27 September, 2020

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In To A Dark Land We March

By Ravi Perera

Ravi Perera

The Voluble Mr. Wimal Weerawansa, a Minister of this government and also a member of the Parliamentary Select Committee which investigated the allegations against the Chief Justice Shirani Bandaranayake, is a man never at a loss for a pithy argument. Only the other day, referring to the then pending hearing in the Court of Appeal of the writ application by the Chief Justice ,Minister Weerawansa  compared it to a situation where a victim of a theft was seeking  oracular  guidance from the mother of a thief ; implication being that she would of course exonerate her guilty son.

Now, those who have an idea of the principles of judicial functions know that this is arrant nonsense. No judge worth his salt would take guidance from the Chief Justice, or any other person for that matter, in his judicial functions. Her role as the Chief Justice is strictly administrative where the other judges are concerned.  Originating   from more individualistic cultures, the judicial role as defined today is a deeply personal endeavour where the judge attempts to do justice according to the law and evidence before him, as his conscience dictates. Leave alone a judge of the Court of Appeal, the Chief Justice cannot even tell a junior magistrate how he should judge.

That a person could even in a hierarchical arrangement, yet act according to his conscience maybe too difficult a concept for some cultures to understand.  It may be that in the society that Wimal Weerawansa is familiar with, a person who is subordinate in any manner, has no sense of autonomy vis-à-vis his superior. If we take that as the general rule, and knowing as we do that the President and then the government (of which he is a somewhat undistinguished  Minister) wants the Chief Justice out, in what framework of mind did Minister Wimal Weerawansa participate in the proceedings of the Select Committee? If we were to follow the logic of Minister Weerawansa, when the Parliament sits to debate the impeachment, are they meeting only   to finish the deed? Can we consider such a process a legitimate judicial proceeding?

The answer is so obvious that no further elucidation is required on the impeachment proceedings with a predictable and   so palpably unfair end.

Then the other day, our Leader of the Opposition just back from Venice, always tasteful in his selection of holiday destinations, enlightened the house (the Parliament) that the judicial powers are vested in the Parliament, but will be exercised through the courts except for matters concerning privileges etc of Parliament. This is plainly stated in Chapter 01 (Clause 4) of the Constitution and is no revelation.

Leafing through the Constitution of the Democratic Socialist Republic of Sri Lanka we come across Clause 13 which may be a matter of relief for our beleaguered Chief Justice. It says that any person charged with an offence shall be entitled to be heard in person or by an attorney –at-law at a fair trial by a competent court.  Chapter 15 (Clause 105) of the Constitution which describes the Judiciary reads “Subject to the provisions of the Constitution, the institutions for the administration of justice which protect, vindicate and enforce the rights of the people shall be ….” and goes on to list the courts established in the country from the Supreme Court to various tribunals. The Parliament of course is not listed as a judicial body. As the leader of the Opposition pointed out, the people’s judicial powers are to be exercised by the Courts save for those concerning the privileges etc of the Parliament, which is reserved expressly for the Parliament.

Then, we are left wondering how the Chief Justice or any other judge, maybe inquired into and dealt with (including impeached) by the Parliament. There appears to be a lacuna in the law here.

Without addressing this issue, the government has chosen to wage war on all fronts. It brazenly alleges that the judicial pronouncements are an attempt to topple the government. It organizes “protests” by motley groups against “misdeeds “of judges. There are some protestors even conducting a sit-in protest near the residence of the Chief Justice, and no action has been taken by the Police to remove them. Media organizations under the control of the government are conducting a relentless campaign of slander and abuse against any one perceived to be opposed to the impeachment motion, which includes the lawyers. As is the case now in political matters, intimidation and violence are never too far. The house of the President of the Lawyers association was fired at in the night. Some of the lawyers actively protesting the impeachment motion have been intimidated. It is even reported that judges of the Court of Appeal hearing the writ application of the Chief Justice were threatened.

There will be very few followers for the argument that the Chief Justice is in serious breach of her judicial duties on account of the so called   infirmities in reporting certain personal details and the placing of herself in an alleged conflict of interest situation, which prima facie appears far-fetched. Besides, as it is we have not heard her explanation on these allegations. Most people, aware of the style of governance now, will find it ridiculous that such technical issues are held against a person when the order of the day is the violation of all such rules. There is no doubt in anybody’s mind that had the Chief Justice danced according to the tune of the government, there would have been no impeachment.

On the other hand, the government’s position seems to be that as long as they command the majority in the House, they can remove a judge for good reason, bad reason or even for no reason.

Even in the darkest hour there are glimmers of courage and hope. The highest court in this land has held that the proceedings of the Standing Committee are a nullity. Accordingly the Court of Appeal squashed those proceedings. In all civilized countries the power to interpret the law (including the Constitution) rests with the courts. The legislature cannot be both the maker as well as the interpreter of the law.

If the parliament were to decide to ignore the interpretation of the Constitution by its Supreme Court, surely we are now going down an untrodden path into a dark and sinister land. As somebody observed, political legitimacy is a slippery concept, and in a situation where a legislature chooses to ignore its own courts, it can become particularly hazardous.

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Latest comments

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    Its pathetic to note a former Law College principal/director has also joined this hogwash as it appears in a mainstream pvt.(???) newspaper today as a sequel to an earlier equally silly rant.

    At least we know, why the regime and its different avatars including some self appointed corruption busting accountants and gedara yana gaman guys as well as Mr. know it all RanilW are on this “crusade” on safeguarding the supremacy of the people, but why at this advanced age individuals such as this former law college head also try to outdo the Supreme Court? Doesn’t our country deserve something better?

    May be this question never cross their hypocritical minds.

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      The NEW WAR in Lanka has begun!
      Gota the white van goon who was chaffing at the bit, militarizing the country frothing at the mouth for a fight, a new war with the minorities, now has a BRAND NEW WAR on his hands!

      The people vs. the corrupt and UNEDUCATED executive and legislature!
      Bring out the guns Gota – it will be the Sinhalaya modayas that you will be killing this time around!

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    Minister Weerawansa thinks that the judges act on the dictates of the CJ, because that is how he acts. He does not have free thinking and does not know how he should act, because he has to act on the dictates of the President. On any issue he looks-up to find out how he should act. That is how Ministers and government MP act. Even the Impeachment motion was signed by 117 MP (without even seeing what was stated there ) since the orders came from the Temple Trees. He is a moron. He is a robot.

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    All the countries and the international bodies accept the judgment given in Courts, no country will accept the parliamentary statements, what’s the point in going ahead with an illegal procedure?

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    Mr. Ravi Perera, your article is of no use to Wimal Weerawanse as it is written using law terms and refined English. If you wish your message to go to him you have to write in slang and also using words like woman, bugger, bastard, rascal, lokka, balla, balli, baba ukung, thakkadiya, paraya, kelapang, ado, wareng, palayang, meti mola, etc. etc.

    • 0
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      Ronny:
      You are 100% correct in what you say.

    • 0
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      that HIWAL MODAWANSA IS SITTING ON HIS BRAIN AND INDIRECTLY RESPONSIBLE FOR SOME KILLINGS DONE BY J V P, WHEN HE WAS A MEMBER OF THAT PARTY.
      AND THAT IDIOTIC, PIGHEADED POLITIKKCA CANOT UNDERSTAND THE BIG DIFFERENCE BETWEEN, WHAT IS PARLIAMENT AND WHAT IS THE SUPREME JUDICIARY IS?.
      THAT TYPE OF POILTIKKAS ARE GOING TO GOVERN US.

  • 0
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    The writer seems to be flogging a rather dead horse here, if a horse could indeed be “rather” dead! The writer must understand the context in which these actors perform…they have nothing to do with the moral high ground he discusses…

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    If you say Modawanse is a Minimaruwa and Thakkadiya then it is correct. He has learnt the law by killing innocent people and getting away with it. His modus operandi is to abuse people saying they are foreign conspirators etc. He has learnt language and manners in the gutters.

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      Dear Safa, recognizing that you are not among the idiots who comment here. Here are some thought;

      The key number to remember is 280,672! That is the number of votes received by Wimal Weerawansa, elected from the Colombo district. Colombo!, not the villages. That is to say 50,000 more than Ranil Wickremasinghe! The highest in the Colombo district, highest!.

      Wimal Weerawansa has never changed, he has always been anti-minority Sinhala Buddhist supremacist and presidential lapdog. Never hid who he was with no qualms. Yet, look at the votes he received.

      What this means is that the working classes in and around Colombo which is dominated by the Sinhalese, no longer accept the leadership of the traditional elites in Colombo, where the Sinhalese are definitely not in the majority.

      These elites will do well to build bridges with their own countrymen than being westward looking people almost divorced from the realty of the common man dealing with day to day life.

      Through this breach in society, between elites and the common man, the forces of reaction pour through( sometimes in the form of weerawansa types).

      It is no use blaming Weerawansa, he represents the frustrations of the common people who feel that Sri Lanka doesn’t work for them and he pushes his warped views on them. Like I said the key number to remember 280,672!.

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        Ever heard of His Hex-A-Lunacy Percy Jilmaart Rajapassa and his goons. Come hell or high water, they will continue their game of rigging votes. Now it will be aided and abetted by Ranilpaksha!!

  • 0
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    Brilliant article Ravi. We must look at our constitution as one consistent document. Even the Chief Justice is entitled to a fair trial. The Parliament cannot be the accuser and judge. The fundamental rights of all citizens are paramount. I cannot understand how this government so full of corruption, family bandyism, all top jobs held by four brothers, intimidation, violence can say they are patriotic !How much tax do the Rajapakses pay ? How about all the public money they waste( Mihin, Air lanka, ports and air ports in their village) ?Please give a list of all the Rajapakse relatives doing government jobs today . How can a few people just destroy a minority ( who are also citizens) and say that is a patriotic act ? When Hitler killed all the Jews was that a patriotic act ? I am glad there are educated people like the writer to speak on behalf a civilized way of life.
    Reply to:

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    Look at all the Singhala traitors and big mouthed Pundits who continuously attack Mahinda. It is the Singhalese way. These Singhalese traitors were very quiet when LTTE and JVP were killing the Singhalese. Now they have come out of the woodwork and abuse Mahinda and his government who saved the Country. The UNP were willing to handover one third of SriLanka to the Sun God Prabakaran and also were willing to make him the Chief Minister of the North and East. Why worry about an impeachment of a dodgy Chief Justice? She was appointed by Mahinda but she was found to be of questionable character. So what Mahinda could not tell before hand the CJ was going to be like that? He appointed CJ in good faith and why blame him for that. The Legislature is supreme and appointed judges cannot go above an elected government. If the government has no faith in the CJ then she must go. Who is she after all? The will if the Parliament carries the day and not a dodgy CJ or the Black Coats who are called lawyers and are members if the Opposition. For example the leader of the Black Coats is a UNP Member. I say sack the Appeals Court and the Supreme Court Judges too as they are biased and prejudiced and not fit to be Judges.

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    The only question is how much were you paid to speak on behalf of a Very Corrupt Bitch??

    The only dark place is your Ass and that of Shirani!

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      No Sh.t Man!

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    The CJ should have been charged before a competent court of law and not before a group of lawmakers who are igorant of the niceties of the law and the constitution.
    So far,the ‘evidence’ led before the PSC has not been in the public domain,in detail, along with the defence arguments.
    Why is this?

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    It is a shame for Sri lanka to have this idiot as a minister, but then the whole cabinet of ministers are also fools including the big fat man as the head.

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    Pradeep, you fu_ker, you will soon get killed by Mervin or Gotta like what happened to Bharatha.

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    Sri Lanka is blessed with two bob Pundits and Theoreticians who tried two split hairs over the Impeachment issue. Now the impeachment has been completed and these pundits who carried out a vicious campaign against Mahinda and his government should look at some other issue to bark about. Quote “The government has succeeded in achieving its goal by shifting the impeachment battle to the political front, where it is strong. The CJ’s plight became an attractive slogan for the Opposition looking for issues to gain some political traction and bludgeons to beat the government with. It is only a matter of time before she realises that she is in the same predicament as Gen. Sarath Fonseka used and discarded by the oppositional forces, like karapincha or curry leaves; even the trusted lieutenants of the war winning General have ditched him. Pro-CJ demonstrations will continue for a while and then fizzle out when another issue crops up attracting the attention of the Opposition. Lawyers will return to work” Mahinda is a great leader and the best we had in the last 50 years. Support him you Goons and let him develop the country. SriLanka can never repay the debt to him for saving the country from the terrorists. Love to all! Sudu Akka

  • 0
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    Fine analysis

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