4 December, 2020

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Reconciliation: Looking Forward vii – The CJ And The Report Of The PSC

By Rajiva Wijesinha –

Prof Rajiva Wijesinha

I have now had an opportunity to go through the report of the Parliamentary Select Committee that looked into the conduct of the Chief Justice, and its contents amply confirm the position I have advanced, namely

a) Shirani Bandaranayake has not always acted properly

b) She should not be impeached

With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.

One problem with regard to which the Select Committee finds her guilty does not seem at all appalling. To accuse her of misconduct because she is in overall charge of judicial procedures at a time when her husband might be subject to them is not at all reasonable. Had she tried to influence the judiciary in such a situation, she would certainly have done wrong, but to find her guilty because she is in a position to do wrong is a strange interpretation of justice. All she need do to ensure nothing improper occurs is recuse herself from decision making with regard to cases involving her husband.

The other point on which she has been found guilty is not declaring various accounts in her annual declaration of assets and liabilities. Several other improprieties in this connection are also noted in the Report, some of which also seem reprehensible. However, there is provision for prosecution for any serious misdemeanours in this regard. Given that there is a judicial process laid down for those suspected of offences, it is best that that process be followed. For Parliament to sit in judgment on such matters, without ensuring due judicial process, is inappropriate, and worries in this regard have been increased by the haste with which the Parliamentary Select Committee went about its business.

That is why I think it would be wrong for the Chief Justice to be impeached on the strength of this Report. The Report itself, in asserting that Mrs Bandaranayake was guilty of misconduct, cites several cases to claim that, ‘the appearance of bias, even if there is no actual bias’, is sufficient to taint a decision. It has been observed that the test of bias is whether the fair minded and informed observer, the tribunal was biased’.

Unfortunately the Parliamentary Select Committee has certainly given the impression of bias. Initially, when the lawyers for the Chief Justice asked for six weeks to submit the case for the defence, the Committee granted one week. Subsequently, after copies of various documents relevant to the case were given to her lawyers on December 6th, they were told that the investigation into the first two charges would being the next day.

The Report notes that the defence could then send for witnesses to disprove the charges, but no mention is made of proving the charges. The Chief Justice and her lawyers then walked out of the Committee, on the grounds that ‘the defence was not provided sufficient time and precise information with regard to the procedures of the Committee was not made available’.

A fair minded observer would have no doubt that insufficient time had been provided. With regard to procedures, worse was to come, because the Report says that, on the day after the Chief Justice walked out, witnesses were called, and gave their evidence. There is no record that the Chief Justice had been told that these witnesses were to be called to give evidence. The fact that she had been told she could send for witnesses to disprove the charges, before the charges had been substantiated by the witnesses the Committee had decided to call, would suggest bias to any fair minded observer.

In such a context Parliament would be wrong to impeach the Chief Justice without an objective review of the Report of the Committee. The President has declared that he will appoint a Committee to advise him. That might not be formally a satisfactory solution, but if he constituted the Committee in a manner acceptable to the Chief Justice as well as the Select Committee, and allowed a fair time for written representations, we might begin to move towards the fairness required with regard to so grave an undertaking as impeachment of a Chief Justice.

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Latest comments

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    Can anyone clarify the following:

    1. Was the CJ only an intermediary between her sister’s family and the Trillium property owners, through the power-of- attorney granted to her.

    2. Who negotiated the purchase of this property? Was it the CJ or her sister’s family?

    3. Is a a person who acted on behalf and on instructions of someone else through the instrument of a power-of-attorney, personally liable for any problems that arise?

    4. Did the role of the CJ in this deal extend beyond that of transferring money received from her sister’s family to the Trillium property owners?

    5. Did the CJ negotiate the purported discount on this property directly or did she influence the decision knowingly?

    Dr. Rajsingham Narendran

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      Good points Rajiva. Two points in response:
      1. It was Mahinda Rajapakse the corrupt executive president of Sri Lanka that appointed the CJ’s husband chairman of NSB in a corrupt and malicious move to bring disrepute, control and politicize the judiciary, just as he and his family have corrupted and hollowed out so many other governance and state institutions.
      2. The CJs commissions and omissions are peanuts compared to the MAMMOTH CORRUPTION of the uneducated Rajapassa brothers and sons family businesses run on tax payers monies, land grabs, car racing shows, Commonwealth Games circuses and the corruption of some of the other clowns like Ajit ivard Cabraal and Lalith Weeratunge who supposedly gave “evidence” against her.
      It is the Rajapassa family and its political mafia that should be impeached.

    • 0
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      None of these questions matter….. CJ chair should be squeaky clean as a institution.. And also GK fiasco should have given any judge to stay out of the matter and pass personal legal matters to a another lawyer.
      To me, this itself give rise to CJ’s competency and as a out sider what are those black coats done to GK fiasco ? Out judicial system is corrupt and slant towards colombo power elite.. No wonder colombians are cheering for the CJ… They are all in this corruption band wagon either directly or indirectly…. Shame.

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        Watcher,

        It is the Colombians who have Brains enough to analyse and criticise the culprits who try to hioodwink the public.

        Please make sure that Colombians are far more educated and cunning than the Medamulana Muppet show Jokers, who think they can govern the country through Bribes…like bribing VP, opposition MP’s, Media, Clergy and hoodwink other uneducated, foolish but innocent Villagers.

        It’s no more going to work….and Gon MARA’s and his Alibaba Jokers days are numbered.

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          Jayantha,Insulting others and bragging about the size of your brain won’t get you anywhere. Try and see if you can find answers to very pertinant question from Dr.Narendran.
          Prof.Rajiva is trying to keep the cake and eat it at the same time. Now he admits that the CJ has not acted properly and has indulged in inapproprite activity but never explains why the CJ should not be impeached,instead he goes around the merry go round to criticise the process.

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      These are questions for the CJ to answer. The problem here is that she was not given a fair trial and and therefore denied an opportunity to meet the allegations. If she was given one, she may or may have not explained, in which case fair-minded persons could have come to a conclusion.

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      Dr.Rajasingham,I don’t think it is necessary to waste too much time on the questions you have asked.The fact remains she used herself and her bank accounts for the transaction.Her sister could have easily come down from Australia and attended to the matter herself,if she wanted to.After all people are coming down all the time for a quick visit and going back.It is sad to see what is happening to the ceylinco depositors.Not the big depositers who have enough money anyway,but the small ones.All are picking on them like picking on a dead carcass.The supreme court should have given immmediate relief to these small depositers or put that shitarse kotalawela back in jail.By not doing that god is punishing them.First that shiranee Thillekawardena sits on the case for 4 years doing nothing and then the other shiranee moves in and takes it over and does nothing too.The Rajapakshes too are I’am sure heavily involved in this and would have been paid off by Kotalawela. With everyone taking the money out of the assets,through fees and salaries of so called administrators,sale of properties and outright kickbacks nothing will be left for these poor small depositers. If ever a country deserves the wrath of god to befell it it is this one because the people are so good on the outside and so rotten inside.Don’t worry your head off trying to find the answers to your questions.Let god finish the unfinished work he has to do.

  • 0
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    Dear Professor
    Don’t forget that you are also a part of the ruling regime and You are also jointly responsible for the unfortunate events happening in Sri Lanka conducted by your own government.

    • 0
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      At the next reshuffle, the King will give a ministerial post to Rajiva and keep his mouth shut!!

      • 0
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        There is a high possibility for this. Previously this man was writing in favor of PSC process while he knows well how bias it was and this can be trace through a judicial process itself with international bodies.

        However, now this man (RW) is trying to give publicity to MR’s another committee to review the findings of PSC and catch at least one fish out of it to through CJ out. So RW’s next reading of the next committee report will be just opposite to what he talk now and it will be a key to another portfolio upon cabinet re-shuffle.

  • 0
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    We expect you now to vote against the impeachment in Parliament. The proof of the pudding is in the eating. You and the Left MPs have been taking a reasonable stand in regard to the impeachment. You must now follow up with action.

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    Prof Rajiva Wijesighe is a part of the government that has committed innumerable atrocities.Iam not referring to the war but the white van and also tampering with justice.
    Two specific instances…… Chandana Kathriaratcy’s murder case was halted while in progress where a pandankaraya Attorney General Mohan Peiris was used and a clear case where a muderer was saved because he was a party man
    Another releasing Milroy Fernando’s wife who was serving a life sentence as the hangman was not in action for the offence of murdering Milroy’s MISTRESS.
    Iam glad that Rajiva had exonerated CJ for the likely offence that she MIGHT INFLUENCE the husband’s trial.THAT WILL BE INTERESTING as he was the NON Executive Chairman where there were many Directors and RAJAPAKSE’S ASTROLOGER TOO. He is bound to say who was the force behind that sordid deal which Rajapakse said APE MINIHEK EKA MAMA SHAPE KARALA DEMMA.Many had reservations about the Professor as HIS FATHER COMMITTED A SERIOUS FRAUD IN DRAWING TWO PENSIONS and no action was taken whereas a PEON WOULD HAVE BEEN IN JAIL.Thats selective justice in SRI LANKA again APE GETAMANNE MINIHEK.I agreed that Prof cannot be held responsible for that.
    Iam glad that he has clearly said that the PSC was biased and the report was not worth the print.
    He has not touched on the indecent manner in which the Chief Justice of the country and a LADY AT THAT was spoken to by two cads DILAN PERERA and a nondescript Weerawansa.
    Dr R.Narendran has raised some queries and that merits a reply.

    Yet another that some learned person could throw some light is how to annul three decisions namely SARATH SILVA’s JUDGEMENT which permitted pole vaulters to continue as they do not reflect the views of the people who sent them.THEY WERE PURCHASED FOR MONEY AND POSITION.RAJITHA AND WEERAWANSA ARE TWO ON THE PSC WHERE THERE JUDGEMENTS AGAINST THEM.THEY HAVE NO MORAL RIGHT TO STAY THERE BUT CANNOT LEAVE THE HONEY POT.

    Another sucker who for personal benefits ASOKA SILVA said the an army court martial was equivalent to a judgement of a duly constituted court within the justice system.How a woman of easy vitue abandoned by her husband who was ready to act according to the dictates of Rajapakse and get promoted within weeks and the dissenting judge not getting an extension.

    The 18th amendment that came about using the pole vaulters and Rajapakse abandoning a near unanimous decision that brought about the 17th amendment and becoming king minus the crown.

    HAVE THE 117 SIGNATORIES DECLARED THEIR ASSETS AS WAS REQUIRED.

    HOW CAN THE COUNTRY BENEFIT BY REVERSING THESE ERRONEOUS JUDICIAL DECISIONS THAT HAS BROUGHT NEAR DISASTER TO THE COUNTRY.

  • 0
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    Just one GOSL MP talking sense – maybe he is the only educated and honest one who didn’t want to sign the Impeachment blindly.

    • 0
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      Is this Prof honest???????????????

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        If his dad had guilty attitude to draw two pensions then this guy must be his son.Otherwise you have to ask his mother she would have only known the best.

  • 0
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    I agree with Dr RN. Regarding Trillium Property there are several issues which need to be clarified before making sweeping statements and passing judgement. Without fair trial none of these bear any validity or consequence.

  • 0
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    I AM WAITING TO SEE WHETHER HE WILL NOT VOTE WITH THE GOVERNMENT OR ABSTAIN OR ABSENT AT THE TIME OF VOTING. HE SHOULD ACT ACCORDING TO HIS VIEWS AS AN EDUCATED PERSON .

  • 0
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    .Yes Dr.Nagendran your queries are very sensible.Can anyone who participated at the PSC clarify these queries ? without any bias.

  • 0
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    Yes, I fully agree with Newton

    Chandra Seneviratne

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    Professor you may be counting days for the mara’s white van. Good luck and enjoy.

  • 0
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    Professori you and your PSC have not heard the CJ and you pass judgement. What on earth are you doing

    • 0
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      Reading, reviewing and interpreting to a report that well known beforehand as biased is clearly shows the professor’s intellectual capacity in accepting such a fake document for his brain to review.

  • 0
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    Prof Wijesinha,

    Don’t you think that your two main positions are contradictory, namely “a) Shirani Bandaranayake has not always acted properly b) She should not be impeached.” In my position, if she has acted improperly (misconduct) she should be impeached but after proved without a reasonable doubt through a fair trial.

    Your contradiction is enlarged by the following two paragraphs.

    “A fair minded observer would have no doubt that insufficient time had been provided. With regard to procedures, worse was to come, because the Report says that, on the day after the Chief Justice walked out, witnesses were called, and gave their evidence. There is no record that the Chief Justice had been told that these witnesses were to be called to give evidence. The fact that she had been told she could send for witnesses to disprove the charges, before the charges had been substantiated by the witnesses the Committee had decided to call, would suggest bias to any fair minded observer.”

    “With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.”

    How do you know whether her conduct was improper regarding the trillium matter as you say in the second paragraph quoted above if you accept that evidence was not conducted properly and she was not given an opportunity to call her witnesses as you have stated in the first paragraph?

    The whole effort of the impeachment politics seems to be to discredit the CJ and the Judiciary and create circumstances for her to leave and not necessarily to impeach her. Your present article falls within that trap. Discrediting a CJ is more damaging than impeaching a CJ.

    • 0
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      To Prof.W and Dr.F
      1.Is an impeachment proceeding a court of law or a commision of inquiry?
      2.Does the burden of proof fall on the commissioners or the accused to prove his/her innocene?
      3.Is there any provision in the constitution for an intermediary in case of a dispute?

  • 0
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    The Standing Order 78 (A) is BAD in LAW, as it never got the approval from the Leagl Draftmans Department or the AG to make it Law.The Constitution is supreme according to the constitution. and SC is the only authority to check any defects in Law if necessary.
    CJ is not given a chance by the PSC, as the lot acted as a Kangaroo Court without any knowledge of Rule of law. Rajapaksa should get hius cronies to withdraw these charges against the CJ.

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    If you resigned from the University over Mrs B’s loss of civic rights why didn’t you resign from this government after the 18th Amendment? Why did you resign from the University anyway? It wasn’t the university that took her rights away? or were you just finding the place uncomfortable and making a virtue of necessity? Grandstanding. The goverment of which you are a member is surely much more to be resigned from for its actions than the poor university was at that time! What really governs such decisions for you?

  • 0
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    Sri Lanka’s new Mahinda Chintana Constitution:

    “By the Crooks….For the Crooks….on the instructions of the Crooks..
    ….to screw the country and it’s people by those crooks”

    JAYAWEVA.

  • 0
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    Shirani Bandaranayake has not always acted properly

    Tell me one person who has always acted properly ? Surely with your superior knowledge of English you could have worded that better ?

    It totally depreciates the value of anything else you ahve to say !

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