24 September, 2020

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Impeachment Highlights Key Role Of Judiciary

By Jehan Perera

Jehan Perera

President Mahinda Rajapaksa has acted swiftly after the impeachment of Chief Justice Shirani Bandaranayake by Parliament to issue a Presidential decree that removes her from office.  This letter has been delivered to the Chief Justice.  However, there is considerable support from the legal fraternity that she remains Chief Justice regardless of the Presidential letter.  This is on account of a Supreme Court ruling that the impeachment process was not in conformity with the law.  A group of leading lawyers has said, “The Lawyers Collective categorically reiterates that Hon. Dr. Shirani Bandaranayake remains the Chief Justice, notwithstanding being unconstitutionally removed.”  What will eventually transpire in the days ahead is unclear.

The impeachment has polarized the political parties in Parliament.  The division of votes in Parliament was on party lines with only the government members voting in favour of the impeachment.  But there were also signs of cracks within the government coalition.  For the first time since President Rajapaksa assumed office a handful of MPs, numbering five, did not vote along with their compatriots but chose to abstain.  These included Prof. Tissa Vitarana who headed the All Party Representatives Committee that formulated a political solution to the ethnic conflict at the height of the war.  Others included the leader of the Communist Party, D E W Gunasakera and Liberal Party leader Prof Rajiva Wijesinha who has been one of the most eloquent defenders of the government on other controversial matters.

There is also a horizontal divide within the population at large.  The government may still be able to convince the rural masses of the people about its position on the impeachment and its theory of an international conspiracy through the government-controlled propaganda machine.  This accounts for the absence of mass mobilization on the issue of the impeachment. However, the urban intelligentsia appears to be united in opposition to the impeachment.   There is no ethnic polarization on the issue of the impeachment as there was on the issue of the war. There is no independent professional, religious or civic organization that has been supportive of the impeachment.  All these groups have issued statements either condemning it or urging the government to step back.

GOVERNMENTAL ANXIETY

President Rajapaksa’s decision to sign the removal decree contradicted his assurance some weeks earlier that he was considering an alternative to acting immediately on the report of the Parliamentary Select Committee.   The President said that he was considering appointing an independent committee to advise him on the next steps.  This was in the context of the Appeal Court and Supreme Court taking the position that the findings of the Parliamentary Select Committee were a nullity in law.  The appointment of an independent committee to advise the President would have given a breathing space, and cooling off period, in which there could have been sober discussion about the possibilities of a compromise solution.

The President’s decision to go ahead with the removal of the Chief Justice in hasty circumstances can be best explained in terms of the insecurities felt by the government leadership about a zero-sum game, in which one side must lose all.  After the government and judiciary collided it has became virtually impossible for either side to back down.  If the government had backed down, it would have given the judiciary the opportunity to take action on a number of outstanding issues, including instances of corruption, abuse of power and even regarding human rights violations that took place during the war.  On the other hand, having ruled that the impeachment process is outside of the law, the judiciary also cannot accept a process that gets rid of its head in an extra-legal or illegal manner.

An issue that could be causing considerable anxiety to the government is the assertion by the UNP that it would go to the courts and take legal action against those MPs who won election on the UNP ticket on the proportional system, and later crossed over to the government side.  In reality they no longer represent the voters who once voted for the opposition. Earlier Supreme Court decisions denied the right of the UNP to sack their members who crossed over to the ruling party.  This enabled the Government to obtain a two-third majority in Parliament. The UNP has now taken the position that these crossover MPs violated a party call to vote against the impeachment.  A newly assertive Supreme Court, conscious of the grave harm that this artificial two thirds majority in Parliament gives, may take steps to remedy this situation. The loss of the 16 crossover MPs would deal a major blow to the government and strip it of its 2/3 majority which it has been using to steamroll its way in the political decision making.

MOB RULE

The most important feature of a democratic system is the integrity of its institutions.  The government decision to override decisions of the Supreme Court at its discretion, will lead to the judiciary becoming another administrative department of the government to carry out its decisions rather than go by the intrinsic merits or otherwise of the matters in issue before them. In this context there is an increasing fear that Sri Lanka may be heading towards a failed State situation where there is no Rule of Law or supremacy of the Law and the Constitution.  Sri Lanka is therefore in a constitutional crisis even though most people in the country may be unaware of this.

Already mobs have celebrated the impeachment outside the Chief Justice’s residence.  Earlier mobs with clubs in their hands also threatened and assaulted protesting lawyers and civil society activists in the presence of the police who stood by. Photographs of these ugly incidents were published in the media. There is cause for grave anxiety that the ground is being laid for non-democratic processes to gain strength. It is ironic that in attempting to decapitate the Supreme Court, by removing its head, the importance of the judiciary as a check and balance on the abuse of power has also been revealed. If the legitimacy of the national judiciary and Rule of Law is not speedily restored, the case will grow stronger for international judicial interventions in the internal affairs of the country.

There may be no doubt that life in Sri Lanka in general has improved after the end of the war for which the government can claim credit.  However the undermining of public institutions is bound to make this improvement unsustainable in the longer term.  Where the Rule of Law breaks down, it is inevitable that mob rule will eventually prevail.  It is reported in the media that the President had approached several eminent legal personalities and even sitting judges to take on the position of Chief Justice, but so far without success.  The Bar Association has decided not to welcome any new Chief Justice appointed under these circumstances.  It would be judicious if the President were to try and get a consensus amongst all political parties and the Bar Association regarding the future of the judiciary.

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Latest comments

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    Liar! “There is no independent professional, religious or civic organization that has been supportive of the impeachment.”

    read the statements of Mr Uluvisihewa, President of the POA, the body that speaks for all professionals.

    Wailings of a compromised man!

    The country does not need you.

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      Present president of the OPA is a government cabal.What he said was his personal opinion under the pretext of OPA

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      Hey Jehan please stop grovelling and call a spade a spade. In the first sentence that begins by invoking Rajapassa, please do no refer to him as the President. He has been fired – impeached in the court of public opinion and has no right to issue decrees, presidential or otherwise.
      Get with the plot man and mind your grovelling language that gives unnecessary hosannahs to the corrupt thug – Mahinda Rajapakse.
      Please refer to him by his given names and DO NOT use the title president since he has forfeited the title though violation of the people’s mandate through massive corruption and by bringing grave harm and disrepute to the sovereign people of Lanka by running a Kangaroo Court and illegal impeachment of the CJ that has caused a constitutional crisis. CHAMAL AND MAHINDA RAJAPKSE MUST BE IMPEACHED!

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      Anam Manam:
      Since when has Uluvisihewa’s Rajapaksa-mouthpiece qualified as an “independent professional, religious or civic organization?”
      Come off it, you clown. Collect your stipend from we-know-who and return to the shelter of the rock from under which you emerged.

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    I think because Mahinda Rajapakse who belives in buddhism and an independent judiciary will surely appoint Mohan Pieris as CJ. He met mohan pieris at gangaramaya temple recently. So the buddhist part is OK.Mohan peiris talks with a big accent. He is independent of any shame, self respect or conscience.Mohan is the most independent man who onetime wanted to be the parliamentary secretary general.( UNP time0 Then he bluffed marapano and shibley aziz and got all work from unp government.Then he bluffed Gota that he is more patriotic than the non-english speaking lawyers around the PA.So this man who is hated at the AGS department, despised by all lawyers as a unprincipled careerist and resented by all self respecting judges will be appointed by Mahinda the clueless. When Mohan is with his types ( boru accent, other things like cutlery and wine etc)they must be laughing at the foolish ways of the gamaralas from hambantota.

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    The mental patient, US embassy messenger boy who uses kautilya, Johnny Walker, Aney Apochchi! and all the other names here, go f*** yourself or s*** [Edited out].

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    Sadly, MR will do exactly what he wants to and get away with it. This man is a stranger to truth – remember how he promised to do away with the Executive Presidency, and more recently to appoint a committee to advise him on the impeachment ostensibly to satisfy his conscience –
    and has no respect for legal or social niceities but sadly there will be enough people who are venal enough and corrupt enough to be willing to go along with him to support him in his corrupt ways.

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    The government of Sri Lanka(GOSL) has gone rogue; breaching the constitution, rule of law, Human Rights and civilised behaviour.

    Mahinda Rajapakse and the entire 155 legislators who voted to impeach the Chief Justice, are themselves said to be 100 percent corrupt and dishonest.

    These kleptocrats are believed to be looting the state and stashing the loot abroad or keeping with their kith and kin.

    They have made the people to be poor as never before.

    Last week, the opposition legislators had a massive demonstration and brought an impeachment motion against their head of state in Hong Kong.

    Leung Ching-Ying, the head of state, was accused of; a) using dishonest ways to win election and be in power, b) serious breaches of law and c) dereliction of duty.

    Surely, Sri Lankans are living in a Zoo !! In a Zoo, you accept what the Zookeeper does regardless of what is right or wrong, good or bad. If the Zookeeper pisses on the face and calls it rain, the message is “shut up and live with it”.

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    Anam Manam, true to the meaning of the word has, nothing constructive or sensible to offer. Talking all Anam Manam (nonsense.) He, like his hero MR, does not have any decency. If you want to join in conversation, remember that everyone has a right to his or her views. Respect that democratic right of others. Do not steep down to low levels of attack. If you cannot counter the views of others with intelligent views, then best is to be silent. Don’t make such low level comments here. You have a place in “Mariya Kade” for such.

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    Yes, you slippery dog. All the names you write under are known and you fool no one. You are a sicko.

    Even Maria Kade will not accept treacherous bastards like you.

    Keep writing to all the websites and be the ‘Chief’ of that thing about 50 people read in the whole of Sri Lanka.

    True legend!

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    CJ is finished! Gone, vanquished and Kaput. Try finding another issue to attack the government now you anti government fools. The dogs bark but the caravan moves on! Mahinda is the greatest leader we had post independence . Does the moon heed the barking of dogs?

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    Shirani B. kade giya for few years.. and now she gamee giya for ever.
    Boss has full right to fire the employee: don’t we know that, so why big hype and questions?
    Parliament followed the constitution and don’t understand why question about it?
    The same process follow in US too, if someone need to be little educated just Google the famous case
    Federal Judge Walter Nixson vs United States…hmm Hypocracy

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    The removal of the CJ is not something new in the world, it happens in the world, including in the United States. However, some eliments may use this opportunity to bring chaos into the country, in order to achieve their ulterior motives. Remember, few eliments were fuelling the civil war and benefited by the war, but not the Tamils or Sinhalese. We must not let that happen again. The president appointed the CJ, now the 2/3 of the parliament wants her to leave the office. If I was the CJ, I would have resigned once the parliament decided to remove me from the office. Taking this matter to the UN is not advisable. Even the CJ is blameless she must let go for sake of the country. The country has been fighting for thirty years, people are free from fighting for only three years. Just wait for few more years, be patient, you all went through the bloody war for thirty years for nothing. I know very well about the parliament members, can we change those leaders mindset overnight? No we can’t. I am also well aware how Rajapaksa brothers are dominating the country, but I can live with that at the moment. We just finished the war, lets give enough guidance and time for them to act, if things does not change then we have a plan for them too. The President himself did not go to China to eliminate the LTTE, but he was adviced to go China so the other countries will run to him to help, including India. The extremely talented Sri Lankans will direct the country into the right path. If you think, the show is running by Rajapaksa brothers then you are very wrong.

    Lets examine the external threats for the country. The Indian government created the Tamil armed groups to keep Sri Lanka under its wings. However, India also understood that letting the Tamil armed groups grow beyond its control would be detrimental to India. This is the reason Prime Minister Rajiv Gandhi reached a very good political solution for the Tamils’ issues in Sri Lanka under the Indo-Sri Lanka agreement. Unfortunately the LTTE did not see what Rajiv Gandhi did, because of the Tamil diaspora. The 2002 ceasefire agreement between the LTTE and the Sri Lankan government also broken by the LTTE. A reasonable political minded person knows that Prabhakaran would not have fought against the Indian government without the help of the Westerners through diaspora. And also Prabhakaran would not have broken the 2002 ceasefire agreement with the Sri Lankan government without the help of the Westerners who pushed him to fight against India. If you can answer the following questions you will know who have most of the Tamils’ and Sinhalese’s blood on their hands. Who have been deliberately stopping the peace agreements? Who have been guiding the diaspora? Who have been fuelling “hate and bitterness” among the Tamils and Sinhalese? Who have been facilitating the funding to the LTTE, even though they had everything within their reach to stop money get transferred from the diaspora to the LTTE. The answer is Western political minds through their intelligence network.

    President MR does not have an answer for everything, but he has the ability to deal with the external threats better than any other leader. Therefore, Lets approach matters very pragmatically for sake of the innocent people who have died due to the bloody war. It is a new beginning for the CJ. The Chief Justice Shirani Bandaranayake has a huge potential. She has a lot to give for the country. She must get involved in politics and bring new ideas to the table. Lets people decide whether she is worthy or not. She must not go to the UN, but go to her people and put her ideas forward, in order to develop the country. She must not go to the enemies who divide others, invade others’ countries and kill millions of people to keep themselves on top. Do not go to the devil to get justice. I urge every Lankan to stop listening to the enemies who divide us, they use every opportunity to bring chaos into the developing countries to rule others. We must understand what is missing, then find a solution within us, looking outside will create more problem and chaos than a solution.

    The Westerners ruled and ripped off the Indian Subcontinent for more than 440 years, but they never done anything to eliminate the caste systems, gender inequality, and racial, language and religious discriminations. Because they knew it will continue to eat the Indian Subcontinent and keep the Asians under the West forever. Four hundred years is very long time, at least 10-12 generations. The West could have done a lot, but they deliberately done little. The Westerners have a lot to talk about the Indian Subcontinent’s failure than China’s communism, but they won’t talk about it, because it will highlight their deliberate misleading to keep the Asians under them, plus the Indian Subcontinent is not a threat to their dominant power, but China. “English are to blame for India’s backwardness” published by the Dominion Post, written by Philip Collins, on page B5, Dated January 5, 2013. The Dominion Post is one of the major newspapers in New Zealand. Not all the Westerners are naive or blind, there are people like Philip Collins who sees the Westerners’ evil side. The Indian Subcontinent has enough intellectuals to develop the Subcontinent better than China, but the system won’t allow the intellectuals to lead. Therefore, the intellectuals leave the Subcontinent and develop the Western Countries. This system was developed by the Westerners, in order to keep the Indian Subcontinent poor and weak.

    We fought against the Westerners to have our freedom, but we still trust them, listen to them and run our political system according to them. This is a huge disaster. The Indians are too scared to change the manufacturing sector, because they don’t want to allow another East India Company. However, they are happy to run a political system recommended by the Westerners. The Chinese are really smart, because they have a political system what is good for them, they did not choose a political system recommended by their enemies. We must stop listening and trusting our enemies. We must develop a system according to our culture and ideology, like the Chinese did, otherwise the Indian Subcontinent will be struggling forever. We must depart from the old system and bring some changes. Being part of the Commonwealth is only helping us to stay behind. Time for us to move forward, our policies are not helping the Indian Subcontinent to move forward as China. Am I recommending a communist system? Not at all, but we need some changes, if we come up with something good, India may even consider our system in the future. We must find a way to lift the whole Indian Subcontinent. India can’t try something new, because it is too big. Sri Lanka is a small country, we must try something new and help the whole Indian Subcontinent, otherwise we will be betraying our future generations.

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    Anatny Peter,
    DO you know why the CJ was removed?What made him to do that?Please let us know any other country that has impeached CJ for this kind of reasons.please do not say it has happened every where.As intelligent people, we must analyse why people do things and for what purpose.If the CJ was removed with good intention to get an independent judiciary,it is all well and good.But when things are done for their own benefits and advantage at the expense of the country and its independent judiciary where will the public stand comes to justice.Can you see this or are you blind or are you living in other part of the world without giving any consideration to the people in Sri Lanka?You write so well and you must be an intelligent man but when peple like you all too support this kind of administration they will do any thing they like for their benefits.Do you know how difficult to live in Sri Lanka now?Do you know the cost of power and food items?Do you know the cost of fuel?Do you know the cost of a gas cylinder?
    Do you know how ugly their behavior when the impeachment process was going on?Do you know thugs rule the day and people lost their freedom to talk and protest?Do you know that thugs were used to insult the supreme court and the lawyers?Is this the way respectable government leaders behave?Fire crackers for what?Show the strength..for whom..for one woman?
    For that matter has the things become better now?How qualified the new CJ?How senior is he?why those in line was not given the new cj post?How can Shirani Thilawardene work under this man Mohan?Central Bank governor is politician,Now CJ is also not so qualified to become the CJ but the only qualification is they do what the politician want them to do.why not cancel all these posts and take every thing in to their hand and run the country by themselves?
    All these are jokes and they can continue to carry on making jokes as long as they are supported by intelligent people like you all.People will suffer..Ultimately we will loose our country.You are right to say that some one will get iinvolved….
    Yes, westerners and Indians will get involved cause we invite them indirectly as we do not know how to run the country.Why blame India for training terrorist?If we have done the right thing,India will not have any one to train?Isn’t it?We create terrorist so they train them for their advantage?why there are not US and Europe terrorist for us to train?It is cause their countries are run properly by right leaders.Please stop blaming others for our mistakes.If we clean our back yards there will not be rats around us.So do not blame rats but blame our leaders for keeping our back yards dirty and filthy….You must be a guy living abroad not is sri lanka…I am sure of that…

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    Dear Ari,

    I heard your cry, and also heard others’ cry while I was in Sri Lanka in last March and April. I wasn’t supportive for the removal of the CJ. In fact I encouraged the UNP, the TNA and the JVP to put pressure on the government. Regardless of what we did, the president sacked the CJ. Now we can’t join with the foreign powers and go against the President. We need time to analyse the whole issue. Trust me, everything will be ok in due time.

    The Sri Lankans are suffering since the independence, due to lack of decent leadership. We are trying hard to build a good leadership, it is a process, it will take time. I urge you to be positive, and focus on the big picture.

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