue given the deteriorating ethics and culture of particularly the politicians. Some have become nose biters and ear eaters!

The reported utterances of the two members of the PSC are completely unacceptable by all standards, national and international. Therefore, disciplinary action should be taken against these two members. By whom might be a million dollar question? The following are some options.

There is no much point in asking the present President personally to take action against these two Ministers. Asking any justice from him would prove futile given his jubilant attitude against the rivals or enemies and also jovial defence of people like (Dr) Mervyn Silva. He does not seem to be serious about justice.
Asking the Speaker to take disciplinary action against these two members of the Parliamentary Select Committee however is in order as they were appointed to the PSC by him in his official capacity. At least in that way the Speaker might be able to  preserve the reputation of the Parliament from public contempt. Otherwise talking
about ‘supremacy’ of parliament is useless.
Asking the Secretaries of the SLFP and the UPFA is also in order because one Minister is a member of the SLFP and the other one does come under hopefully the discipline of the UPFA as his party is a constituent member.
Whether the above efforts would prove futile or not, another option left for the legal fraternity, the civil society and the opposition political parties is to boycott the two ministers from all public events at least for an earmarked period in protest.

We all have seen the photograph published in The Island newspaper yesterday (10
December 2012) captioned “Divided in fighting, united in feasting.” No one would ask opposition parliamentarians or anybody else to be impolite or disrespectful to anybody in the government even those who were involved in insulting the Chief Justice. There are circumstances that we have to be civil and social to all human beings. But politics simply would become a joke if the opposition politicians are not serious     about     what    they preach  or  claim  to  fight  for. The following is the photo.

Divided in fighting, united in feasting



Courtesy: The Island

The King Asserted That He Was Competent To Exercise Judicial Power: What The CJ Said?

by Nihal Jayawickrama

We do not seem to appreciate the fact that in this country it is the Constitution that is supreme; not the President, not Parliament; not the Judiciary, but the Constitution. It is explicitly stated in its preamble, that the Constitution is the supreme law of the Democratic Socialist Republic of Sri Lanka. It means not only that every institution of government is subject to the Constitution, but also that all power flows only from the Constitution. The legislative power exercised by Parliament, the executive power exercised by the President, and the judicial power exercised by courts and other institutions established by law, are derived from, and defined by, the Constitution.

The Constitution also makes it explicit that only the Supreme Court has “sole and exclusive jurisdiction” to hear and determine any question relating to the interpretation of any provision of the Constitution. If any such question were to arise in the course of any proceedings in any other court, tribunal or institution that is performing a judicial or quasi-judicial function, such question is required to be referred forthwith to the Supreme Court. Under the 1972 Constitution, it was the Constitutional Court that performed this task. When that Court was examining the Press Council Bill, a question arose whether the requirement to convey its decision to the Speaker within 14 days of the reference was mandatory or directory. Amidst angry rumblings in the National State Assembly where the Speaker had ruled that it was directory, the President of the Court declared that the Court would sit even until doomsday, until all the counsel had been heard, because, as he explained:

”The duty of interpreting the Constitution is ours and ours alone. To interpret it, we have to first understand it. For that understanding, we have to rely on our own judgment, assisted, if need be, by the opinions of learned counsel. Any other course of action involves an abdication of our own functions. It therefore follows that our duty by the Constitution and the People in whom Sovereignty resides, is to continue to perform the function which the Constitution enjoins on us. That we intend to do.”

It is from the Constitution (unlike in England) that the three principal branches of government derive their powers. Legislative power is exercised by Parliament and by the People at a Referendum. Executive power is exercised by the President elected by the People. Judicial power is exercised by “courts, tribunals and institutions, created  and  established,  or  recognized,  by  the  Constitution,  or  created  and established by law”. The only exception is in respect of the privileges, immunities and powers of Parliament and of its Members, where “judicial power may be exercised   directly   by  Parliament  according   to   law”.  When  Article  4   of   the Constitution states that judicial power is “exercised by Parliament through courts and other institutions” that are “created and established by law”, it obviously means that judicial power is exercised by Parliament, not directly, but through institutions that it has created and established by law.

Two important consequences flow from Article 4. Any institution seeking to exercise judicial power must be established by “law”. Even the determination and regulation of the privileges, immunities and powers of Parliament is required to be by “law”. In fact,  Article  67  of  the  Constitution  states  that  until  these  are  determined  and regulated by law, the Parliament (Powers and Privileges) Act of 1953 shall apply. There can be no confusion about what “law” means. Article 170 of the Constitution defines “law” to mean any Act of Parliament and any law enacted by any previous legislature. It does not include the standing orders of Parliament.

Why then does Article 107 of the Constitution give Parliament the option of acting either through law or standing orders in providing for matters relating to the presentation of an address for the removal of a Judge, “including the procedure for the  investigation  and  proof  of  the  alleged  misbehaviour“?  The  answer  to  that question appears to be quite simple. If Parliament chooses the option of legislating, it may do, for example, what the Indian Parliament did by the Judicial Standards and Accountability  Act   of  2012.   That   is,   establish   a   National   Judicial  Oversight
Committee to which the Speaker of the Indian Parliament is now required to refer any charge of misbehaviour or incapacity against a Judge. That law has prescribed a detailed procedure for the investigation of such charge.

Alternatively, if Parliament decides to proceed by way of standing orders, it may provide for the Speaker to refer the charges to an existing institution vested with judicial power, such as the Supreme Court, as is the case in respect of a resolution for the removal  of  the  President  under Article  38 of  the  Constitution. It cannot,  by standing order, establish, say, a new tribunal or other institution for this purpose since, under Article 4, that can only be done by law.

What Parliament also cannot do, is what Standing Order 78A purports to do. It cannot establish a Select Committee of Parliament to investigate the charges and report  whether  or  not  the  offence  of  “misbehaviour”  has  been  proved.  This  is because a Select Committee is not “a court, tribunal or other institution created or established by law to exercise judicial power”. That was why, in 2000, by common consent  of  all  the  political  parties,  provision  was  sought  to  be  made  in  the Constitution itself for an inquiry to be held, in the case of the Chief Justice, by three persons who hold, or have held, office in the highest court of a Commonwealth country; and in the case of any other Judge, by three persons who hold, or have held, office in the Supreme Court or Court of Appeal. This option was proposed by the United Front Government for the specific purpose of remedying the defect contained in Standing Order 78A.

There are sound reasons why a Select Committee is not competent to find a Judge guilty of “misbehaviour”. A tribunal that is called upon to determine whether a charge of “misbehaviour” is proved, has to address three other questions before it can proceed to do so.

The first is the meaning and content of “misbehaviour”, an offence not defined in our law. It will be necessary to identify the precise elements that constitute “misbehaviour”, perhaps by reference to relevant decisions of courts in other jurisdictions. Without identifying these elements, it is not possible to proceed to the next stage, which is investigation. The purpose of the investigation is to apply the law to the facts as presented by the accusers, in order to determine whether the offence of “misbehaviour” has been committed.

The second is the degree of proof that is required. Is it a balance of probability, or proof beyond reasonable doubt? This matter needs to be clarified before proceedings begin, because on that will depend the nature, quality and quantity of evidence required.  Will  a  layman  serving  on  the  Select Committee  be  able  to distinguish between these two standards of proof?

The third is the burden of proof. On whom does it lie? Under our law, the burden always  lies  on  the  person  who  makes  the  accusation;  in  this  instance,  the  117 members  of  the  government  parliamentary  group.  Every  person  is,  under  our

Constitution, “presumed innocent until he is proved guilty”. Standing Order 78A, on the other hand, states that the Judge who is accused “may adduce evidence, oral or documentary,  in  disproof  of  the  allegations  made  against  him”.  To  require  an accused person to disprove the charge against him, is to turn our system of justice on its  head.  Under Article 13(3)  of  the  Constitution,  it  is  only  by  law  (and  not  by standing order) that Parliament may place the burden of proving particular facts on an accused person. On that ground, the standing order is clearly unconstitutional.

The determination of these three questions is a classic example of the exercise of judicial power. It is no different to the situation envisaged in Article 36 of the Constitution where the Supreme Court will need to make similar determinations before a resolution to remove the President from office is voted upon in Parliament.

In this connection, it may be pertinent to recall the celebrated conversation that Sir Edward Coke, Chief Justice of England, had with King James I in 1607. The King asserted that he was competent to exercise judicial power. The Chief Justice records thus:

* Then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges:

* To which it was answered by me, that true it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it; and which protected His Majesty in safety and peace:

* With which the king was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said.

Courtesy: The Sunday Island

Constitutional Supremacy Or Parliamentary Supremacy?

by Kamal Nissanka

When notices were sent to the Hon speaker, President and the members of the Select Committee  impeaching  Chief  Justice  by  the  registrar  of  courts,  the  Speaker  and leader of opposition were vociferous about the notion of supremacy of Parliament and they seemed not to heed to the Supreme Court request/order to appear before or submit objections on pending cases against them. They by now should know that only the President of the country under the constitution is immune to litigation. If the parliamentarians concerned had thought that they were also citizens of Sri Lanka as us, they would have readily     abide by the Supreme Court   directive   until the constitutional issue before the court is   finally determined.   Unfortunately Hon Speaker further  kept a step forward  and  related a speech delivered by Mr.Anura Bandaranaike , then Speaker of Parliament   in 2001 upholding the idea   of parliamentary supremacy  when there was an  stay order against the Speaker.

Now if one goes to the root of the logic behind the speaker ‘s speech     one can understand that what the speaker believed was that parliamentary supremacy could not be infringed by any other outside body.   It is worthy at this stage to note that belief of Parliamentary supremacy is a notion evolved in United Kingdom where there is no written constitution. In short Parliamentary supremacy can be defined as the power of parliament to make laws and unmake laws.  The duty or business of the courts is to follow the legislation already enacted by Parliament and then interpret, adjudicate, redress or punish.   Yet, though the courts do not make any legislation judgments of superior court are considered as binding law.

In the post independence period political-legal community followed a tradition to accept the notion of Parliamentary supremacy as experienced in United Kingdom. Yet,   although   the   Soulbury   Constitution   upheld   the   idea   of   parliamentary supremacy; it is interesting to note that Parliaments under the Soulbury Constitution also did not enjoy infinite supremacy to make laws as the constitution under Article
29(2) restricted to make legislation in some areas and subjects.

The 1972 constitution which had only one chamber was consciously framed on the basis of the notion of parliamentary supremacy. Accordingly, legislative power was vested in the National State Assembly, executive power in the National State Assembly through President and the cabinet , while judicial power by  National State Assembly through courts except in   parliamentary privileges. There was also a Constitutional Court to determine matters relating to constitutionality.

The 1978 constitution which lasted for over 30 years now is somewhat different from the two earlier constitutions.   The founders of the constitution have clearly deviated from the British tradition of constitutional theory. Prof.A.J. Wilson, former professor of Political Science, declared that the 1978 constitution had been extensively influenced by the present French Constitution.   The 1978 constitution took a quasi federal nature with introduction of 13th amendment and parliament lost some of its powers regarding some subjects and lost sole supremacy over legislation.

On the other hand this parliament does not have executive power as in the 1972 constitution. 1978 constitution explicitly says that executive power shall be exercised by ‘the president of the republic elected by the people “(not by parliament). So this is clear deviation from the British tradition of parliamentary supremacy.   True that ministers  who  are  also  said  be  in  the  executive  branch  are  chosen  from  the parliament but they are subordinated to the president who can keep any ministry or department under him. They do not enjoy the prestige they had under the British tradition. The president through the cabinet can make the parliament his appendage and the dignity of the parliament is completely eroded, added by the PR system of electoral method which allowed all sorts of anti social elements to enter into parliament. Parliament is further devalued because the President can dissolve it after one year of an election.

The position of judiciary is made explicit under the 1978 constitution. According to the Article 118, the Supreme Court is the ‘highest and final court of record’ in the Republic. It has jurisdiction in respect of constitutional matters, for the protection of fundamental rights, consultative jurisdiction, and jurisdiction in election petitions including the election of President. It also has jurisdiction whether to determine a bill was consistent with the constitution. This jurisdiction can invoke by president or any other citizen.  Its determination is sought of regarding urgent bills which the cabinet thinks  to  pass         urgently  for  national  interest  concerns.  It  has  jurisdiction  to determine the validity of the expulsion of a member from a political party. It has role to play in the impeachment of a President of the Republic. Therefore it is very clear that the Supreme Court under the present constitution is a very powerful body that is endowed with important national responsibilities. Further the constitution has endorsed the idea of an independent judiciary.

Standing orders cannot be considered as law by any learned person in the legal profession. Under our legal system laws are legislation, decided cases, customs and may sometimes international covenants. Standing orders are procedural regulations. Further they cannot be formulated against the provisions of the constitution. Rules and regulations are there in various corporations, companies, societies to conduct their day to day activities. Can an outsider be brought to face trial on the basis of these regulations? Is that justice? Is that rule of law?

When there is matter before the Supreme Court to be decided, specially a matter of interpretation it is the sacred duty of all law abiding persons to obey its directives. Under our constitution people are sovereign and the constitution is supreme not the parliament.  This is what is called constitutionalism, a legal philosophy derived from the famous case in the United States of America, Marbury Vs Madison, 1 Cr. 137 (1803) decided by John Marshall ,CJ. The decision held that:

“Congress  did  not  have  the  power  to  add  to  the  original  jurisdiction  of  the Supreme Court; thus, the available remedy mandamus  ,was unconstitutional .More significantly , Marshall logically extracted the power of judicial review from the constitution by reasoning that the document was supreme and, therefore , the Supreme Court should invalidate legislative acts that ran contrary to it.”

In conclusion it could be said that the idea of parliamentary supremacy which both the Hon. Speaker and the Leader of the Opposition attempted to uphold in a holy manner is an outdated and obsolete political-legal concept which has no relevance in the present constitutional framework of Sri Lanka.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)

Courtesy: Colombo Telegrpah

Reducing Of Sri Lanka’s Judiciary To A Mockery

by Kishali Pinto-Jayawardena

Nowhere in South Asia or indeed the entire world (excepting in failed states) would a responsible government hire thugs and party supporters to jeer and hoot at the Chief Justice of the country while she was leaving the superior courts complex to appear before a parliamentary select committee considering her impeachment.

Yet in Sri Lanka, this is what happened a few days ago. Nowhere in the world except in pariah nations would government members of parliament have been allowed to verbally insult the Chief Justice (Sri Lanka’s first woman Chief Justice at that) and her lawyers while they were participating in the deliberations of a select committee.

Yet this is what is reported to have happened on Thursday. Unable to bear the
continuous insults, the Chief Justice’s decision to walk out of the select committee  proceedings must be commended. Her courage in facing such an inquisition with head held high must be recognised.

Spewing of vile abuse against the head of judiciary

This is the culmination of a process that has brought Sri Lanka tremendous shame and lent credence to the claims of its detractors who refer to the country as a democratic graveyard. For the past several weeks, the Chief Justice was mercilessly hounded by government media propagandists as they spewed vile abuse on radio talk shows.

Blatantly contemptuous placards were carried by three wheeler drivers and lottery sellers right outside the seeming citadel of justice on Hulfsdorp Hill. State protection was provided for all these acts.

The  government  appeared  to  have  abandoned  all  norms  of  ordinary  decency befitting treatment of a human being let alone a judge, let alone the head of the judiciary.  It  appeared  to  have  turned  virtually  mad  in  its  desperate  struggle  to counter what has turned out to be a huge embarrassment for it.

No wonder that judges and lawyers throughout the country rallied to the support of the beleaguered Chief Justice, from provincial Bars as remote and diverse as Matara, Anuradhapura, Kandy, Jaffna and Vavuniya.

It was as if with a rush, the legal profession and the judicial service particularly in the outstations realized the great dangers that they were in (at last) and decided to push against the rock of executive humiliation of the judiciary with determination.

Walkout of the Select Committee a foregone conclusion

From the commencement of this fiasco, the issue was less the constitutionality of the process, (regardless of the vehement submissions made by lawyers appearing in cases challenging the impeachment), and more the fairness of the procedure followed and the clearly political timing of the impeachment itself.
Certainly the impeachment procedures as constitutionally stipulated violates basic norms of fair adjudication both domestically and on international standards.

They  deny  an  appellate  court  judge  even  the  most  rudimentary  rule  of  law safeguards   afforded   to   a   common   criminal.   But   in   previous   impeachments, convention and good sense dictated that an unwritten line of propriety was not crossed.   Through   its   intemperate   fury   at   being   challenged,   the   Rajapaksa government has however put paid to that past practice.

In no seemingly democratic country would a Chief Justice be subjected to an impeachment process distinguished by the inquiry committee’s inability to prescribe rules of procedure for its sittings (as pointed out by its members representing the Opposition in the public interest), its refusal to open the hearings for public scrutiny in the interests of transparency and accountability and its reported refusal to allow the Chief Justice’s lawyers to cross examine witnesses cited in the documents filed against her or to allow more time for her to answer allegations contained in a thousand page bundle of documents. Her walking out of the Select Committee proceedings this Thursday was therefore a foregone conclusion.

No need for a contempt law now

From 1999 to 2009, we had a Chief Justice whose conduct in and outside Court as documented opened up the judiciary to unrelentingly harsh public scrutiny. And as much as water rushes out when the walls of the dam is first breached, former Chief Justice Sarath Silva’s successors could do little but pay obeisance to the executive. It was when the judicial tide turned as a result of one humiliation being enforced a step too far that we saw the avalanche of executive anger being unleashed.

The Minister of Justice has pontificated to the media this week that the government plans to enact a contempt of court law soon. But let it be clearly said that there is now little purpose for such a law. The primary aim of a contempt law is to protect the administration of justice and the dignity of the courts while allowing for reasoned and crucial debate on the functioning of the justice system. Yet the administration of justice has already been rendered a snarling mockery and the dignity of courts has been remorselessly stripped away by this government and its media hounds. Day after day, the Chief Justice is attacked beyond all norms of propriety with a government giving the full seal of its approval. A contempt of court law has become quite redundant in this post Rajapaksa impeachment climate as much as the concepts of justice and fairness have also become redundant. This is undoubted.

Painful destruction of an independent judicial system

Those who willfully turned a blind eye to the internal politicization of the Supreme Court from the year 1999 onwards, those who were foolhardy or blinded by their own interests to applaud the handing of a blank cheque to this Presidency to do what it would with Sri Lanka after the ending of the conflict and those who looked away when the 18th Amendment was enacted, should now rue their folly and culpable ignorance.
In previous columns starting from almost a decade ago, predictions that this precise fate would befall the Sri Lankan judicial and legal system if there was no course correction  were  greeted  with  shrugs  and  smiles  from  members  of  the  legal profession. Some condemned these predictions as unnecessarily dire. Others were cynical enough to say that the system had survived despite past beatings.

But now as we see a Sri Lankan Chief Justice humiliated by common ruffians who hold the money which they were paid in one hand while they shout slogans with their other hand upraised, these complacent characters may well ruminate on their unfortunate  inability  to  recognise  the  warning  signals.  This  column  makes  no apology for repeatedly stressing the most coruscating lesson to emerge from this cataclysmic upheaval, particularly for those of us trained in the discipline of the law.

Even if new struggles are born as a result of the ongoing inquisition cum impeachment of the country’s Chief Justice, this is the comprehensive end of Sri Lanka’s independent judicial system as we have known it since 1948. It is a sad day indeed.

Courtesy: The Sunday Times

Impeachment of the Chief Justice, did she get a fair trial?

by K.D.C.Kumarage

Some citizens including lawyers have filed petitions in the Court of Appeal seeking writs restraining the Parliamentary Select Committee (PSC) from inquiring into allegations mentioned in the impeachment motion submitted to Parliament by some Members of Parliaments (MPs). The Court of Appeal has referred them to the Supreme  Court  (SC)  since  there  is  a  constitutional  problem  involved.  In  the meantime some fundamental rights (FR) cases have also been filed in the SC stating that the Standing Order 78 (A) violates FRs under various articles of the constitution. Having considered these applications a panel of three judges of the SC has issued notices to the members of the PSC. And everyone knows now that the Speaker has made an order to the effect that no court could issue process on the Speaker or any committee appointed by him. However the SC has decided to go ahead with the inquiry.

Let  us  take  our  memory  back  to  the  impeachment  inquiry  select  committee appointed by the Speaker to impeach Neville Samarakoon the then Chief Justice (CJ). Mr S. Nadesen QC who represented the respondent CJ took up a preliminary objection that standing order 78 (A) is ultra vires the constitution and that the said select committee had no power to proceed with this inquiry because it violates article
4 (C) of the Constitution which stipulates that except in matters concerning Parliamentary Privileges the Judicial power of the people has to be exercised exclusively through the courts.

In its report at the conclusion of the inquiry a majority of members (five members) representing the government in the PSC writing a separate report dealt with the objection taken up by Mr Nadesan as Follows. “ While the members of the committee have certain reservations regarding the validity of Mr Nadesan’s contentions particularly in view of the specific provision of Article 107 of the Constitution of the Democratic  Socialist Republic  of Sri  Lanka  ,  this  committee feels that notwithstanding any objections it is duty bound to carry out the mandate given to it by Parliament according to the terms of reference specified. In carrying out this task the committee is fortified by the fact that the exercise of disciplinary power over the higher judiciary in a large number of countries almost without exception is a right which has been exercised by the Parliament. Furthermore under the standing order
78(A) Parliament exercises its power in the fulfilment of its duty under Article 107(3)
of the constitution. Submissions made by Mr. S. Nadesan Q.C. on behalf of Neville Samarakoon C.J. that “In a constitution such as that of our country, in which separation of powers is jealously  protected  ,  the  Committee  in  seeking  to  go  on  with  the  inquiry  as  to whether or not Mr. Samarakoon was guilty of “proved misbehaviour,” was violating the provisions of Article 4(c) of the Constitution , which stipulates that except in matters concerning Parliamentary Privilege –the judicial power of the people shall be exercised by the courts.”

What is more significant in the present context is findings of the separate report of the three members of parliament, of the opposition namely, Sarath Muththettuwegama, Anura Bandaranaike, and Dinesh Gunawardane who happens to be a cabinet minister and the leader of the House in the present government.

Their separate report states “Although Mr. Nadesan’s arguments have considerable cogency they were unable to come to a definite conclusion on that matter. Therefore they urge H.E. the President to refer this matter to the Supreme Court for an authoritative opinion thereon –under Article 129(1) of the Constitution” Moreover the separate report goes onto state that “The signatories to this statement however feel that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the  House  to  amend  Standing  order  72A  accordingly.”  It  is  not  difficult  to understand how. Dinesh Gunawaradane MP who took up the said strong position against the Standing Order 78A in their separate report in the Neville Samarakoon impeachment inquiry did a completely somersault in the present impeachment inquiry against the incumbent Chief Justice.

It is important to look at the procedure stipulated in the Constitution to impeach the President of Sri Lanka. Under Article 38(c) of the Constitution once a resolution is passed by not less two-thirds of the whole number of members (including those not present)  voting  in  its  favour,  the  allegation  or  allegations  contained  in  such resolution shall be referred by the Speaker to the Supreme Court for inquiry and report.  It  is  common  knowledge  that  the  Supreme  Court  holds  such  inquiry observing all fair trial and due process guarantees applying accepted rules of evidence.

In India, The Judges Inquiry Act of 1968 provided for the impeachment of higher court judges. Provision of this section is read with Article 124(5) of the Indian Constitution. This was later developed further by the New Judicial Standards and Accountability Act 2012.

It  enables  the  parliament  to  proceed with  the  resolution  for  the  removal  of  the Supreme court Judge only after the President of India has forwarded a report to the National Judicial Oversight Committee which comprises, a retired Chief Justice of India, a Judge of the Supreme Court, a Chief Justice of the High Court of the State , the Attorney General of India and an eminent member nominated by the President of India. The President of India holds no -executive post unlike his/her counterpart in Sri Lanka.

Once when the impeachment motion is submitted to the Parliament , the speaker of the Lokh Sabha refers the allegations to the above panel who will go through it and if they find the charges are not well founded they will inform the Speaker accordingly and the matter ends there. If they find that one or more of the allegations merits inquiry they will hold a judicial inquiry guaranteeing all fair trail and due process rights to the responded Judge. At the end of the inquiry if they find that the charges are proved they will submit the report to the Speaker of the Lokh Sabha. Thereafter the resolution for impeachment must be adopted by both houses of Parliament i.e. Lokh Sabha and Raja Sabha by a two third of MPs, including those not present.

It is clear therefore from the above example how fair, the impeachment procedure of
Judges are under the respective legal systems.

As the great jurist John Rawls has stated “Justice is fairness.” A politician according to him is one who cannot by his very nature “divorce his political interest from his judgement.” This truism of Rawls apply aptly to the seven members of the PSC. The ratio of appointing members of the PSC according to the party strength in the Parliament violates the principles of equality before the law. Ours is a Parliament which always votes politically. It is impossible to expect a different attitude from them. In a Parliament which is totally subservient to the President none of the seven members will never vote against the wishes of the President.

In Sri Lanka where the Jury system still prevails in criminal trials, the jurors are elected by a lottery. The accused person facing trial can object to any number of jurors on various grounds. But in the impeachment inquiry of the Chief Justice of Sri Lanka the majority of judges as well as jurors are the MPS of the governing coalition whose verdicts are predictable beforehand.

Now the people in Sri Lanka as well as the world over are aware that the Chief Justice walked out of the PSC in protest of the hostile, biased and scurrilous conduct of the latter. Her lawyers have stated, according to media report that the Chairman of the PSC had stated that no oral evidence would be led to establish allegations and hence no opportunity of cross examination of such witnesses would be granted to respondent’s lawyers. It was evidenced to lawyers that the accepted natural law principle that“those who alleged must prove” has being shifted to the responded.

John Amarathunga, one of the four MPs who sat in the PSC told the Washington Post that the four of them walked out of the sittings of the committee because they could not be a party to an unfair process. He has stated further the government members using their numerical majority rejected what they said were reasonable demands to establish a procedure for the inquiry and to give Dr Bandaranayake an opportunity to cross examine the accusers and enough time to pursue the three hundred documents relating to the case. He further stated that too many of the accusers and judges in the case were from the same group – government law makers, whereas in other   countries   such   inquiries   were   assigned   to   separate   legal   professionals appointed by Parliament. He further stated that government law makes treated Dr. Bandaranayake in an insulting and intimidating manner and their remarks clearly showed they already found her guilty. The same newspaper reported that the US State Department spokesman Mark Toner as saying , “US is Deeply concerned about actions surrounding the impeachment trial and urge the government and ensure due process.  These  latest  developments  are  part  of  a  disturbing  deterioration  of democratic norms in Sri Lanka including infringement of the independence of Judiciary. He called upon the government to uphold the Rule of Law.

Courtesy: Daily Mirror

We Are Told That CJ Is A Rogue And A Cheat But It Is Crystal Clear That The Decision Is Political

by Vickramabahu Karunaratne

Among the first modern authors, to give principle theoretical foundations to the notion of ‘rule of law’ were Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the law is king” and reverses the traditional “the king is the law”. In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Pain wrote in his pamphlet that “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” In 1780, John Adam enshrined this principle by seeking to establish “a government of laws and not of men.” Thus we see that the rule of law came in to satisfy the needs of market economy of the bourgeoisie society. Market can survive only if promises and assurances are upheld in a formal manner. Such bindings should be sacrosanct; thus giving the necessity to take the law away from human personality to be a thing in itself. All government officers of the United States including the President, the Justices of the Supreme Court and all members of Congress, pledge first and foremost to uphold the Constitution. This formality, with a deep meaning, has been adopted in many countries including Lanka. These oaths affirm that the rule of law is superior to the rule of any human leader. The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. World over,  authorities  define  the  rule  of  law  as:  “the  extent  to  which  agents  have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence.” on  this  definition  a  government  based  on  the  rule  of  law  can  be  called  a “nomocracy.”

It is true that the parliament in general is responsible for making laws and in the form of a constituent assembly it can dismiss the current constitution and inaugurate an entirely new constitution. But having said all that we have to agree that even the parliament and all political organs are bounded by the constitution; the fundamental law of the country. No way can we accept the idea that parliament as the law maker stands  above  the  law  of  the  country.  Lankan  constitution  has  empowered  the Supreme Court as the sole authority to interpret the constitution. In effect it is a power bestowed by the parliament. In fact it is a privilege of the parliament to be able to consult SC when ever the need arises. If so how can the notice of the SC indicating its participation in an interpretation problem, relevant to the parliament activity, could create a breach of parliamentary privilege issue. On the contrary it is a privilege for the parliament to be notified and there is no room to consider that some kind  of  a  warrant  has  been  issued.  The  actions  of  a  Select  Committee  or  the Parliament  are  actions of  the  government  and therefore  the  court  alone  has  the jurisdiction to review the constitutionality of any such action by a government and advice the political leadership. Government is very sensitive on this impeachment issue as it is aware that its action is completely subjective and vindictive and also at a tangent to the constitution. Government leaders have accepted that this attempt to dislodge the CJ came because of her ruling in the Divi neguma case. Even otherwise it is crystal clear to any body that the decision is political and nothing to do with ethics and morals of CJ. If not they should have brought this out long time back.

Already huge campaign of posters, leaflets and booklets combine with hearsay was launched to discredit Shirani Bandaranayke. It shows that the government has no trust in their own legal strategy and hence resorted to a terror campaign to make her resign and go away. We are told that she is a rogue and a cheat; hence not fit to act as a judge. This campaign shows that impeachment is just a façade to initiate pressure to push her out. Government action has created a reaction that has spread through out the Lankan society. It has drawn the attention of international democratic forces including the trade unions. Here too, trade unions have started a campaign to arrest the villainy of the government. It has disturbed the bourgeoisie society too. Not only lawyers but also other professionals and business mangers have come out condemning the actions of the government. It is the government that has taken the first step to draw this issue in to the streets. Disregarding threats of the government people have come out in support of judiciary. People who were angry over budget proposals are now coming out on this issue which has attracted all classes in society. We must expect a civil unrest that could challenge the authoritarian regime of Mahinda.

Courtesy: Lakbima News

You Can’t Say Parliament Is Supreme Over The Other Two Institutions

by M.A. Sumanthiran

The other issue is also one of great concern to us, that of military rule. The Hon. Member was heard to talk of the Rule of Law. We don’t want military rule in any part of the country. Be it LTTE rule or even Sri Lankan Army rule. We want civilian rule.

We don’t want the Army rule, but there is a military rule that is being imposed upon
our people and that is to be avoided.

It is true that during the time that the war was on there were certain necessities, but
now it is 3 ½ years later…enough time to have changed the situation. It is not
Asian Human Rights Commission |www.humanrights.asia

necessary to continue in that high-handed fashion. We are not going to achieve any reconciliation if it goes on like this.

Coming to the Rule of Law, I want to read A.V. Dicey, ‘The Law of the Constitution’. These books are available in the library…those of you who can read, can read these things! And for your benefit I’ll read certain portions, enough for you to be able to digest for the day. And this is what it says – the principle of the rule of law:

‘The supremacy of the law of the land was not a novel doctrine in the 19th century. It may be traced back to the medieval notion that law, whether it be law ordained by God or by man, ought to rule the world.’

That is the Rule of Law and that is why our own Constitution also has very specifically, even in the preamble, talked about the Rule of Law. It says, that is a fundamental principle – the Rule of Law. It’s on that bedrock that our democracy exists. Several mentions have been made in this House in the last couple of weeks with  regard  to  sovereignty  of  the  people.  In  our  Constitution  the  people  are sovereign.  It  is  not  the  Parliament  that  is  sovereign.  It  is  the  people  who  are sovereign. This is different to the British concept…it is a British concept that the Parliament is sovereign. In fact, A.V. Dicey says that in Britain, Parliament means three things; the King, the House of Lords and the House of Commons.

All these three things, together, is called the Parliament and the essence of the supremacy or the sovereignty of Parliament is that Parliament can make any law whatever and Parliament can unmake law and that is what we call the legislative supremacy of Parliament.

In this country also we have the legislative supremacy of parliament…there is no supremacy  of  Parliament.  That’s  a  wrong  notion.  Not  even  in  England,  now. Hundred years ago that concept went out. In the 8th edition of A.V. Dicey, that was in  1855,  he  talked  about  the  sovereignty  of  Parliament  but  in  1911,  after  the Parliament Act in the UK, in the 1914 edition, before he died, at the age of 92, he retraced it and said that the concept of Parliamentary sovereignty was outdated, and that was in 1911…hundred years ago in England. The situation had changed. But in Sri Lanka, in the 1972 Constitution, we did have the notion of Parliamentary supremacy or the legislative supremacy of Parliament. In the 1978 Constitution, for the first time, the issue of referendum was introduced.

In our Constitution we have two concepts: one is the rule of law and the other is separation of powers and as Parliament is supreme in the legislative sphere, the Judiciary is supreme in another sphere. Even in England, the concept of legislative supremacy  came  about  through  interpretation of  Courts.  In  our  Constitution,  in Article 125 it has been very clearly laid out that it is only the Judiciary, and that too only the apex court, the Supreme Court, that has the sole and exclusive jurisdiction to interpret the Constitution.


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When the concept of referendum was brought in the 1978 Constitution – it wasn’t there in 1972 Constitution – why was that brought in? It was brought in because the powers of Parliament were limited. Even by 2/3 majority you can’t change certain things in the Constitution. You can change it only by additionally going directly to the people and getting their consent at a referendum. That is why we have these entrenched clauses in the Constitution.

The point that I’m making is that in the 1st Republican Constitution you could make any law. You didn’t have to get the consent of the people at a referendum. But now, under the 2nd Republican Constitution that we live under, the power of the Parliament has been restricted because you can’t change or you can’t make laws contrary to certain entrenched provisions.

You have to go directly to the people because the people are sovereign, not Parliament. People have delegated their sovereignty to be exercised by three modes of governance and one has been given to Parliament, the other has been given to the President…the President has also been elected directly by the people but that does not  mean  that  the  Executive  is  supreme.  Parliament  is  elected  by  the  people, President is directly elected by the people…you can’t say Parliament is supreme over the other two institutions, merely because the Parliament is elected by the people.

These are three parallel institutions that operate under a concept of separation of powers and unless we function in that way, the whole system will collapse.

Thank you very much.”

*Text of speech made in Parliament on January 7th 2012

Courtesy: dbsjeyaraj.com

The Walk Out Of Chief Justice And The Rajapaksas

by R Hariharan

The walk out of Chief Justice Mrs Shirani Bandaranayake and her team of lawyers from a Parliamentary Select Committee (PSC) hearing on an impeachment motion against her Thursday was an eloquent testimony to the charade being enacted in Sri Lanka in the name of democracy. Probably it is a matter of time the PSC would find her guilty of the charges of corruption slapped against her.

Mrs Bandaranayake, who was picked by the President for the high office though she lacked adequate judicial experience, fell out of favour with her ruling on the Dive Neguma Bill. She ruled that the Bill required the approval of all provincial councils before enactment as it impinged upon their constitutional powers. Apparently she had taken her job too seriously and stopped the Bill from being passed forgetting it


was   moved   by   President’s   brother   Basil   Rajapaksa,   Minister   for   economic
development.

The Divineguma Bill aims to create a department merging three authorities – Samurdhi, Southern Development and Udarata (up-country) Development involved in  savings  and  loan  schemes.  Though  the  Bill  appears  innocuous,  its  enactment would deprive the limited financial powers of provincial councils have rural development. The Bill is important for the Rajapaksa clan because it forms part of President  Rajapaksa’s  grand  plan  to  consolidate  his  hold  on  power.  And  as  a masterly stroke, it would strike one more nail in the coffin of the much maligned
13th Amendment (13A) to the Constitution which created the provincial councils.

The Rajapaksas are set on getting rid of the 13A. The first call for abolishing 13A came up from the President’s brother and defence secretary Gotabaya Rajapaksa in September 2012. It was vigorously backed by some coalition partners – the Right wing  Jathika  Hela  Urumaya  (JHU)  and  the  former  JVP-leader  Weera  Wansa’s National Freedom Front (NFF) and the Mahajana Eksath Party (MEP). Both JHU and NFF feared if it is not abolished the “anti national” and pro-LTTE Tamil National Alliance (TNA) was likely to gain control the Northern provincial council in September 2013. Basil Rajapaksa vexed by the opposition criticism of the Dive Neguma  Bill  spoke  of  the  need  to  replace  13A  and  suggested  introducing 19thamendment. The ruling coalition immediately reacted to say there was no move to abolish the 13A when probably the Chief Justice’s ruling was not factored in the scheme of things.

So the President cleared the air when addressed the parliament on November 8. In his budget speech he said, “A change in the prevailing Provincial Council system is necessary to make devolution more meaningful to our people. Devolution should not be a political reform that will lead us to separation but instead it should be one that unifies all of us.” He added “the elimination of provincial disparities using national standards” was the main weapon “through which national reconciliation can be promoted…That will be an effort which ensures greater self-respect than having to lobby foreign countries to interfere in our internal problems.”

The three operative ideas in the above quote are – devolution should not lead to separation, use of national standards to eliminate provincial disparities, and ensuring greater self respect “than having to lobby foreign countries to interfere in our internal problems.”  In  other  words  he  wants  centralised  dispensation  of  powers,  use standards as decided by him and his coalition to eliminate provincial disparities, and keep foreign powers (obviously India) off the political turf of Sri Lanka.

Obviously, 13A introduced to implement India-Sri Lanka Agreement 1987, is central to all the three operative ideas of the President. But what was the hurry to get rid of
13A – the toothless tiger caged by Colombo? After all, 13A implementation was handy for the President to make repeated promises to India on devolution. New Delhi also found it useful to save its face in its nebulous coalition predicaments in

Tamil Nadu. But every move the President has made so far, not only on the issue of
13A or Divi Neguma or impeachment of Chief Justice, but also on many other acts of omission and commission is part of the jig saw puzzle of his game plan. At the heart of it is implementing his vision on devolution of powers to minorities envisaged in the Mahinda Chinthana released on the eve of his election as President in 2005.

The Chinthana expounds Rajapaksa’s ideas and plans on rights of citizens including media, equality of citizens, social development and welfare.Its portions relating to the Liberation Tigers of Tamil Eelam (LTTE) are obviously no more relevant. The President has been implementing his vision selectively, ignoring some inconvenient parts like those relating to free media. But as far as devolution is concerned he is going by the Book.

His concept of devolution differs from what has been evolved and understood in the last three years. Till his advent major parties including his own Sri Lanka Freedom Party (SLFP) as well as the major opposition United National Party (UNP) as well as the Tamil National Alliance (TNA) had accepted it. And they recognised rights for minorities. But Rajapaksa does not distinguish minorities from majority but his solution is based upon majority consensus. But what does it mean in terms of unfinished narratives of devolution, equal rights of minority etc which have been discussed and debated for last five decades? What happens to his assurances to his home constituents as well as international community notably India on this subject? Whatever he said so far does not matter because his ideas spelled out in the vision statement only will be implemented.

The relevant portions of the Chinthana say:

Primacy for Buddhism:“while preference will be given to Buddhism in terms of the Constitution will be consolidated, all other religions including Hinduism, Islam, Catholicism and Christianity will be treated on equal footing.”

What does this mean? What does consolidation of Buddhism in terms of “constitution” mean? These questions will probably figure in the minds of sections of Christians, Hindus and Muslims.

Devolution: His “primary aim is to arrive at a peaceful political settlement where the power of each and every citizen is strengthened to the maximum, without being trapped into the concepts such as traditional homelands and right to self determination. My intention is to devolve power to the level of the citizen….”

To do this, he would “abide by the majority consensus which is a fundamental premise of democracy. The majority national view shall prevail over my view individual view.” In other words, current discourse, talks and discussions on devolution of rights to minority Tamils are of marginal relevance as the final dispensation will require majority consensus and approval. With no minority recognised in the vision who will be the majority? Obviously, the larger Sinhala

community. And this ‘consensus’ will be ratified by a referendum as the President promises to “submit the national consensus that emerges from the consultative process to a referendum of the people as soon as a consensus is reached.” This would mean when the PSC on devolution completes the job, a referendum will decide whether to accept it  or reject it.  So what  is  all  the song and  dance about  13A? Obviously, it is to buy time for the President to cobble up a solution of his liking. That means the whole process may be carried over to the President’s next term if TNA continues to stall the talks. If President Rajapaksa decides he may ask the PSC to evolve a consensus even in the absence of TNA and decide to get it validated by a referendum.  Already  at least  one  political  party  has  asked for a  referendum  on getting rid of 13A. So at in near future we can expect whipping up of populist pressure for a referendum to remove 13A.

The President has the strength to implement his will; his brothers control key ministries, he has two thirds majority in the parliament with coalition partners eager to please him. He enjoys unchallenged public popularity. With these advantages we can expect the following results of his policy:

Executive presidency: Executive presidency will be here to stay; and all strategies to abolish it will be thwarted. Any move on this count by Sarath Fonseka or other leaders will be defeated using all available instruments of power.
Judiciary: With the executive and parliament already under the President’s control, judiciary is the only one that could spoil the game plan. The chief justice should be willing to conform to the wishes of the President and the government. Mrs Bandaranayake was not and she is facing the consequences. Soon a pliant candidate will replace when parliamentary formalities are over.

Tamil issue: The Tamil issue will be handled the way President Rajapaksa would like to do rather than to fulfil assurances to India or Tamil constituency or anyone else. The Provincial council elections in the Northern Province will be held only when TNA is ‘tamed’ and its tendency to lobby for “foreign interference in our internal affairs” is curtailed. (Already TNA is talking of creating five zones instead of provinces; does it mean it is abandoning 13A? ) If TNA does not fall in line by September 2013, the provincial council elections could be deferred.

Opposition: Opposition activity will be tolerated as long as they conform to rules laid down by the government. Ditto for media and trade union activities. So all the talk of fundamental freedoms and human rights by civil society can continue but the executive will respond to only to issues of their choosing.

Only thing that will hold up Rajapaksa Inc., juggernaut is growing pressures on national economy. The year 2013 is going to be crucial when it is time for servicing debts. This could dictate the President to be cautious about India and the U.S. as they have economic leverages to pressurise Sri Lanka. Both nations probably understand the President’s ploys and vulnerability. And they will be keen to protect their own interests. How will they respond? That is a question waiting to be answered.

*Col  R  Hariharan,  a  retired  Military  Intelligence  specialist  on  South  Asia,  is associated with the Chennai Centre for China Studies and the South Asia Analysis Group. E-Mail: colhari@yahoo.com Blog:  www.colhariharan.org

Courtesy: South Asia Analysis Group

Chief Justice’s impeachment hearing violates due process

The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.

The ICJ urges the government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.

Today, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.

Protests supporting and opposing the impeachment process erupted on Tuesday 4
December  2012  as  the  Chief  Justice  appeared  before  the  Parliamentary  Select
Committee for the second time.

Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.

Opposition members of parliament publicaly called on the Government to adhere to principles of fair trial and due process in the impeachment process.

Reportedly the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.

The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.

“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”

As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed   only   in   exceptional   circumstances   involving   incapacity   or   gross misconduct.

A cornerstone of judicial independence is that tenure of judges be secure.

“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.

The United Nations Human Rights Committee, in its 2003 concluding observations on  Sri  Lanka,  expressed  concern  that  the  procedure  for  removing  judges  under Article  107  and  the  complementary  Standing  Orders  of  Parliament  was  not compatible  with  Article  14  of  the  International  Covenant  on  Civil  and  Political Rights.

The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of parliament, the majority of which are drawn from the Government coalition.  No members of the judiciary are permitted to sit on the Select Committee.

Comparatively  in  India,  an  impeachment  hearing  is  presided  over  by  a  three- member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.

In South Africa, a judge may only be removed after a hearing by the Judicial Service
Commission, a body composed of members of the judiciary.

In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.

The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.

The timing of the impeachment motion raises questions.  The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill – before Parliament.

If the bill passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD).

Attacks on the judiciary have been escalating in recent months.   In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse.

In early October, the ICJ condemned the physical assault on the secretary of the
Judicial Service Commission, Manjula Tillekaratne.

In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of state accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.

The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.

PSC offers the CJ an inquiry without witnesses

by Basil Fernando

The Parliamentary Select Committee (PSC) inquiring into the allegations against the Chief Justice, Dr Shirani Bandaranayake in a surprising and shocking move informed her that during this inquiry no witnesses would be produced and therefore there would be no room for cross examination.

An 'inquiry' without witnesses naturally cannot be an inquiry at all. The essence of an inquiry is to place before the accused the witnesses who are making allegations thus giving the opportunity of cross examination on any such witness. There is no other way to find the truth behind any matter by any person who sits as an impartial judge than to listen to the witnesses and to see how they fare when they are cross examined on what they have said in evidence.

This really raises the question about the PSC. Are they a body who has already made up its mind about the allegations and are sitting there just to listen to what the CJ has to say about the allegations? If they have already made up their mind about the allegations they have no right to sit as judges.

Verdict first -- trial later

The PSC inquiry is a reminder of the story of Alice in Wonderland where the verdict is made first and then when reminded, that there was no trial with a request "for just a little trial" the queen replies, the verdict first and the trial later.

The PSC inquiry is not just funny but only a ritual setup before the verdict is announced to the parliament for a vote. The task of the PSC is just to hook up a finding to be placed before the parliament which will decide the matter on the basis of a hand count.

'Peoples' Power' -- a comic programme in the SLBC

While this is proceeding in this manner there is also a comic show which is staged every  morning  in  a  programme  entitled  'Peoples'  Power'  broadcast  through  the SLBC. Under the pretext of reading the headlines in newspapers a commentator who is a former editor of several newspapers that has been unceremoniously dismissed from his position tries to interpret the news in a truly sycophantic fashion. The main point is to say how right the government is and how wrong everybody else is.

To do that the commentator chooses not to mention any of the factual information around the news item he is discussing. For example in discussing the walkout of the CJ  from  the  PSC  proceedings  the  commentator  does  not  inform  the  public  the reasons as to why the CJ and her legal team decided to take that path. He does not tell his listeners that the PSC proposed an inquiry with witnesses and cross examination.

Instead, rhetorically the commentator asked if any person walks out of a judicial proceeding whether it would not amount to contempt of court. In fact, if any judge in Sri Lanka were to announce that in the trial he was about to conduct no witnesses will give evidence and that the affected person has no opportunity for cross examination no litigant would commit contempt to court if he refused to participate in such proceedings. The precondition of participation is that there is a real trial where the basic norms of fairness would be observed. The commentator of course does not ask his question from anyone else who may have given him the explanation as to condition under which people are under obligation to participate in judicial proceedings. Instead he himself gives the answer and that is the monologue that the listeners are forced to listen to.

The commentator also does not follow any of the ethics that are expected to be observed when accusing persons which this commentator quite liberally does. None of those persons are called upon to reply to his accusations. Like the PSC this commentator running the programme 'Peoples' Power' does not believe that he has any duty to be fair.

Strangely in today's programme (December 7) the only person whose opinion the commentator called for was a member of PRA a onetime underground death squad. This former member of PRA is the Erskine May that this commentator relies on regarding parliamentary practices.

What  all  this  indicates  is  not  just  funny  but  the  lowest  depth  to  which  the government has reduced all political discourse, whether it is about conducting an inquiry for the removal of the highest judicial officer in the country or about the manner  in  which  the  state  media  is  used  for  providing  their  version  of  the information to the people.

That lowest depth is no surprise. In a country where no inquiries are conducted into well-publicised   murders   which   are   perceived   by   the   public   as   political assassinations, where enforced disappearances are allowed and even allegations of rape against the ruling party politicians do not amount to a scandal, and where prisoners are shot down inside the prisons, where every kind of financial fraud goes without  accountability  and  where  lawlessness  has  become  the  norm  that  is  the lowest depth that society can descend to.

But that is no matter, nothing is treated as shocking and even the Chief Justice of the country is treated worse than a common criminal (in fact, the common criminals enjoy rather a privileged place).

Economics Of Impeaching Chief Justice In The Absence Of The Opposition

by Kusal Perera

She’s abused, says the media. That was all some parakeets could do. She, Chief Justice walks out and that’s all she could do, as well. The UNP members in the PSC says, the CJ should be given a fair chance and be persuaded to attend PSC sittings, stressing they will stay on and fight to the end. The “end” was decided before the beginning. It was for that, the PSC was appointed by this regime with a 7 to 4 margin and not with a single vote majority of 6 to 5.

We  now  begin  the  ascendency  to  the  next  ugly  phase  of  Executive  power strengthened  through  the  18  Amendment  to  the  Constitution  (for  now,  lets  not discuss Justice Shirani Bandaranayake’s hand in it) and that of economics under this regime. This for me therefore is no narrow issue of saving or cleaning the CJ. It is for me a much broader political issue of contradictions within the system created to develop a free market economy through political patronage. A situation where answers are sought for the inherent contradictions within their system in continuing with the free market. Of course with not just political patronage, but with political partaking. A revised system that allows more powers, unquestioned in any forum. Some in fact marvelled at the arrogance of this regime in impeaching the CJ while the Universal Periodic Review (UPR) on Sri Lanka was on.

From the side of the regime, by 27 November, there was some justification, or rather, some explanation on why the CJ was impeached. In a neither official nor unofficial media intervention, a spokesperson for the Presidential Secretariat suggested that the CJ and her husband acted improperly, contravening legislative regulations. Only when  the number of  acts  began  increasing alarmingly  did  the  executives  of the legislature take up the issue, the spokesperson said. While that could be so, they need to be proved beyond doubt in an impartial and a fair forum.

Within Sri Lanka, protests against this arrogant impeachment remains a very isolated social protest by a concerned group of lawyers and some urban Sinhala middle class elements. What nevertheless becomes important is, the constituency of the growing protests. For the first time, a conspicuous section of the Sinhala middle class that steadfastly backed this regime against LTTE separatism and promised a reasonably fair and comfortable post war dividend, has got dislodged from their “patriotic” Sinhala  platform.  They  now  seem  to  understand,  there  is  a  serious  mismatch between the regime they helped consolidate and its economic life that define its style of governance. These Sinhala urbanites have now joined the foray against the regime, buddying   up   with   their   direct   opponents   on   the   pro   devolution   platform, demanding a reversal of the impeachment. To that extent, the impeachment against CJ has shaken up the social power alignment against the regime.

What is also conspicuous is the absence of the political opposition that could exploit such social bewilderment against this regime if they want to, but to date have not. The total collection of political and NGO personalities that dominated the “Platform for Freedom” show clear absence so far. They have not geared themselves in protesting against the impeachment. That again shows the reluctance in the UNP leadership in challenging the regime on this issue of impeachment against the CJ. Protests have thus remained without any political drive and without any connect to the larger social audience, leaving concerned lawyers and middle class urbanites to agitate as they could. The JVP too have not taken a clear stand on the impeachment and their participation in the PSC seems dubious and meek.

The impeachment process thus continues unabated, gathering arrogance from the side of the regime, now trying to tie up all State power into a single bundle. An attempt, seen by most anti Rajapaksa elements as “dictatorial” and a “crumbling of the State”. It is both and reason why the UNP leadership is playing it out with the regime through subtle compromises. For the UNP, at least for those who see eye to eye with Wickramasinghe, it is their responsibility to save the system on which they would have to live and take over. The problem the UNP leadership has with this Rajapaksa regime therefore is that, it had got into their shoes, not only in keeping a liberal market economy afloat, but is now getting into re designing the State to concur with the tottering economy.

UNP’s reluctance therefore to meet the Rajapaksas head on, leaves this regime with an advantage and makes it indifferent to those shifts in power balances in society. It is therefore most unfortunately clear, Ms. U.A.B.W.M.R Shirani Anshumala Bandaranayake’s fate as the 43rd and the first female CJ of Sri Lanka, would not be decided on how innocent or not she is. But, decided on the already finalised recommendation that would come to   parliament from the PSC and the vote from subordinate and tamed ones, waiting to say “Aye” to the Speaker on the impeachment.

What makes this regime so adamant and arrogant to go this far is certainly a clear tie up in how they manage, or rather handle the free market economy. The economy, with all the tinkering of numbers and figures to prove it is being set on a fast forward growth mode, delivers nothing to the larger constituency of urban and rural lower middle class and the poor. Despite Cabraal’s boasts of a “graceful growth” of around
06 per cent of the GDP needs no government to run the country, where the economy is  no  more  State  owned  and  controlled.  A  government  is  elected  to  lift  that percentage to over at least 10 per cent through well thought out incentives and restrictions or regulated markets in selected service and production sectors of the national economy.

In spite of what is said in the budget speech, it is not budget proposals that guide the economy. It had not been the budget that decided where the economy goes, even in the past few years. All through the year, supplementary estimates brought to parliament decide where and how the economy moves, if it does. In year 2011 by end September, 67 Supplementary Estimates worth billions of rupees, made the budget proposals for 2011 almost irrelevant. It can not be different in 2012 and would not be different, if not for the worse in year 2013, with a regime that turns arrogant each day. In a country where revenue projections in budgets either has no relevance in real  life  or  falls  short  by  two  digit  percentages  in  actuals,  where  even  reduced imports by 3.3 percent during the first 09 months in 2012 (year on year), yet keep the trade deficit increasing, where incentives are thrown out for laundering of black money legally, the judiciary in such a country, especially at its apex level, becomes crucial for economic survival of the regime.

Thus for the first time in the history of Executive rule in this country, the Attorney General’s Department was brought under the purview of the President. This has to be assessed within a culture of subordinate politics in the legislature and heavy politicising  of  all  important  State  agencies  and  institutes.  Assessed  within  the effective implementation of the 18 Amendment to the Constitution.

Even in such context of usurped power, the past months proved how important it is for this regime to have the higher echelons of the judiciary under its dictates. It had to scheme and manipulate with the parliamentary opposition to get the “Divi Neguma” Bill back in the Order Book, after it was effectively stalled by the SC. It had once again to play politics behind curtains with the opposition, to have the Second Reading   of   the   Budget   2013   and   vote   on   it,   that   nevertheless   remains unconstitutional with no required amendments made as determined by the SC.

Far worse it would be, to continue to have a SC that would sit on crucial FR petitions challenging the regime on monetary and financial issues, delivering on its own right. The FR petition filed by 11 trade unions on investments made from the Employees’ Provident Fund (EPF), praying for a permanent injunction on all such investments, which is a major source of unaudited big money for this regime, would be a problem if decided independently by the SC. It therefore has to be determined as decided by the regime. Such sensitive cases can not be left to chance, more so in the coming months and years.

It is pretty clear, this regime that wants to handles public money as it pleases, the very issue that was taken to Courts regarding the 2013 budget, can not go on with a judiciary that may not give priority to the regime all the while. Even if the conflict now in public domain was not there, the court would have held that permission granted to the Finance Minister to withdraw money allocated for specific purposes and/or from the  Consolidated Fund  presents “a  direct challenge to  the  onus  of Parliament to have full control over public finances as protected by Article 148 of the constitution.” That was what made independence of the judiciary unacceptable to this regime and thus had to be ignored with the connivance of the opposition for the Second Reading of the 2013 budget. But, that is definitely not a long term answer for this regime moving into a new phase of executive power.

A Bangladeshi Assistant Professor, Taiabur Rahman of the Department of Development Studies at the University of Dakha, who in late 2004 undertook an extensive study on governance in Sri Lanka and wrote the paper, “Parliamentary Control and Government Accountability in Sri Lanka; the Role of Parliamentary Committees” concluded that “….the formal institutional structure of the political system in  Sri Lanka, appears seriously disadvantaged in checking the unbridled power and authority of the Executive and virtually unable to call the government to account. All the major characteristics of a strong legislature in practise are absent in Sri Lanka and it plays in the hands of the President who monopolises power, even in time of cohabitation. All the major political institutions including parliament (let alone parliamentary committees), the provincial parliaments and the local government units are made captive to the vagaries of the President.” (p/42)

That power of the president is what decides who does what for the regime and the regime has apparently decided, it now needs a free hand in handling the economy including public finances, without any possibility of a judiciary checking its right to do so or its constitutionality. Thus the fate of the CJ, almost foretold as closed, on economics of this regime. An attempt to re invent the State with absolute centralism and political power, creating within it the fissures and fractures of a decaying State.

It Is Just A Hop, Skip And Jump From Enforced Disappearances To The Impeachment Of The CJ

by Basil Fernando

It is clear by now that the attempted impeachment is being done in a completely lawless manner. The present approach adopted for the inquiry is no different to a committee consisting of a man’s enemies being assigned to conduct a murder trial against him. Regardless of the man’s guilt or innocence, the enemies will ensure that he will be found guilty and be hung.

There are many clips on YouTube about the mobs that gathered before the Supreme Court and the Parliamentary Complex shouting slogans against the Chief Justice and demanding her resignation. In no other country can you find examples of mobs gathering to shout slogans demanding that judges resign. Some of the people in the mobs who were interviewed directly named certain Members of Parliament from the ruling party as those who organised the mobs. It was thus clear that the mobs were organised by the government to shout slogans against the CJ. Thus, the responsible party  for  mobilising  the  mobs  to  bring  down  the  prestige  of  the  courts  is  the government itself. This is a government that is openly encouraging lawlessness. A government that mobilises mobs in this manner demonstrates no political will to keep law and order or to ensure respect for the institutions of the state. The result will be the government causing chaos in the country.

However, the history of the government resorting to lawlessness is not new in Sri Lanka nor is  it  confined  to  this  government  only.  The  most  glaring example  of absolute lawlessness is the manner in which various governments since 1971 have resorted to the causing of large scale disappearances.

In 1971, according to the statistics which came up at the Criminal Justice Commission (CJC) the JVP was responsible for 41 civilian deaths, the killings of 63 and the wounding of 305 members of the armed forces. In retaliation, the United National Party government killed 5,000 to 10,000 young people and placed another 15,000 to 25,000 in arbitrary detention. As it is well known, a very small number of these
would have been hardcore JVPers but there was little concrete evidence of engagement in any serious attacks against the majority. The procedure that was followed was arrest, torture during interrogation, killings and, for the most part, secret disposal of the bodies.

It is a universally recognised principle in law that, once a person is arrested, the state is under obligation to protect that person and produce them in court. It was this principle that, on government orders, the armed forces and the police openly flouted. The government neither expressed any regret for giving such orders nor did it ever conduct inquiries into such killings. Thus, this heinous criminal activity began to be accepted as a legitimate activity by the armed forces, police and the paramilitary.

Later, the causing of enforced disappearances was practiced on a much larger scale in the south, north and the east. In relation to the JVP uprisings from 1987 to 1991, the number of persons who were made to disappear was around 30,000, according to the statistics given by the commissions of inquiry into involuntary disappearances. Many are of the view that the numbers are much larger.

As for those who have been made to disappear from the north and the east from the early 80s to May 2009, no records have been made but obviously they would outnumber the enforced disappearances from the south. Once again, no government has ever expressed any regret about such killings and no attempt has been made to conduct any inquiries or hold anyone accountable. In fact, to demand inquiries into these enforced disappearances is considered treachery and an act which favours the LTTE.  The  simple  issue  of  the  protection  that should  have  been  afforded  to  an arrested person is no longer taken for granted in Sri Lanka. The principle that is really in practice is that after arrest, if the particular agencies so wish, a person could be extrajudicially killed or made to disappear altogether.

A complete transformation has taken place in the basic norms regarding crimes. What was universally considered a crime may not be considered a crime in Sri Lanka

if, for some political or practical reason, the government wishes to treat them as not being such. Thus, the idea of crime has been relativised and the choice as to whether to treat even a heinous crime as a crime or not is now in the hands of the government in power.

It can be said that no other government in the region regards crimes in as much of a casual manner as is done in Sri Lanka. There are countries in which, due to certain historical reasons, there has been the collapse of their legal system and they have ignored basic norms of legality and illegality. Two such countries that are known to face such situations are Cambodia and Burma. However, even these countries have not gone to the extent of ignoring the criminality of an action to the extent that it is being done in Sri Lanka now. Even in situations like those of Cambodia and Burma, there is still protection for a person who has been arrested and taken into custody.

In a country where lawlessness has gone that deep, the illegal impeachment of a superior court judge, ignoring universally accepted norms regarding the removal of such judges, is merely a logical extension of the overwhelming disregard of the law.

The law now is that whatever the government does is correct and that the correctness will be demonstrated by the use of the mob under its control. Any kind of behaviour that a law abiding nation might consider illegal or even vulgar may go as decent and right in Sri Lanka under the present circumstances.

This is a bewildering situation and the implications are beyond comprehension. Both the rights of the individual, as well as property rights, will fall foul of this situation. Anyone  who  has  the  will  to  defy  the  law  and  has  any  connection  with  the government would be able to do whatever they like. Each individual citizen will learn about it when his or her rights are directly affected by this situation. There are already tens of thousands of people who have had that experience.

If the people thought that they might have some recourse to the courts and find some solace as in the past, that too will prove an illusion more and more. In a country where the Chief Justice herself is helpless before lawlessness how could any other citizen expect the protection of the law?