Conflict ‘Unaccountable And Unnecessary’: An Open Letter To The President

Filed under: Colombo Telegraph,MORE OPINION,Opinion |

By The Friday Forum  –

2, Greenlands Avenue, Colombo 5, Sri Lanka

E-Mail; chandraj111@gmail.com     Telephone; 0773634444   Fax; 2504181

9th January 2013

 

H. E. Mahinda Rajapakse

The President of Sri Lanka

Temple Trees

Colombo 3.

 

Your Excellency,

CONFLICT “UNACCOUNTABLE AND UNNECESSARY”

Friday Forum stresses unforeseen hazards

The Friday Forum has previously drawn to your attention our concern that, from the inception, the impeachment proceedings against the Chief Justice did not conform to recognized norms of natural justice and due process. Dissatisfaction with these proceedings contributed to public protests and litigation in the courts. The Supreme Court has now held that the Parliamentary Select Committee procedure under Standing Order 78A is bad in law, and does not conform to Article 107(3) of the Constitution. The Court of Appeal has therefore issued a writ quashing the findings of the Select Committee and holding that the Select Committee proceedings are void. It is reported that Parliament, on the other hand, has decided to proceed with the debate on the Select Committee Report.

We urge that your Excellency, as Head of State, recognize and act according  to the accepted norm that court decisions represent the law of the land irrespective of views one may hold as to their content.  They are binding unless constitutionally valid new legislation is enacted, or the decisions are overturned in appeal or in revision proceedings. We urge you once again, most strongly, not to act on any address of Parliament that seeks to nullify court decisions.

The legislative power vested in the elected Parliament of our country by the people, whose sovereignty is inalienable, is framed within the law of the land of which the Constitution is the supreme expression. The interpretation of that Constitution is vested in the Supreme Court and the Supreme Court alone.  A conflict between Parliament and the judiciary and a disregard of court decisions is not in the national interest. It gives a powerful message to the nation that the rule of law can be undermined and rejected by government. The potential consequences are both dangerous and disastrous.

The path that the Government has apparently decided to take, notwithstanding the clear judgements of the Supreme Court and the Court of Appeal, is fraught with grave consequences, all of which may not be foreseen now.  If the Chief Justice is unconstitutionally removed the legality of the appointment of a successor will be placed in doubt. Purported judgements delivered by a Bench of which such person is a member may be of no effect in law. The Chief Justice is also, by virtue of office, the Chairman of the Judicial Service Commission. Appointments; promotions, transfers and disciplinary orders made by an illegally constituted Judicial Service Commission  could be questioned and purported judgments delivered by Judges so appointed, promoted or transferred  may also be subject to challenge. Questions of the legality of such “judgements” could   arise even years later causing confusion regarding  the personal and property rights of individuals, commercial contracts, dealings between citizens and public authorities, internal and external trade, and a host of other social and economic relations.

Quite apart from its illegality, such removal and purported appointment would have the grave repercussion of shaking public confidence in not merely the institution of the judiciary but in all branches of government.
If the government is dissatisfied with the court decisions on the impeachment proceedings, it has its legal remedy. The Attorney General can proceed in appeal, and/or a revision of the Supreme Court order by a Full Bench of the Court in which the Chief Justice would naturally not participate. Nor is the government precluded from proceeding afresh with legal and constitutional measures to examine the allegations against and if found proved remove the Chief Justice. With these options open to it, we find it incomprehensible that a hazardous path of confrontation is even contemplated.

 

We most strongly urge you to give the necessary leadership in a statesman-like manner to resolve the conflict between the legislature and the judiciary that has so unaccountably and unnecessarily emerged at this crucial moment in our country’s history.

 

Jayantha Dhanapala                        Professor Savitri  Goonesekere                 Dr. Jayampathy Wickramaratne

On behalf of Friday Forum, the Group of Concerned Citizens

CC. Hon Speaker of Parliament

Secretary to H.E. the President

 

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26 Responses to Conflict ‘Unaccountable And Unnecessary’: An Open Letter To The President

  1. 0
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    Mr. Dhanapala, being a Sri Lankan I have heard a lot about you in the UN circles and they have praised a lot about you but this article is like pouring water to the SWANS close to the tallest fountain in the world at the Geneva Lake. Do you think that the originator of the Impeachment would reverse it! He expected the CJ to resign but she is a very very brave Lady and her conscience would allow her to do so as she hasn’t done anything illegal.

    Ronny
    January 9, 2013 at 7:39 pm
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      Sorry, last sentence should read “would NOT allow her to do so” instead of “would allow”. Thanks

      Ronny
      January 10, 2013 at 12:28 pm
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    Sorry to say this to my learned intellects . You want President Rajapakse to act ‘statesman like manner’. But we have to face with reality and can never ask feathers from tortoise.

    vishvamithra
    January 9, 2013 at 7:42 pm
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    This last minute appeal to H.E President comes from learned well meaning people who unfortunately were not taken close to him instead YOU HAVE a whole load of advisors like Aswer and so on WHO ARE THERE TO EARN A LIVING AT THE EXPENSE OF PEOPLE.PLEASE ACT TO SAVE ALL OF US WHO SUPPORTED YOU. This is the hour where after creating history in our motherland where you provided leadership to eliminate terrorism and made the country a respectable place to live in safely,so do not destroy. PLEASE SEE THE BIG PICTURE AND LISTEN TO THE EDUCATED THE RELIGIOUS LEADERS AND CIVIL SOCIETY AS A WHOLE.

    Merlin Jayasuriya
    January 9, 2013 at 8:54 pm
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    Rajapaksa will never listen to anyone, don’t waste your time. He is not only an Executive President, he is arrogant President. Typical man from the South.

    David
    January 9, 2013 at 10:17 pm
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      More clear is his decisions make the country an another Northkorea for the world. This man should better be advised else Lanka will sink sooner than expected. I wonder why others that are said to be seniors in the cabinet – just enjoy only the PERKS, but would not utter a word against the man. I commend Dayasiri jayasekara as a great young politician today- after listening to his remarks to given BOSTON LANKA NEWS lately. He clearly points out where the GOSL has gone wrong. He is educated and knows paragraphs perhaps better than his guru GLP. Even if the president himself is so called law graduate, he seems to have lost his basic knowledge because of the fact that the greediness to stay in power have covered all these in him today. People rallied round to him yesterday at the funeral of the killed MP in KELANIYA loudly begged him – apita mervin epa – we dont MERVIN to Kelaniya. But President got the message – is not clear to anyone. Presindent ^s close ties with Mervin should be brought before the people else, People would not respect PRESIDENT any more in the near future

      Sun
      January 10, 2013 at 11:21 am
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    Why is this letter signed by Dhanapala, … This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

    Pol Tokka
    January 9, 2013 at 10:51 pm
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      Pol Tokka – Why don’t you stop displaying your ignorance? And judging from the fact that the rest of your comment was censored, one can only imagine that it was irrelevant and profane rubbish.

      Peter
      January 10, 2013 at 1:06 am
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    If making periodic statements, that no one gives a damn about, is what the Friday forum is all about, then the argument for experience, education and erudition is defeated. This group continues to make highly principled statements while the country burns down around them. How about some action. Get some international organization to put pressure on the GOSL or something. If the masses see that the educated lot are reduced to making statements and the thugs are all about action and making things happen. What incentive do young people have, to be educated when it is those who aren’t, that are calling the shots?, none. The sad truth is that the members of the Friday Forum have to live in and around Colombo. The operative word being ‘live’.

    Bedrock Barney
    January 9, 2013 at 11:11 pm
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      SO TRUE

      Jayanta de S wijeratne
      January 10, 2013 at 4:06 am
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      Bedrock Barney: You have described the ugly reality of a bunch of middle-class “intellectuals” KNOWINGLY f….ing against thunder. Those who have commented on yet another Friday Forum bit of b.s. now appear cognizant of this reality. Isn’t it about time this lot PUT UP OR SHUT UP?

      Aney Apochchi!
      January 10, 2013 at 6:17 am
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        Apochchi kiyana kathawa athaa! Either PUT UP or SHUT UP. Don’t just add to the noise pollution.

        Bedrock Barney
        January 10, 2013 at 10:24 pm
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      What should they do other than issuing the statements according to you ? I am grateful to them for their highly pricipaled statements when seeing SLFP seniors have been mum today. Besides, Can any civilized ones get on with the bunch in the power today ? This is what RW s been facing today. This is the greater problem that the opposition s been facing in the parliament OR not ? Parliament is more or less like maradana junction – filled only with buggers of low grade so that the minority of the educated getting marginalized to a corner. Only Killers, Murderers, abduct or assualt minded can raise their lives easily while all others have to scared still not knowing what to do. So called 2/3 mandate in the parliarment today – and people^s indifferentness should be changed if they want to go against ruling thugs.

      Sam
      January 10, 2013 at 12:25 pm
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        Sam, I am not against them making statements. I am against them being restricted to making statements only. (There is no lack of statements in this country) If you look at the compostion of the Friday Forum, you will find some heavy hitters there. If people of such high calibre take to the streets in protest or take some kind of action it will have consequences. I mean must we wait till the thugs start taking over some of the social clubs that these forum members belong to before they feel the pinch. Right now their lives (forum members) have not been affected to the degree that the common man has been. They can do so much more than common folk like I can. is all i’m saying

        Bedrock Barney
        January 10, 2013 at 10:37 pm
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    It is good that the Friday Forum has made a direct request to the president. The president, if he is a statesman of any class, must respond to the call made by this group of intellectuals. If he does not respond it means that he does not accept the advise of the learned people in this country. In the absence of an upper house of parliment the opinions of groups such as the Friday Forum and the clergy need to be considered seriously by the president. Coming to decisions based on ones conscience or opinion of illiterate people like Weerawanse, Hudson, Rajitha is not acceptable.

    Safa
    January 10, 2013 at 1:36 am
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    It is like blowing a trumpet on deaf man’s ear. Just imagine a President of country who is responsible for the maintenance of law and order has resorted to low level tactics. 1. He has imported formalin worth of Rs.2,000/= million (for Kasippu) the business of which is carried on by his close relative. 2. Import of Lamborigini cars for his son on various pretext without payment of duty, when even middle-class people cannot afford to have a decent meal. 3. Releasing of convicted accused found guilty by the Court. The entire country was ashamed of the cruel crime of these accuseds. 4. Murdering a number of people of repute with the assistance of the military and underworld criminals. 5. Skewed results of the Law College Entrance Examination 6. The attack on the Judicial Officers, and never condemned especially Rishad Badurdeen. 7. Shooting of the BASL President which happened to be a futile exercise. 8. Indirectly arranging the undesirable crowds to demonstrate at Hulftsdorp against the CJ. 9. Failure to act as a cultured gentleman. 10. Appointment of uncultured characters in the PSC, especially Wimal Weerawansa, who speaks utter rubbish. MR should have been ashamed of the behaviour of some mebers of the PSC. They have damaged the sacredness of the Parliament. 11. Some of the appointments of Parliamentarians as Ministers. The whole country is ashamed of. 12. Antagonising the Western democratic countries by encouraging the leaders of Libya (Gadaffi), Iran, etc., and extending an arm to countries where civil rights had been abused. 13. Allowing a free hand to the Armed Security Forces to murder the journalists and harassing the NGOs. There are some more. One ponders whether MR is dragging the country to a dangerous path. As a lawyer, why can’t he get advice from the SC and abide by the Orders of the Supreme Court. I think it is time for the Supreme Court to lift the vail and find out the ulterior motive of MR in the best interests of the country. How is MR going to account for all these scandals with his Mahinda Chintana. If such things could have happened in the West, the leaders of those countries would have tendered their resignation like gentlemen. Will MR re-consider the dropping of the Impeachment of CJ. What a waste of public money and time on this unwanted issue.

    Citizen
    January 10, 2013 at 2:51 am
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    Wiser counsel should prevail in these crucial times we are traversing . Two options are now available to the President . As stated in this appeal by the Friday Forum , the President , through the AG ,could appeal for a 5, 7 or 9 bench Judges , excluding the CJ , to revise the SC and AC decisions . Or the President could order an Presidential Commission of Eminent Professionals acceptable to both parties who will ensure the application of due process to elicit the truth of the charges and forward the findings to the President through the SC ,for final disposal by the President . These perhaps are the only courses of action open to the President to take the ‘ wind off the sails’ from all critics , within and without , and make him the ” Statesman ” he aspires to be !!!

    Dick Perera
    January 10, 2013 at 3:15 am
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    Dear.Mr.Jayantha Dhanapala and the Friday Forum. We appreciate your help rendered to maintain Justice, Liberty and Freedom of the Citizens of Sri Lanka, CJ and the judiciary. We appreciate your effort in writing to President for him to abide by the Appeals Court Judgment. As you know ex.CJ Sarath N.Silva knows a great deal of president and his Behaviour…..and the following discussion he had with Dilka at Derana 360 will tell you what the true personality of Preisdent. http://www.derana.lk/index.php?route=programs/programs/programdetails&pid=85&vid=5582&page=2 Please see the above web and listen to the discussion. Also you could watch the rest of the discussions when you click on other windows. You will note how ex.CJ.Sarath Silva evaluate President from the video. They are…. ————————————————————————- 1)President will never listen to anybody’s advise and will do whatever he wants to do……either good for the country or not.. 2)Ex.CJ Sarath N Silva say as result of President going ahead with the Hedging deal eventhough he was warned by many about the repucassions, president still went ahead, and as a result CPC now have to pay over US $400 million to the banks. 3)Sarath N.Silva also said he let out President been impeached from Tsunami fraud case as he tied it up with aid giving direct to Prabhakaran……which was not the truth, but a made up case. 4)Sarath Silva also say President is a Shrude and a cunning person. Also in subsequent video he say President always looking for high status……meaning having some type of inferior complex…..and always looking for attention from others….like those cutouts around Sri Lanka etc… 5)Also by sending Gen.Sarath Fonseka to Jail…..and bribing opposition MP’s to his side Sarath Silva say how President use who ever he wants at any cost to get his work done and once it’s done how he dumps a person(like sending gen. Fonseka to Prison) which is part of President’s personality…..and game plan. Also Sarath Silva say he played by the limits with President, as if he gone to advise president, he could have lost his job. There are many other issues Sarath Silve talk about President which will help you and the Friday Forum to learn about President’s behaviour. Therefrore Mr.Danapala and Friday Forum, I will assure you that President will not pay any attention to your letter, and therefore you have to come up with an alternative plan as to what action you will take if President does not respond to your letter and goes ahead with kicking CJ out. I lay out some suggestions that you may consider implementing and may consider ————————————————————————- 1)Encourage and write to CW to send a group of Judges from Commonwealth countries to hear CJ trial.(I know it’s expensive, but still worth the trouble to get justice to CJ) Also if you could find funders for the expenses of CW Judges will be helpful. 2)With personal influence Mr.Danapala has with UN member countries….if you can influence UN to pressure President to stop kicking CJ out until commonwealth Judges hear the case. 3)If still President doesn’t listen and use violance methods to kick CJ out and plan to occupy Supreme Court Building….can the friday forum call for UN, CW or International intervention to stop President occupying SC building. 4)Can Friday forum call for international travel, trade and Loans ban for President and the Govt.Parliament members until he abide by international Law to keep CJ in her position. 5)If CJ is kicked out and since there is no law in the country….can the Friday forum stop Sri Lanka from participating UN, CW , Non Align and Asian Conferences and giving Business concessions, Tourism and GSP status to Sri Lanka as a punishment. 6)If GOSL instigate violance against citizen, could Friday Forum request international forces to intervene Sri Lanka to rescue Citizens before making them refugees and from fleeing country. 7) Can Friday Forum educate and encourage Sri Lankan Expatriat Community to take an active roll to influence those foreign Governments and to protest against Sri Lankan government to pressure MR to keep CJ. 8)Special protection to CJ, Judiciary and the SC Judges to stay and work in their positions and not allow Govt. to interfere with their work. 9)Also meeting local Diplomatic Community and to educate them on country’s situation. 10) Educate UN,CW and international Community with organising seminars and talk at UN, EU and Asian Forums to intervane on behalf of CJ and Judiciary. Hope Mr.Dhanapala and Friday Forum will consider these suggestions.

    Jayantha
    January 10, 2013 at 3:52 am
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    The regime does not care a jot for all these ‘learned’ statements and appeals. These ‘learned’ people brought it upon themselves in staying quiet when things were formenting and then shouting when things got to be so bad that nothing makes a difference any longer. The survival of a country depends on the boldness and brightness of its intellectuals. With the lot that we have, no wonder that Sri Lanka is in this miserable state.We are plummeting to the end.

    Chandra G.
    January 10, 2013 at 3:58 am
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    It is good that these statements are made by eminent people in whatever name they call themselves . This is where organisations which are for intellectual discussion as the OPA is failing. Of course the Professional is no longer there.

    Aney
    January 10, 2013 at 6:18 am
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    I feel that the chief justice should be given an opportunity to defend herself in front of a properly constituted panel of justices (if not from the local “biased” lot, then from Malaysia, Singapore, South Africa, Scotland, Belgium etc) and the proceedings, in English, with Tamil and Sinhala translations, widely telecast live, by state and private television media. That way, the ordinary people of the land can make their own conclusions about whether she should go or stay on, after the above panel has made its determination. It would seem more credible also, than a collection of mere members of parliament, whose strengths are not in law, justice, fairness, transparency or accountability etc but in other skills and aptitudes not relevant to this issue…

    Lasantha Pethiyagoda
    January 10, 2013 at 6:50 am
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      HEY LASANTHA P, you are stating the obvious, OBVIOUSLY.

      Ainsley
      January 10, 2013 at 12:06 pm
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    After the impeachment this government will be illegal,. It will be a terrorist outfit. Prabhakaran replaced by another Prabhakaran to ruin the Sinhalese people

    Ransimala Vidurupola
    January 10, 2013 at 8:45 am
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    What more can you expect from a guy who stole Tsunami money? And what right the citizenery of the country ask for after appointing him as their president!

    Karuna
    January 10, 2013 at 9:50 am
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    That guy who stole the tsunami funds was excused banendray former CJ Sarath Silva,despite knowing he was guilty. Who is responsible for the present situation.

    B Ganendra
    January 10, 2013 at 11:04 am
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    That guy who stole the tsunami funds was excused by former CJ Sarath Silva,despite knowing he was guilty. Who is responsible for the present situation.

    B Ganendra
    January 10, 2013 at 11:06 am
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