28 November, 2020

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‘Justice Weeramantry Misquoted’ – A Response

By Elmore Perera

Elmore Perera

The ‘Opinion” of Mr. K.K.S.Perera of Panadura published in the Island of Saturday 22nd December 2012 is patently hasty and erroneous. Not only is Judge Weeramantry “an acclaimed legal personality who held the prestigious post of the President of the International Court of Justice, he is also the senior-most retired judge in the country who has been associated with the law both locally and internationally for 65 years.

A few days after delivering the Lilith Athulathmudali oration  referred to by Mr. Perera, Judge Weeramantry felt compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary – “a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally”

He opined, inter alia that:

“An independent judiciary is vital to democracy, for without it citizens lack the basic protections without which a democracy cannot exist. The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the State to respect and protect the independence and security of tenure of judges. The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.”

“The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.

  1. There can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
  2. The rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
  3. There cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
  4. If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.
  5. The rule of law demands that every person investigated by a tribunal has a right;
    1. to be informed of the charges
    2. to know the evidence against him or her
    3. to have a full and fair opportunity to scrutinize that evidence and to respond to it

A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.

So fundamental and universal are these principles that even the Universal Declaration of Human Rights spells out in Article 10, that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations …” Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.

Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.

Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.

It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.

As I have said in many of my writings and lectures, all three branches of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinizing and refuting it.

In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the judiciary with a resulting undermining of the rule of law and of democracy itself.

This should be a cause of concern to every citizen and every institution in the country.

Mr. Perera, cannot but agree that his allegation of “twisting and turning of the observations of Judge Weeramantry” is due to his not being aware of the aforementioned observations and therefore wholly misleading.

Mr. Perera will, no doubt realise that in making these unequivocal assertions re the current impeachment process, Judge Weeramantry has ruled out the possibility of  his participation in “the prestigious body” proposed by the President to “go through the whole process.”

*Elmore Perera, Attorney-at-Law, Past President OPA, Founder of CIMOGG

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Latest comments

  • 0
    3

    If people dont know about emminent people of the calibre of Justice Weeramantry their opinions are not worth considering. The concepts such as rule of law, human rights etc seem to be greek to some people. To them the trash dished out by Rajpal and Hudson is the standard of excellence. It just shows the depths of ignorance to which this nation has sunk.

  • 0
    2

    While thanking Mr Elmore Perera for his excellent explanation and educating nondescripts who rush to print I must also say that many will agree with the comments of SAFA.
    Getting hired fellows without self respect like Hudson Rajpal Padmakumara Mahindapala who can use the queens languageto distort truth clearly reveals the abysmal depths we have sunk to.
    The chaos that we see is due to twisting the law by Sarath Silva firstly by letting of the tsunami funds rogue to giving a judgement that rascals who pole vaulted could sit in Parliament to Asoka Silva saying that army court martial was valid as a judgement in a court of law, to the woman Wijesundera sending Fonseka to Jail are all clear cases of prostituting the law.The woman tart got a promotion in two weeks to the Appeal Court and Asoka Silva a job to launder satakaya. Even the present CJ failed to stop the 18th amendment which made the KING only minus a throne and a gold carriage for the coronation.
    The nation has got an opportunity to rise and stand together and get democracy to work and kick out autocracy leading to a dynastic dictatorship
    We are still having learned men who can steer the country to safety.

  • 0
    2

    Thank you Mr.Elmo Perera for the newsletter.

    I think this whole CJ impeachment is based on three issues. They are….

    1)If CJ’s sister bought this TFC Trillium property when it was under investigation….or was there any restriction to purchase the property.

    2) How CJ maintained 20 odd Bank Accounts with huge sums….

    3) Why CJ did not publish these assets (Bank accounts) in her end of the year Tax filing….

    I don’t give much attention to CJ holding her position while her husband has a Lawsuit against him…or…… he holding a Govt. VIP Position while CJ in the supreme court as Chief Justice…..as I think these are more political issues.

    As to the a bove three qiestions….CJ answered as follows..

    1-A) According to CJ…the time CJ’s sister purchased TFC property, there was no clause to restrict purchasing TFC property and ex CJ Sarath Silva had purchased the same property during same period…….Moreover it was CJ’s sister who purchased the property and not CJ. CJ was only a Notary for her sister. I don’t worry about the Rs. 1.6 million discount as this is a mere common Practice in real estate business and PSC should know about it.

    Therefore could PSC bring a Lawsuit against CJ…. for a property bought by her sister…eventhough if there was a restriction for sale.

    2-A) CJ says these accounts are generated by the banks…..when they deposit the CD’c once they mature after the said period….and re-deposit same with interest purchasing more CD’s………which the PSC could not understand properly.

    3-A) CJ says she received only her salary and the other monies were sent by her sister who lives in Australia to pay-off the mortgage of TFC property.
    IF so CJ does not have to include those monies in her annual tax filing.

    Therefore I want to know why PSC cannot come to a conclution based on the information CJ has supplied with. PSC could have consulted an Accounting firm on Money and bank A/C issue, a Law firm on the validity of the Trillium house purchase and a Tax consulting firm on the CJ year end Tax filing.

    If anybody could answer to my above comments would be appreciated.

  • 0
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    By birth I am a buddhist(because my parents were Buddhist) . Now I have no religion. Why? In a country with no rule of law citizens can’t have a religion. Rather law abiding ones. They are the loosers. Corrupt ones are the winners. So where is god or sins. Nothing preached bear fruits. What is the use of religion!!!

  • 1
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    ‘Justice Weeramanthri misquoted’: reply to Mr Elmore Perera

    The learned Attorney-at-law Mr Elmore Perera’s, response on 27/12, to my letter ‘Justice Weeramanthri misquoted’,(22/12) says,
    ‘K K S Perera’s letter is …patently hasty and erroneous’; and he proceed to quote the world renowned judge C G Weeramantri extensively, but fails to point out where I erred. Being a layman, where legal field is concerned, I respectfully urge the Senior lawyer and former Surveyor General to please enlighten us with specific details.
    Mr Perera quotes the former Supreme Courts Judge Weeramantri extensively, with extracts from his several speeches which contain ample evidence in proof of my observations, as laid out in my letter. The former vice president of ICC, at his Lalith Atulatmudali oration touched on all facets that affect independence of Judiciary; it was a very balanced, fair and unbiased approach referring to the unfortunate state interference in the independence of judiciary as well as on the internal factors, the thoughts and actions of the judicial officers themselves that affect its independence. Several politicians who are usual ‘fish in troubled waters’ types unfairly misused the great man’s speech on ‘voice cuts’ commenting on the on going impeachment of CJ. The anti impeachment groups quoting sections of the oration where the acclaimed legal luminary was severe on the external factors, while those who supported the move quoted other sections: thus I call it ‘misquoting’ Weeramantri.
    “A half-truth is the most cowardly of lies”— Pietro Aretino-

    I am baffled, that the former illustrious Civil Servant, Mr Perera, have misconceived the title of my letter. May be that he himself is highly prejudiced on the matter. I am even more baffled that Mr Perera, the founder of CIMOGG, failed to grasp some passing references made by Justice Weeramantri in his speeches on, serious erring by judicial officers in their opinions in the recent past that affected Rule of Law, independence of judiciary and the sovereignty of people. The terms ‘twisting and turning’ and ‘misquoting’, were used by me only to emphasize the meanness of taking the great man’s words out of context by political spokesmen.
    I am reluctantly compelled to reject a statement attributing to me, made by Mr Perera, the former president OPA, when he said, “ twisting and turning of… is due to his not being aware of the … and therefore wholly misleading”.
    Mr Perera, says,
    “Perera will, no doubt realize that in making these unequivocal assertions re the impeachment …, judge Weeramantri has ruled out …his participation in the ‘prestigious body’ by President to go through the process”
    “A man may imagine things that are false, but he can only understand things that are true, for if the things be false, the apprehension of them is not understanding”— Isaac Newton-
    K K S Perera Panadura.

  • 0
    2

    I totally agree with Elmore Perera.

    Part of this comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
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