26 August, 2019

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CPA On Charge 10 In CJ’s Impeachment And The Proceedings

By Colombo Telegraph

“We have observed that one of the charges reported in the press appears to refer to CPA. The charge as reported reads, “Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given.” We note in this respect that the case filed by CPA was in fact SC (SD) 3/2012, that CPA came into existence in June 1996, that our online publication Groundviews was only established in 2006 which was ten years after Dr. Bandaranayake took oaths as a Justice of the Supreme Court, and that Groundviews has to date not received nor published a single contribution by Dr. Bandaranayake. While other charges are also of concern, we desist from publicising our comments at this stage.” says the Centre for Policy Alternatives.

CPA Executive Director Dr. Paikiasothy Saravanamuttu

Issuing a statement CPA says “CPA is also concerned that the procedure laid down in Standing Order 78A of Parliament for impeachment proceedings are incompatible with the principles of natural justice.”

We publish CPA statement in full;

The Centre for Policy Alternatives (CPA) expresses grave concern over the initiation of impeachment proceedings against Chief Justice Dr. Shirani Bandaranayake. A number of reports in the press reveal that several charges against her have now been placed before Parliament in the form of a Resolution presented to the Speaker. The context within which these proceedings have been instituted, the procedure established by Parliament for impeachment hearings in Standing Order 78A, and the content of a number of charges against the Chief Justice are deeply troubling.

Context 

The context and timing of the institution of impeachment proceedings strongly point to a deliberate effort by the government to extinguish any embers of resistance to the executive from the judiciary. In the Town and Country Planning (Amendment) Bill and the Divineguma Bill Determinations, the Supreme Court held that the Bills in question required prior reference to all Provincial Councils before being placed on the Order Paper of Parliament. The Chief Justice presided over the nominated bench in both cases. These judgments halted the government’s attempt to weaken the meagre extent of devolution provided by the Thirteenth Amendment to the Constitution by attempting to pass laws that were in respect of Provincial Council subjects. A brief narration describing the events following the communication of the Court’s decision in respect of the Divineguma Bill is telling.

The Supreme Court’s Determination in respect of Supreme Court (Special Determination) 1 – 3/2012 challenging the Divineguma Bill was communicated to the Speaker on or about the 17th of September 2012. Thereafter, a statement issued by Mr. Manjula Tillekeratne, Secretary of the Judicial Services Commission – of which the Chief Justice is the Chairman – was published in the Sinhala press on the 19th of September[1]. This statement alleged that efforts were underway to destroy the independence of the judiciary, and made veiled references to what was later revealed by the President himself to be an effort by him to summon the members of the Commission to a meeting at Temple Trees. The statement was issued in the context of a sustained effort by some commentators on state television and radio to vilify the Chief Justice and the Court for ruling against the government in the Divineguma Determination. Subsequent to the JSC’s first statement, on or around the 28th of September 2012, Mr. Tillekeratne made a chilling revelation that he believed that “[a] situation has arisen where there is a danger to the security of all of us and our families beginning from the person holding the highest position in the judicial system.[2]” This fear materialised on the 7th of October, when in a brazen attack in broad daylight, Mr. Tillekeratne sustained serious injuries after being stabbed repeatedly by unidentified assailants while he was inside his parked car on Hotel Road, Mount Lavinia. CPA condemned this attack and drew attention to the intimidation of dissenters and the prevailing climate of impunity in a statement released on the 10th of October 2012. On the 16th of October, we drew attention to the appearance of posters in Sinhala the previous day vilifying CPA Executive Director Dr. Paikiasothy Saravanamuttu as one seeking to divide the country, for his opposition to the Divineguma Bill. Meanwhile, the Secretary of the Ministry of Defence and a number of influential members of the government have publicly called for the repeal of the Thirteenth Amendment.

We are convinced therefore, that the institution of impeachment proceedings against the Chief Justice is the regime’s latest – and most dangerous – effort to stifle dissent, destroy the independence of the judiciary and undermine any prospects for the implementation of the minimal guarantees of devolution in the Thirteenth Amendment.

Procedure

CPA is also concerned that the procedure laid down in Standing Order 78A of Parliament for impeachment proceedings are incompatible with the principles of natural justice. Under this procedure, the Speaker refers the allegations in the Resolution containing the allegations to a Select Committee of Parliamentarians, which is tasked with investigation and reporting to Parliament. The process of investigation and decision making in relation to charges of misbehaviour are clearly judicial, or quasi-judicial in nature. Thus, the accepted rules of natural justice should and must apply. However, there is no explicit bar on Members of Parliament who signed the ‘Notice of a Resolution’ functioning in the Select Committee, or voting in Parliament to present an address to the President for removal of the Chief Justice. Moreover, although removal of a Judge can be carried out only or “proved misbehaviour or incapacity,” by placing the investigation process in the hands of Members of Parliament themselves, the Standing Orders open a wide door for partisan decision making, which fundamentally undermines the rule against bias. In other jurisdictions, the right to natural justice in impeachment proceedings is preserved by ensuring the independence of those tasked with inquiring into the alleged charges. In India, for instance, the Judges Inquiry Act of 1968 provides that the Speaker shall constitute a three member committee including a sitting judge of the Supreme Court, a sitting judge of one of the High Courts and a distinguished jurist to investigate allegations during an impeachment proceeding.

We are deeply concerned therefore, that in the prevailing climate of threat to the independence of the judiciary and sweeping executive control over Parliament, the lack of due process rights renders the impeachment process little more than a modern inquisition.

Charges

CPA is also troubled by a number of charges contained in the Resolution now placed before Parliament. Some charges appear to fault the Chief Justice for the substance of judicial decisions penned by her. These charges have a chilling effect on members of the judiciary, and point to an effort to systematically dismantle any remaining independence within judicial ranks. We have observed that one of the charges reported in the press appears to refer to CPA. The charge as reported reads, “Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given.” We note in this respect that the case filed by CPA was in fact SC (SD) 3/2012, that CPA came into existence in June 1996, that our online publication Groundviews was only established in 2006 which was ten years after Dr. Bandaranayake took oaths as a Justice of the Supreme Court, and that Groundviews has to date not received nor published a single contribution by Dr. Bandaranayake. While other charges are also of concern, we desist from publicising our comments at this stage.

Conclusion

In conclusion, we note the widespread expressions of consternation from all strata of society in response to the institution of impeachment proceedings. We are heartened by these expressions of concern over the trajectory of governance in Sri Lanka, and urge that all citizens continue to express outrage over the rapid dismantling of the institutions that sustained our struggling democracy. The independence of the judiciary is fundamental to the architecture of any democracy, and unless we unite to resist these latest attempts to extinguish it, the truncated freedoms and rights we still enjoy are in imminent jeopardy.

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Latest comments

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    Thanks for exposing this humongous false canard of the Govt. The 117 who signed this false accusation should herewith tender there apologies to the judiciary and people of this country. They are not fit to be elected representatives of the people.

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    Only CPA seems to have the balls to call a spade a spade these days.

    What happened to the remaining balls in Sri Lanka. Or is it that they mostly belong to one ethnicity which feels it is profiting from MR?

  • 0
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    This impeachment motion is full of factual errors. Who drafted this? Was he a lawyer? Dr Saravanamuttu your clarification is hundred percent correct.-Liberal Lawyers Association

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    These 117 signatories never read this document before signing. Even if it was shown, most of them would not understand as it was written in English. What can you expect from Malini Fonseka, Jonston, SM Chandrasena, saran Gunawardena etc, etc. This so called impeachment motion is full of lies, misinformation and even bad grammer. Debacle of Asia

  • 0
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    It’s time to get rid of MR and his Draconian government.

  • 0
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    Great to see Sara that you have the balls to clarify. Where are the rest. What can CPA do against the “On my Way Home” man who is worse than a Chinese prosititute

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    Rule of Justice Strectches over social life,the events of which are constantly crossed by the lines of Juridical of Rights and obligation, most circumsantance of any important assume a certain legal aspect.
    Thus as aganist the various facts and acts of busniess of Democacry Parilimantary changes of Policy of Government and the end of thirty yeras of war in Sri lankan,by the way intellectual intercourase and new social relations,rises a sereies of facts in reality must take in account by CJ and Her team of Judiciary.
    The act-in- Law on which depend the change and evoluation of Rights and its legal proceudre.
    Unfotunatley …CJ has overlook take “..indepandeance of Judiciary is in abstract term, without consider fundamantal architecture and any democracy…”The Judiciary of Indepandenace and democracy it is hardely necessary to point out that these judical facts and acts do not reflects thier counterparts in common people life.They have special attributes of thier own,as the ordinary man is often made feel.
    Where is CJ make great error in Judiciary on her act of Law in highest poistion Sri Lankan legal order?
    Take the exmaple of Divingma Bill the Fcats of Divinguma in reality of address to basic problem of Poverty and its eject, NOT the whole society, but step by step was by products of out-dated and weak capitalism.The so-called bill is slight improvemant of rural poor life.
    But Law of verdict opposed is used by CJ of circumstance which a bearing on the decision of a only LEGAL PROBLEM or refer to Constitunital of certain clause of Republic of SL.
    Indeed while its undrmine recognition of terrorial intergrity of state and inaliengable right of sovergnity of law, as well as sovergnity Supermacy of Mandate of Parlimenty democracy had been challange by CJ so-called verdict or Judgement.
    If court confilct with VESTED INTEREST OF STATE of its existance of foundation of democracy goverance and its rights and duties as well as responabilities ,sooner or later State complelled restorted her RIGHT by Palimintary ways and menas.
    Needless to say Imperachment nothing elas, the result of Modern State Power of Bourgisios democracy.

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      PLease Mr. Wimaladasa, could you please express your thoughts in grammatical English instead of writing all this nonsense in, is it Singlish,Pigin or some language? that only few can comprehend.Iam sure we will apreciate your contrbutions if only we can get a hang of what you are saying.

    • 0
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      Yak, yak, yak. Nothing intelligible. Probably swabasha educated, trying to impress with a sword. (Kaduwa wananawa). Have fun.

  • 0
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    There is an absolute silence from country’s opposition leadership, either they are tired or no interest and it is so obvious.

  • 0
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    Even those 117 parrots raised by MR how many can understand this.They only know to repeat, saying yes or know when MR commands to do so.

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