4 December, 2020

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Key Issue Is To Defend The Judiciary Now

By Laksiri Fernando

Dr Laksiri Fernando

Karl Marx said “the task is not just to understand the world but to change it.” Of course the implication of this is that “if you want to change the world you would better understand it first.”  One doesn’t need to be a Marxist to agree upon the above two propositions.

In the case of Sri Lanka, we have a situation where there is a clear attempt on the part of the executive to subjugate the judiciary using the legislature as its cat’s paw. Legislature has lost or losing its proper representative character. This was not the case before although some inroads had already been made. This is in a background of a mammoth military build-up. The executive has a preeminent advantage in this scenario given the present form of presidential constitution and the subsequent 18th Amendment and the parliament has become a mere appendage of the executive both through politics and other measures of corrupt practices. There is a considerable apathy among the masses mainly due to the absence of a strong opposition although both economic and social disparities have been increasing creating vast contradictions between the rulers and the ruled; the rich and the poor. Instead of promised reconciliation, tensions in the North are simmering and a major strategy of the ruling elite or the family has been to propagate Sinhala chauvinism in the guise of patriotism.

No one would argue that the judiciary has been a perfect institution in the past. Its independence has been compromised many a time, not by one but by many. Particularly during the war, many improvements or reforms to the judiciary had been postponed or neglected. However, the judiciary is the only institution that has come forward to challenge the arbitrary rule of the executive and the supine character of the legislature. It is a matter of survival I believe. This effort has to be unequivocally supported whatever were our criticisms in the past about this or that action of certain individuals. There is no need to repeat them and some of the matters could be raised and discussed further, in my opinion, after the impeachment matter is concluded. There are three matters in respect of the impeachment that are almost beyond doubt.

First is the fact that the impeachment against the Chief Justice is the central issue of the independence of the judiciary at present. If the CJ is removed or forced to step down, it would be easy for the executive to appoint a complete stooge and coerce the other judges. Are we going to allow that?

Second is the fact that the impeachment is a political move and has nothing to do with any of the charges that have been levelled against the CJ. The sequence of events testifies to this fact completely coinciding with the Divineguma verdict of the Supreme Court.

Third is the fact that the impeachment procedure of the PSC has been completely faulty both by local and international standards and the CJ has not been given a fair hearing that has to be denounced by all sections unequivocally. In addition, the vilification campaign has completely damaged the dignity of the judiciary.

There has been a mighty hurry for the PSC to complete the proceedings. In the event, both the CJ and the opposition members had left the PSC leaving no credibility. Only three charges are supposed to have been proved out of 14 and nine charges have been dropped whatever the reason. The report of the PSC is still not published or given even to the opposition members of the PSC creating doubts that the text is still being manipulated.

In addition to the independence of the judiciary, there is the question of personal injustice to the Chief Justice. No one could deny that or should ignore. She was blatantly abused.

Among the three charges supposed to have proved, two are to deal with the complicated issue of ‘conflict of interest’ and there are no standard rules that have been formulated in Sri Lanka on the ‘judicial conflict of interest.’ Partly, the judiciary is responsible for this matter. ‘Conflict of interest’ is an easy accusation to make but a complicated one to substantiate unless there is proof. If the conflict of interest is raised in its loose form against all judges, they all may have to go and there is no reason why only Dr Shirani Bandaranayake should be punished. There are more acute conflicts of interest on the part of the executive, particularly the Ministers.

Let me make some preliminary observations on the so-called proved charges. In the case of charge 5, the conflict of interest is quite hypothetical and not something that has objectively happened. If at all it is not a conflict of interest that the CJ has created; but something purposely created by the government. This is about the bribery case against her husband. In the case of charge 1, there is no clear connection between the outcome of the case that she was hearing and the interest that she was supposed to have had with a party to the case. No one has raised the issue during the case. As she has pointed out, the former Chief Justice also was in the same position, perhaps quite inadvertently in both cases. Then why only she should be punished?

The charge 4 is about some supposed to be undeclared bank accounts and she has given plausible explanations. The question is whether any lacuna due to misunderstanding or misinformation, if there was any, could be considered an impeachable offense unless wilful non-declaration is proved. Non declaration should have been raised by the Inland Revenue Department first. If complete accuracy in asset declaration is a criterion for impeachment or removal, then perhaps 90 per cent of the government officers and politicians might come under that category.

When impeachment or conflict of interest issues are raised, they look bad whether the charges are correct or not. That is why an impeachment has to be a carefully thought out business unless it in itself is a fraud. Judges normally shy away from impeachments. But our CJ has not done so. Why? Whatever the misgivings I have had about her past, I believe that she was feeling a strong injustice perpetrated against her to fight back so firmly. Of course this is not to deny that she made a terrible blunder by allowing her husband to accept a government position. But the government is more responsible than her for that muddle.

Normally the impeachments are not backed by political campaigns on the part of the proposers i.e. governments. But the campaigns that the government has launched and still continue give the impression that the impeachment is fraud. Therefore the impeachment against the CJ doesn’t look that bad. Instead, it has given much courage for the legal profession and even the community of judges to stay put. It is more than staying put; it is like another replica of a FUTA struggle.

After the convictions of the former Army Commander, Sarath Fonseka, this is the most vicious political trial conducted in Sri Lanka, ironically this time against the Chief Justice. The present trial is equally or more vicious than the former. The question arises why two key people in the establishment were convicted in such a manner within a pace of two years. Whatever the answer you get, it may speak volumes about what kind of future at stake in Sri Lanka, if the trends continue and if not halted.

The issue at stake is not only about setting standards for a perfect or a better judiciary. It is about its institutional independence from the coercive power of the executive. It is about its independent existence from the ‘whims and fancies’ of the politicians. There is nothing wrong for anyone to raise issues of functional independence of the judiciary even at this ‘fatal stage,’ if they wish to, about class or ethnic biases of the judiciary. There is no question that they do exist and there had also been series of issues of conflict of interest visible and not so visible; advertently or inadvertently. However we should not allow the enemies of democracy, if I may use that term, to use our constructive criticisms to destruct the independence of judiciary.

Whether we believe in a socialist, mixed or a capitalist future, democracy is important and thus the independence of the judiciary is important. We may need to distinguish between the institutional independence from the functional independence of the judiciary and if there is no institutional independence demarcated through proper constitutional and political means, then the functional independence also will fail.

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    If you listen to SLBC or watch Rupavahini and ITN, you will see that the Rajapaksa mouth pieces are once more playing the LTTE card saying that the CJ, FUTA, Trade Unions that strike and Sarath Fonseka are all backed by the LTTE supporting diaspora. Sadly, most Sinhalese believe what is said on these channels. If the judiciary succumbs to MRs pressure tactics that will be the final nail in Sri Lanka’s coffin.

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      People like you always write this way when the things go other way ….final nail in Sri Lanka’s coffin ..
      Do you know the meaning of FINAL?

      I had no sleep for last few weeks wondering what happend to DR Laksiri … His silence was very weird given that the best show on earth unfolding in the country and possibility of turning it into the huge ‘regime change’ spectacle. We are lucky to see him back again … To remind him very recent past of this saga, I quote from Uvindu’s article on this page..
      ########
      ‘Last month, Dr Laksiri Fernando analysed my last article as follows;
      “When the bribery charges were raised against her husband, whether he is innocent or not, the Chief Justice could have gracefully resigned, because the first mistake was already committed. That was unfortunately not done. These and related matters were raised impartially by Uvindu Kurukulasuriya before. Holding onto positions some way or the other whether politicians, government officials, academics or judicial officers is not a good practice for democracy and transparency or as a personal principle. It is my personal impression that the bribery charges are vindictively framed up.”
      Laksiri is correct but as he also wrote several times now the issue is giving her a fair trial. I have to agree with even my friends like Chandraprema when he says; “We Have Reached A Situation Where The CJ Refuses To Acknowledge That There Is A Conflict Of Interest.” It is sad, she does not acknowledge it, not only her, none of our CJs at least Sarath Silva to Asoka De Silva acknowledged it.’
      #############

      Now, Laksiri writes “…Whatever the misgivings I have had about her past, I believe that she was feeling a strong injustice perpetrated against her to fight back so firmly. Of course this is not to deny that she made a terrible blunder by allowing her husband to accept a government position. But the government is more responsible than her for that muddle.”

      This Dr is very interesting to follow … Goverment is more responsibke.. Aha! He expects golden standard from a poltician while excusing the blunders of a madam who occupies the highest post of the judiciary of this country … We all know politicians of goverment or the opposition.. Don’t we? But, People of this country expects golden standard from judiciary rather than from politicians … But, this Dr can not understand that .. No, he knows it … But, he wants to mislead … Always , Rajapaksa is the offender … Interesting! Isn’t it?
      Laksiri is always looking out for a thing which could be converted to ‘Regime Change’ … even a poo on the road, sound of gun shot, family dispute, some brawl in a bus regarding the balance of ticket money, a rape, a murder …. He would certainly try … Some people say it is hope … They further tell how could one live without a hope …

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    “if there is no institutional independence demarcated through proper constitutional and political means, then the functional independence also will fail.”

    Let us abolish the constitution and the state.

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    Your are ex-Trostkist,orign and develop of key poltical line of thought mixed with Theology of school and Trostkism of LSSP.Once you support MR and now turn upside down,talking of Marxism and teaching Marx.We really don’t understand where you stand?
    Now in process Judicial matter with CJ has come lime light,there is visicible failure of Sri Lankan legal system in void of value of Democray and social consience inculding CJ ,Parliment and President of Our country capitalist path of developement.I in view Capitalalism in Sri lanka having enough room to expaned and develop,but system need to be undertand by elties and Parlimentries as well as political paries and thier leadership of by our nation.Sorry to say path of capitalist develoepment and progress has to new rout and road map in future sri lanka.By the way our leadership and elltes unable relized parmount fact of historicial mission of the present stage of Capitalism.

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    This type of control by the president, over the economy, over the legislature, over the armed forces, now trying to control judiciary is nothing but a functional dictatorship. President controls the finances, his younger brother controls economic development, another brother controls the military and police and his elder brother the parliment. We have a dynastic dictatorship.

    The judiciary is the only missing component where a rajapakse is not in control. The AG’s department was taken under the presidents control. So now the attempt to undermine the independence of the judiciary. Then danger facing the nation is obvious.

    SB is a lady with a strong will and integrity. No doubt she is aware of the odds but the stakes are high for the future of this country and she will do what she can. Rest lies in the hands of the people, the general public, the political opposition, leaders of civil society, the intellectuals and academics. If they do not wake up and do their part then what will be will be, whatever the outcome.

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    So all the charges against the CJ are ‘hypothetical’!

    What about your accusation that the government’s reason for accusing her is due to Divineguma Bill? Can you prove it?

    You are laike the prawn carrying excrement on its forehead.

    People of Sri lanka will decide whether she is guilty or not. The sanctimonius rubbish you write is useless.

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    A fine analysis! Thank you, Laksiri. By the way former army commander Sarath Fonseka deserves praise and our gratitude for throwing in his lot with the forces arrayed against the vicious impeachment move despite the injustice he himself suffered at the hands of the judiciary!

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    Where on in the whole world where a Supreme court Chief Justice been impeached by 117 Parliament members…..EVEN WITHOUT READ OR KNOWN WHAT THOSE CHARGES ARE……

    Isn’t this the most hilarious courts on earth…..

    What else you could say other than country is ruled by Dumb Muts…with the help from Dumb Muts….for Dumb Muts….

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    Jayantha, Read the Constitution. They didn’t need 117 members, but they had so many.

    Charges are well known. She got a 15 lakhs discount from Trillium for her siste, using her position. She removed another judge from a bench hearing cases involving her husband. She perverted the Golden Key case.

    Courts were hilarious when she saved Golden Key form paying the depositors. Read the story of the man on the tree at Hultsdorf.

    Now sit down and think about who the dumb mut would be! Can you buy a brain at least.

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      You mention about the depositor on the tree. This plot was revealed by Lanka-E-News prevoius day at 10.30 p.m. as a plot of Basil Rajapakse.Find it and read it before preaching about other things

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    Compared to most other writings here and also at other places, this makes realistic, in spite of previous shortcomings of the judiciary, why people in SL and abroad should stand by it, and in the process demand that also reform itself. We are aware in real life reforms and correcting themselves fall from sky but occur victories by the common people making sacrifices. The judicial officers and legal community, among others, who considered themselves privileged and insulated up until now under various regimes now feel how important to have common people’s support. Similarly even those who have dissenting views ( but no vested interests, or no hypocrites) will hopefully realise what is at stake ..right now..as dr. Laksiri F rightly says here and reconsider writer bashing (instead of giving valid counter arguments) or taking morally high positions, going on their ego trips.

    One shortcoming in this piece is that while making a strong case why we all must stand for institutional independence of the judiciary the writer doesn’t spell out at least the key directions: how different groups can and should take in operatioanilising it? without that, simply by reading and agreeing with the writer’s main points..yes, judiciary as an institution must be defended…are we going to get there? Or, let me put it this way …. is the writer preaching to the “converted”?

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    ( sorry about typo errors in earlier one)

    Compared to most other writings here and also at other places, this makes realistic and sound arguments, in spite of previous shortcomings of the judiciary, why people in SL and abroad should stand by it, and in the process demand that also reform itself. We are aware in real life reforms and correcting themselves don’t fall from sky but occur as victories by the common people making sacrifices. The judicial officers and legal community, among others, who considered themselves privileged and insulated up until now under various regimes now feel how important to have common people’s support. Similarly even those who have dissenting views ( but no vested interests, or no hypocrites) will hopefully realise what is at stake ..right now..as dr. Laksiri F rightly says here and reconsider writer bashing (instead of giving valid counter arguments) or taking morally high positions, going on their ego trips.

    One shortcoming in this piece is that while making a strong case why we all must stand for institutional independence of the judiciary the writer doesn’t spell out at least the key directions: how different groups can and should take in operatioanilising it? Without that, simply by reading and agreeing with the writer’s main points..yes, judiciary as an institution must be defended…are we going to get there? Or, let me put it this way …. is the writer preaching to the “converted”?

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      Thanks LK Perera for raising the issue of how to defend the independence of the judiciary.

      I think the BASL should take the lead. It should make an appeal to the trade unions, political parties, civil society organizations, religious groups, media collectives etc. to come forward in defending the independence of the judiciary. They also should make a commitment to reform the judiciary and the legal system in terms of responding to the people’s needs and democratic principles. Among the trade unions, professional unions are important such as FUTA and the media collectives. Among the political parties, the opposition parties and left/liberal parties are important. Depending on the responses, a meeting could be called to form a Coordinating Committee to Defend the Independence of the Judiciary. The outcome of this meeting would be important in determining the future action. The following are some suggested actions that they could take.

      Form a Secretariat. Go for fund raising. Launch a public awareness campaign. Contact the international organizations. Utilize the existing media as much as possible. Forget personality issues. Be broad minded beyond partisan politics. Be inclusive of all possible sections. Call for the immediate withdrawal of the impeachment.

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        @Dr.L.F,

        thanks for taking trouble to respond. I don’t think this is the right place for long & regular exchanges on this “how”.
        yet, some brief observations.

        a) all these steps you mention leading upto forming a secretariat may work on a more ‘civilised’ context. It looks very likely the threat of violence, direct or by proxy, is round the corner, if not already there. How realistic do you think what you spell out in that context?

        b) there has been a steady erosion of own capacity, as individuals and as groups, among most of the actors you mention, not to speak of political parties. So expecting them to join a struggle where the immediate benefits are more abstract (independent judiciary!!) vis a vis risks (being hounded by state and proxy agents etc; etc;) are, at best, remote as things stands now. It shows with the deafening silence of OPA (headed by a historically incompetent and weak person who can’t hold a candle to the likes of E. Perera) and TUs etc; etc;. So without a strategy that get them out of their holes ( and how to do that ) how realistic that they will get the message and respond?
        c) “personal charm” by doing only what is absolutely necessary by the key protagonist (CJ) so far vis a vis over the top govt. medai, PSC members and chief himself and UNP’s indifference has made the relatively indifferent public considering her bona fides. How much do you think this factor is important in the next stages? And how different players can assume strategic roles without undermining this advantage? For example, within BASL itself some say, withdraw (lawyers collective) while others say, have due process ( president with pvt. bill) and others in diff. confused states (Latimer, asking for debate on PSC report)? CJ of course can’t lead them, so will assume that role?

        My guess is that, as the intensity grows, as observed by Appeal Court today, these issues will come to a head while we think we have the luxury of discussing “why” should people take a stand. That is the preserve of our parliamentary opposition, and it would be totally naive to expect anything from them, except doublespeak and shooting in the foot backroom deals.

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        Dr.Laksiri, it is very good if you can explain about the Report forwarded by PC C.R.de Silva’s committe to the UNHRC about Standing Order 78A.(Clauses 298, 299, 301 & 302 refers). PLEASE enlighten us(all Srilankans) quoting those Clauses. Thanks

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    The ongoing Judicial Indepandance arise out of corruaption charges aginst CJ of Sharianee Banadarake,Her is claim she has not given enough time and an oppounity abslove her serious charges.
    The crux of matter is what politicl-economical -social background in Sri lanka and Globlly such malparaticis and corruaption had been influance our democratic order since 1977?
    Present Golobiazation of neo-liberial economy model has restructing of an opening economy to FREE cross-border movement of Capital incuding FINICIAL Capital.During past 20 years open to such FREE movement of Finical Capital if state pursued measures that are not vested interset of Finical capital would be PULL OUT of the country and move another destination or elsewhere.Such large and huge FINICIAL CAPITAL would find in an Sri Lanka,it has access to authorities get certain profitable gain or return in primitive acculumation to become RICH CLASS withing short peroid of time.
    What ever in Judiciary position of so-called “independance”,such higher authority was involving transfevering hugeamounts of FUNDS for BUYING and SELLING PROPETY and buying and selling of Shares and Invested more luracative return on profitiable sectors of Economy.
    This is what CJ and Husband did,that was involvle money game or earned funds irrespacative of thier Indepandance of Judiciary of CJ or position of NSB Chairman.Now CJ and Husband has claim we done NOTHING WRONG?
    Our Corrupation charges are not fact-in law.We are honest and Parliment of PSC challeing our Intergrity,interfer “An Indepandeance of Judiciary”,Parliment -‘PSC member are NOT qualified’ or not suffcient of legal education to be probe our charges, claim by CJ and certain Lawyers in legal field.Some are back by Neo Liberail economy outfit of UNP politics and policies.
    The Neo-liberial eceonomy would find in a acut crisis,not in Economy System, its wings of Corruaption has spreads in Judiciary, Parlimentry and Presideny of three comporments of Democratic Solialist Republic of Sri Lankan.
    Sri lank has FACED with thorny path in NEO-LIBERIAL ECONOMY-POLITICAL CRISIS OF HER RISING OF DEVELOPMENT OF CAPITALISM.
    That does’n mean we are in immerdite altanative for Socialism; we as Sri lankan has go long way of Path of Bourgesis- Capitalism,nature of reform or revoluation is TASK withing remove remmants of backwardness and weak capitalist and speed of develoepmnt and REFORM all round way of democraic order of country.
    We have to be more pratical,realistic must face,up to the reality that PAST the 30 year war against LTTE and 45 years of anarcisnm of JVP ,counrty has deep prejudice Globle community;break the current Sri lankan society interest of incuding Judiciary, Parlimentry and Presidency draw attion of public community of Island as well as intrenatioanl community. Sri lankan hardly need Sweeping changes in these areas and necessay and esseantil,in concern of REFORM AND Development our people.Tremendours of intelligance and creativity of pool nation of initive that drov for innvoation Fair Democratic order of Our country.

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    BASL President is a disgrace to all the legal fratanity in SrLanka. He is a UNP MP out to embarrass the Government through the BASL. Heis a traitor. He should be thankful to the President who rid this country from terrorism which made it possible for him to hold street demonstrations and dash coconuts in places of religious worship. The Chief Justice is also a shameless woman trying to hold on to her position after being found guilty of misconduct . All those who support these traitors are themselves traitors. If not for Mahinda these traitors will be pulling rickshaws with the Sun God Prabkaran seated in the rickshaws. What were these pundits doing when the Tigers were holding courts and trying civilians and executing them in their Kangaroo Courts? The JVP also did the same in 1961? Where were these big mouthed freedom fighters then? Mahinda should sack the entire Supreme and Appeals Court Judges and appoint fresh members to the judiciary. The Government in power should not allow some crooks to run the justice system in the country.

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    To Readers,

    I was informed that the PSC report was given to the MPs, but not published, by the time this article was written. Therefore, the last sentence of paragraph 7 should be corrected or read in that light. Sorry for the delay in posting this.

    Dr Laksiri Fernando

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