1 October, 2020

Blog

Rajapaksa Samagama And The Removal Of The Chief Justice

By Nihal Jayawickrama

Dr.Nihal Jayawickrama

The removal from office of the Chief Justice of Sri Lanka was an unprecedented act in the  judicial history of the country. I have been requested to examine the constitutionality of that act. In fact, that was the single issue on which the proceedings leading to the removal of the Chief Justice were questioned and challenged from the outset. Except in the government-owned media, there was hardly any reference to the alleged acts of misbehaviour. It was evident, from the beginning, that the objective of the exercise was to remove an inconvenient Chief Justice, and replace her with one more amenable to the government. It was candidly and authoritatively admitted by a political columnist close to the government that the resolution for her removal was motivated “for political reasons”.

Even the President reportedly complained to a former Chief Justice that “she has got too big for her boots”. The only member of the government parliamentary group who declined to sign the resolution for her removal publicly declared that one reason for his refusal to do so was that he was presented with a blank sheet of paper that contained no charges.The Constitution is the “supreme law”

In Sri Lanka, unlike in the United Kingdom, the written Constitution is the supreme law of the Republic. It is from the Constitution that the three principal branches of government derive their powers. Legislative power is exercised by Parliament and by the People at a Referendum. Executive power is exercised by the President elected by the People. Judicial power is exercised through courts, tribunals and institutions, created and established by the Constitution or by law”. The only exception is in respect of the privileges, immunities and powers of Parliament and of its Members, where “judicial power may be exercised directly by Parliament according to law”. That law, which Parliament has enacted, is the Parliament (Powers and Privileges) Act.

Impeachment

The term “impeachment” does not appear even once in the Constitution. What the Constitution states, in article 107, with regard to a judge of a superior court, is that:

2) Every such judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

There is no reference to “impeachment”. That term was introduced into the Sri Lankan political lexicon in mid-October last year, as the process to remove the Chief Justice began. It was a term that came with the weight of history. Soon, law professors and political columnists were being commissioned to delve into the history of “impeachment” across the globe, so that they could argue that no court could interfere with that process. Foreign diplomats were summoned to the Ministry of External Affairs and lectured on a case from the United States, where one Robert Nixon, a district judge and convicted perjurer in an obscure region of Mississippi, had attempted unsuccessfully to have his impeachment by the Senate reviewed by the Supreme Court, on the ground that he should have been tried in the first instance, not by the House of Representatives, but by the Senate. I could not understand how the impeachment procedure prescribed under the 1787 Constitution of the United States of America was of any relevance to Sri Lanka? We were not even aspiring to be the 51st state. The term “impeachment” was obviously introduced into the public domain so that the baggage that it carries from the United States, Philippines and elsewhere could be employed to challenge the constitutional right of the Judiciary to subject to judicial review any decision that adversely affects an individual’s legal rights.

The removal procedure

The Constitution, in article 107(3) provides that:
(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.It is on the interpretation of this provision of the Constitution that the question of the constitutionality or otherwise of the removal from office of the Chief Justice rests. “Law” is defined in article 170 of the Constitution as:

Any Act of Parliament, and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council.Standing Orders of Parliament are not law.

The 1984 precedent

The standing order under which a select committee was appointed for the trial of the Chief Justice was an accident of history. In 1984, six years after the Constitution had come into force, the then President decided that the Chief Justice should be disciplined. Chief Justice Samarakone, who was due to retire in October of that year after five years in office, had made an ill-advised speech at an inappropriate venue. He was the first Chief Justice to be appointed directly from the unofficial Bar within living memory. His speech was critical of the Government and the President, whose personal lawyer he had been prior to his appointment to the Court. President Jayewardene’s response was immediate. He decided to bring the Chief Justice before Parliament, but then discovered that the procedure for doing so had not been prescribed, as required by the Constitution. The Chief Justice was due to retire within a few months. Therefore, it was necessary to adopt the swiftest procedure in the shortest possible time. Resorting to legislation could not have been accomplished before Chief Justice Samarakone reached his mandatory retirement age.

Overnight, a new standing order was drafted and adopted by Parliament. That was Standing Order 78A, and is to be found today under “Rules of Debate”. Standing Order 78A empowered the Speaker to appoint a Select Committee for the purpose of investigating and reporting on an allegation of misbehaviour or incapacity against a Judge of a superior court. Parliament which, under the Parliament (Powers and Privileges) Act, could directly deal only with very trivial matters, such as disrespectful conduct within the precincts of Parliament, or creating a disturbance when Parliament was sitting, gave itself the power, through a standing order, to conduct what was virtually the trial of an offence. Parliament which, under the Parliament (Powers and Privileges) Act, could only punish an outsider with admonition or removal from its precincts, that being the maximum penalty that Parliament could impose in the exercise of its “judicial power”, now gave itself the power to remove a Chief Justice from office. These extraordinary powers were acquired, not by law, but by amending its own procedural rules, the standing orders.

This strange procedure did not go unchallenged. At its first meeting, the three Opposition Members, who included one who is now a Cabinet Minister and is also the Chief Government Whip, submitted that a Select Committee could not determine “proved incapacity or misbehaviour” unless it had been judicially proved. The Select Committee held 14 meetings, during all of which the team of lawyers appearing for the Chief Justice argued that the Select Committee was an unconstitutional body. Before the Select Committee concluded its sittings, the Chief Justice reached the mandatory retirement age. In its report to Parliament, the Select Committee concluded that the Chief Justice was not guilty of misbehaviour. That was 1984. In 2000, all the political parties agreed on a draft amendment to the Constitution that provided for the appointment of judicial tribunals to inquire into allegations of misbehaviour or incapacity against judges of superior courts. That amendment, which was part of a larger package of amendments, was not proceeded with for reasons unrelated to this matter. In November 2012, when a resolution for the removal from office of the Chief Justice was submitted to the Speaker, it was Standing Order 78A that was invoked. It was invoked by the same political party which, in 1984, had voted against its adoption, and then arguedstrenuously that it was unconstitutional. Such is the character of contemporary politics in Sri Lanka.

Standing Order 78A reads as follows:
78A (1) Notwithstanding anything to the contrary in the Standing Orders, where notice of a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament, but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.

(2)Where a resolution referred to in paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution.

(3)A Select Committee appointed under paragraph (2) of this Order shall transmit to the Judge whose alleged incapacity or misbehaviour is the subject of investigation, a copy of the allegations of misbehaviour or incapacity made against such Judge and set out in the resolution in pursuance of which such Select Committee was appointed, and shall require such Judge to make a written statement of defence within such period as may be specified by it.

(4)The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records.

(5)The Judge whose alleged misbehaviour or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by such Committee in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him.

(6)At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this Order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament ad may make a special report of any matters which it may think fit to bring to the notice of Parliament:

Provided however, if the Select Committee is unable to report its findings to Parliament within the time limit stipulated herein the Select Committee shall seek permission of Parliament for an extension of a further specified period of time giving reasons therefor, and Parliament may grant such extension of time as it may consider necessary.

(7)Where a resolution for the presentation of an address to the President for the removal of a Judge from office for proved misbehaviour or incapacity is passed by Parliament, the Speaker shall present such address to the President on behalf of Parliament.

(8)All proceedings connected with the investigation by the Select Committee appointed under paragraph (2) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee.

The report of the Select Committee was made public within a week of the conclusion of its sittings. Its found the Chief Justice guilty of three of the fourteen charges contained in the resolution. I do not propose to refer to the charges. Mr Geoffrey Robertson, Queen’s Counsel, in his brilliant report presented this evening, has examined with minute care, not only the often incomprehensible charges laid by the 117 members of the government parliamentary group, but also the hilarious findings of the seven Ministers who sat in the Select Committee. I only wish to refer to the requirement in Standing Order 78A that the judge should “disprove” the allegations. The presumption of innocence is entrenched in the Constitution, and to require a person to disprove a charge is to turn the system of justice on its head. Under article 13(3) of the Constitution, it is only by law (and not by standing order) that Parliament may place the burden of proving particular facts on an accused person.

Reference to the Supreme Court

In November 2012, shortly after the resolution containing the charges was served on the Chief Justice, and she was summoned to appear before the Select Committee, applications for writs of prohibition were filed in the Court of Appeal by several individuals who challenged the constitutionality of the Standing Order under which the Select Committee was established. Article 140 of the Constitution provides that:

140. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any Court of First Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto against the Judge of any Court of First Instance or tribunal or other institution or any other person. As required by the Constitution, the Court of Appeal referred the question of the interpretation of article 107(3) of the Constitution to the Supreme Court. The question referred made no mention of Standing Order 78A or the Select Committee. Article 125 of  the Constitution states that:

The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceedings in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.

Having heard counsel for seven petitioners, seven intervenients representing governmental interests, and the Attorney General, the Supreme Court determined that:It is mandatory under Article 107(3) of the Constitution for Parliament to provide by law the matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof, and the standard of proof of any alleged  misbehavior or incapacity, and the Judge’s right to appear and to be heard in person or by representative, in addition to matters relating to the investigation of the alleged misbehavior or incapacity.

The Court explained that matters relating to the presentation of an address and the procedure for the passing of such resolution were matters which could be stipulated by standing orders, although there was nothing to prevent Parliament for providing for such  matters by law as well. Parliament had so far failed to do so. It followed, therefore, that Standing Order 78A and  the proceedings held before the Select Committee were void ab initio.

Parliament’s response

From the commencement of proceedings to remove the Chief Justice from office, the country was subjected to a virulent campaign of disinformation through the state media and other state organs. It did not seem to matter that the exercise was both unlawful and unconstitutional, or that it would destroy the foundations of democratic governance. The Chief Justice had to go, and the load of gibberish gratuitously offered by state media and cabinet ministers was intended to lull the people into complacency. Even members of the Government began to believe the mumbo jumbo. One cabinet minister was so swayed by the Government’s own propaganda that, in Parliament, he shouted out to the Supreme Court to “go to hell”.

Parliament’s response to the determination of the Supreme Court was in the same mode, and was typical of the attitude of the authorities today to the judiciary, the rule of law, and the protection of human rights. The argument of the government’s chief spokesman against the Supreme Court’s determination was two pronged. The first was that both Chief Justice Rehnquist and the Philippine Supreme Court had categorically stated that the judiciary should not interfere in impeachment proceedings. It did not concern the judiciary at all. The second was that the determination was wrong. In his view, the Supreme Court’s determination was “constitutional heresy”; it was “replete with errors”; it was “absolutely flawed”; it was “demonstrably flawed”; it was “incurably flawed”; and it was “not worth the paper on which it was written”. It was not that the chief spokesman was ignorant of the law. The Minister of External Affairs, Professor Peries, the international face of the government, was a Rhodes Scholar who had been Professor Law, Dean of Law, Vice Chancellor, and Fellow of All Souls Oxford. I do not wish to make any comments on his arguments because, in addition to all his qualifications, he is also my brother-in-law, and harmony within the family is important.

International standards

Article 14 of the International Covenant on Civil and Political Rights requires a determination affecting a person’s rights to be made only after “a fair and public hearing by a competent, independent and impartial tribunal established by law”. In its periodic report to the Human Rights Committee, submitted in 2002, the Government of Sri Lanka, referring to a Select Committee appointed under Standing Order 78A, solemnly declared, in an assurance held out to the international community, that “non adherence to the rules of natural justice by the inquiring committee would attract judicial review.”Indeed, nowhere, either in the relevant constitutional provisions or in the standing order, is it sought to exclude judicial review of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breach the rules of natural justice, its decisions could be subject to judicial review.Despite this assurance, the Human Rights Committee, in its Concluding Observations (on the 4th and 5th Periodic Reports of Sri Lanka, November 2003) stated that:
The procedure for the removal of Judges of the Supreme Court and the Court of Appeal set out in article 107 of the Constitution, read together with Standing Orders of Parliament, is incompatible with article 14 of the International Covenant on Civil and Political Rights, in that it allows Parliament to exercise considerable control over the procedure for removal of Judges”.

The Bangalore Principles of Judicial Conduct (which have been endorsed by the United Nations), and which the Human Rights Committee has stated should be read as an interpretative guide to article 14 of the Covenant, provides thus in its Implementation Measures:

(a) The power to discipline a judge should be vested in an authority or tribunal which is independent of the legislature and executive, and which is composed of serving or retired judges, but which may include in its membership persons other than judges, provided that such other persons are not members of thelegislature or executive.

(b) A judge may be removed from office only for proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.

(c) Where the legislature is vested with the power of removal of a judge, such power should be exercised only after a recommendation to that effect of the independent authority vested with power to discipline judges.This appears to be the contemporary international standard and reflects the prevailing position in nearly all the democratic countries of the world.

Sri Lanka is obliged to observe Commonwealth Principles, as a pre-condition for continuing to be a Member State of the Commonwealth. Among these principles is the following Latimer House Principle:
In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence, and to be judged by an independent and impartial tribunal.”

The Latimer House Principles have been incorporated into domestic law in many Commonwealth countries. A judge may be removed from office, whether on a parliamentary resolution or otherwise, only after an independent tribunal has found that judge guilty of misbehaviour or incapacity. From Australia to Uganda, through Belize, Botswana, Canada, Cyprus, Ghana, Guyana, India, Kenya, Malaysia, Singapore and South Africa (to name only a cross section of Commonwealth countries selected at random), this is the consistent constitutional practice.

The Consultative Council of European Judges (CCJE) has expressed the view that disciplinary proceedings against any judge should only be determined by an independent authority (or “tribunal”) operating procedures which guarantee full rights of defence. It also considers that the body responsible for appointing such a tribunal can and should be the independent body (with substantial judicial representation chosen democratically by other judges) responsible for appointing judges. That does not exclude the inclusion in the membership of a disciplinary tribunal of persons other than judges (thus averting the risk of corporatism), provided that such other persons are not members of the legislature, government or administration. The CCJE also considers that the arrangements regarding disciplinary proceedings in each country should be such as to allow an appeal from the initial disciplinary body (whether that is itself an authority, tribunal or court) to a court.

The national context

Before I conclude, I would like to place the event we have been discussing in its proper context. It is necessary to understand the national context in order to understand why the Government asserted the right to bulldoze its way, with slogan-shouting, stick-waving, screaming mobs, protected by armed police and the military, padlocked gates, water cannons, and fireworks – all this and more to remove from office the lawful Chief Justice of the Republic, the first woman, the first academic, the first product of a non-urban school who, with her quiet dignity, grace and determination, surpassed herself as she faced what must have been the greatest challenge of her life.

A founding member of the Commonwealth, a highly politicised society that changed its Government at every general election in the first thirty years of parliamentary governance, a fiercely independent Judiciary before which I had the privilege to practise, and a vibrant and fearless Press – these were the defining features of Ceylon, as Sri Lanka was known until 1972. But the country changed quite dramatically thereafter, especially under presidential rule which was introduced in 1978. Therefore, the removal from office of the Chief Justice has to be viewed in its proper context. 

Today, in many respects, Sri Lanka is a dysfunctional state. The integrity of its electoral process is seriously questioned. The integrity of its Judiciary has been undermined by an unduly close relationship that some senior judges enjoy with the Executive. The Chief Justice who retired in 2011 was immediately appointed Legal Adviser to the President; a hop, step and a jump from the Supreme Court to the presidential secretariat did not appear to him to be an unusual acrobatic leap. Selected judges of the Supreme Court and the Court of Appeal are granted special leave to enable them to spend several months at a time in the islands of Fiji, a country suspended from the Commonwealth, to help a military ruler apply and enforce his decrees. In fact, a Sri Lankan Judge was reported to have recently sentenced the Opposition Leader of that country to prison, and thus disqualified him from being a candidate at the general election, if and when held. Much of the print media is either owned by the Government or by politicians of the ruling party or by members of the President’s family. The editor of the only independent, investigative weekend newspaper was shot dead in a high security area four years ago, and his successor was sacked when a government supporter bought that newspaper some months ago.Constitutionalism has all but disappeared from the country. The President, who is Head of State, Head of Government, and Chairman of the Cabinet, is the source of all power and patronage. He appoints Ministers, Judges, Ambassadors, Secretaries, Chairpersons of state banks and corporations, the Elections Commission, the Bribery Commission, the Human Rights Commission, the Judicial Services Commission, the Public Services Commission, the Auditor General – the list is endless. Of the 113 members required for an absolute majority in Parliament, 67 are cabinet ministers, 30 are deputy ministers, 2 are project ministers, and the remainder are either ministry monitors, presidential advisers, or coordinating secretaries. In fact, nearly every member of the government parliamentary group is a salaried member of the executive. Parliament is no longer a legislative body capable of holding the government to account. 

Almost half the elected members of the Opposition have crossed the floor, enticed by the offer of employment of one kind or another, and the Cabinet today includes a Minister of Wild Life, a Minister of Botanical Gardens, a Minister of Public Relations, a Minister of State Resources, and a Minister of Sugar, with all the perks and financial benefits that go with such offices, but with little or no power. State power is exercised by four individuals: the President, who is also Minister of Finance, Minister of Planning, Minister of Defence, Minister of Highways, Minister of Ports and Minister of Aviation, and is also in charge of the Attorney General’s Department and the Legal Draftsman’s Department; his brother, who is Minister of Economic Development, an umbrella ministry that controls all infrastructure and other development activities across the country; another brother, who is Secretary of Defence, and controls the armed services, police and immigration, as well as urban development; and yet another brother, who is Speaker of Parliament. Other immediate family members include the chairman of Sri Lankan Airlines, head of the shipping authority,the ambassador in Washington, the ambassador in Moscow, and so on. Indeed, one of the siblings once reportedly exclaimed that the country was now being administered by what he described as the Rajapakse Samagama (or Rajapakse Company).

*Presentation by Dr Nihal Jayawickrama in International Seminar, “The Impeachment of the Chief Justice of Sri Lanka” organised by the Bar Human Rights Committee of England and Wales (BHRC)
Doughty Street Chambers, 27 February 2013.

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Latest comments

  • 0
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    Now we can conclude , Sri Lanka is under the dictatorship of the Rajapakse SANGAMA( CPMPANY )

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      There are recent studies that show by ploitical and economic analysis that the Rajapakses are taking Lanka towards a Corporatist State. This is a constitutionally manouvered soft dictatorship (unlike Nazi hard dictatorship) where a monopoly of political power and overwhelming economic control are focussed in a small group. This Rajapakse cancer has many parallels with Musollini’s syndicalism.

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      I listened to several videos from India lately, they are well aware of the situation in SL, how the Rajapakshes have been playing their politics since they are in the office. They are also aware of the fact that masses would not accept the politics of the Rajapakses.

      They also call it Rajapakse family govt. Dr. Subramanim Swamy will not be able to defence lanken politics on long term.

      So long, the people of the country themselves would come forward to protest to the manner it had been seen in Arab countries, nothing will take serious by President and his administration.

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    Now we can conclude , Sri Lanka is under the dictatorship of the Rajapakse SANGAMA( COMPANY )

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    I always love to read articles of Dr. N. Jayawickrema. This question is not about CJ’s removal but about the legislative branch. The parliament is said to be the legislative branch of the government. But I think Ministers belongs to the Executive branch. That means good part of the parliament belongs to Executive branch. In the U.S. as far as I know there the Congress & Senate are truly seperated from the Executive branch. When Hilary Clinton decided to join the Executive branch as the Secretary of State, she had to resign from her elected position of the Senate. Such mandatory requirements make the true seperation of legislature from the Executive branch. I think Sri Lanka needs to seperate the legislature from the executive branch by adopting a similar procedure like in the U.S. In the event it also will stop buying MPs by the executive. Will Dr. Nihal comment on this?
    Hema.

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    “I have been requested to examine the constitutionality of the act”-I believe it is the “Impeachment of the CJ”.

    Fine. You have done your part well as per your understnding. But having handled that well according to your ability, let me divert your attention to what you said:

    “The Minister of External Affairs, Professor Peiris, the international face of the government was a Rhodes Scholar who had been Professor of Law, Dean of Law, Vice Chancellor and Fellow of All Souls Oxford.” (see what you say in the next sentence) ” I do not wish to make any comments on his arguments because in addition to all qualifications, he is also my brother-in-law and harmony withing the family is important”.

    Do you think that you have done “justice” to people who requested you to examine this “act”? This is what is “traditionally very wrong” with our so called “educated” and “not so educated” people of Sri Lanka. What “Justice” you speak? When you are to judge a person, whether he/she is even your father or mother, you have to execute your judgement as per the Law. In you way of argument, can you blame even the HE President, Mahinda Rajapaksa for directly supporting his own brother who brought the controvertial “Divinaguma Bill” on which all this drama started. As per your own ‘DICTUM’ HE Mahinda Rajapaksa also refrained from taking his siblings to task.

    Please note that is quite contrary to my way of thinking.

    • 0
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      The subtleties of the English language are completely lost on this moron.

      • 0
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        Doesn’t this corrupt idiot have any other work?
        He thinks he knows ‘subtelities’ of English?
        Get a life you c***

        • 0
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          Sanitiser

          “c***”

          Sorry I am lost.

          Could you explain what “c***” stands for.

          Thanks

    • 0
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      I think Douglas is quite right. We know Nihal Jayawickrema as highly competent and well regarded. Obviously a very good man. But when you are influenced by your brother-in-law’s interpretations ( which are dubious to say the least ) and his scholarly achievements, then your judgements are incomplete and unreliable. It would have been better not to comment at all.

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    “Today, in many respects, Sri Lanka is a dysfunctional state”.

    Not true. It is functional, according to the dictate of a king like figure, whose wishes are executed by the elder brother (in the parliament) funded and financially managed by the younger brother, and enforced by hook or CROOK by another younger brother of the powers of Gestapo. All money earning cooperations of any worth are in the hands of fa,ily members of the same blood or in laws. The law and justice dispensing arm is now in the hands of crooked friends of the king, who in fact deserve to be in jail rather than on the benches. Thus Sri Lanka is a functional totalitarian state.

    It is the democractic institution that what used to be Sri Lanka as we knew of from our childhood that is dead and dysfunctional.

    The institution is there on paper as a window dressing to deceive the Commonwealth, US and any other country questioning the credibility of the Sri Lankan democracy.

    • 0
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      Yes bonaparte, but you will agree that it is a democratically dysfunctional state/

      On my own part, I find Dr Nihal’s articles interesting to read but think that he is a scoundrel of the highst deree having been part and parcel of the administration (Secretary Justice no less) of the 1972 Constitution which completely subordinated the judiciary and was the first departure from the egalitarian Soulbury Constitution.

      As a retired public servant who served under that era and was soundly disgusted at the commencement of the politicisation of the judiciary and the public service which reached its zenith under later governments, the fount of all evil was not only the 1978 Constitution (though it may suit some to say so) but also the 1972 Constitution.

      Both the brothers-in-law seem to possess the same attribute of intelligence no doubt but along with that, a lamantable disregard of integrity!

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    The tentacles of the Executive extend through the parliment, through the security forces and now through the judiciary. The only exception being that a family member is not in control over the judiciary.

    This has been addressed by having a stooge with a criminal case hanging like a millstone around his neck (dockyard gate) appointed as CJ. The opposition and parliment too were controlled by using criminal and tax cases to induce politicians. Pity these people who sell their souls and associate with vipers and serpants not knowing when they will be stung.

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      This type of dictatorship would not last long , when it start collapsing everything disintegrate rapidly, crimes and fraud could not be covered up for too long, when it starts sinking all others tend to abandon them.

      No body will come forward to rescue them everybody tries to dissociate. Now it has come to a stage nothing in the world could save the dictatorship.

      • 0
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        Too much greediness ends up with nothing at the end. Process of crumbling could start as early as mid April.

        • 0
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          If you know the Rajapakses, there will be many more Aprils ahead
          to see them vanish. I pity your wishful thinking. Little is
          known of their hidden long-term agenda for S.Lankans. Watch out.

          • 0
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            Long term agenda is well known, that is to loot the remaining little bit as well.

  • 0
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    Like Hema, I have always enjoyed reading what NJ has to say and admired the lucidity with which he usually sets out his case and the elegance of his expression.

    And with this piece NJ has also demonstrated a delectable (and wicked?) sense of humour. Referring to what GLP has had to say, NJ makes the ostensibly innocuous observation, “I do not wish to make any comments on his arguments because……” This is a ‘beauty’. It comes after NJ quotes six telling phrases from what GLP had to say on the Supreme Court determination. After that, what indeed is the need for further comment?

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    A translation of Dr. Jayawickrama’s speech should be carried in Sinhala and Tamil national dailies and weeklies. I hope at least Ravaya editor Janaranjana will do this duty by the public.

    It is the bounden duty of Opposition politicians and intellectuals in the country to inform and enlighten people. They should be the leading opinion makers. But are they effectively discharging this duty? The opposition leader has become the main obstacle to launching a mass struggle for restoration of democracy. Morons of that party instead of kicking him out of office has offered him dictatorial powers on a platter. I can’t understand why the hell the dissidents want to cling on to that moribund party!

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    “The most disgraceful man within the government ranks is the spineless “Minister of External Affairs, Professor Peiris, the international face of the government was a Rhodes Scholar who had been Professor of Law, Dean of Law, Vice Chancellor and Fellow of All Souls Oxford.” In parliament he quibbles over words solely to please his Boss in the same way that an Emperor with non-existent clothese was praised for the clothes the stupid Emperor was wearing by his yes-men and thereby to pervert justice and enjoy the ministerial perks as long as he could.

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      GLP has indeed been a great disappointment. Despite his impressive CV, some of his statements have been horribly flawed and it has been difficult to believe they had come from someone with those credentials.

      During his speech in Parliament on the impeachment motion he was to say – and very rightly – that “one of the basic requirements of natural justice is total impartiality and detachment, and there must be a clear public recognition that that is the case.” GLP was, however, unable or unwilling, to see that these noble principles of natural justice were denied to Shirani Bandaranayake, his former student. Somewhere, GLP was quoted as having said that some of the actions of his former student had disappointed him. One imagines the feeling will have been mutual.

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    The term impeachment, claims Nihal Jayawickrama in the course of his latest contribution was introduced to the Sri Lankan political lexicon in mid-October last year (2012). He is surely mistaken. The Lalith Athulathmudali/Gamini Dissanayake-led abortive effort to remove President Premadasa circa 1992/3 was when the term impeachment was first introduced into our political lexicon.
    That effort failed, we have been given to understand, due to the inducements offered to and presumably accepted by the then Speaker of the House of Representatives, Mr.M.H. Mohamed. Ever since, every President of Sri Lanka has been particularly careful to appoint a ‘reliable’ person to that once respected office of the Speaker of our Parliament.
    One of the four members of the Rajapaksa Samagama currently holds the post for reasons that are obvious to those of us familiar with the political machinations of our land. Time was when respectable, seasoned and intelligent persons of the calibre of Sir Waitialingam Duraiswamy and messrs Francis Molamure, Albert Peiris, H.S. Ismail, Shirley Corea, T.B. Subasinghe, Stanley Tillekaratne, Anandatissa de Alwis, K.B. Ratnayaka and Anura Bandaranaike adorned that office. The honour and prestige attached to the post in the past evaporated with the likes of M.H. Mohamed and W.J.M. Lokubandara occupying it. Since then it has been downhill all the way!

    Sumith Ariyasinghe

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      are you sure about Anura B on that list ?

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    If we had a Statesman as our Leader, after winning the war, the entire World would have respected us and we would be on top of the World today. Unfortunately, we had a power crazy lunatic who turned the democratic Sri Lanka to a corrupt, lawless family Banana Republic. All the citizens have now lost all their rights and the Country is under Jungle Law. Intimidation, disappearances, assault and murder rule the Country. God save former democratic Sri Lanka and may the corrupt family of dictators rot in hell.

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    This is not the Time Nihal Jayawardhana to talk about this now we have more important matters concerning our motherland to deal with. You cannot join the foreign elements trying to balkanise our country to talk about an Impeached CJ guilty of fraudulent use of Banking accounts. Let us be more intelligent do some thing worthy of us to Sri Lanka.

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      Charles.

      YOU CAN Give Dr Nihal an Appointment or time frame to Talk And publish his views on RAJAPKSE AND SAMAGAMA ,[ JARAPKSE AND 400 ODD THIEVES].

      when some body talk about this JARAPASSA THIEVES, You Are having a PAIN IN THE A XX.
      DONT YOU?????.

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      Charles,
      Sure you keep burying your head in the sand. It’s your prerogative.
      Not sure if Dr NJ is joining the foreign element to balkanise Sri Lanka by simply pointing out the mere facts well known to majority of Sri Lankans.
      The above analysis is no different to the analysis given by well respected and credible constitution lawyers.
      Are you implying that any adverse and rightful critic is balkanising Sri Lanka?
      Think, Charles the readers at CT and Lankans are generally far more intelligent and savvy than what you are used to and would encounter in LW

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    Are these Sri Lankans writing here or Diaspora Tamils and Foreign NGO’s; Otherwise they are really an ungrateful set.

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      Charles,
      Surprise, Surprise Charles

      It’s the kind of comment one would expect at LW and from you instead of critically debating the issues in a rational manner.
      Well Done, Charles

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    I am not the least surprised at the reaction of Dr. Jayawickrama. When people are in power they posses one attitude and when in opposition the exact opposite. I am sure Dr. Jayawickrama knows the circumstances under which he was deprived of his civic rights.

    Talking about the onus of proof, it was the time of where Dr. Jayawickrama was the Secretary to Justice, his master Hon. Felix Bandaranayake crafted legislation to the effect that if a public servant has wealth which cannot be explained then it is presumed that he has acquired through bribery unless the accused disproved, thus shifting the onus on the accused. This law prevails even today.

    Whatever said in the name of Lattimer house principles etc. there should be security of tenure if judges for the delivery impartial judgements. During the time of Dr. Jayawickrama in power all what has to be done to remove a judge of the superior courts was an address of the national state assembly and not even and inquiry by a select committee. (It was slightly a different story for judges of the minor judiciary.)

    Dear Doctors and Academics! The best way to have security of tenure is not have skeletons in the cupboards while passing judgments on others.

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    Enough with the legalities of the impeachment. There is ample evidence that the former CJ was corrupt on several counts. Why does that not count for anything here?

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    ALL THESE RAJA HORA SAMAGAMA CROOKS MUST DRAG ON TO THE STREET LIKE GARDAFFI AND PUNISHES IN PUBLIC FOR CRIMES AGAINST HUMANITY AND ROBBING OUR COUNTRY.

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    I wish to respond to three comments that have been made. The first is by HEMA. My own view is that the best form of government is one based on a clear separation of powers, where the Cabinet is drawn from outside the Legislature, from among the brightst and the best in their respective fields. Today, increasingly in the rest of the world, the executive is composed of technocrats. The second comment is that by CHANDRA. I would advise him/her to read a very recent publication, available free from the Centre for Policy Alternatives, entitled “The Republic at 40”. It is also available on a website of the same name. I would especially recommend my article on “The drafting and content of the 1972 Constitution”. The third comment is by JAYAGATH PERERA. The section in the Bribery Act he refers to was conceived by Mr H.H. Basnayake QC, Attorney General, who drafted that Act in 1954. He was obvioualy ahead of his time. Today, that offence of “illcit enrichment” is the strongest weapon around the world in combating corruption in the public service. It has also been included in the UN Convention Against Corruption.

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      Dr. Jayawickrama could be right because the material I have access to indicates that it was law even in 1958. However, the notable prosecution of Messers Wanigasekara and Fernando took place when Dr. Jayawickrama held high office using the same principles.

      Dr. Jayawickrama in his comment admits that for the greater good and even internationally accepted that sometimes the burden of proof must be shifted to the accused under certain cicumstances.

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