By C. G. Weeramantry –
Justice C. G. Weeramantry
As the senior-most retired judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.
The Independence of the Judiciary
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 Rule of Law
The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.
In the first place 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.
In the second place 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.
In the third place 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.
In the fourth place 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.
In the fifth place the rule of law demands that every person investigated by a tribunal has a right;
- to be informed of the charges
- to know the evidence against him or her
- 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.
The Separation of Powers
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.
rashmif / December 11, 2012
Well said, Sir! Unfortunately, these fall on deaf ears.
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Pandukabaya de Silva / December 11, 2012
What was Weeramantry doing all this time? He was hobnobbing with Sarath Silva when that scum was destroying the judiciary. We all knew about that. Now when things are gone past the line, he issues sanctimonious statements.
Anyway, the charitable thing is to say better late than never, I guess.
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Safa / December 11, 2012
The words of our senior most judge Justice Weeramantry carries the weight of knowledge and experience in the international field. He is world renowned and recognised by countries and governments. Hopefully his words of wisdom will throw some sense into the heads of the so called lawmakers by the Diyawanna and their leader who feigns ignorance of all the havoc created. Wisdom comes from years of education and practice not by shouting from platforms.
“God gave us mouths that close and ears that don’t– that should tell us something”
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Lasantha Pethiyagoda / December 11, 2012
I tend to agree with Pandukabaya above, that Justice Weeramantry, apart from his opening self-praise and boast about seniority etc, should have weighed into the debate when the impeachment motion against the Chief Justice of the Supreme Court of Sri Lanka was first floated, so that those who would judge her could be put under the microscope also, to determine if they were indeed in possession of high moral values and ethical standing, not compromised by partisan affiliation or indeed suitable to make rulings of such serios import.
Therefore, in essence, Christy Weeramantry’s words above are akin to beating a drum after the procession had passed (in colloquial parlance)
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Banda / December 11, 2012
Where was he all the time ! Better late than never I guess.
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Judicial Officer / December 11, 2012
Justice Weeramantry was never a person who was doubted both nationally and internationally however a stooge another Silva a, POLKUDU SILVA had had the gumption to speak derogatorily of this much respected gentlemen and veteran of the law.Well this is the order of the day when men of hardly any learning happens to cling on to power with a supine electorate.
The mockery that took place well orchestrated by a coward who pretends to be ignorant must be deplored BY ALL as the image of the country got badly affected. Sri Lanka before that CEYLON HAD A JUDICIARY OF GREAT PRIDE TILL THE TWO SILVA LICKED THE ARSES OF THE HEADS AND CREPT TO POWER. THE SECOND ASOKA SILVA SHAMELESS FELLOW WENT TO THE RULERS OFFICE immmediately after retirement after giving judgements to please him,SOMETHING THAT DOES NOT HAPPEN IN ANY PART OF THE WORLD.THERE ARE AMONGST US MEN OF CLASS LIKE JUSTICE GPS SILVA AND JUSTICE PARINDA RANASINGHE STILL WITH US WHO DID NOT GO BEHIND FOR FAVOURS FOR THE FAMILY OR SEEK EMPLOYMENT.JUSTICE WEERAMANTRY IS AN ORNAMENT.
RAJATHUMA WHO GOT ROGUES TO VOTE AND GOT THE 18THAMENDMENT TO CONTINUE THE FAMILY DYNASTY WILL AT LEAST NOW RETREAT BEFORE THERE IS A BLOOD BATH AS THE COUNTRY HAS DISCOVERED THE MAN WHO EMPLOYS ROTTERS LIKE MERVIN DILAN A WOMANISER OF REPUTE CEMENTI KOTTE WHO RAN NAKED IN THE HEALTH MINISTRY WHEN THE WIFE CLOBBERED, KASSIPPU LAWYER THE FOUL MOUTHED DENTIST AND LAST BUT NOT THE LEAST THE BOORU WANSA. ITS A SHAME TO HIDE AND EMPLOY SCUM TO DESTROY THE COUNTRY.
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Uthungan / December 11, 2012
Athough it is possible to empathaise with Pandukabaya and Lasantha’s expression of anguish, it cannot be denied Justice Weeramantry’s clear exposition of the risks and danger that would result if the impeachment proceedings against the CJ were to ignore any of the five averments he had stipulated should act as a catalyst in making those sitting on the fence to join the protest against the undermining of the ‘rule of law’and democracy in the country..
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Sudu Banda / December 12, 2012
As usual, the judge is saying things a first year law student will be aware of.
What does he have to say about the sandard of behaviour expected of judeges and the CJ? What if a fellow judge gives evidence that the CJ asked her to step down from a bench formed to hear a case involving the business of the CJ’s husband?
Which part of the separation of powers does tht address?
Please tell us your honour.
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dingiri / December 12, 2012
Sudu Banda,
Do you genuinely believe that the CJ is being impeached for the financial misdemeanors of her husband? Or is it because of her non co-orporation with the Govt on divineguma? You would be very naive to think it is the former. The reason Rajapakse appointed this woman as CJ is because he thought he could manipulate her and probably recognised that she or her husband was corruptible. Corruptability rather than competance seems to be a necessary qualification for holding any position of high authority in the Rajapakse govt. He would never have given the job to an erudite legal luminary with a clear conscience in the first place.
On this rare occasion however the CJ appears to have initially taken the money and endorsed some of the very dodgy pieces of legislation (such as the 18th amendment) -hence her inexplicable wealth. However, later, and for some equally bizzare reason, she found her conscience and resisted the further undermining of the democratic rights of us Sri Lankans.
The choice today is between a CJ who is not afraid to stand upto the President and a total stooge in the event that she is replaced.
We as citizens arnt really spoilt for choice here. It may not be an ideal choice but it will certainly be better than what is in store for us once she is replaced.
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Raigamrala / December 12, 2012
This Sudu Banda is none other than Thadi Priyantha alias Chandraprema. Don’r care about his comments. At the end he is a criminal living free and safe today.
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Anil Kumara / December 12, 2012
C G Weeramantry is a person with Highest Intergrity and will never lick the stinking asses of SL potiticians. He is a well known Authority in the leagl profession not only nationally but Intrnationally. Readers, please read his words carefully. If Sri Lanka to be a better place in the future, it should have the people of CGW’s calibre setting policies for the country. Thank you CGW for expressing your views on this issue…
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goda perakdoruwa / December 12, 2012
Well said Sir. I hope you would pass on the implications of Latimer Principles, Judicial Integrity Group, Harare Resolution, UN Rappateurs’s concerns etc to the advisers of the President and the Attorney General and request them to see what is in store for as a Nation. We do not want to be called paraiahs just because of conflicts between the three pillars of state. In the meantime the Speaker has withdrawn from being honorouble when he said that right or wrong his word should be accepted, which goes against the basic tenets of Lord Buddha’s teachings. He gave a different ruling to immunity by making him and the 10 PSC members equalized to the President in case of immunity. Only a local police ralahamy can be that!
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Simhi / December 12, 2012
Speaker is talking like a gam batta
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Paul Rajasekera / December 12, 2012
These are unshakeable or indisputable principles that need to be in place if we are to follow the concept of the rule of law in this country or in any civilized country for that matter. It is difficult to comprehend why our leaders could not respect and follow these esteemed principles in the case of the impeachment of the Chief Justice.Even at this later hour, our leaders should undo the damage done through consultation with reputed and genuine senior retired legal luminaries of the caliber of Justice Weeramanthry.
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Mahanama / December 12, 2012
This reflects sadly on the quality of lawyers who constituted the PSC and more so on one particular farcical lawyer politician from the government who called the Chef Justice a “mad woman’.One wonders if the Executive had known the basic tenets of the rule of law as enunciated by justice Weeramanthri to have pressured the subordinates to concoct a report in chaotic speed.
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Saman Wijesiri / December 12, 2012
In a country where the scum of the earth have become judges sitting in judgment on judges, for some your sane counsel can sound like a voice in the wilderness. I assure you, Sir, that all right thinking people in the country hold you in high esteem. Don’t mind what the stooges of the corrupt regime say!
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P.A.Samaraweera / December 13, 2012
The PSC was appointed as srequired in the Constitution. The Constitution was introduced in 1978by JR. The question is whether decisions made by the PSC is valid or not.
Why did all the Legal Experts wait all this time to say that the PSC is invalid. In the past 3 Chief Justices had been impeached before a PSC. What is wrong in exposing a Chief Justice against whom there are 14 charges
P.A.Samaraweera
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Anil Kumara / December 18, 2012
Don Mahindapala wrote an article critizising CGW on Lankaweb and afterwards a one called Kithsiri started calling CGW a clown… This is the calibre of people we have in Sri Lanka unfortunately… neither Mahindapala (better known as Madapala) nor one kithsiri Athulathmudali (never heard about before) can hold a candle to CG Weeramantry! Mahindapala is a fart-catcher then to Premadasa and now to MaRa… and for Readers information, Mahindapala pulled-out the said article after 2 days from posting it on Lankaweb :)shame shame.
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