10 December, 2018

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A Little Fireworks At The Seemingly Calm Supreme Court

Today saw the third day of argument on the 11 cases regarding the dissolution of Parliament. A judgment was scheduled for tomorrow 7 Dec.

The first two days were most interesting as the lawyers for the Petitioners made their arguments. Their arguments were principally that Article 33(2)(c) gave the President the right to dissolve Parliament and Article 70 listed the conditions for such dissolution. These conditions were not fulfilled. There was no contradiction between the two articles – just like the law that one must possess a driving licence to drive a car, being circumscribed by other laws which stated the conditions, such as driving on the left hand side of the road. So also the whole constitution had to be read as a whole, all parts working harmoniously together and not section by section in isolation. Elections must follow the rules of the constitution and cannot be held at any time. The people had exercised their franchise and given the present Parliament 5 years to govern and the constitution did not allow dismissal of Parliament within 4.5 years. Even the mother of Parliaments in the UK has recently changed over to a fixed term.

Sirisena

This was followed by lawyers for the Respondents who gave their objections. Returning to the driving licence analogy, in an emergency an ambulance may drive on the wrong side of the road, and what was facing Sri Lanka was an emergency where Parliament was behaving irresponsibly and the President had to exercise his job function of saving the nation by dismissing Parliament. Ultimate responsibility is through the people’s franchise and that is what the President was upolding in dismissing Parliament and calling for elections. What is wrong with going to the people when their franchise is their fundamental right?

The objections by the respondents began yesterday and dragged on. Without coordination, almost all of them repeated the same arguments, except, to his credit, Gamini Marapana PC who cut it shot by saying he associated with what the AG and others said (His brother Tilak Marapana also appeared but for the UNP).

As boredom set in on the third day as the Respondents’ lawyers began repeating themselves, two events set some spark into the hearings. Attorney Sanjeeva Jayawardena, PC, for one of the Respondents claimed that Article 70 of the Sinhalese version of the Constitution had an extra sentence and that the Sinhalese version should prevail and it made all the difference. He said that it imbued Article 62 with a new meaning allowing the president to dissolve Parliament any time. This shook up many who were listening. [However, although there really is an extra sentence in the Sinhalese version of Article 62 which most were unaware of, there is really nothing about any time in that extra sentence, so it became a mere restatement of Article 33(2)(c) saying the president could dissolve and prorogue Parliament]. 

There was a lot of back and forth and Sanjeeva’s brother on the bench, Justice Prasanna Jayawardena, questioned his brother the most from the bench and even clarified that Sanjeeva’s comments on repercussions at home through filing the case did not refer to Prasanna’s home but to Sanjeeva’s. Laughter followed. When Sanjeeva spoke of repercussions at home and until this clarification almost everyone assumed that brother Prasanna had found fault with Sanjeeva at home for getting involved.

A Petitioner commented “It is this casual attitude to propriety, ethics and the law where the Supreme Court sees no problem in a judge sitting on the bench to hear his own brother’s case that has brought Sri Lanka to its knees like this. If they [the Justices] cannot understand the simple ethics underlying the inherent conflict of interest which requires justice Jayawardena to recuse himself, can they understand the intricacies of this very complex case?”

Sparks flew when lawyer Manohara de Silva representing Pivithuru Hela Urumaya’s Udaya Gamanpilla spoke picking up the points of Sanjeeva Jayawardena. The law cannot be read by this Court as a rigid formula but must be interpreted keeping in mind the consequences of their decision. If the judges find for the Petitioners there can be violence. To many in court it was spine chilling and a threat to violence for going against the President, but the court was still, seemingly impervious to any emotion. Many who were sure of a right decision until then were no longer sure after this interjection of political threat wondering if the justices would rule for the President fearing repercussions.

Then de Silva restated Sanjeeva Jaywardena’s position that Section 62 had an extra sentence in Sinhalese which takes precedence over the Tamil, and that the English version has no standing. Opposition Leader Rajavarothayam Sampanthan’s lawyer was K. Kanag-Isvaran (of even temper and probably the most senior and most respected lawyer in court whom no justice on the bench would chide for anything according to a lawyer who had worked with him). Kanag-Isvaran who had been listening quietly stood up and intervened calmly: “That is true only for enactments and not for the constitution where one language version is not of higher status.”

Something seemed to snap in Manohara de Silva a he reacted to the interruption. He angrily said “If you want to be aggressive, we too can be aggressive. Not in this court where some order is required but in a forum outside.” That from the Urumaya to the Tamil Sampanthan’s Tamil lawyer! Again chilling but the justices, all Sinhalese, seemed not to notice. An unnecessary blot on an otherwise well-conducted case.

Two more Respondents will present tomorrow seventh and the Petitioners will make their oral Counter Objections. The judges then need to write out their judgment. Will there be time for the judgment tomorrow? 

Being uncertain of a judgment tomorrow, the stay order on the President’s gazette was extended by a day from the seventh. (by Special Correspondent)

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Latest comments

  • 9
    3

    Thanks CT for providing a lucid transcript of court proceedings. As I understood, if Sanjeeva Jayawardena is the brother of a sitting Judge of the seven bench, then, it is common practice that the Judge opts out. Then again, knowing well who Gammanpila is, this may not be surprising.

    Most interesting part of CT’s summation was counsels representing respondents went about in “merry go round” singing the same song. What a mockery of defence is this before the apex court!

    Independence of Judiciary and its dispensation is on test.

  • 8
    4

    This one sided party propaganda does no good. Please find a more complete description of the arguments as hosted on Ada Derana and other channels. Those for the dissolution of parliament had some good arguments that got me wondering.

    “Presenting submissions before the Supreme Court yesterday, the Attorney General had stated that in accordance with Article 38 (02) of the Constitution, the Supreme Court does not have the legal authority to hear these fundamental rights petitions filed against the parliamentary dissolution.”

    Ada Derana

    Was the true picture not given because the arguments are demoralizing to the petitioners?

  • 3
    0

    Continuing from what I said in a previous posting and if law accepts ‘consequence’ also influence judgement the people should know this clearly. Then it mean justice accepts

    1. ‘Might is Right’

    2. the law of nature ‘ big fish eats small fish’.

    Then we as ordinary public should know this fact. Then we will know ‘whom we can hit and whom we cannot’. A rich man such as Soft Logic CEO Mr. Ashok Pathirage (my apologies to this man just borrowing his name) one of the richest in the country and owner of many business establishment can cause harm to any small person and in courts his lawyers can argue if he is punished then his businesses will close and many lose employment and country will loose badly the badly needed foreign exchange. Then judge accepting this argument will find him not guilty because if found guilty many will suffer due to the repercussions. If found not guilty only this ‘poor’ man will suffer.

    Minorities are vulnerable easily targeted and the minorities know very well justice will not be served and now with legitimized ‘consequences of repercussions’ no judge will serve justice only to say ‘considering the consequences will pass a no guilty’ verdict.

    to be Continued….

  • 2
    0

    Continuation…….

    So if one has to win one must become a ‘big fish’ becoming mightier than the opposing side to suit the ‘current legal order of the day’. Taking as an example, now with the current trend of Muslims being targeted their properties being destroyed mosques being attacked know very well justice will never be served. So they are forced into thinking to find a solution they have to be on par of the ‘law of the land’ namely the ‘big fish is allowed to eat the small fish’. They will turn to fellow Muslim countries get them to declare war with Sri Lanka and occupy this land. Sri Lanka will file action in International courts seeking ‘justice’. Defendant the invaded Muslim country will tell the judge or panel of judges of International Court, if they are found guilty there will be serious repercussions and whole world will suffer. They will threat freezing oil. They will quote current Law in Sri Lanka quoting the judgement of this case (if bigot Manohara de Silva argument was accepted). What happens if judgements is passed ‘considering the repercussions will find invading country ‘not guilty’ and allowed to stay as long as it likes and we become a colony if this country.

    Then this will become a Muslim country and the Muslims have got justice by becoming a ‘big fish’. Can anyone blame the Muslims if such a thing happens? NO…. NO…. and NO! How will then this idiot Manohara de Silva react? He has to keep damn mouth shut. What is good for the Goose is good for the gander as well!

    To be Continued ……

  • 2
    1

    Continuation…….

    Then don’t worry the Sinhala community knowing their bleak future will suck behind the new colonial masters as how many did when the British were ruling. Many will change them to be Muslims and have new found love to Quran! During the colonial days the ancestry of our present rulers Senanayake, Bandaranayake and Jayawardene were aristocrats and Christians who supported the British but once Independence was granted became over night Patriots changed their name to sound Sinhala and changed religion to Buddhism.

    World order will change to what it was 200 years ago. Colonial rule. Because back again ‘Might is right and ‘big fish eats small fish’. Still the big countries play the ‘big brother’ role but without legal right and thanks to idiot Manohara de Silva he has given it a ‘legal status’. The whole world again will go back to colonial. Do you really want it?

    Be careful, don’t act foolishly to gain a short term respite to win this insignificant case we legitimized verdict to be influenced by ‘subsequent consequence’ and we are handing a big stick to hit us back. Panel of judges should take serious note on what Manohara de Silva said and admonish him and send a clear message to all that judgement is made purely on the merits of the case and will never consider repercussions and consequences by the sentence to the population at large!

    The end

  • 3
    5

    Where does the rule a brother can’t hear a case with a brother representing one of the sides. Can we then count the number of Buddhists vs. non Buddhists and true Sinhala Buddhists vs, converts. where is this going to end?

    Ranil lickers are frightened by the direction of the case and they are preparing for a whinge already!
    =
    We were used to a legal processes of the colonisers for 500 years where we were served their justice of murder, rape and property theft. Now it is Sinhala Buddhist justice. If you don’t like, Britain, America, Canada and Australia beckons.

  • 0
    0

    God save this country.
    The comments above are very commendable. There is humour in them as well.
    Hoping to see justice served

  • 1
    3

    I think MY3 have more power than all courts. Judges are paid under Ministry of Finance.. account.. Ministry of Finance come under the government of Srilanka…Head of the ( MY3 ) government can do what ever he wants…he has executive powers also. I really don’t think court should involve. This is just the dog and pony show….Ask your self who appointed judges..and who has more powers. AG is right ….

  • 0
    0

    Putha Lakshman, When were you born????Which world are you in????? What an expert opinion???? The judges are paid by Finance Ministry, It is under control of MS, so judges should not interfere with MS. Way to go.I am sure you too voted in last election. No surprise here why Lanka is in a pathetic situation. Putha why do you think we have police,courts and law????? According to your argument even Finance ministry should not come under judicial preview ???? Now can anyone blame me for keep repeating that Lankan voters are retards. ( not just me Shamini, Gurusha and others too, but they were being diplomatic).

    • 1
      0

      I think Lakshman is trying to be sarcastic. Nobody can be that stupid.

  • 0
    0

    Returning to the driving licence analogy, in an emergency an ambulance may drive on the wrong side of the road, and what was facing Sri Lanka was an emergency where Parliament was ////

    Doctor Killed when ambulance rammed into a speeding lorry 14 October 2018.
    A doctor was killed the spot and three others sustained serious injuries when an ambulance transporting a medical crew rammed into a speeding lorry head on in Battuluoya on Puttalam Chilaw main road this morning, the police said. The cardiac calls require medical intervention. So an ambulance for a cardiac call requires a doctor in side the ambulance not go high speed in the wrong direction the Patient may inside the ambulance.

  • 2
    0

    Emil, correction – he was Yankie Dikie not Dick (Dick is vulgar not nice)

    • 2
      0

      Monica
      According to your logic, it is Dikie – or rather Dickie – that should be more ‘vulgar’ because it is a term of endearment for a horny Dick.

    • 0
      0

      monica

      yankie prikie would be more like it,cos he set fire to the country for 25 years in 83.

  • 0
    0

    “The law cannot be read by this Court as a rigid formula but must be interpreted keeping in mind the consequences of their decision. If the judges find for the Petitioners there can be violence.” Said the Rajapakse acolyte and defense lawyer Manohara de Silva in courts while arguing the case related to dissolution of Parliament.
    Let is assume that is now accepted so judgement also be influenced by ‘subsequent consequence and repercussions’.
    We take a case scenario:

    We take a case against a very rich and influential man and a poor man. The poor man said 5+ 5 = 10. Rich man said No 5 + 5 = 15. They go to courts. Rich man’s lawyer argues if the verdict is in favour of the poor man there could be a serious consequence because the reputation of the rich man is tarnished and many of his ‘followers’ are planning to attack the poor man’s village.

    Judge then delivers a verdict: “ in order to make the rich man happy and poor man safe I deliver the verdict that 5 +5 = 15 and so the rich man is right!”

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