25 September, 2020

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Justice Crushed In Sri Lanka

By Geoffrey Robertson

Geoffrey Robertson, QC

The Commonwealth is sleepwalking towards a human rights disaster, if it goes ahead with November’s Commonwealth Heads of Government Meeting in Colombo, where it will be presided over by Sri Lanka’s President Mahinda Rajapaksa. Perhaps emboldened by getting away with murder – the army slaughter of some 40,000 Tamil civilians in 2009 – his government has now moved to destroy the independence of the judiciary. It has sacked the Chief Justice for a decision that it finds inconvenient.

Chief Justice Shirani Bandaranayake, former dean of Colombo Law School and the first woman to be made a Supreme Court judge, is a highly respected jurist.

Last year she infuriated the government by declaring unconstitutional a bill introduced by the President’s brother, the Minister for Economic Development, which would have centralised political power (especially at the expense of the northern, largely Tamil province) and would have given the minister wide-ranging powers to infringe civil liberties. So the government decided to remove her and 117 of its tame MPs introduced a bill to impeach her on 14 charges of alleged ”misconduct”.

The principle of judicial independence requires that no judge should be impeached for doing his or her duty, merely because the decision has upset the government. That is exactly what the Rajapaksa government has done in the case of Dr Bandaranayake.

Three of the charges accused her of misinterpreting the constitution. But it is a judge’s job to interpret the constitution and she gave it a purposive construction with which most judges – in Australia and elsewhere – would have agreed. Indeed, with two colleagues who joined in her judgment she interpreted the meaning of a key word in the constitution by looking it up in the Oxford English Dictionary – a familiar source of linguistic enlightenment in courts throughout the Commonwealth. But not for these 117 MPs.

Before politicians sack a respected judge, they must at least afford her a fair trial. So to whom did the Speaker, Rajapaksa’s elder brother, entrust this task? To a ”Star Chamber” of seven cabinet ministers.

It sat in secret, refusing the Chief Justice’s request to admit the public and refusing to have international observers. It declined to be bound by any rules about the prosecution bearing the burden of proof and it gave her no time to prepare any defence – she was presented with 1000 pages of evidence and told to be ready for a trial starting the following day.

The tribunal chairman told her expressly that it would allow no witnesses, whereupon she and her counsel walked out, despairing of any fair trial. The next day, in her absence and without notice to her, they called 16 witnesses whom she could not in consequence cross-examine.

The result was a foregone conclusion. She was found ”guilty” on three charges of misconduct on evidence that could not stand up in any real court and could not in any event amount to ”misconduct” under any sensible definition.

For example, the fact that her bank had addressed her as ”Chief Justice” on her statements was regarded as an abuse of office justifying her removal. The Supreme Court quashed the Select Committee’s findings of guilt, but the President refused to obey their orders.

The President sacked her and appointed the government legal adviser, who had no judicial experience, as Chief Justice in her place. Her impeachment was celebrated with a fireworks display from the Sri Lankan navy and with entertainment, feasting and fireworks supplied by the government.

The prospect of the Queen travelling as head of the Commonwealth to Sri Lanka to provide a propaganda windfall – a royal seal of approval – for the host President after his destruction of judicial independence would make a mockery of the core democratic values for which the Commonwealth is meant to stand.

Canada has already signalled it may refuse to attend what will be a showcase for the regime, but Bob Carr is determined that Australia will be there, a position that is sure to damage Australia’s standing on human rights. Mauritius, an exemplary democracy, is willing to host CHOGM, and that’s where it should take place.

*Geoffrey Robertson, QC, is a former UN appeal judge and the author of Crimes Against Humanity. This op ed was first published by The Age

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Exclusive: Full Text Of The QC Geoffrey Robertson’s 100 Points Report – CJ Shirani Is Innocent Of The Misconduct Charges

QC Robertson Wants The Queen And Commonwealth Leaders To Boycott Of Sri Lanka

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Latest comments

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    Sadly it is all true what u have said. We Sri Lankans should hang our heads in shame that we really did nothing about it. I guess when the knock comes on our own door it will be too late there will be no one to speak for us!!
    The opposition is like a mistress of the regime being kept. Most decisions are short term to push the names and games of the leading family.
    Most projects are white elephants, The Southern Port, The Southern Airport, Mihin Lk , the highways only for the rich.
    Now comes the ethnic cleansing by the BBS aka Bodu Bala Sangamaya! they practice non tolerance. I bet this comment will attract hate mail!

    • 0
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      you can hang your head in shame , while we hold our head up with pride at all the achievements SL has done after 30 years of destruction, of the country within 4 years.

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        What are the achievements? Please enlighten us on these achievements over the last 4 years. Please let us know what the achievements are, what is the impact of those achievements on the economy (current and future), what was the cost of achieving those achievements including how much it will cost future generations, what is the impact of those achievements on the social well being of the people and the impact on the environment. That will be a good start……

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    I have on many occasions watched Geoffrey Robertson speaking on behalf of various disadvantaged people, of countries that have been ransacked by invading imperial powers (ie Iraq, by US/UK)and on matters of international law.

    What came through was that he was compassionate, egalitarian and a fair arbiter of justice.I am not sure if his words can have an effect on multilateral issues between countries, as trade, regional stability and geopolitical stakes determine the status quo.

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      For sure, he may come through as a “compassionate, egalitarian and a fair arbiter of justice” to Lasantha Pethiyagoda. But from purely a legal point of view, Geoffrey Robertson QC (no less) should have at least added the word “alleged” in front of the number 40,000 killed. How can a lawyer throw figures like this without being able to substantiate them and expect to be taken seriously. To be sure many were killed, probably wantonly. But let us have facts and accurate facts. The Tamil cause will suffer with exaggerations of this kind.

      GR conflates the issue of the impeachment of CJ and the alleged war crimes into one charge of HR violations against the SL Govt. Impeachment of the CJ is a domestic matter. The alleged war crimes is an international issue.

      I am not, and never was, a supporter of the LTTE. But the Tamils in SL have issues that need to be resolved. One is the marginalization and the lack of opportunity for us to participate in the political processes of the country on par with the Sinhalese and, perhaps, even Muslims and people belonging to minority religious groups.

      Devolution, the 13th Amendment (with a plus), etc is not going to change the country to the better. It would only make it slide into more conflict and eventual separation. The better option is to work on the Sinhalese masses to let go of their racism and accept we all are Sri Lankans and have to be treated alike – with respect and equally in terms of economic and political power.

      This is what Robertson QC should have pushed. I am afraid the LTTE lobbyists in London have got to Robertson and are using his standing to push a political agenda.

      And into the bargain you have people like Lasantha Petiyagoda putting his two cents worth without any reason or meaning.

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    If we have come to the level where a SC judge invites media reporters to her Chambers to tell them what to do, then we are hitting the bottom pretty fast. Like the case of our earlier English Language standards, it is easy to break something. But to build something to the earlier sublime levels is not possible, even in several generations, as we see in that frantic case to recover our English Language levels. So, I fear, is the case with our once splendid Justice system. Oh! that 1956 Revolution. What destruction it has brought forth – now faithfully carried on by the same actors – the “pious” Buddhist priests of the BBS, SR and what else have you?

    Senguttuvan

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    If Sri Lanka is to host the Commonwealth Summit, it would certainly “provide a propaganda windfall” to this repressive regime.The international community also should proceed to impose sanctions on this government and also take some punitive action against the 117 MPs who signed the Impeachment Motion and the seven Ministers who conducted the Kangaroo trial and pronounced Chief Justice Dr. Bandaranayake guilty. People in Sri Lanka are utterly helpless with a servile Parliament, a servile judiciary, a joker as the opposition leader and no prospect of fair and independent elections! Only the international community led by Western democracies can teach a lesson to the cocky tyrant!

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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    https://www.colombotelegraph.com/index.php/comments-policy-2/

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    The Royal family must be having second thoughts about associating with the Raja paksha (Royal Party). Of course becoming Royal by talking and acting the ancient chronicals by behaving like mini dictators and promoting the race and religon. Minorities are just guests here living on the magnanimity of the majority. How does this conform with the values of the commonwealth.

  • 0
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    These are simple now Sri Lankan police’s main income is illegal garges and small workshops operate in residential areas. Police is getting monthly income from all these illegal garges and never allow to control or close them and protect them. People are leaving now residential areas.

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    Geoffrey Robertson QC may be a distinguished lawyer but he would not make a good judge if he is prepared to accept without proof, figures that are rashly bandied about, as he does when he talks of “the army slaughter of some 40,000 Tamil civilians in 2009”. This is a number that someone has arrived at on the basis of some curious calculations. It is not a verified figure and seems wide of the mark. You can well imagine also how fiercely GR will have disputed an unverified figure, if he had been appearing for the defence and such a figure had been put forward against his client. ‘Where is the proof?, he will have thundered.

    And now here he is accepting without demur any old figure, and offering gratuitous advice to the Commonwealth to not hold the 2013 CHOGM in Sri Lanka.

    But his opinions and comments notwithstanding, it seems to me that the sensible thing for the SL government to do would be to find some dignified way to withdraw the offer to host this meeting. Holding it in SL will only attract more attacks on it, and the time and resources that will be devoted to dealing with them could well be put to more productive use.

    I cannot also see why the government wanted to host this meeting in the first place. The value of hosting these meetings is grossly over-stated. They cost a fortune but do little for the country. Sure, you get some modest publicity for the country but nothing really tangible or valuable. As against that there is the enormous expense of organising and running the event and the huge security headaches that go with it. When the last CHOGM was held in Perth it did very little for the Western Australian capital or for Australia. If anything, people were more interested in the Queen’s visit thereat the same time, than they were in the CHOGM. Many people simply did not care and some were only aware of CHOGM happening because of the inconvenience of the road closures and restrictions that it caused.

    So, let SL tell the Commonwealth to please find another venue. And, anyway, why host a meeting if your guests are unwilling to attend cheerfully or only come reluctantly?

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    The appointment of Mohan Peiris appears to be the undoing of Rajapaksha regime. Ill-conceived idea of impeaching the Chief Justice Dr. Bandaranayake has misfired and the result is like an enlarging fireball chasing after the ruling siglings. Justice in Sri Lanka is now being perverted and democracy is being converted to a dictatorship. The end of the incumbent regime is appraching fast and the opposition should gear itself to meet the demand of the citizens. A united opposition is a must and Ranil should gracefully leave the scene before he is thrown out by the masses.

  • 0
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    It is absolutely right to say that there is no rule of law in this failed state where the peoples’ judicial power is blatantly violated by the judiciary that is completely under the rule of Rajapakse. Judges in the Apex Court fall into this low is something never heard in this country. Saddest thing is that there is no one, to be seen in the horizon with sheer commitment to put things right and to lead the nation in the right direction against this oppressive rule.

  • 0
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    If someone thinks this ruling regime care rule of law, honesty & shame , sadly mistaken.

  • 0
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    Geoffrey Robertson’s recent comments puts to rest any controversey on the matter of the legality and the constitutionality of the removal of the “legitimate” Chief Justice appointed under the 1978 Constitution. The Queen and other representatives of true democracies attending the conference in Sri Lanka will be making the commonwealth a joke if they do attend. This is not a cricket match with even cricket in doldrums due to corruption and political interference. Cricket will soon die a natural death.
    Bensen

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