21 September, 2020

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A Good Case Always Wins When Judged By An Impartial Tribunal

By Basil Fernando

Basil Fernando

The government’s claim is that the case against the Chief Justice is an open and shut case, a foolproof case. It claims that the charges are extremely grave and that the evidence possessed by the government is monumental and black and white.

If this is in fact the case, then the government has vast political mileage to gain by placing its evidence before an impartial tribunal. The verdict that will be arrived at will enjoy the greatest credibility and therefore the government will not be blamed for a witch hunt against the Chief Justice. All the critics would be silent forever if an impartial tribunal comes to a finding on the basis of government claims; if they are true, an impartial tribunal will naturally come to that conclusion.

Thus, in this, the government has all to gain and the critics of government have all to lose as a result of the appointment of an impartial tribunal.

The very appointment of such a tribunal itself will be a vast gain for the government.

When that is clearly the case, why does the government not take this option? It is the option that has the maximum benefit for the government.

It may be because the government is not sure of its claim of having a winnable case before an impartial tribunal. It may be fearing that under close scrutiny its case may be exposed as false or that the case will fall apart no sooner than it is examined by an impartial tribunal. An observer is fully justified in coming to that conclusion if the government persists in not placing this case before an impartial tribunal. By refusing to allow the case to be heard in that manner, the government has already lost the argument.

No politically wise leadership will refuse to take an easy road that will lead to a credible victory when it has that option.

Instead, the government is engaging in massive propaganda, day in and day out, to show that it is acting in good faith and that the Chief Justice in the wrong.

No amount of propaganda is a substitute for genuine proof. Even if the government causes a victory by passing a resolution in a parliament on the basis of the PSC findings, it will never be able to escape the damning criticism that the verdict was not arrived at by an impartial tribunal but rather by an overwhelmingly biased group of the government’s own members of parliament. That blame can never be washed away and that will have its own implications for the government.

Further, it is one of the most shameful moments in Sri Lanka’s history that the overwhelming power of the government through the media is used to maximum capacity against a single woman who happens to be the Chief Justice of Sri Lanka.

That belies the government’s claim that it is the Chief Justice and a few others in significant NGOs that are opposing the government’s impeachment move. The level of the government’s propaganda suggests that it is facing a massive threat. Only a massive threat warrants such massive campaigning.

Once again, why use such massive and arduous efforts when there is one simple and easy method for the government to achieve what it wants without gaining adverse criticism, by way of having an impartial tribunal?

The guilt on the government will be attributed purely on the basis of their refusal to have an impartial tribunal, when it is all to the government’s advantage to have one if its claim of impeccable evidence is true.

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Latest comments

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    The three charges on which the PSC supposedly found the CJ guilty are not clearcut. They are quite complex and would require careful consideration and due judicial process of inquiry. In the absence of a clearcut case and objective evidence the guilty verdict has been delivered in a mighty big hurry without much thought or discussing the legal and constitutional implications. It is a case of guilty under any circumstances.

    Now the PSC find that the foot is in the mouth and cannot retract so the attempts to chase her away. Today the bigamist dilan delivered a speech on swarnavahini saying that one month period is given not for anything but for CJ to resign and go home. Parliment and the Govt have now sunk to the level of liars and scoundrels.

    He claimed that the records of the PSC are true and nothing has been expunged wheras the four opposition members as well as the CJ and lawyers are wittness to the obnoxious terms uttered. Thus it also appears that the record of proceedings has been tampered and this affects the fidelity of the entire records and final report as well.

    So these jackasses are making a mockery of the entire parlimentary system and governance in Sri Lanka.

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      The reasons for impeaching Mahinda Rajapakse are far greater and graver than for impeaching the CJ.
      Rajapakse and his brothers are steeped in corruption and there is plenty of evidence to impeach them for gross corruption, waste and misappropriation of public funds in the name of “development”, land grabbing, causing grave harm, bringing disrepute and attempted destruction of institutions – particularly to the judiciary and legislative arms by running a Kangaroo Court in Parliament.

      Basil I do hope that you and the Asian Human Rights group will be able to compile and file a case for the IMPEACHMENT OF MAHINDA RAJAPAKSE, CHAMAL RAJAPAKSE and BASIL RAJAPAKSE.
      Meanwhile Gota the white van goon may be sent to the Hague for a war crimes trial.

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      Dear Basil Fernando, many thanks for this and all your analysis which is spot on.
      Would you please use all your talents and join with good people like Mr Elmore Perera and compile a case to IMPEACH MAHINDA RAJAPAKSE – to free Lanka of this barbarian dictator and his illiterate brothers and sons?

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    Today lieng the people become a norm.government intention is curtail the impartiolity of the judiciary.They need mere pupets not judges.Thats all.This is a part of the mirracle of Asia,wow.

  • 0
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    There is a strong possibility of a conflict between MARA and GOTA…..while MR trying to find a solution for CJ impeachment to please all while opposition,Bar association, general public and the International pressure is mounting………..while GOTA trying to kick out CJ ASAP with possibility of Force and intimidation methods and possibility of violance against CJ, Judiciary and opposition protesters.

    Come Jan.3rd if appeal court finds PSC verdict is null and void……and a new hearing should take place….…..definitely MARA – GOTA dream world going to collapse.

    Therefor the opposition PSC members, CJ and her lawyers should convince Appeals Court that the CJ PSC impeachment hearing was a biased and one sided one and to make it’s decision Null and Void.

    A fresh new hearing should commence with the help of CW judges to make it more transparent and valid.

    There’s a strong possibility for CJ to come out as a winner…and the Govt. with weak parliament power base could lead to dissolve of parliament and calling for fresh elections.

    Meanwhile extra…extra protection and security should be given to CJ and the Judiciary and SC Judges and the Building, files and documents.

    Also Live TV/ Radio broadcast on January 03, Appeals Court hearing will be helpful.

  • 0
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    We have too many crooks, pandam karayas, commission kakkas and pole vaulters, high jumpers, long jumpers and gangnam style pin padi Baila Rajas in the parliament.

    The whole Governamet is a FOUR MAN SHOW. They are MARA, GOTA, BARA and CHAMA…..others are no show pin padi vandi battayas.

    Please watch Derana Video Clip http://www.derana.lk (go to Program…other programs..select program category…talk shows…select box#2) of program 360 Dilka and ex.CJ Sarath Silva’s interview…Part 2.

    It cleary says the SC warned President on Hedging deal….but President Did not listened to SC and went ahead…..and now as a result Sri Lanka has to pay closer to ONE BILLION US DOLLARS TO THE ANKS(Premium+interest+lawyers fees) due to silly MR’s decision. SC should impeach MR for this Blunder and he is responsible for the loss.

    Now Minister Basil Rajapakse has taken over the Tourism Industry and now started giving bogus figurs. How come in ONE WEEK the tourist arrival jumped from 950,000 to ONE MILLION……when hoteliers claim Low turnover.

    Also the Luckey 950,000 tourist came from Poland……….and One million came from China……What happened to the western European, British and US, Canadian tourists……………………..

    I kindly request Gon (Donkey) BARA not to politicise and ruin our Tourist Industry also like others …………when the three best local Directors resigned yesterday.

    This IS the MAHARAJA FOUR MAN PUPPET SHOW GOVERNING THE WHOLE COUNTRY WHILE THE REST OF THE GOVT.PARLIMENT MINISTERS JUST GETTING PIN PADI…..

    ASHCHARYA 2013.

    CT Please let us witness the January 03rd Appeal court hearing Broadcast LIVE in TV and RADIO.

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    best legal minds such as HL De Silva, SL Gunasekara, CG Weeramantry are saying that CJ didn’t get a fair trial. only the political ass lickers such as HLD mahindapala, R Samaraweera and few other journalists (mind you they are not lawyers but pretending to know law)support the impeachment.

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    Hon. Minister Basil Rajapakse.

    Tourist Board (as per today’s ITN News) say only 30,000 Chinese Tourists came to Sri Lanka in 2012.

    Could you please give me the Breakdown of the rest of the 970,000 tourists came from.

    Their countries and the numbers will be helpful.

    Thank You.

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    Yes, the best option is impartial judgement. We are for that option.

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    http://www.ft.lk/2013/01/02/independence-of-the-elections-commissioner-is-equally-important/

    Independence of the Elections Commissioner is equally important.

    There has been a flood of articles about the impeachment process and some have condemned outright the procedure adopted by the Parliament, whereas some have given vague and slanted messages not meant to antagonise the ruling authorities.
    Some academics and legal luminaries have presented very strong points against the impeachment process. Some Ministers with leftist political ideologies and who had championed many a political causes in our history have been somewhat muted in making their positions clear.
    It is very unfortunate that these types of people have resorted to silence and their silence in the past had indeed contributed to the deterioration of the rule of law in our country. Senior politicians need not worry about their ministerial portfolios but should be candid in their views and make their presence felt by expressing their thoughts freely – irrespective of the fact that it might cost their ministerial portfolio. After all it is the Government that would benefit from such exulted political wisdom.
    Impeachment crisis
    The impeachment crisis has now turned into a battle between the Judiciary on one side and Executive and ‘Executive-led’ Legislature on the other side. The Judiciary has recently said that a ‘chaotic situation’ would emerge if decisions of the Judiciary are not respected.
    This statement is unprecedented in our post-independence political landscape and might impinge on country risk ratings. It looks like that Judiciary has been watching the public dramas being enacted in broad daylight without any regard for public sentiments and waiting for an occasion to express their disgust.
    One legal luminary had drawn an analogy from a Roman description of its enemies in his written submission to Supreme Court which is yet another historical statement in our court history. Yet another retired justice has delivered a speech highly critical of the incumbent Government. These words of Judiciary and legal profession seem to have escaped as if it has been kept ‘bottled up’ for some time.
    Political columnist Darisha Bastians once wrote an article aptly captioned as ‘Breaching the last line of defence’. Yes indeed the Judiciary is the last resort against injustice, discrimination, oppression, exploitation, expropriation, and political deception (golf course case).
    The whole country, including this writer, salute the Rajapaksa family for the magnificent war victory brought about against the ruthless terrorists who did not represent the real Tamils or their grievances. However this historical victory does not provide a carte blanche on political decisions on other areas of good governance.
    There are serious issues involving good governance, transparency, media freedom, justice and fair play. Perhaps this is why the entire Judiciary is up against the Executive and the ‘Executive-led’ Legislature. People have been jolted against the absence of fair-play in public affairs.
    The State media institutions have been excessively used for propaganda purposes and in some cases to sling mud at opposition and dissenters. The Government is of course entirely free to provide space for its own version of the impeachment imbroglio but there should also be space for counter arguments or provide an opportunity for other side to respond to allegations.
    Call for fair play
    No one says that the CJ is innocent but the clamour is for fair play and natural justice. The lawyers and the Judiciary know very well that this sudden decision to impeach the CJ stems from the adverse judgment delivered by the Supreme Court over Divi Neguma Bill.
    The pertinent question that begs an answer is, what guarantees would there be that the next CJ would always fall in line with the philosophy of the Government of the day? Will there be impeachments every now and then? That would make the whole Parliamentary system of impeaching judges a mockery.
    If the next CJ does something indigestible, the Government will not be in a position to impeach at all as the Government will have lost credibility for yet another impeachment. He or she will be even more powerful and assertive than the incumbent CJ. It would be prudent for the Government to mend fences and avoid an open clash with Judiciary. It is also the art of drafting Bills so that no provisions of the bills will be found to be inconsistent with the constitution.
    Commissioner of Elections
    Has anyone thought about the importance of the independence and integrity of the Commissioner of Elections? The Elections Department has an onerous duty of conducing elections in a free and fair manner and people of this country have an inherent right to elect a government of their choosing and if the outcome of an election does not represent true will of the people what would be the situation?
    What remedies are there to rectify such a situation? How will we ever know if the elected are the ‘true representatives’ of this country who have been elected ‘freely’? The Parliament cannot be supreme if the elected representatives have dubious credentials and the election itself is not free and fair.
    True meaning of ‘Parliamentary Supremacy’ must therefore necessary mean that it is an august assembly composed of people with integrity and learning. The current Parliamentary affairs, as seen and understood from media reports, does not pass muster even the minimum criteria.
    Some sections of the Parliamentarians believe in the ‘doctrine of Parliamentary supremacy’ but this has long since been diluted and considered as an archaic interpretation. There has been a plethora of literature produced by Constitutional lawyers and scholars on the question of Parliamentary sovereignty.
    The British Parliament which is often called the ‘cradle of democracy’ or the ‘Mother of Parliament’ has undergone tremendous changes owing to the adoption of European Convention of Human Rights into domestic law through Human Rights Act 1998.
    The judicial interpretations of the European Court of Human Rights (ECHR) and European Court of Justice (ECJ) too have impacted on Parliamentary supremacy. It is the Constitution that is supreme as far as Sri Lankan context is considered. 1978 Constitution clearly shows the separation of three pillars of government and each must respect the other. This requirement is derived from the Constitution itself as such constitution is supreme.
    Undermining credibility
    Abolition of 17th Amendment was a grave mistake and it seriously undermined the credibility of the Government. Even foreign observers are monitoring the situation in Sri Lanka very closely and with the advent of latest electronic and social media networks it takes only seconds to reach news at the desks of foreign policymakers worldwide.
    The Government should have been a little more circumspect in embarking on a process which is patently not transparent. It would perhaps be politically wise to enact legislation on the impeachment process or removal of judges and recommence the impeachment process with a clear procedure in place.
    There are however far more serious issues that Government must look into. The Tamil Diaspora and the pro-separatist lobby are making mammoth strides overseas on the public diplomacy front and government does not seem to have any coherent strategy in countering the pro-separatist lobby overseas.
    If the Government remains passive on the public diplomacy front, especially in countering pro-separatist lobby overseas, it would one day pose a grave threat to the sovereignty of Sri Lanka. External intervention in our domestic affairs would then be inevitable. The ethnic reconciliation exercise seems to have put on the back burner and it has got be revived sooner rather than later.
    (The writer is a freelance journalist and a political lobbying and Government affairs consultant. He is also a member of the American Association of Political Consultants.)

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