By Jude Fernando –
Shiranee Tillekewardene
The impeachment proceedings against the Chief Justice has now arrived at critical point, and regardless of its final outcome the independence and public confidence of the judiciary should be maintained. In this regard the citizens of Sri Lanka hope that the Supreme Court in hearing the petitions submitted by the CJ and others will honor the two principals of natural justice upon which the integrity and public confidence of the judiciary rest. The first principle stems from maxim “Audi alteram partem” which means no one should be condemned unheard. This maxim contains two elements: (a) The opportunity to make representation must be afforded ; and (b) such opportunity must be reasonable. Opportunity depends to the facts and circumstances of each case.
The second, principle stems from the maxim that one ‘Nemo iudex in re sua‘ ‘meaning that Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased (personal, pecuniary, personal or official bias.) In any civilized democracy this means even if the legislature does not specifically provide for principles of natural justice, unless principles of natural justice are specifically excluded in the legislative laws, the Supreme Court must read natural justice into a provision of law.
In the regard Justice Ms. Shiranee Thilakawardane should excuse herself from hearing any petition relating to impeachment of the Chief Justice since she gave evidence at the Parliamentary Select Committee, and the fact that, according to reports, two judges of the panel, S. I. Imam and Chandra Ekanayake refused to hear cases with Ms. Thilakawardena. Regardless of the Ms Thilakawardana’s stand on the impeachment and outcomes of these petitions Ms. Thilakawanrada participation in the any hearing relating to PSC will only serve to undermine the integrity of the Judiciary.
Related posts;
Police Protection For Justice Shiranee T
Two Supreme Court Judges Refuse To Sit With Shiranee At Monday’s Sittings
Impeachment Update For The Day: Justice Shiranee Vs Chief Justice Shirani
Mohamed Iqbal / December 20, 2012
An other Keheliya for Judiciary.
/
Yasas / December 20, 2012
It should be “Audi alteram partem”. Not Audit.
/
concerned / December 20, 2012
and Nemo iudex in causa sua not Nemo judex in re sua
/
Jude Fernando / December 20, 2012
Thank you very much. the typograpjhical error is now corrected. I think that has to do with the automatic spell checks.
cheers
Jude
/
Katmai / January 3, 2013
This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
http://colombotelegraph.com/comments-policy/
/
Leela / December 20, 2012
Jude,
If justices ‘S. I. Imam and Chandra Ekanayake had refused to sit in a bench with Ms. Thilakawardena’ to hear cases that has nothing to do with impeachment, it appears that those judges are also bias on the side of the CJ. It is obvious then the maxim that you have mentioned should be applicable to them as well.
Leela
/
Kiri Gamarala / December 20, 2012
Leelo,
Pl don’t jump to conclusions. It may be that those two judges did not like Justice ST giving evidence against another judge of the Supreme Court.
/
Leela / December 20, 2012
As we understand from PSC report that is already in the web that Justice Thilakewardena had not given any evidence against the CJ. Both she and the court registrar only confirmed court records and her earlier judgements. That’s all to it.
For instant, the bench headed by justice Thilakewardena had issued an order that read: “This Court also directs the Committee of chartered Accountants to pursue all negotiations for the sale of other properties by advertising and calling for quotations with a view to obtaining the highest going prices on these properties. No properties to be alienated without the express permission of this Court.”
How could evidence of Justice Thilakewardena and the court registrar that confirm her own order can be described as new evidence against the CJ. The fact that the CJ had blatantly flouted an existing order and bought an apartment for her sister is her own blunder. It is absurd to expect Justice Thilakewardena and the court registrar to deny her own order as true.
The CJ’s undoing was, she had interpreted the said order for her advantage and even included it in her written reply to the PSC to say; “In the circumstances from 6.5.2010 the housing units in Trillium residencies were in effect NOT a property in the list of properties in case 262-2009 that could not be alienated.”
Not just that the CJ even got Rs1.6 million discounts going against the said court order which otherwise should have gone to the said depositors. It is these that she was found guilty of violating Article 107(2) of our constitution by the PSC.
Leela
/
Peris Appu / December 22, 2012
It seems that everyone else in lanken population is becoming clear that the manner PSC handled the CJ ‘s case was not respecting the prevailing rule of the law.
It is sad to see that there exist more of people who would further be ready to accept any ill behaviours of the rulers continuously.
/
Park / December 20, 2012
The most important point here is the reason why the Learned Judges refuse to sit with Ms. Thilakawardena! It is because the Justice System felt that the PSC has not been constituted legally. By appearing before PSC Ms. Thilakawardena being a Judge humiliated the Justice System. This is the reason why the other Judges refused to sit with her.
/
Victor / December 20, 2012
Learned Judges did not refuse to sit with Justice Shiranee T. Someone with authority within the Supreme Court had assigned the said two Judges to sit with Justice Shiranee T, knowing very well that they were on leave on that particular day!
/
Jude Fernando / December 20, 2012
Agreed. AND that should be decided by the Justices.
Cheers
Jude
/
Sonlight / December 20, 2012
Shrianee T should stop talking on CJs impeachment effort by MR.She should stop betraying the judiciary by supporting MR for hers personal benefits
/
Jude Fernando / December 20, 2012
I do not want to speculate about Ms. Thilakawardanas intentions or what she said at the PSC hearing. Staying away from hearing the petitions will good for her own reputation and the reputation of the Judiciary.
/
RAP / December 20, 2012
Leela,
The reason those honorable judges refused to share the bench with Ms.Thilakawardane as far as I understood from media ,not because they are bias.The protest is because of her participation in a “trial’ against natural justice where there was no opportunity given to the CJ to defend her self.Do U think PSC has done a fair Job???
/
Leela / December 20, 2012
All MPs, judges and public servants and etc swear to abide by the constitution. There is no phrase ‘natural justice’ in any of its clauses. My computer couldn’t find it. So, when one is summoned to the PSC, if he evades, he goes to jail period.
For your question on ‘there was no opportunity given to the CJ to defend her self and whether PSC has done a fair Job’, I say; as per 78(A)(2), CJ has the right to defend herself but she gave up that right by withdrawing from the PSC. Calling names, filth and etc are mere excuses. In that case, the CJ could have gone but her lawyers should have stayed on. She know she is guilty therefore she is playing a game.
Leela.
/
Jayantha / December 21, 2012
No Leela, your analysis is wrong…..
I think CJ and her Lawyers knew exactly how to play the game….
They waited till they receive all the 1000 odd documents and the backup statements from the Govt.PSC.
Once they received they left….to build their own case on the charges……mainly to trap the 117 who signed.
From them they could trace all the sources to check if they are jenuine, and who are the suppliers and see if they were seen by the 117 which are relevant to the case.
That’s why PSC dropped charges from 6 to 14 = (9 charges)
Only 3 left and CJ and her Lawyers will prove her innocensc on the three charges and will bring a lawsuit against the 117 plus PSC 7.
Await for the surprise….soon.
/
Jith / December 20, 2012
No wonder this lady dilly dallied for four years. The church would have told her to give the Kotalawelas time to hide the money and of course the Rajapaksas were in debated to the Ks as well
/
Reder / December 20, 2012
I think She is trying to get Next CJ ship From MR and wash MR & Rajapaksha’s Toilets, by getting her benefits. Is It?
/
Nimali / December 20, 2012
Disgusting Reply! Since when did you start reading people’s minds? Are you a Soothsayer? If so, why don’t you enlighten us with what’s going in MARA’s mind?
/
Karunadasa Wijesinghe / December 20, 2012
‘Nemo judex in re sua‘
Who is this joker?
/
Jude Fernando / December 20, 2012
That was an typographical error. Now it is corrrected. Thanks.
/
dicky Bird / December 20, 2012
CJ flouts and Shiranee blaned.
What was the hidden agenda behind Imam & Ekanayake’s failye to sit with Shiranee?? How could impartial if they are as they should be do that??
Under no circumstances they should have done that.
It is unfortunate,when it come to fairness and neutrality Imam & Chandra have lost their credibility through their unwarranted act.
/
K A Sumanasekera / December 22, 2012
Have you found your bird dicky? That little little bird?
/
Sunila Mendis / December 21, 2012
leela seems to be a Govt lacky or else how can she or he say that the CJ should have stayed until the end inspite of her being abused verbally. According to an interview with Hon Lakshman Kiriella on the proceedings of the PSC he said that he felt so ashamed at the abuse thrown at the CJ he himself felt like leaving the proceedings then and there.He is ashamed to call himself a parliamentarian.
/
Andy / December 22, 2012
Jus Shiranee Thilakawardena has become unfit to be a judicial officer, leave alone continuing as SC Judge. The reason is that when she went before the PSC to give ‘evidence’/’statement’ in the ‘inquiry’ pertaining to the Impeachment Motion, she should have refrained from giving ‘evidence’/’statement’ as neither the respondent nor her lawyers were present at the ‘inquiry’. Being a SC Judge she should have declined to give ‘evidence’/’statement’ in the absence of the respondent/lawyers. When she flouted this and purportedly gave evidence behind the back of the respondent, she is thus disqualified to be a judicial officer. How can a litigant trust her to be a judge who would practice the basic principle of justice? If any other person sits with her on the Bench, they are also equally guilty of prostituting and perverting justice.
Andy
/
Nimali / December 26, 2012
What a warped way of thinking…..So your biased thinking applies to the JSC Secretary as he too was summoned. Though he was hammered by pro-government goons, he too had to appear before the PSC. Why are you people attacking only Justice Shiranee T?
/
Andy Abraham / January 1, 2013
@Nimali
Any one who is exercising judicial power should respect the rules of natural justice! If such a person ignores the basic tenets of natural justice, she or he becomes unsuitable to be a judicial officer. It is unthinkable that such a person can usurp the position of a Judge of the Supreme Court! If you think this premise as ‘warped way of thinking’, let it be so!!
/