21 August, 2019

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Has The Parliamentary Select Committee Become A Political Tribunal?

By Laksiri Fernando

Dr Laksiri Fernando

The Parliamentary Select Committee’s rejection of the Supreme Court’s decision that the impeachment proceedings against the Chief Justice should be postponed until the Supreme Court determines the constitutionality of the Standing Order 78A that purportedly governs such proceedings, as requested by the Court of Appeal, undoubtedly is the latest breach against the judicial authority in Sri Lanka by the political authority.

The decision of the Supreme Court was good as a ‘determination’ or ‘order’ although the Deputy Speaker, Chandima Weerakkody, opted to ridicule it by saying a “request or something” to Live at 12 of Swarnawahini yesterday (23 November 2012). The format of the recommendation was like any other court order. It was argued and decided. The carefully worded directive after outlining the legal circumstances said:

However, at this stage, this Court whilst reiterating that there has to be mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions, wishes to recommend to the members of the Select Committee of Parliament that it is prudent to defer the inquiry to be held against the Hon. the Chief Justice until this Court makes its determination on the question of law referred to by the Court of Appeal.”

It is important to underline the importance of what it said about the “mutual respect and understanding founded upon the rule of law between Parliament and the Judiciary for the smooth functioning of both the institutions.” But, the Political Commissars over Diyawanna Oya apparently didn’t want to listen to this sober advice for reasons best known to them. Instead they decided to go ahead with the flawed proceedings. They apparently didn’t even listen to the four members of the opposition. Consensus over the procedure of the PSC perhaps is not their concern.

The Supreme Court decision was given after listening to the Counsels on behalf of the petitioners and the Attorney General, Palitha Fernando, as it commented “who appeared on very short notice.” As the decision quoted, the following was the main question that the Court of Appeal has referred to the Supreme Court:

“It is mandatory under Article 107 (3) of the Constitution for the Parliament to provide for matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof, the standard of proof etc. of any alleged misbehavior or incapacity in addition to the matters relating to the investigation of the alleged misbehavior or incapacity?”   

It is obvious that the above important question or questions would not have been referred to the Supreme Court unless there had been serious doubts about the Constitutionality of the Standing Order 78A that purportedly governs the proceedings of the impeachment. The following questions naturally come to my mind, as a result of the above and other reasons, even without a proper legal background as a concerned citizen as to the consistency between the Standing Order 78A and the Constitution and particularly its Article 107.

  1. Is the PSC the correct Forum before which allegations against a Judge of the Supreme Court (including the Chief Justice) or the Court Appeal (including the President) are to be investigated and proved?
  2. Why the Stating Order 78A from paragraphs 1 to 9 is completely silent on the mode of proof and the standard of proof? Can the PSC be considered a proper legal Forum?
  3. Why the Standing Order 78A is completely silent on any prior investigating procedure into any allegations of Judicial Officers?
  4. More importantly, who has the burden of proof? The PSC or the accused Judge?

Anyone who goes through the scantily drafted nine paragraphs of the so-called Standing Order would come to the conclusion – if the person is unbiased and concerned about natural justice – that the procedure of the impeachment is terribly flawed and the fate of the present Chief Justice should not be place under this Kangaroo Court. The following is what the Standing Order says about anything closer to the ‘burden of proof’ in paragraph (5). On all other matters except the question one the Standing Order is completely silent.

“The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.”

Now the accused, in the present case the Chief Justice, “shall have the right to appear before it and to be heard by such Committee, in person or by representative.” This may appear great or sufficient to some because she is given a hearing! Then she can “adduce evidence, oral or documentary.” For what, “in disproof of the allegations made against him!”

Now she is not a ‘He.’ Let alone the gender bias in the language, the Chief Justice has to disprove the allegations! This is travesty of natural justice and people like Anura Priyadarshana Yapa, Nimal Siripala de Silva and Dilan Perera should be ashamed to sit in this Kangaroo Court, not to speak of others.

The Supreme Court also has given very obligingly the reasons why it requests the PSC to kindly postpone the proceedings. As it said, “In terms of Rule 64 (1) of the Supreme Court Rules of 1978 certain procedural steps have to be followed before a determination is made by this Court.” It has also been noted that a decision could be given within two months. This is completely ignored by the PSC. The decision also noted the following more substantially.

“According to the pleadings filed in the Court of Appeal and the submissions made by all learned counsel in this Court, standing order 78(A) of the Parliament contravenes Article 4(c) read with Article 3 , Article 12(1) and 13(5) of the Constitution and are also contrary to the accepted norms relating to the burden of proof.”

The observed points of inconsistency with the Constitution above are mainly four: (1) Article 4 (c) (2) Article 3 (3) Article 12 (1) and (4) Article 13 (5). This is in addition to the Article 107 of the Constitution which governs the overall impeachment procedure. The observation shows the absurdity and the arbitrary nature of the PSC procedure. It is also important to quote what it also said in terms of rule of law and justice in trying to persuade the PSC or the Speaker on the importance of postponing the impeachment proceedings.

“The desirability and paramount importance of acceding to the suggestions made by this Court would be based on mutual respect and trust and as something essential for the safe guarding of the rule of law and the interest of all persons concerned and ensuring that justice is not only be done but is manifestly and undoubtedly seem to be done.”

Unfortunately all these good advices were completely ignored and proceedings went ahead yesterday morning at the Parliamentary complex. It appears that the Political Commissars in the Parliamentary Select Committee seem to think that they are ABOVE THE LAW. They are badly mistaken. The Standing Orders are not law but only rules of procedure. When the Supreme Court decides to hear the objections based on 9 petitions, on Constitutionality and natural justice, by all decency or good sense the PSC proceedings should have been postponed. But it is not to be the case under the present political administration.

What a tragedy of justice if the ‘Chief Justice’ has to prove her innocence before a Political Tribunal hastily convened with inaccurately drafted 14 charges for nothing but political reasons? How can one easily disprove allegations if those are framed and false? What are the implications on rule of law and the system of justice if the so-called Representative of the People (MPs) so behave? These questions speak volumes of the tragedy of Sri Lanka’s democracy under the Rajapaksa rule.

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    Of course it will be political. Everything is political in SL.

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      The 4 opposition members should resign from the PSC which is clearly a Kangaroo Court that denies due process in letter and spirit to the victim / accused, the Chief Justice who is a woman, citing the Parliamentary Select Committee’s rejection of the Supreme Court’s decision that the impeachment proceedings against the Chief Justice should be postponed until the constitutionality of the Standing Order is determined.
      Time has come for mobilizing the people against the Kangaroo Court that sets a dangerous precedent in the country, and to take the battle against dictatorship to the streets and the international community. UNP, DNA and TNA should join with the Trade Unions and women’s organizations to go on the streets and organize the people to protest the Rajapakse dictatorship, also up the ante in the international campaign against the war criminals who are turning Lanka into their fiefdom and dictatorship!

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      Commonwealth Heads meeting must be moved to another country and there must be an ALL OUT BOYCOTT of Rajapassa by the international community. Not enough to say that Camron or the Canadian PM will boycott.
      If the Commonwealth Heads meet in Lanka they will have to answer to the people of Sri Lanka who will go on the streets and protest the Commonwealth Organization and its upside down values and Human Rights double speak.
      Time for the West – England and its Commonwealth allies to stop its double speak and take a stand against the Rajapakse dictatorship in Lanka.

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        The wheel of justice turns slowly but surely and truth shall prevail. The roll back of the Rajapakse dictatorship is on going..

        Meanwhile, the witch hunting criminal Mahinda Rajapassa has slunk of to the US (he is scared to go to Europe to see the clown Dimu because of the diaspora).
        For clown Dimu, Prime Minister of a Banana Republic, Sri Lankan hospitals and doctors are not good enough! Sri Lanka tax payers have to foot MR travel and Dimus hospital bills in the US! What a joke this Nationalist rhetoric filled dictatorship is!

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          DEBACLE OF ASIA – HERE WE COME.
          The Miracle of Asia is running a Kangaroo Court!
          Long live Rajapassa!

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    I think there is nobody in the history OF Sri Lanka who robbed the country, leave alone the 10 to 50% commission, but the Tsunami donations sent by children breaking their piggy banks and sent to poorest people who lost everything….MARA the greedy pig stole even that money. Anybody could guess how far he will go to impeach the CJ. He bribed lavishly all the MP’s, ministers and the opposition MP’s to cross into his side and now they have become mere PAID “YES SIR” SLAVES to him. He is keeping them at ransom. Can you expect any justice from this PSA pigs who eat s..t. Read SrilankaXnews and see how MR chased dengue infested Anura Yapa out of Navaloka hospital to appear in today’s CJ hearing. This crazy power hungry lunatic is taking the country to a never ending abyss.
    IT’S TIME TO STOP THIS CJ TRIAL IMMEDIATELY AND KICK OUT THIS SICK MANIAC FOR GOOD OF THE COUNTRY. IMPEACH HIM AS WAR CRIMINAL AND TSUNAMI THIEF.

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    The Govt is rushing into a situation where it is in conflict with the laws of the land as well as international law. Although they may try to get away with this farce in Sri Lanka they will have to face the consequences and fall out internationally. For instance any citizen or group may petition the Queen who is head of the Commonwealth Group of Nations. Also it is possible to petition the UN as in the case of a Spanish Judge

    “International Legal and Human Rights Groups Petition UN to Support Spanish Judge Baltasar Garzón and Independence of Judiciary”

    “Invoking the fundamental principle of the right to an independent and impartial judiciary, Spanish Judge Baltasar Garzón has received strong support from ten international organizations of jurists and human rights advocates. Lawyers Rights Watch Canada, European Center for Constitutional and Human Rights, the Asian Legal Resource Centre, Lawyers Without Borders Canada, the Center for Constitutional Rights, the International Federation for Human Rights, the World Organisation Against Torture, the National Lawyers Guild, the International Association of Democratic Lawyers and Asociación Española para el Derecho Internacional de los Derechos Humanos (AEDIDH) have joined in submitting a formal request for action by the United Nations on his behalf. Their request is addressed to U. N. Special Rapporteurs concerned with judicial independence, torture, extra-judicial executions, and the protection of human rights, as well as to Human Rights Council Working Groups on enforced disappearance and arbitrary detention.”

    Therefore the Govt is well advised to moderate its stance and actions within the legal framework. Sloganeering that they are the fountain head of democracy and peoples rights will not work.

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    The CJ compromised the independence & dignity of the supreme court, when she and two other justices before whom Namal Rajapakse took oaths as an attorney,attended a private celebration by the latter,along with politicans Hakim,GLPeris & others.
    This has never happened earlier.
    The photos in the media were to me,shocking.
    This appeared to show her subserviance to the Rajapakse family.
    MR expected that the Divi Neguma bill, with its Secrecy Clause – the first of its kind – to be approved like the 18th amendment, which made him a virtual dictater,was approved within 24 hours!
    Now,the PSC appears to be ‘superior’ to the supreme court,in judicial matters!

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    Thank you Dr.Fernando for your presentation on today’s CJ impeachment procedures. What I don’t understand is… 1) why didn’t PSA give time to CJ until SC clarify the six appeals relating to the standing order 78A. 2) Why didn’t PSA give 6 weeks to CJ to submit her reply to the 14 counts of impeachment? There is a standard rule by law for any case the accused should be given 6 weeks, where by CJ was given only 10 days. 3)If the above two minor requests were not granted by PSA with the 7 to 4 (7:4) majority, could you ever think when it comes to CJ impeachment verdict, will they ever give a fair verdict even if she proves her innocence and prove she is not guilty.

    Best thing I think is to forward the outcome of today’s PSA ruling to Asian Human Rights commission, Commonwealth Courts, UN and international courts and to get their opinion whether the CJ should proceed with this trial further.
    How can you get a fair trial from 8th grade drop outs, who doeswn’t understand a damn of English, leave alone Law, under the belt of a dictator to give a fair verdict.
    If I were the CJ I will immediately stay away from wasting my time facing these crazy baboons who make the SC a mockery to the world.
    Everybody should rally around the CJ and put a stop to this crazy PSA (PISSA) trial.
    Enough is enough listening to this lunatic parliament bulshit jokers.
    Please let me have your views.

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      Jayantha,

      Thanks for your comments. The following are my responses to some of your questions. The government is determined to conclude the impeachment as quickly as possible to avoid adverse publicity locally and internationally. That is why they have denied enough time to the CJ to make her submissions. They are also so mean. As you have pointed out the situation is grossly unreasonable.

      In my view however the CJ should not boycott the proceedings. I sincerely believe that the CJ doesn’t have anything to hide. The CJ is on firm legal and moral grounds while the proceedings are completely flawed. Even the opposition members should not withdraw. They have the option of giving a dissenting report. People need the truth out. The proceedings are closed now but everything will be open once the matter is concluded. The government is nervous but not the CJ.

      There is also no possibility of taking the case to any international court and it is also not necessary. Finally the people will give the verdict, the international community included. There have been several political trials in the past. Tissanayagam and Sarath Fonseka were the previous victims. Now they are ‘barking up the wrong tree.’ The local idiom is more poignant to say, the ‘Barbet tangles its beak by pecking the banana tree.’ That is what has happened.

      Laksiri

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        Laksiri, you are a dedicated optimist..Pompeii and the Titanic come to mind…

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        Thank you Dr.Fernando for your reply. I understand what you say. But when you look at the gravity on this whole CJ impeachment…First it has brought disgrace, shame,guilt, disreputation and dishonest upon the most highest respected order of the country the first lady Chief Judge in Sri Lanka, her family, her credibility and her future. It is not only upon her but also a castigation on the whole judiciary, the supreme court and the Law profession.
        Second it sends out a message upon the trust, honesty and crebility of the whole of Sri Lanka to the out side world.
        Also CJ is the only breadwinner in the family. What is the future, the respect and the integrity of her family on a false accusation. Isn’t she been mentally, physically and psychologically been harmed by this false accusation.
        This is a very serious offense than one might think from outside.
        That’s why all should come forward and stop this false and fraudulent impeachment.
        The Govt. is keeping quiet and curbing all news, waiting slowly for days to pass and win at the last verdict count with the 7:4 majority it has. That’s why I think we should stop this before the final count.
        Also I think PSC should allow access to all media including live TV coverage so Citizens could decide the final verdict.
        If you could have your views on these will be great. Thank you.

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          Dear Jayantha ,

          i could not agree more with you , but the irony is CJ’s fate is already written on the wall , HER HUSBAND WILL BE CONVICTED AND SHE WILL HAVE TO WAIT IN THE QUEUE AT THE WALIKADA PRISON DURING THE VISITING HOURS, IT DOES NOT STOP THERE, IT IS QUITE POSSIBLE FOR HER SON SHAVEEN TO HAVE AN UNEXPECTED MOTOR CAR ACCIDENT.
          Only God can save her family.

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          Hi Srilal,
          THAT’S WHY MARA THINKS OTHER THAN HIS FAMILY, GOD HAS GIVEN BALLS TO THE WRONG GENDER, OR NO BALLS AT ALL.

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          Hi Mahela ,

          In one instant i have to agree with you but on the other i don’t

          Why i agree
          in SL, Masses will have no balls when it come to a common cause , which means some thing which does not directly effect any of them.
          Examples
          18 th Amendment, Appropriation bill, General SF , CJ

          Why i don’t agree
          if any thing directly effects any particular segment of the society , they will have all the balls , even the opposite sex will have implant balls on them to fight against the injustice.
          Few incidents

          force eviction , Z score , EPF/ETF Drama, Sudden road Accidents, salary hikes, OT allowances , phone allowances , lack of tickets for cricket matches etc etc.

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    INGOs should boycott Rajapaske for violation of the laws of war or humanitarian law!
    But guess what! on Nov 23 the International Committee of the Red Cross (ICRC) is to host the 21st South Asia Teaching Session (SATS) on International Humanitarian Law (IHL) this year.
    The event, will take place from the 29th of November to 6th December in Katunayake with the support of the Sri Lanka’s Ministry of External Affairs.
    Civil society should protest the ICRC holding conferences on humanitarian law in a country where the rulers are accused of war crimes.
    What a joke the ICRC is!

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    It is high time that the Civil Society, Ngo’s and like minded institutions and people organize a signature campaign (electronic and print) to Commonwealth secretariat to shift the Commonwealth Head of State summit to some other country. Also it is pertinent to request the head of states of major countries like UK.Australia, India,Malaysia ( Canada already opted out)to refuse participation if it is to be held in Colombo

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    What I understand is the Lady have won a commonwealth scholarship to study for a PhD in the Univ of London and as a Sri Lankans who fight for a independent judiciary, please write to the sec general of the commonwealth at secretary-general@commonwealth.int and protest with the best capacity with the rogue regime to meddle with the judiciary or face the dire consequences of the commonwealth states and treated the head of the state as a Robert Mugabe.

    Folks, standup now.. it may be too late.

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    Dear Dr Laksiri ,

    Thanks for your continuous effort in educating the poorly informed SL masses. for me this whole saga is a history repeating episode , Gen SF’s show trial is point in case.
    For the ruling junta when SF was bidding for themselves, he was the best army commander in the world and their show piece, but the moment he turned against MR , all hell broke loose , literally every thing changed upside down overnight.
    All over sudden he was an American secret agent to a LTTE collaborator to a womanizer, cheater to a criminal ,to compensate those trumped up charges he was handsomely rewarded by , depriving his urgently needed medical treatments , rank ,pension, land ,MP post , civic rights and worst of all thrown in to Walikada prison hoping to never release again .
    now same scenario,Cj was bidding for the junta for a while (taking NSB plum job, approving appropriation bill, taking court martial verdict as a civilian rule, posing herself with the synthetic lawyer etc ) mark my words CJ will be impeached by hook or crook, at least now opposition MPs must pulled out from this so called PSC, there mere presence gives the legitimacy and i do not know why on earth lakshman kirialla, Vijitha H and R sambandan helping to legitimize this kangaroo court. (i deliberately omit John Amaratunga’s name , he belongs to ruling junta and wasting his time in UNP )
    my suggestion to replace the opposition MPs with Justice Pavithra, justice Rohita A, Justice Mahindanada A and justice SB Disanayake , this is the best help opposition can do for CJ for the time being.

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    CJ shouldn’t have presided the case on Divi Neguma Bill. Politics she had been involved when she was in Colombo University was too obvious for her to be impartial or not to be bias when hearing such a case.

    HLD Mahindapala wrote: “In any case, Shirani Bandaranaike’s political appointment did not appeal to all at the bar. A president’s counsel and two others mounted a case against the appointment of Shirani Bandaranayake to the bench. It was also pointed out in court that though she had a theoretical knowledge of the law she has had no court experience to go on the bench. Accepting a political appointment is the first point where Shirani Bandaranayake compromised her independence. But let us overlook that because the court that heard the case against her said that she was entitled to hold her political opinions. The critical point comes when the same judge, Justice Mark Fernando, who granted her the right to hold political opinions irrespective of the position she holds in the courts, drew a demarcation line which told her in unambiguous terms that her sitting in judgment on issues like devolution of power can lead to disqualification.

    Mark you, the lawyers who petitioned against Justice Bandaranayake said categorically that she had been in the bandwagon of CBK’s devolution package, virtually becoming a part of the political apparatus of the SLFP lawyers, thereby compromising her independence. Quite correctly, Justice Mark Fernando dismissed the petitions, ruling that “her views and conduct even if they related to political issues, were neither illegal nor improper and did not constitute a disqualification for office”. But here comes the rub. In the same breath Justice Fernando said that “they may disqualify her from hearing particular cases” — the cases being those related to the devolution package of which Shirani Bandaranyake was a committed campaigner at the Colombo University campus.”

    So it is politics all the way.
    Leela

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      How about a mere accountant(if anybody knows his qualifications) becomming a governor of central bank, a planter becomming the chairman of Sri Lankan airline and a tea salesman becomming a VIP in a foreign embassy…. I could go on for ever. In Sri Lanka from the porter in the harbour to the speaker in the parliament are politically maneuvered. At least CJ has her masters degree in Law from a London university and a Law professor at Colombo university for 14 some years, etc….not an unqualified 9th grade school drop out as a minister of housing….Head’s up.

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    Keep it up Laksiri. It is immaterial at this stage whether the Chief Justice has committed any wrong that would indignify the the position of chief justice.What the need of the hour is to save our judiciary and the rule of law from those Wolfs funtioning in the parliament and the Wesamuni Rajapaksa.

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    Leela, you talk too much. Do not quote mahindapala. He is no journalist. He is only a big mouthed liar and a bastard. You are also a bastard. Who the hell are you to talk about these things. Bloody idiot. Please keep your bloody mouth shut.

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      Chandra,
      Your honor can’t stand the truth, can you. Don’t worry, it’s a symptom that get carried away among jackasses.
      Leela

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    Judiciary in Sri Lanka should follow the example of the Judiciary in Egypt who have come out against the dictatorial decrees of President Morsi.

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    It is such a shame the Govt, in its inherent wisdom, has decreed the proceedings are not for the yakko voters in the public in this new type of democracy in the Miracle of Aisa. Recently in that decadent capitalist hell UK the BBC and most mainline channels transmitted LIVE every word against Rupert Murdoch worldwide. It would have been nice to hear the learned pronouncements of Justice Weerawansa and Chief Justice Yapa.

    The UNP and the Opposition will be outvoted in this majoritarian democratic facade but I suspect the UNP will ensure their dissenting
    opinion will form part of the records in this comedy where the Legislature/Executive sits on judgement on the judiciary. Pray, tell me, why is the learned Speaker not chairing this Inquisition. After all, he is the head of Parliament.

    Senguttuvan

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    To all who seek and thrive for Justice
    (Notto Mahidapalas or Leelas)

    “Satisfaction

    The most beautiful thing
    for those who have fought a whole life
    is to come to the end and say;
    we believed in people and life,
    and life and the people
    never let us down.
    Only in this way do men become men,
    women become women,
    fighting day and night
    for people and for life.
    And when these lives come to an end
    the people open their deepest rivers
    and they enter those waters forever.
    And so they become, distant fires, living,
    creating the heart of example
    The most beautiful thing
    for those who have fought a whole life
    is to come to the end and say;
    we believed in people and life,
    and life and the people
    never let us down.”

    Otto Rene Castillo

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    Quoting Mahindapala in the comment from Leela, “Justice Mark Fernando, who granted her the right to hold political opinions irrespective of the position she holds in the courts, drew a demarcation line which told her in unambiguous terms that her sitting in judgment on issues like devolution of power can lead to disqualification.’ and all due respect to Mark Fido Justice for his integrity as a Judge, He was a lawyer for UNP JRJ picked from the Bar, After the appointment of Justice Samarakoon the JRJ’s Lawyer in all eventualities. All of them left their political sentiments when they were on the bench. If I could recollect Mahindapala changed his ‘isams’ according to the direction wind blows

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    People in Egypt are smart and brave, they are back in the game against Morsy, do not want to loose their freedom, it is sad how J. R, Jayawardena had turned this country to this level without having any trouble. Perhaps Sri Lankans are gullible.

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    Nice article and appropriate viewpoints. Nevertheless it is the foregone conclusion. They will impeach the CJ. What then is the next step? Are we waiting for some divine force to materialise and make amends to an injustice? No way! Sri Lankans are born without backbones. One consolation is that the Rjapaksas have committed every single crime commit table on earth, one wonders is there anything else to do. If the people of this country had any civic sense just ONE of the crime committed by them would have been enough to throw them into the gutter. Rjapaksas are going to do it to themselves sooner than later.

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    Dear Laksiri

    It is interesting to read an article published in 2009 where the partner(s) of the crime himself/(themselves) had being a casualty of his (their) creation (Monster).
    I have not reproduced the full iatrical but the part relevant to the present discussion.

    SRI LANKA: Justice Mark Fernando: The right man, in wrong times

    Asian Human Rights Commission
    Justice Mark Damien Hugh Fernando, who graced the bench of Sri Lanka�s Supreme Court from March 1988 until his premature retirement in 2005, passed away on 20 January, 2009.
    ……….

    Justice Fernando�s judicial career symbolically expresses the tragedy of the Sri he Lankan judiciary, particularly, the Supreme Court. It is said that Justice Mark Fernando as a lawyer, contributed to the drafting of the 1978 Constitution of Sri Lanka.
    Ironically, the tragic events that later developed in Sri Lanka, including the adverse environment in which the Supreme Court had to work in, was the result of that Constitution�the brainchild of the first executive president, J.R. Jayewardene. The unfortunate manner in which Justice Mark Fernando himself had to retire prematurely was made possible by this Constitution.
    This constitution hangs as a noose over the rights of everyone and Justice Mark Fernando too, had to pay a heavy price due to internal contradictions within the judicial system because of this constitution. It is a tragedy for any person who has devoted his entire life for the promotion of the jurisprudence of his country to be trapped in circumstances in which jurisprudence itself is regarded as irrelevant in the country.
    The 1978 Constitution that created a one man system has destroyed the supremacy of the constitution and the supremacy of the law. As a result lawlessness in governance became the order of the day. Protection of the individual within the framework of the law became an impossible task.
    In the contest between the executive and the judiciary, during the formation of the United States of America, the chief justice, John Marshall, who was the 4th Chief Justice from 1801?835, fought hard and laid the foundation for the supremacy of the constitution and the sole responsibility of the judiciary for the interpretation of the constitution.
    It is that foundation that has provided the basis for the separation of powers and the independence of the judiciary in the United States which has withstood the test of time, despite of setbacks in certain periods as for instance during the administration of President George W. Bush.
    J.R. Jayewardene knowing that the constitution would become a hindrance to his ambitions for unlimited power distorted the constitution itself. The adverse consequence of this strategy is now felt in the lives of every Sri Lankan including the judges.
    Struggle
    In extremely difficult circumstances Justice Mark Fernando struggled to develop jurisprudence at tempt ing to interpret the constitution as if no discontinuity had been created in the tradition of the separation of powers.
    Thus, he reflected that there exists a contradiction between the political reality and the legal reality in the country, a contradiction that will need to be resolved sooner rather than later.
    Posted on 2009-08-06
    Back to [Vol. 19 No. 01 March-June 2009]

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    Regardless of whether people were opposed to or supported Shirani’s appointment to the Bench, there is a need to close ranks and defend her position only because it is necessary to safeguard the institution that she represents.

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    Leela,

    I also had read the article by HLD Mahindapala in the Daily News.

    You and Mahindapala say that the CJ shouldn’t have presided the case on Divineguma Bill.

    But ultimately the panel of Judges made a unanimous decision in the Divinugama case.

    Does it mean that all three judges made a biased decision?

    Why not do some research and impeach all three judges and impeach them on some flimsy grounds?

    Is it your position that the impeachment case filed against the Chief Justice is because she had participated in a case that dealt with devolution?

    Please remember that Shirani Bandaranaike was appointed as Chief Justice by President Mahinda Rajapakse long after her appointment as justice by Chandirica and long after the Fundamental Rights Cases, knowing very well about her past.

    Does His Excellency the President is in the habit of appointing persons casually without properly evaluating the merits of each case like what he did in the case of Prasad Kariawasam and Sarath Fonseka?

    How many other important appointments are made by His Excellency in a similar cavalier fashion?

    What is the role of his galaxy of advisers?

    Is his judgment questionable?

    Is it not a valid ground for the impeachment of the President?

    Does it not necessitate the repeal of the 18A?

    When Shirani Bandaranaike decided to preside in the Divineguwa case, Did the Attorney General or any of his lawyers protested her appearance?

    if not why? Is it not a deliration of duty on the part of the Attorney General?

    Could not the Attorney General requested for a fuller bench.

    In the case of 13A a full bench of 09 Supreme Court Justices heard the case.

    In the impeachment motion against the Chief Justice there is not one single charge related to her illegally or improperly presiding in the Divineguwa case.Why?

    Does the government agree that it is not an impeachable offence that is why it is not there and some other charges are framed just to defame her and the Select Committee proceedings provide ground to give a verdict of Guilty on unproved allegations.

    Could Leela care to respond?

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    The Sinhalese people are starting to wake up. I really do not believe Rajapaksa regime can fool the Sinhalese for decades as the LTTE fooled the Tamils. Rajapaksa regime is fooling the Sinhalese that Sri Lanks is going to be wonder of Asia and knowledge hub, as the LTTE fooled the Tamils that they will get Eelam. We all know that Sri Lanka has the highest percentage of brain drain in Asia. Currently the education and justice system are going down. This proves Sri Lanka will never become the wonder of Asia or knowledge hub of Asia. The Rajapaksa regime is demonising the West to cover-up its failures. surely the Westerners are only 8% of the world population, therefore the West will do its best to divide others to rule the world. Having said that, the West has improved a lot in civilisation, there are many things we can learn from the West. We need leaders who think and act perspectively.

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    Good point srikrishna

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