29 September, 2020

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People Demand For Hybrid Justice Mechanism

By Nagananda Kodituwakku

Nagananda Kodituwakku

Nagananda Kodituwakku

Dismal failure of the judiciary ends up with people’s demand for hybrid justice mechanism 

In the co-sponsored UN Resolution (A/HRC/RES/30/1) adopted on 01st October 2015, the government conceded that that people of Sri Lanka have no trust and confidence in the justice system and was compelled to agree for a hybrid justice system with an international dimension, to try alleged serious crimes committed against humanity.

However at a recent BBC interview President Sirisena vehemently refused to set up such a hybrid system and now the former Justice Minster GL Peiris says that the President Sirisena has not been properly briefed on the content of the Geneva Resolution. This is a baseless argument, that effectively undermines President Sirisena’s ‘wisdom and knowledge’ as the executive head of the State.

Then Prime Minister Ranil Wickremesinghe, in a damage-minimising exercise, conceded to BBC Channel 4 that the government would respect its obligations under the Geneva Resolution.

However, the Daily Mirror on 28th Jan 2016 reported a contradictory speech made by the Prime Minister in the parliament, which states as follows, “… He had stated that he had never told such a thing during the interview he gave to Channel Four…” exposing the total lack of integrity in the government business and raising concerns in the international community.

Rights groups express concerns

In this backdrop Prof. Savitri Gunasekera, representing the Friday Forum, a pressure group, issued a statement on 29th Jan 2016, justifying an independent and credible inquiry process, and stressing that ‘the joint resolution is a reminder that truth-seeking and justice, however complex, ensure social integration, and that their absence is detrimental to civic order and the rule of law and that the citizens must support efforts to establish an impartial inquiry process, to probe the events’.

The Prof emphasised the importance of such a mechanism and expressed her concerns as follows.

‘… if we are serious about a non-recurrence of the human rights abuses of the past, we should acknowledge that those guilty of criminal behaviour under our law must be brought before the courts, and held responsible. This is an issue of individual accountability for unlawful conduct, and must not be thought of as punishment for heroism or as political vengeance. We cannot condone impunity or amnesty for brutal acts of violence and abuse…’

Honour the undertaking to establish a hybrid judicial process

One cannot deny the fact that the people of Sri Lanka have sought the assistance from the international community for a valid reason. After having lost their trust and confidence in the justice system, and with no further options available they were compelled to turn to the world community for a credible and independent inquiry process to inquire into war crime allegations.

People have repeatedly expressed their views about the poor state of affairs of the government, which holds absolute control over the judiciary from effecting judicial appointments to the decision making process. One cannot deny the truth that there is an undue interference with the affairs of the judiciary essentially denying its right to dispense justice as required by law, which has resulted in the violation of judiciary’s own constitutional obligations to the people.

Bar Association concedes the dismal failure in the administration of justice

The Bar Association itself, in a statement issued on the matter on 28th Nov 2015 expressed its concerns about the dismal failure in the administration of justice in Sri Lanka, which states as follows.

“… It is unfortunate that existing judicial and prosecutorial system have not met the confidence of many concerned. It is undeniable fact that over a period of time the independence and credibility of the many of these institutions have suffered due to many reasons, resulting in an erosion of the confidence in the system as a whole…”

Consistent violation of the Constitution by Apex Court

Any prudent person with common sense would agree that people have every right to demand for speedy disposal of justice through an independent and credible judicial mechanism and that the people would not tolerate failure on the part of the judiciary in protecting and upholding their judicial power exercised purely on trust.

Blatant failures on the part of the Judiciary

The Constitution requires the Supreme Court, the apex body of the judicial mechanism, to hear and determine all cases of alleged violation of human rights within two months (Article 126 of the Constitution), which however habitually is being violated by the apex Court. There are some cases idling in court for a period of well over five years, probably one of the primary reasons for people to raise their concerns about the integrity and competence of the justice system in Sri Lanka.

The Chief Justice K Sripavan himself has expressed his opinion on the role of the Supreme Court in his ceremonial address made on 09th Jan 2015 as follows.

“… It is for the Judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the Rule of Law … Credibility of the Judiciary rests in the faith of the people, indispensable to that faith is the independence of the Judiciary…”

There are many more similar concerns, which demonstrate serious flaws in the administration of justice for a long period of time.

The Constitution requires the Supreme Court to hear and determine cases of paramount importance within a specified time scale, predominantly the cases affecting the sovereign rights of the people.
The alleged violation of people’s sovereign right of franchise by the executive is another instance where the law requires the court to hear and determine such cases within two months (Article 104).

This time limit has been created with due recognition of the importance of dispense without inordinate delays. Therefore, there exists a bounden duty on the part of the judiciary to respect its constitutional obligation.

There is grave public concern on the appointment of defeated candidates at the General Election 2015 as MPs through the National List. Obviously this is a clear violation of people’s sovereign right of franchise, which has never been surrendered by the people to party secretaries with a mandate given at a referendum. The whole nation, mass media, election observers, election commissioner, and other public figures including the Madulawe Sobitha thero raised their concerns and condemned this abuse since it is a clear betrayal of trust placed in the executive by the people. Yet, it has now been decided by the Chief Justice of Sri Lanka that in his opinion this abuse is not a matter of national importance.

There are number of cases now pending before the Supreme Court for well over the specified period of two months within which the court is required to dispense with them. This has effectively permitted the rejected candidates to consolidate their positions, and to hold important cabinet portfolios and also to occupy the office of the speaker.

Government’s futile claim that there exists a vibrant justice system

It is amusing that with all these gross failures of the system, the government wants people to believe that there exists an independent, vibrant, and fearless justice system in Sri Lanka.
Naturally people are tired with this pathetic state of affairs and demands either that the government should be honest of its conduct and firmly commit itself to free the judiciary from all forms of interference or respect the people’s right to seek remedial actions elsewhere with a judicial mechanism with international dimension to try their cases.

Stop meddling with office of the Chief Justice

Considering the above, the government should seriously reconsider the unacceptable practice of the meddling with the affairs of the Judiciary, or accept the people’s right to seek remedies elsewhere including intervention by the international community.

The government conceded that the removal of the Chief Justice Shirani Bandaranayake by the Rajapakse administration was unlawful and that the appointment of Mohan Peiris to the office of the Chief Justice was ab initio void. Accordingly Mohan Peiris was unceremoniously removed and the Chief Justice Shirani Bandaranayake was reinstalled. But her appointment was lasted only for 24 hours as she was removed from office prematurely 7 years before her due date of retirement. This action, in the eyes of the peoples, is tantamount to an act of ‘constructive dismissal’ of the Chief Justice from office, undermining the integrity and independence of the justice system of Sri Lanka.

Official submission of constitution-making proposals

In this scenario I consider it is pertinent to draw the readers attention to my official submission to the Public Representations Committee on Constitutional Reforms created by the Prime Minister to accept the constitution-making proposals, wherein this particular issue too has been addressed as follows.

“… It is proposed that there shall be a transitional provision in the proposed Constitution to cease all the offices in the Court of Appeal and the Supreme Court from the date of commencement of the operation of the proposed Constitution with a right guaranteed to those holding office at the superior court system to be considered for reappointment purely on merits, impartiality and competence.
There are several judges in the Supreme Court and the Court of Appeal, appointed to office purely at the whims and fancies of the former President Mahinda Rajapaska with no due process being followed for their appointments.

Considering the recent (30th Jan 2015) statement made by the Prime Minister in the parliament, wherein the disgraceful conduct of the serving Chief Justice was revealed to the nation, that the Chief Justice callously compromised the judicial power of the people with the Executive, agreeing to make any Court Order to please the executive and also to appoint judges to please the executive, it is strongly proposed that the insertion of transitional provision in the proposed constitution to reconstitute the composition of the judges in the Superior Court system is of paramount importance to restore people’s trust and confidence in the judiciary. This fact has been already conceded (paragraph 6) by the Government of Sri Lanka in the UN Human Rights Counsel Resolution (A/HRC/RES/30/1) adapted on 01st October 2015 without a vote…”.

Stop fooling people

Shamelessly deceiving of the people has become a common occurrence in this country by the successive regimes. At least now the current regime should rethink the warnings given by Maduluwawe Sobitha Thero, who spearheaded the campaign to defeat Mahinda Rajapakse regime and was instrumental in installing the Sirisena administration. The abuse of National List for petty political benefits had been one of the major concerns of the Thero and his Movement for Social Justice, which however was totally ignored by the regime.

The Sirisena-Wickremesinghe regime should realise that it can fool all the people some of the time and some of the people all the time but it cannot fool all the people all the time.

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Latest comments

  • 6
    1

    “Consistent violation of the Constitution by Apex Court

    Stop meddling with office of the Chief Justice”

    This is a kind of earthworm sex. They both play the give and take role. From the time Chandrika interfered in the Judicial system and appointed Baffoon De Silva, there are CJ in the chair, all Chief Jesters. The high Mountain in that comedy was the first removal of Shirani Bandaranayake. Climax, the highest peak of the mountain is the secound removal of her. Again this poor woman was dragged into this dramas by Chandrika.

    Ranil team was unwilling to fight her first removal claiming that the parliament had a power to remove her. But, to be honest with everybody, this the parliament appointed Mokan Peiris and created the 18th Amendment.

    Shiranee was pressured to leave the office within one day using her husband’s dealing with the National Saving Bank. This was not very success to Old King because she had stood until she was removed. Because of the previous regime’s the carpet bombing took place all over her and her husband and the target had been softened excessively, Ranil did not even had to walk over with a impeachment, he just declared his victory over shiranee, that’s all was it. If all the explanation of removing Mokan Peiris is right, Shiranee’s case should have been handled differently. Her Husband should been proven guilty in the court of law. Shiranee should have connected to that. Then she can be removed with official Impeachment proceeding. Ranil, within two days dismissed two CJs, but Old King wrongfully impeached one CJ, that amounts to one dismissal. After he is having that excess success in manipulating the Apex Judiciary system by dismissing two CJ in two days and bringing his own puppet in the third day, if somebody tells him that his judges are not reliable and there should be the participation of the IC judges and lawyers, how could somebody expect him to get along him with them?

    Ranil stopped Sarnia’s case. Ranil stopped Vidya’s case. Ranil stopped Usantha’s case. Now the Ranil and Navy is meddling with the 6 years old Tharsan’s case whom people balming after doing everything for the boy, the navy tied him to the rock and threw in the well in the backyard of their camp. As there is every evidence the size of the rock used indicating it was done by navy, the case is being suppressed. .

    UNP’s Don Stephen’s promise to Soulbury, SLFP’s Solomon West Ridgeway -Chelva pact, UNP’s Dudley-Chelva pact, UNP’s India-Sri Lanka Accord and latest UNP-SLFP’s UNHRC-Sri Lanka co-signed resolution all these are indicators of the Ranil like foxy Sinhala Intellectuals cheating games. Unless UN sends it troops, there will never ever a justice for Eelam Tamils.

    • 2
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      As long as we allow the politicians and corrupt corporate to privatize the democracy for their self-interest we will not move forward. The sad thing is judiciary joining them by abandoning their duty to uphold law.

      • 0
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        It is not only the judiciary, also the professionals. Country under infinite curse.

    • 1
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      Autonomous lunatic Mallaiyuran is typing is copying and pasting in capital letters!

  • 5
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    Well said, Mr. Kodituwakku.

    • 5
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      Nagananda Kodituwakku,

      Join the ranks of H.L. Seneviratne, Shamini Serasinghe, Kusal Perea, and similar minded people to set the Sri Sri Lankan governance and justice in the correct path befitting of modern civilization.

      • 3
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        Ditto

  • 3
    1

    Thanks Nagananda.

    not ” conceded to BBC Channel 4 ” – conceded to Channel 4.

    BBC and Channel 4 are two different channels

  • 2
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    Our judiciary’s deteriorating or corroding integrity by some judges including the previous CJ’s have led many to seek refuge elsewhere. I believe that many of the Court’s failures stem from the lack of a clear articulation and recognition of the proper role of the Court by the judges themselves. The justices, individually and collectively, should articulate and embrace that the most important role of the Supreme Court is to enforce the Constitution against the will of the majority, independently. The Court should recognize that the two preeminent purposes of the Court are to protect the rights of citizens against politicians and the political process and to uphold the Constitution in the face of repressive desires of political majorities. Several steps should be taken within the judiciary to help ensure that there is both the public perception and reality of a Court complying with the highest possible ethical standards.

    • 3
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      Why are we blaming Sudda all the time for everything. It’s evident that Sudda’s judiciary is fair and consistent. We all want to go to Sudda country but it’s better get Sudda back in to rule?

  • 3
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    Nagananda,as usual is brutally frank!

    President Sirisena is sandwiched between the Geneva Resolution and the Srilanka Armed forces.Eventually,when both sides apply pressure he would be in the situation that SWRD found himself in 1957- caught between Tamil disobedience and Sinhala extremists.

    This of-course is like in Greek Mythology caught between Scylla and Charybdis!

    • 0
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      Plato
      What Mr.Nagananda is saying in his article is that the justice system of the country has not come up to what the people in the country, aspire it ought to be, and you have said ‘ Nagananda is brutally frank”.
      OK.
      But when you say President Srisena is sandwiched between the Geneva Resolution and the Srt Lankan Armed Forces
      and hark beck SWRD in 1957and parallel it to his being caught between Scylla and Charybdis in the Greek mythology, you saying that the President is unable to choose between doing right and wrong?
      That brings us to the next question.
      What has happened to his Yahapalanay promise?

  • 0
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    Uthungan.

    I have a dirty feeling President Sirisena has read The Prince by Machiavelli!

    In Politics Promises are all Maya.Pl.remember this is an apparently a Buddhist country.
    Cheers.

  • 0
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    Many thanks for commenting on this issue.
    There are several definitions of corruption, one commonly accepted emanates from the definition of ‘abuse of office for personal or private gain’, a definition that is wide but yet well recognized. The factors of judicial corruption are many and often overlapping, but they vary from country to another and must hence be analyzed individually to find the factual reasons for what generates corruption.Is it due to overiding political power to solve every aspect of life, including a job transfer?
    The effects are detrimental and break down the very core of rule of law and corrupt judges neglect fundamental principles such as equality, impartiality, propriety and integrity. With regard to the different factors and effects, the norms and standards, and the anti-corruption strategies, a discussion follows about how to rid the judiciary from corruption with preservation of the respect of judicial independence.
    A well functioning government, with the citizens’ best in mind, requires not only the rule of law, but also an independent judiciary that enforce the law impartially and equally. When the judiciary is corrupt, it facilitates corruption in other sectors of government and it transmits to the general public the message that corruption is accepted. In such countries judicial corruption might even be socially accepted.
    ‘Why hire a lawyer when you can buy a judge?’ is a famous saying in one corrupted country. Do we want to be that?

  • 2
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    thank you for courageously shouting “the king is naked!”
    we are good at boasting about many Things here as best in the world!
    let us explain to the masses our weaknesses too and lead help them realise the truth of our realities by way of common sense and reason.

    • 0
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      Father in his last comment, said to other CT commentators, “Audiences please be seated silently and don’t disturb me as I am carefully staring with my naked eyes at the New King to see if he is dressed up or naked. Further don’t rush to your own conclusion until you all have really touched and felt the New King well and satisfactorily to decide if he is not clothed”.

      Thanks father for the courage acceptance of Mr. Kodituwakku complex quantum theory of “the New King is also naked like the Old King”.

      The Sinhala Intellectual Maya Mohini pushed fact hardened you also for a moment of infatuation on (or after) her. Welcome back to old world of the reality.

      Please accept the Gratitudes from Mallaiyuran!

      • 0
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        Why would anyone accept the Gratitude from this kurangu Mallaiyuran?

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