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

Colombo Telegraph, 09/12/2012

By Nihal Jayawickrama -

Dr.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.

Impeachment Process Has Become A Political Exercise With Some Despicable Clowns

Colombo Telegraph, 08/12/2012

 

By S L Gunasekara -

S L Gunasekara

The following letter was written and sent to the President of the Bar Association of Sri Lanka and to the all members of the Executive Committee by S L Gunasekara on November 28, 2012. – Colombo Telegraph 

By S L Gunasekara -

BY REGISTERED POST

28^th  November 2012

Mt.WijayadasaRajapakse PC,

President,

Bar Association of Sri Lanka,

153, Mihindu Mawatha,

Colombo12.

Dear Wijayadasa,

Impeachment Of Chief Justice

As you are presumably aware, I am not and was never an unqualified admirer of the Chief Justice.  Indeed, I was one who publicly opposed her appointment as a Judge of the Supreme Court way back in 1996 and expressed my views forthrightly in a television `talk show’ on TNL.  At the same time I was and continue to be a supporter of the present Government, not because I have any illusions about it’s claims to perfection or competence etc but for the simple reason that I cannot see a credible alternative thereto or any persons/set of persons who is/are in any way suited to take over the reins of power from Mahinda Rajapakse and his government.  That is solely by way of introduction.

Despite the aforesaid I am deeply concerned about the Resolution for the Impeachment of the Chief Justice which is currently being inquired into by a purported Select Committee. My concern is not for the CJ personally – I believe that if she has misconducted herself &/or behaved in a manner unbecoming of the holder of her office she must go or be dismissed. However I am very strongly of the view that she must have a fair trial  and given a fair opportunity if defending herself. As things stand, I have no doubt that she will get neither because now the whole `impeachment process’ has become a political exercise with some despicable clowns who, to our Country’s sorrow and shame, are MPs sinking so unbelievably low as to sign an `impeachment resolution’ that contained no charges leaving it to the `managers’ of the `drama’ to insert what charges they like !!!

I see the Resolution for the Impeachment of the Chief Justice as being one giant step taken by the present government to control the judiciary and/or bring it under its heel and/or destroy its independence.  This fact was firmly confirmed by a statement made by a coterie of ignorant ministers [two of whom were `purchased’ from the UNP in the not too distant past] who held a press conference after the last sitting of the purported Select Committee and are alleged to have said that the judiciary should lay off and/or keep their hands off Parliament.

This to my mind is nonsensical.  The issue with regard to judicial intervention in the impeachment process revolves round the question of whether Standing Order 78A is or is not ultra vires the Constitution. The Standing Orders of Parliament, it must be remembered, do not constitute law. Had they constituted law the Courts would have been powerless to intervene or pass any judgment with regard to the Impeachment process.  At the same time, had the provisions contained in Standing Order 78A (which is the impugned Standing Order) been incorporated in a Bill as a prelude to making such provisions a part of the law of the land, that Bill would have had to be gazetted consequent to which the Bill for the introduction of such law which would have to be submitted to the Supreme Court for a  determination whether it needed to be passed by a 2/3 majority or by a 2/3 majority and approved at  a referendum.  Accordingly, any law providing for the procedure of trying a judge of a Superior Court on a resolution for his/her Impeachment would be subject to judicial review prior to enactment.  Standing Orders however, are essentially internal rules of Parliament governing its debates and they do not have to be scrutinized by the Supreme Court prior to their enactment.

Thus, the warning given by the coterie of ministers to the judiciary to keep their hands off Parliament which was uttered vis-à-vis the several actions pending before the Supreme Court in respect of the vires of Standing Order 78A and hence the appointment of members of the Select Committee was ominous.  It would mean for instance that Parliament would not tolerate any Court declaring to be invalid, a Standing Order which, to take a hypothetical example, decreed that any person who criticizes a Minister or the President should be subject to a death penalty.  This of course is an extreme example but one cannot rule out the occurrence of such an extreme eventuality, particularly in the present day.

These, I believe are matters of which the Bar Association should educate the public.  They should also educate the public about the fact that if the Government succeeds in subduing the judiciary they would be at the receiving end of a stooge judiciary when they are out of power.  It would be stupid for them to presume that they would remain in power for good.  I believe that is  a delusion under which several dictators laboured till they were thrown out.

I have seen a barrage of criticism about the stance taken by the Bar Association in respect of this matter where many have felt that the Bar Association has not taken sufficient meaningful steps to oppose the Impeachment.  I tend to agree with them.

I do not, for a moment mean that the Bar Association should organize strikes or noisy demonstrations such as those staged by some exhibitionists of the Bar by congregating, around the car of the Chief Justice when she was going to Parliament and returning therefrom or that the Bar Association should organize the members of legal profession to engage in such childish acts as breaking coconuts which as we all know brings no results.  Even at the risk of sounding  presumptuous.  I suggest that the Bar Association takes some meaningful steps to oppose this madness of the incumbent government.

My suggestion is that the Bar Association adopts a resolution and/or makes a public pronouncement that it requests all its members to refrain from accepting appointment as Chief Justice in the event of the incumbent Chief Justice being impeached.  Similarly I believe that the Bar Association should call upon all others who are not members of the Bar Association also to decline to accept that post if it was offered to any of them; and also that the Bar Association should call upon all its members and others to boycott and boycott completely, both socially and professionally, any person whoever it may be who accepts appointment as Chief Justice in the event of the Impeachment of the incumbent Chief Justice being effected.  Such boycott should in my considered view go to the extent of refusing sit with such new Chief Justice (if any) on the Bench of the Supreme Court [if a Judge], or to appear before such new Chief Justice (if any) as the case may be. [if an Attorney-at-Law].

I realize that adopting such a course of action would be fraught with danger, particularly to the person who proposes it and those who take the lead in executing it. However, such dangers are as nothing when compared to the dangers to the entire populace of living with a `stooge judiciary’ and hardly anything worthwhile can be achieved without some measure of sacrifice. While devices like instituting actions and organizing/sponsoring demonstrations will only bring publicity, I cannot see them being effective. Indeed such demonstrations could result in counter demonstrations [such as that which we witnessed today -28.11.12]which could only result in the further demeaning of the judiciary and/or the position it holds and/or should hold in the minds of the People.

Having regard to the importance of this matter I wish to copy this letter to all members of the Executive Committee but I have been unable to do so because I am unaware of their names and addresses.  Accordingly, I shall be grateful if you would kindly instruct the office of the BASL to furnish copies hereof to every member of the Executive Committee or to send me urgently, the names and addresses of every member of the Executive Committee so that I may send copies thereof to them.

Thanking you.

Yours sincerely,

S L Gunasekara

CJ explains why she walked out

Daily Mirror, 07/12/2012,

Chief Justice Shirani Bandaranayake has walked out of the Parliamentary Select Committee (PSC) in the face of hostile and biased conduct of the government members of the PS so as to ensure the dignity of the judiciary of Sri Lanka, a statement said.

The Chief Justice reiterated that she is innocent of the false charges made against her and is always willing to face any impartial tribunal in order to vindicate herself, a statement issued by Lawyers Collective, an umbrella organization of a numbers of lawyers’ associations and independent lawyers.

Describing the events that led the CJ’s decision to walk out of the PSC, Lawyers Collective stated as follows.  The PSC was requested as far back as November 20 to furnish the information required to reply the allegations. This information was never provided. When the PSC commenced sitting on November 23, 2012, her counsel had had requested that a list of witnesses and a list of documents relied upon in support of the allegations be made available.

It is common knowledge that even in a disciplinary inquiry in the public service or a trivial criminal case that a respondent or accused is furnished with a list of witnesses and documents so that they could prepare for the defence, it observed. The PSC failed to meet this basic requirement at any of its sitting. On Thursday, December 6 about 4pm, the PSC had handed over a bundle of documents consisting of approximately 1000 pages and required the chief justice to respond by 1.30 pm tomorrow, i.e. in less than 24 hours. It was obvious that a majority of the members of the PSC had no real intention to give the chief justice a fair hearing.

In addition to the above, at various stages of the proceedings of the PSC, two members hurled abuse at the Chief Justice and her lawyers and it became evident that these members had been mandated to ridicule the head of the judiciary and the legal profession. The Select Committee was requested numerous times to formulate the procedure that it intended to follow. There was no response to this request until today.

On Thursday, when this request was repeated, the Chairman of the PSC stated that no oral evidence would be led to establish the allegations and, consequently no opportunity would be given to cross examine such witnesses making the allegations. Instead it became evident today that the Chief Justice was expected to refute allegations that had not even been supported by evidence. Such an irregular and unlawful procedure would undermine every single independent judge in Sri Lanka. In almost all instances the same members of the PSC, who were in majority, overruled the submissions made on behalf of the Chief Justice without cogent reasons and often without any prior consultation with the other members.

It is for the above reasons that the Counsel for the CJ had requested to waive the secrecy provisions and sought an open and public inquiry and requested for independent observers to watch the proceedings, but this request was also refused by a majority of the PSC. In the face of the above no right thinking person could any longer continue to accept the legitimacy of a body steeped in partiality and hostility towards the head of the judiciary and in this background the chief justice and her counsel had no alternative but to withdraw from participating in the select committee.

The CJ reiterated that she is willing continue to face any impartial and lawful tribunal as is done in other commonwealth countries as was proposed in the draft constitution of August 2000 in order to vindicate herself and she will continue in her efforts to safeguard the independence of the judiciary, which is a heritage of the people of Sri Lanka, who alone are the sovereign of this country.

විශ්වාසයක්‌ නැති බව දන්වා තේරීම් කාරක සභාවෙන් අගවිනිසුරුවරිය ඉවත්වෙයි -

Divaina, 06/12/2012,

"කාරක සභාවේ වැඩ දිගටම..."

අජිත් අලහකෝන්, අකිත පෙරේරා

විශේෂ කාරක සභාව පිළිබඳ තමන්ට විශ්වාසයක්‌ නැතැයි පවසමින් අගවිනිසුරු ආචාර්ය ශිරාණි බණ්‌ඩාරනායක මහත්මිය ඇතුළු ඇයගේ නීතිඥ කණ්‌ඩායම ඊයේ (6 වැනිදා) සවස කාරක සභාවේ විමර්ශන කටයුතු අතර තුරදී නැගිට පිටව ගොස්‌ ඇත. මෙම කාරක සභාව හමුවේ මින් මතු පෙනී නොසිටින බවද එම කණ්‌ඩායම ප්‍රකාශකර ඇත.

අගවිනිසුරුවරියට එරෙහි චෝදනා විමර්ශනය කෙරෙන විශේෂ කාරක සභාව ඊයේ (6 වැනිදා) සවස 2.30 ට පාර්ලිමේන්තු සංකීර්ණයේදී රැස්‌වූ අතර ඊට අගවිනිසුරු ආචාර්ය ශිරාණි බණ්‌ඩාරනායක මහත්මිය සහ හත් දෙනකුගෙන් යුත් ඇයගේ නීතිඥ කණ්‌ඩායමද සහභාගි වූහ.

මෙම කාරක සභාව ඊයේ (6 වැනිදා) සවස 6.30 වන තුරු පවත්වාගෙන යැමට තීරණය කර තිබූ නමුත් අගවිනිසුරුවරිය ඇතුළු නීතිඥ පිරිස පස්‌වරු 5.50 ට පමණ කාරක සභාවෙන් නැගිට පිටවගොස්‌ ඇත. ඊට පෙර පස්‌වරු 5.05 ට තේ පානය සඳහා කාරක සභාවේ කටයුතු අත්හිටුවීමක්‌ද කර ඇත.

විශේෂ කාරක සභාව කටයුතු කරන ආකාරය පිළිබඳව තමන්ට විශ්වාසයක්‌ නැතැයි අගවිනිසුරුවරිය වෙනුවෙන් පෙනී සිටින ජනාධිපති නීතිඥ රොමේෂ් ද සිල්වා මහතා ප්‍රකාශ කර ඇත.

සාක්‍ෂිකරුවන්ගේ නාම ලේඛන ඉදිරිපත් නොකිරීම, චෝදනා සම්බන්ධ ලිපි ලේඛන ඉදිරිපත් නොකිරීම, අගවිනිසුරුට අපහාස කිරීම ආදී කරුණු හේතුවෙන් තමන්ට සහ අගවිනිසුරුවරියට විශ්වාසයක්‌ නැතැයි පවසමින් නීතිඥ කණ්‌ඩායම සහ අගවිනිසුරුවරිය පිටව ගොස්‌ තිබේ.

නැවත මෙම කාරක සභාව වෙත අගවිනිසුරුවරිය හෝ නීතිඥවරු සහභාගි නොවන බවද ඔවුන් කාරක සභාව වෙත දැනුම් දී ඇත. එසේ පවසා පස්‌වරු 5.55 ට පමණ ඔවුන් සියලු දෙනා අංක එක කමිටු ශාලාවෙන් පිටව ගොස්‌ ඇතැයි වාර්තාවේ.

අගවිනිසුරුවරියට අයත් බැංකු ගිණුම් සම්බන්ධ වාර්තා සහ වත්කම් ප්‍රකාශවලට අදාළ ලියකියවිලිවල පිටපත් කාරක සභාව විසින් ගෙන්වා කමිටු සාමාජිකයන් අතර පෙර දිනයේ බෙදා දී තිබූ අතර ඒවායේ පිටපත් අගවිනිසුරුවරියටද ඊයේ (6 වැනිදා) භාරදී ඇත.

PSC: Irate CJ stages stunning walk out Insulted, she will not come back – Counsel PSC to go ahead according to precedents

The Island, December 6, 2012, 12:00 pm 

By Saman Indrajith

Chief Justice Shirani Bandaranayaka and her team of lawyers walked out of the Parliamentary Select Committee probe around 5.50 last evening saying that they would not return, according to parliamentary sources.

Romesh De Silva, senior member of the team of lawyers, representing the Chief Justice, said that they had not been provided with the necessary documents and there was no list of witnesses too. Without the list of witnesses, there was no possibility of summoning them before the committee. 

The PSC had not been able to provide the Chief Justice and her lawyers with the documents pertaining to the charges mentioned in the impeachment motion against her, he said.

Besides the Chief Justice had been continuously subjected to verbal abuse by some of the government members during the sessions, he claimed.

The PSC had failed to verify the authenticity of the documents provided by the Secretary General of Parliament on Wednesday and the calls to summon the relevant authorities, which had provided those bank account details and asset declarations, by the lawyers of the Chief Justice had been overlooked, the Counsel said.

Counsel de Silva also pointed out that the PSC had failed to spell out its procedure. He said they had no faith in the committee and that she would not get a fair trial.

The Chief Justice was represented by her lawyers Romesh de Silva PC, Kandiah Neelakandan, Nalin Laduwahetty PC, Sugath Caldera,  Riyaz Ameen, Iraj de Silva and Saliya Peiris.

The walk out took place after more than three hours of the Committee meeting which began at 2.30 p.m.  

Chairman of the PSC, Environment Minister Anura Priyadarshana Yapa adjourned the sittings of the committee till 1.30 p.m. today.

Yesterday was the third time the Chief Justice appeared before the committee.

Opposition members have decided that they will participate the PSC at 1.30 p.m. and demand the Chief Justice be given more time and that she be persuaded to come and participate in the proceedings, Chief Opposition Whip John Amaratunga, who is also member of the committee, said.

Deputy Speaker Chandima Weerakkody addressing media soon after the Chief Justice and her team of lawyers had left the Parliamentary complex said that the PSC has asked the Chief Justice to be present before it at 1.30 pm today. He said he believed that the PSC would act accordingly the internationally accepted norms in case she or her lawyers would not comply with its request.

Deputy Speaker said that all necessary facilities for the process of the PSC had been provided by Parliament on Speaker Chamal Rajapaksa’s orders and 22 days had been given to the Chief Justice to file her objections to the charges mentioned in the impeachment motion.

Govt. schools come to a standstill

Daily Mirror, 04/12/2012,

Activities in most of the state-run schools island-wide have come to a standstill today due to the strike launched by the Principals and Teachers Union, General Secretary of the Ceylon Teachers Union (CTU) Joseph Stalin said.

He further said more than 200,000 teachers and principals including the Northern and Eastern Provinces have reported medical leave today and the strike was going on successfully.

They have launched the strike to urge the government to resolve the Teachers’ and Principals’ salary anomalies and several other demands.

If the authorities fail to resolve the issue Mr. Stalin vowed to continue their strike action.

However the Education Minister Bandula Gunawardene said the strike action was futile and all the measures have been taken to address their demands.

Our reporter said at least 90 schools in the Ampara District have been closed due to this strike action by the teachers and principals. (Chaturanga Pradeep, Darshana Sanjeewa)

WATCH

CJ Asked For An Open Public Trial – Refused, Asked For Observers – Refused

By Colombo Telegraph - 04/12/2012

Chief Justice has asked for an open public trial. The application was refused. Then asked for observers including Bar Association of Sri Lanka. This was also refused. Thus the inquiry would be held in camera, the Colombo Telegraph reliably learnt.

CJ

Chief Justice  objected to Wimal Weerawansa MP and Dr. Rajitha Seneratne MP from participating as members of the PSC on the ground of bias.(There were several cases where CJ has given orders affecting these MPs/their family members).  Order on this is postponed for  Thursday (6th December) afternoon 2.30 pm.  On that day, they will also consider whether further time would be given to the CJ for explanations.

 

No procedures for inquiry have been adopted.  No lists of documents or witnesess have been given. The PSC is to meet without the CJ on 5th, tomorrow at 10.00 am. 

Mirror, Mirror On The Wall, Who Is The Most Superior Of Them All

Colombo Telegraph, 04/12/2012, By Ravi Perera -

Ravi Perera

“I have an entry Visa to the United States valid for 5 years!”

“That is good; I used to value such things until I got my British Passport. Now in any country I get my Visa on arrival”

In a life reduced to a grim struggle for social recognition and your general expectation is to be denied such, any affirmation of a hierarchical standing is to be grasped at fervently. Even if it is only a Visa to enter a foreign country, there is an implied conferring of a status on the recipient of the Visa. He has been elevated a few notches higher from the unctuous pit.

A person coming from a culture with a more egalitarian attitude cannot but be appalled by the determined stratification which is so apparent here. We seemingly cannot perceive of a world without such a hierarchy.  Your standing in the pecking order will determine everything. Even if you are paying for it, say at a restaurant, the service received will depend very much on the social standing of each customer. Apparently the Waiters in Sri Lankan restaurants, whatever their mental deficiencies, have eyes well trained at assessing the social standing of the customer walking in. The size of the entourage/bodyguard, the jewellery on his person, the charms wrapped around  his  wrist, the confident demeanour  of the customer etc are all, not so subtle, hints as  to his  status. Of course, unless the Bill is settled by a third party,   it is most unlikely that the VIP’s tip would be lavish, if any. That will not be keeping with the practices here. But the Waiter is not unduly concerned. His reward is the opportunity to serve a man of status, be in his proximity, making of the connection.

Where you need not pay for the service, for instance at a Police Station, hierarchy is everything. The average citizen who goes to a Police station, say to make a complaint, will be just brushed aside if a person considered higher in the pecking order comes by.    For these uniformed officers of the law what matter is the political/social hierarchy, never mind the assumption that law enforcement is an objective impartial exercise. The poor Policeman simply cannot conceive of a different world. In his mind political power is all that matters. The law and regulations come only a distant second, a kind of alien embarrassment.

In a society such as ours it is not surprising that two very different institutions, the legislature and the judiciary   are  locked in a battle today  to decide as to who is “superior” . This is not a line of thinking that one is likely to come across in more developed societies. Is the President of the United States “superior” to the Congress or its Supreme Court? In Britain, is the Queen superior to the Parliament or vice versa? One never comes across such inanities in those countries. Can institutions that have such different functions to perform, be compared in order to determine a hierarchal superiority?

Essentially, the Parliament’s job is to legislate while we expect the judiciary to determine and interpret those laws.  If courts are to function independently, they must have the freedom to act without fear of favour. Surely, we cannot expect that from a body which is subordinate to another institution? In advanced cultures, these institutions function very well without having to decide as to which institution is “superior”. In the well known Monika Lewinsky case the then President Bill Clinton’s denial of involvement   was given the lie as a result of the  investigations by the Federal Bureau of Investigations(FBI) which confirmed the seminal  stains on a dress worn by Ms. Lewinsky. How did they do that when the FBI is, in the Sri Lankan way of looking at things, “inferior” to the Chief Executive, the President of the United States?

It is unlikely that our courts would be free of this longing for a higher social status. In the countries where these legal institutions originated, it is understood that three lawyers play the leading roles in a dispute before court, two in the form of representing the views of the opposing parties while the third takes the role of an umpire or the judge. It is a collective effort where the three lawyers play an appointed role in order to find a just solution. In cultures where dialectical thinking is deeply embedded, this role playing is easily grasped. But in the Sri Lankan way of thinking it could well be that the judge not only sits on a dais but may be even playing a higher, a kind of a “divine” role. The parties have to approach him as supplicants. An outsider will not fail to notice the unmistakable air of imperfectly understood concepts and the awkward mimicking of alien cultures in the whole exercise.

If we were to look at our institutions, not to determine which is superior,   but their actual manifestations the picture that emerges is not pretty. After the last presidential elections   we saw the main challenger for the Presidency, former army Commander Sarath Fonseka, imprisoned on certain charges which were instituted after his defeat at the elections. According to the charges he was not a fit and proper person to have held the position of army commander.  But he was not removed from the position   of army commander   for any misconduct but only retired to contest the elections. The charges and the prosecutions followed his  defeat at the elections.  In the case of the Chief Justice too what she or her husband did was not important until she fell afoul of the   President.

On and off, but particularly in the last 10 years or so, we have observed several high ranking judges obtaining personal benefits from politicians. The case of the Chief justice’s husband is now very much in the public domain. It is also the general view that our higher courts are inclined to go with the political power in ascendency at the time. That is the judiciary. If we look at the legislature, only the other day we read in local newspapers  the  cost of meals at the parliament canteen ( Breakfast Rs 3000 and lunch Rs 5000), but the members pay only an absurdly subsidized price of  Rs 200 a meal ! Apparently some of our Parliamentarians have expensive tastes, ordering delicacies such as Australian Honey, Golden Syrup and Green Tea. If we were to determine superiority on the basis of foods eaten, our parliamentarians are far superior to the average person in this country. No wonder that every MP who is a father wants his son to follow in his footsteps!

It goes without saying that the concepts underlying   an elected presidency, a parliament and a permanent   judiciary, all of which we have adopted now, evolved in very different cultures. These concepts as they now function were not created by the genius of Sri Lankans.  They came to us only because of nearly five hundred years of colonial experiences. We operate under the assumption  that these essentially alien concepts/ institutions can be  easily replanted in  a very different  soil, and  notwithstanding the obvious incongruities in the character make up in the receiving culture, the same results obtained.

When the imperial powers withdrew in 1948 the subjugated, rather the elite among them, took over. Inevitably, the new elites came to be the     “excellencies”,” lordships”,” honourables” or at the least the “sirs” in the new order.  But in   the reality we confront now the institutions we have traditionally associated with those titles operate very differently. The name of the institutions seems a mere    façade to hide a very different, and a sorry reality. In the hands of men with very different outlooks, upbringings and education such institutions have become a farce, a tragedy or perhaps even a tragicomedy.

It goes without saying that in a true democracy, everybody, the president, the parliamentarians and the judges would be subject to impartial investigations if warranted, and if so required, removed from office after a due process. But such processes to have any legitimacy must be supported by independent investigative and prosecutorial organs and finally a judicial process which is independent, impartial and fair. These are all   essential parts of the due process of the administration of justice.

Whatever the allegations against the Chief Justice, it is in our interest to see that justice is done to her in an acceptable manner. Any citizen is entitled to justice under the rule of law. No person should be subject to a persecution merely because it is politically expedient.

But in the last analysis, the three institutions concerned, the presidency, the legislature and executive cannot help but reflect the sum of our culture, values and outlook. Ultimately, this whole process may not determine which institution is “superior” but rather show the actual quality of a people who are in fact represented in them.

From A Farce To Witch Hunt

Colombo Telegraph, 04/12/2012, By Asian Human Rights Commission -

The impeachment of the Chief Justice which was staged as a farce has now turned into a blatant witch hunt where the government is shamelessly mobilising taxi drivers and other mobs to call for the resignation of the Chief Justice.

Today was declared by the lawyers a day of protest against the impeachment process which is ignoring the request by the Supreme Court to delay the proceedings until it inquiries into a constitutional question referred to it by the Court of Appeal requesting legal opinion. Meanwhile, local and international pressure has also widened and the government has been told in very clear terms that any impeachment must be preceded by a genuine inquiry by a competent and impartial tribunal. The government is also being told that an inquiry by a Parliamentary Select Committee would not meet this requirement. However, the government is blatantly ignoring the criticism against the manner in which it is proceeding and has begun to resort to street tactics in dealing with this all-important constitutional question.

Today, while lawyers, religious dignitaries and others gathered to show their solidarity with the Chief Justice and protest against the blatant violations of the constitution by the government, the government has responded by bussing in people to shout slogans against the Chief Justice. According to reports about 500 Special Task Force (STF) personnel were sent to the premises of the Superior Court Complex. The STF is a paramilitary unit working under the direction of the Ministry of Defence. The task of peace keeping belongs to the civilian police and not the paramilitary groups such as the STF.

Yesterday (December 3) the judges of the lower courts, that is the Magistrate’s Courts to the High Courts, gathered at the official residence of the Chief Justice and held a two-hour consultation with her and declared their support. It is clear from the statement of the judges that they perceive the impeachment as an attack on the independence of the judiciary. In the joint statement of the judges they stated that the impeachment proceedings are being conducted in violation of the respect owed to the Chief Justice and the judiciary. They also pointed out the unbecoming behaviour of the media. They stated that such behaviour of the media amounts to contempt for the court. By such contemptuous expression, not only is the Chief Justice being brought into disrepute but it also affects the respect for the courts and thereby contributes to the collapse of the rule of law. They also stated that the inquiry against the Chief Justice should be done impartially and with transparency. They went on to state that the inquiry by a body that includes seven persons from the government violates natural law and blatantly violates all legal considerations and that nowhere in the world would decisions on such matters be made in this manner.

Thus, what is now taking place is a clear confrontation between the judiciary as a whole and the government. On the one hand the Supreme Court has granted leave to proceed in several cases and fixed inquiry into the cases referred to it by the Court of Appeal. On the other hand all the lawyers of the lower courts have gathered and clearly indicated that they have begun to perceive the threat to the independence of the judiciary.

Under these circumstances any government would have heeded public opinion and take appropriate action in order to ensure that whatever action is taken is within the law and would in no circumstances infringe the basic guarantees of the independence of the judiciary. Such a rational reaction was to be expected as the matter involved is of the utmost seriousness and the attention of the whole nation is now focused on this issue. Besides, the international community is clearly watching and the matter at stake is of the most sensitive nature in terms of international relationships.

However, the way in which the government is reacting does not show much regard for these important considerations and instead seems to rely entirely on muscle power in determining the outcome of this most important constitutional issue.

This does not come as a surprise as the government has drifted from a democratic form of governance to the governance of a shadow state. This shadow state relies more on the security apparatus that is the paramilitary forces, intelligence services and the military rather than the democratic institutions. In fact, the democratic institutions have ceased to function independently and are controlled by the presidential secretariat.

Everything else other than the presidential secretariat and the Ministry of Defence seems to have become irrelevant. Naturally the security apparatus in all critical moments brings in mobs and criminal elements to counteract people who express their democratic aspirations by way of peaceful demonstrations.

For this shadow state the independence of the judiciary is an obstacle. The shadow state requires the kind of ‘judiciary’ which will merely carry out its orders. Legality and constitutionality are matters that have no relevance to the functioning of this shadow state.

Under these circumstances the government is now engaged in a witch hunt against the Chief Justice as well as all the judges who demonstrate any attachment to the independence of the judiciary. This witch hunt will also extend to all independent lawyers. As we have pointed out in the past the rule of law is now rapidly being displaced by direct government control without regard to the law.

Hulftsdorp Today: GSL Transported Hundreds Of Thugs, Chief Justice Followed A Different Route

By Colombo Telegraph -

Here are the highlights of what took place today with regard to the impeachment motion against the Chief Justice;

The government has transported hundreds of thugs and supporters to Hulftsdorp in the early hours. Several banners had been put up stating that the judiciary is dividing the country etc.  A huge police team (approximately 500) together with military were present. Road barriers were kept ready. Several high ranking police officers including DIGs were present and they were obviously supporting the groups that were transported. These unruly groups were obviously getting ready to hoot and throw stones. But it failed because the Chief Justice followed a different route.

Media was not permitted to enter the court complex. This was solved with the intervention of the lawyers. Lawyers have found that there were specific orders not to permit foreign media to enter the courts to cover the  CJ’s coming out of the courts.

CJ appeared from the main door with 210 judges around 9.20 am and then moved into the lawyers section. There were approximately 800-1000 lawyers   (from all provinces) assembled in the courts to wish her. Trade Union leaders were also seen. The civil society people who were present outside the court were asked to move by the police who were in fact protecting the government protesters (who were carrying boards distributed by an unidentified group).

She was given blessings by Ven, Maduluwawe Sobhitha and Fr. Sarath Iddamalgoda and a large number of religious dignitories were present. Initially, police had prevented the Buddhist monks entering the Courts.

Sathyagraha was conducted after CJ left and continued for about one hour. Lawyers also observed that outside the courts several pro government groups were distributed money.  All moves to enter into a confrontation with the lawyers by the pro government groups were averted by lawyers.

Near the parliament- another set of pro government groups were ready to hoot and ridicule the CJ.

PSC sitting is continuing in the afternoon.

Non aggressive dissent shown against the degrading treatment meted out to the Judiciary by MR regime before the Supreme Court by Attorney-at-Law & Solicitor Nagananda Kodituwakku

Related posts;

Pictures: Sharing Benefit Of The Protest Against Chief Justice

Join Hands to Defeat Impeachment & Protect Independence of Judiciary!

DAY OF SOLIDARITY AND DISSENT

Let us show our solidarity against politically motivated impeachment against the Chief Justice

All are invited to gather outside the Supreme Court Complex, Colombo l

on 4th December at 8.30 a.m.

The Alliance for Freedom of the Judiciary

BASL chief, others allowed to proceed FR violation application against PSC probing CJ PSC members given four weeks to file objections

The Island, December 3, 2012, 12:00 pm 

By Chitra Weerarathne

 The Supreme Court yesterday granted leave to proceed with the fundamental rights violation application filed by President of the Bar Association, Wijedasa Rajapakshe, PC and several other members of the BASL, against the appointment and the proceeding of a parliamentary select committee to inquire into the allegations against the Chief Justice Dr. Shirani Bandaranayake. Leave was granted in respect of the alleged infringement of Article 12(1) of the Constitution.

The issue to be determined by the Court is whether standing order 78A is ultra vires and could be declared null and void and also whether all the proceedings and the finding of the select committee appointed under standing order 78A are null and void.

The respondent members of the parliamentary select committee were given four weeks to file objections. Hearing was fixed for Jan. 21, 2013.

Ikram Mohamed PC appeared for the members of the Bar Association who said that Article 4 (c) of the Constitution guaranteed the independence of the judiciary and that a committee appointed under Standing Order 78A could not investigate the conduct of a Judge of the apex Court.

The additional solicitor general Bimba J. Tilakaratne, PC, who appeared for the Attorney General, said that the action of the Speaker, taken in parliament, could not be reviewed by the Supreme Court, since it had no jurisdiction to do and the petition had been filed without the approval of the ExCo of the Bar Association.

The bench comprised Justices N. G. Amaratunga, Priyasad Dep and Eva Wanasundera.