30 September, 2020

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Reconciliation: Looking Forward ix – Rules To Prevent Judicial And Other Abuses

By Rajiva Wijesinha –

Prof Rajiva Wijesinha

Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.

That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.

Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.

Unfortunately the Standing Orders governing impeachment do not come up to the expected standard. This is obvious from the many cases cited to justify the procedure since, in other countries where Parliament acts judicially, there are several safeguards which do not exist in our system. In particular that function is entrusted to a second chamber, where members are more clearly independent individuals than lower house members who – even without our preposterous election system – are more inclined to divide on party lines.

It is also important to ensure formal procedures comparable with what happens in the Courts. Mutual respect should characterize proceedings, and this is facilitated by allowing them to be public. The request of the defence that this be permitted should not have been summarily dismissed, on the grounds that the Standing Orders forbade this, since Standing Orders are not sacrosanct, unlike the Constitution, and may be waived when those involved agree.

Comparison with what happened in the Philippines, the most recent instance of a Chief Justice being impeached, makes it clear that what amounts to a judicial process was followed there. The first statement of the Liberal Party on this subject drew attention to that case, and our second statement suggested that our Standing Orders should be amended. Alternatively, we suggested the Select Committee could have a Sub-Committee consisting of former judges of the Supreme Court to assist it.

Unfortunately the Select Committee not only decided to proceed on its own, but dismissed all objections raised and requests made. Some of these may have seemed unreasonable, and the dissent of opposition members should not be taken as proving prejudice on the part of government members, given the oppositional nature of Sri Lankan politics. However a fair minded observer would wonder about allowing only a week for the statement of defence when six weeks had been requested. Even more startling is the fact that the defence was asked to commence ‘to disprove’ two charges one day after the documents relevant to those charges had been handed to them.

While the Chief Justice should not have walked out of the Committee, the claims made with regard to the language used suggest some doubt as to whether the assertion that she would not get a fair trial was unreasonable. Certainly the Committee should not have dismissed summarily the contention of opposition members that a written submission they made should be considered and the Chief Justice requested to appear before the Committee again.

However the opposition members should not have walked out, and I cannot stress enough the irresponsibility of opposition politics in Sri Lanka, in expressing through sulking what should be clearly stated and recorded. In 1981 the SLFP opposition was not present to vote when the UNP government passed a vote of No Confidence in the Leader of the Opposition, Mr Amirthalingam, and it was only Mr Thondaman and Shelton Ranaraja who stood against the overwhelming tide of their government colleagues and abstained. So too the manner in which the current opposition has made a nonsense of the 18thAmendment by not expressing their views on appointments such as that of the Chief Justice indicates a childishness that makes one despair. Had the opposition for instance expressed and put on paper its opposition to the appointment of Shirani Bandaranayaka as Chief Justice, the President would have found it embarrassing to have appointed her, and even more embarrassing to have encouraged impeachment when he had ignored advice offered on a constitutional basis.

But, as noted, our incapacity on all sides to use the procedures we have is what encourages contempt for procedural norms. Thus, where they do not exist, we do not even understand what problems we create for ourselves.

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Latest comments

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    But I will vote for the impeachment when the time comes hi hi hik even though I oppose it. For those who can’t undertand that logic it is entirely your fault. Hik hik

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    This Professor makes his views known whilst being on the fence. It is difficult to understand this man. He mentions a few faults of the Government members of PSC but ends it saying the opposition members shouldn’t have walked away. He doesn’t say why they walked out or what made the CJ and the lawyers to walk out. This man is a slimy character
    Srinath

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    Rajiva saya that “… our incapacity on all sides to use the procedures we have is what encourages contempt for procedural norms. Thus, where they do not exist, we do not even understand what problems we create for ourselves.”

    Your “incapacity” to tell the truth and instead to indulge in your contemptible double-speak and hypocrisy is why you “don’t understand” the reason most intelligent readers hold you in contempt and consider you to be a bum-sucking lackey. It’s too late for damage control now, all sides recognize the slimy trail of a snail – about to fall off the fence.

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    I think by saying opposition members should not have walked away, he means like him hanging on to the ruling coalition although openly he shows he is on the fence, he expects the opposition also to sit on the fence. Rajiva is an educated person, but does not behave like a honest educated person. He is the leader of the Liberal Party, no one knows how many members are there in that party and he was not elected by the people. So only way he can earn a living is by hanging on to the ruling party. How can we know his true intentions?

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    Prof: Wijesinghe,
    I wrote a comment in your previous newsletter on Reconciliation: Looking Foreward V111 and hope you read it…

    I explained how few Family Jokers who don’t know a damn of Professional administration,good governance, business ethics and world affairs…….who control 90% of country’s budget and economy…..using puppets to fulfill their selfish power grab and wasting country’s resources on Mahinda Chintana, untested projects and economy.

    MARA’s economic systems are not based on either Capitalist nor Socialist…but a self promoting, long term power grab and a distructive economic system.You could see all the cutouts, advertisings and participation in all the projects NON OTHER THAN MARA BROTHERS ONLY.

    Please listen to following Derana video clip of ex CJ Sarath N. Silva desctibe what is Presiden’t character…..and how his decision to stand by Hedging Gamble not listening to anybody and as a result now the Petroleum corporation has to pay almost ONE BILLION US DOLLARS TO THE THREE BANKS.

    http://www.derana.lk/index.php?route=programs/programs/programdetails&pid=85&vid=5582&page=2

    Please go into other clips by clicking on those windows.

    This could be the reason why during the last few months, gasolene prices are been increades frequently.

    While president is incharge of country’s cash box,with 20 million rupee personal budget expenditure per day……. Basil Rajapakse is incharge of the economy….starting charging rupees 400.00 per day for a 4’X4′ (4feet by 4feet) retail box in Nugegoda Bus stand and continue with all the markets and super markets, malls, airports, harbours, hotels, guest houses, aparment complexes, business entities all over
    Sri Lanka etc…etc…Divineguma 85 Billion Rupee will make him a MEGA BILLIONEER ECONOMIC DEV. MINISTER WITH NO RIVAL OR OPPOSITION IN SIGHT.

    while Gotabaya Rajapakse in charge of both all the defense services,Police, Prison industry, Ratna Lanka security services, all urban and interior development, School and Univ…security, nothern development and hotel dev.and construction industry he also started to control peoples, students and society through so called reformed and development projects.

    Therefore at the moment while country is in the hand of the four Rajapakse siblings….. when one citizen work ….there are ten puppet jokers have recruited to steel that one person’s income.

    CJ impeachment is the last source of power grab to fulfill MARA and his family dream of becomming the next total Dictator in Asia.

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    Why don’t you grow a pair and contest the nest election..that would be the ‘liberal’ thing to do and it will give us the chance to tell you what we really feel about you in the liberal way. Hambanthota or Colombo your call:)

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