28 November, 2020

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On Removal Of Judges

By H.L.de Silva

H.L.de Silva -PC

Here is an extract from a lecture delivered by Mr. H.L.de Silva, President Counsel, (Senior Counsel who appeared for Mrs. Sirimavo Bandaranaike and for the Sri Lanka Freedom Party in many instances)

The “theme “of the lecture was “THE ROLE OF THE JUDICIARY IN THE PROTECTION OF CONSTITIUTIONAL RIGHT DELIVERED AT SEMINAR ORGANIZED by the Council of Liberal Democracy.
Article could found in ‘IDEAS FOR CONSTITUTIONAL REFORMS” Edited by Dr.Chanaka Amaratunga -1989
Page 495-509 and paragraph could be found on pages 505 and 506,

On Removal of Judges

Chief Justice unveiled the bust of late H.L.de Silva - July 27,2011

Having regard to these far reaching powers it appears to be in congruous for Parliament determine a procedure under Article 107(3) by framing Standing Orders that give the power to Select Committee of the House to determine whether or not a judge of the Supreme Court or the Court of Appeal has been guilty of misbehavior or incapacitated, as ground for removal from office. The determination of guilt when a judge is charged with misconduct is clearly an exercise of judicial power by Parliament directly, which is inconsistent with Article 4(c), since it does not fall within the exception therein mentioned. I my submission, what is contemplated in Article 107(3) is prescribing procedure which enables the guilt of a judge to be determined by a body competent to exercise judicial power directly, namely a court, tribunal or other institution established for the purpose. It is only after a judicial finding by such a body that Parliament is empowered under Article 107 to vote on the question of his removal. The existing procedural anomaly needs to be remedied.
(This paragraph is also can found in “IDEAS FOR CONSTITUTIONAL REFORMS” , EDITED BY Dr Chanaka Amaratunga revised and abridged by Dr Rajiva Wijesinha-2007- IBH Publishers at page 239)

*Sent by Kamal Nissanka, Attorney-at-Law, Secretary General, Liberal Party of Sri Lanka

Read more about Impeachment Motion Against Chief Justice Shirani Bandaranayake here

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Latest comments

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    Thank you Mr Nissanka. Keep up the good work. This should be an eye opener to those in the Government who do not wish to be blind to the truth.

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    The article carrying the late Mr. H.L.de Silva’s comment on `removal of judges’ is a valuable timely finding, Mr. Nissanka. It is well known that the late Mr. de Silva, considered an authority on Constitutional law was very close to the SLFP and the SLFP leaders are at least morally bound to respect is views. Besides,it would be a tribute to the late Mr.de Silva if the President at least at this stage decides to rectify the procedural anomaly resulting from framing a Standing Order providing for appointing a Parliamentary Select Committee to try judges which is also inconsistent with the Article 4 of the Constitution. It is gratifying to note that now there is a growing general consensus that the PSC procedure is unconstitutional and it militates against natural justice. A legal procedure that allows the accuser to become the prosecutor and the judge as well has no place in a democracy. Taking advantage of this procedural anomaly or trying to perpetuate it with the sole objective of taking revenge from one particular individual is a grave crime.May saner counsel prevail!

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      Saman, H.L was only close to the SLFP because the UNP during the JR years were every bit as arrogant and irresponsible as the UPFA is today. The problem as you know is not procedural or a matter of legal correctness.

      The issue is all our leaders have used and abused the law for their own ends. When the Sinhala only act was introduced, our politicians showed us that if you are in power(office), laws and justice are nothing. We are taught that the will of the majority is Supreme, not the law. Form 1956 onwards, we followed a natural progression that brings us to today.

      The problem with justice is that can’t be implemented only in parts. Either it exists or it doesn’t. We can’t have regular Justice in south and military justice in the north. We can try but it doesn’t work that way.

      If real justice were to exist in SL, then so much would be uncovered that it would make us in the south squirm.

      No, we have much to hide and the regime will hide it for us. Many here who scream for ‘justice for the Chief Justice’ were quiet when that same justice was denied to many ordinary citizens.

      The erosion of law and order will only continue it cannot be reversed. The masses have been taught to think that the “Janadipathi Thuma’ is the sole dispenser of justice. When you see local TV stations reporting on problems in village’s. People always want the ‘Janadipathi Thuma’ to give them a “sadarana visadumak”. They never hope that courts will give them justice.

      Protecting the chief justice is not the job of the people. She and her family should have known better than to accept perks and makes themselves look suspect. If this chief justice is able to bring about pressure on this government so as to change it’s course of action, we will judges entering the political realm.

  • 0
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    In 2005 Mahinda Rajapaksa travelled with H.L.dr Silva to hand over his nomination papers.As someone who knew HL I can say without any fear that he was no party man and always stood fearessly for what was right.Gomin Dayasiri will confirm this fact as he moved with him closely.
    It is known even to a kid that even a dustbin will not get shifted if the Rajathuma does not approve hence this move is his and no others.The other dumbos who have stuck their necks out are puppets who are manipulated on a string and dance for positions and survival.If HL was alive he would have been in the forefront and for his good luck he is out and for the ill luck of the country such a man of value is not there to stop a marauding thug.
    Maha Nayakas have voiced their opinion and all right thinking people know that this move is to get a clown who will dance to his tune.History has shown that all this is short and as the crab danced in the pot it is only till the pot heats up. We have seen a despot Premadasa how he left and how people lit crackers.He left tons of money for Sajith to do politics after studies in England,similarly Rjapaksas whole clan today is settled for a few generations.
    Colomo is noe geared for road races come and see the sand bags as a three wheel driver said “duppath geval keeyak hadanne puluwanda me salli walin “
    This is the beginning of the end and and if nothing else happens the curses of the people who were misled will come on him and who knows even nature will step in.
    ALL THINGS ARE IMPERMANENT AND SUBJECT TO DECAY

  • 0
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    H.l.D. silva,
    Another sinhala [Edited out]. Support any idiot against anti tamil…Nothing but ruthless low class sinhala [Edited out]…GOD BLESS SINHALA BUDHIST SRILANKA AND MY BELOVED THAMIL EALAM…

  • 0
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    The Rajathuma is on the same road taken by Presidents Suharto of Indonesia and Ferdinad Marcos of Philipines and will surely end up crashing in the same manner.
    I fully endorse Ainsley’s comment.

  • 0
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    PSC is not a competent body to try the CJ according to the constitution. A flawed decision by the speaker where he now seeks to uphold by the justice of the parlimentary mob. He will never cease to hear the end of this controversial decision. Go down in history as the speaker who destroyed the judiciary in this country.

  • 0
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    Dear Mr.Nissanka,

    Great Mr. Nissanka. You are the man who saved us timely by finding this script from Hon. L.H.De Silva.
    I just herd that MARA is jumping and running around like a MAD DOG around Araliya Gaha mandiraya. Very soon his wife will have to take him to Yak dura in hambantota.

    I knew from the beginning of this CJ impeachment, that this time MR bumped the wrong tree. His Astrologer gave him a DEAD ROPE.

    What you and CT must do is to publish this in all Local News papers and also email to Commonwealth headquarters, Asian Lawyers association, US and UK law firms.

    This is more than valid enough to have the CJ hearing first herd by the senior Supreme Court Judges.

    Also Please…please tell Hon.Madam CJ to FORGET going to Parliament Seloect Committee on the 4th Dec.

    We all her devoted supporters are behind her now and always.

    Also please tell KABARA Mahinda Mama to go play PANDU now in his HAMBA HARBOUR.

    Thank You.

    • 0
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      Medamulana Meeharaka will very soon meet “Somarama” one-on-one.??

      • 0
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        SOMARAMA CONVERTED TO CHRISTIANITY BEFORE HE WAS EXECUTED,AND
        HE WENT TO HEAVEN BECAUSE HE KILLED “BANDA” THE CHRISTIAN TURNED BUDDHIST. WHATEVER OUR KING DOES HE WILL END UP IN HELL.

  • 0
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    Mr L Why not read Mr Silva’s article? Well I may remind u of what the Nobel Prize laurete said “When perfect decent people are flattered, bathe them with attention, make a fuss over them” their conscience disappears.They bend down all what their master wants them to do

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    At the time HL De Silva delivered his oration of which the above extract is part, things occured within a different paradigm. Then, distinguished lawyers and their wisdom was well received, as Sri Lanka still had vestiges of the “justice system” introduced by the British.

    That justice system evaluated the needs of society, recognised the right of an individual to be given a fair trial, respected the rule of law and generally played its role as a good reference point and fall back position for anyone who was the aggrieved party.

    Since then, things have changed, although the lawyers still wear black suits and look important and speak / write their deeds in unintelligible gibberish, specifically to keep the public out of the loop.

    Today, what is constitutionally right and accurate in interpretation would be meaningless in an environment where the mighty rule, and their will prevails over all else.

    The so-called ‘separation’ of powers, balance, checks on the exercise of power, are all simply nominal and limited to archaic journals or lawbooks that no one of import has neither the time nor the inclination for.

    So, responses to this situation must match in spirit, the nature of the paradigm change, for it to be of merit or have any effect.

  • 0
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    The UPFA, in the first place, should not have nominated a brother of the Executive President for the office of Speaker. Has an instance of this kind of nepotism reported from any other democracy? What is worse is electing him without a contest. Rajapaksas must be now regretting that a family member could not be appointed as the Chief Justice!

    • 0
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      Exactly..

      None of them have gone that far with the education. So how can they become even good lawyers ?

    • 0
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      WHY NAMAL IS A “LOWYER”. ROSHITHA AT 23 IS A WORLD CLASS SPACE ENGINEER

      THE OTHER IS THE RUGGERITE OF THE YEAR. NAMAL WAS “MAN OF THE MATCH” WHEN
      VEDDAHS BEAT THE PARLIAMENTARIANS AT CRICKET.

      RAJAPAKSES ARE ALWAYS WINNERS,AFTER MAHINDA ROBBED RANIL OF VICTORY,
      THANKS TO PRABAKHARAN, AIDED AND ABETTED BY TIRAN AND MANGALA.

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