25 April, 2019

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

By Rajiva Wijesinha –

Prof Rajiva Wijesinha

Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.

In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.

Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.

I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.

Problems relate to two areas, namely the conduct of the Chief Justice and the procedures adopted by the Select Committee. With regard to the first, while the improprieties highlighted do not necessarily deserve impeachment, and certainly not through the present effort, we need mechanisms in place to ensure that the two relatively serious wrongs of which she is accused cannot again be committed, whatever mitigating factors might be advanced in mitigation.

We should therefore institute Judicial Norms through binding rules to

a)     prevent any judge sitting in judgment in cases in which he or she has any interest (To deal with the Chief Justice buying a flat from Trillium while judging their cases. It is clear she understands this was wrong, inasmuch as she withdrew, immediately after the impeachment resolution, from that Bench)

b)    remove the absolute power of the Chief Justice to allocate cases, and instead set up a panel consisting of the three most senior judges. No changes should be made except by the panel in consultation with the original bench, and in consultation with the entire Supreme Court if allegations of bias have been made (To deal with the Chief Justice replacing the Bench hearing the Trillium cases with a Bench headed by herself)

c)     prevent any spouse of a judge accepting office from government except in the case of those already in government service. No judge or spouse of a judge should be offered or accept office from government for five years following the judge’s retirement, except for appointments to mediation boards and such task bound assignments (To deal with the appointment to high positions of Mr Kariyawasam)

d)    have the Judicial Service Commission appointed by a panel of the three of the six most senior Supreme Court judges, with provision for appeals regarding appointments to be addressed to a separate panel of the other three (To deal with allegations of arbitrary actions by the JSC)

We should also institute internal investigation systems within the Judiciary if judges violate judicial orders (To prevent situations such as occurred when the Chief Justice was given a substantial discount on a purchase from Trillium when there was a Court Order enjoining that the highest possible price be obtained for these).

We should also institute rules with regard to the Assets and Liabilities Act to

a)     Ensure immediate remedial action when the Declaration is not make (To avoid situations such as the realization now that the Chief Justice did not submit a Declaration for 2001)

b)    Redraft the form to ensure that manipulation of assets is detected (To prevent concealment of funds by emptying accounts just before March 31st each year, as is alleged was done by the Chief Justice)

c)     To allow for random checks on the accuracy of Assets Declarations by an independent body, such as the Auditor General’s Department or the Bribery Commission, though with greater institutional safeguards regarding the independence of those institutions (To prevent accumulation of misleading statements as seems to have been the case with the Chief Justice)

Given what has been reported, it is clear that the ‘moral conduct of an exceptional degree’ expected from a Chief Justice that the Committee believes is necessary was not forthcoming. But of course the high standards enjoined by the Committee are expected also from Parliament, and we need measures to ensure that as well.

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Latest comments

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    Soft peddle for some and sledgehammers by those were soft peddled on we simple Simmons. What kind of law is that professori? I can see why you can never be an elected MP. If MR follows your Prescriptions its the end of him being elected to office again.
    Leela

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      Keep it up Prof. Come on laundry baas!

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    Dear Professor,
    1.you are intelligent enough not to be part of the Rajapakse authoritarianism.

    2.I hope the suggestions are given serious consideration by the parliament and the people as a guide to an urgent action along those lines.

    3.Our Chief Justice could have avoided a lot of logjam that is exacerbating the crises in many other areas of governance in the country precipitated by the lack of ‘moral conduct of a basic degree’ for 65 yrs.

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      Hope Rajiva will not change his colours if he gets appointed as a Minister. In his role as the leader for reconciliation, we have not seen any reconciliation and he still is with the Government. He says there is no democracy within the ruling party and still being the leader of Liberal party he is part of the government, very confusing.

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    ‘Moral conduct of an exceptional degree’is needed from the South to give a lifeline to the ethnic minorities suppressed by immoral conduct of successive governments from the time of independence till today.

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    These are simple and practical solutions for a complex problem. The need of the hour is for a solution not a hatchet job which will have wide and far reaching repercussions. Operation successful but patient dead.

    We also need to address the lacuna in the constitution regarding the procedure for trial of judges by implementing the proposals made in 2002. Also the declaration of asssets by all members of parliment, heads of govt departments/corporations/banks and institutions is absolutely neccesary if we are to root out corruption.

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      Agreed. What is the correct procedure for punishing those MPs who submitted the proposals to UNHRC in 2002 but never implemented them? Does the Sovereignty of people give them immunity?

      If the members of the PSC who were in the parliament in 2002 had least taken into consideration the responsibility on their failure to implement the proposals and decided that they should not proceed with the investigation, then the whole crisis could have been avoided.

      Is there anyone else in the parliament who is qualified to throw the first stone at CJSB?

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    Let the filled forms of declaration of assets and liabilities be displayed publicly or make provisions to Acquire them by any citizen. then people can monitor all these people from Pradeshiya Sabha Member to Chief Justice.

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    Rajiva,
    It is a well-known fact in the academic world that 98% of professors especially in the sciences like engineering, medicine etc. are misfits in their profession in the outside world of proessonal practice. However, simple lecturers do very well in professional practice and are the favourites of students who want to know more about the practical side of the theory that is dished out.

    Both Facebook Mark Zuckerberg, Microsoft Bill Gates in the true spirit of the “Fountainhead” quit Harvard telling their professors to go kiss their own backsides. Not only can they afford to buy 5 generations of Sri Lanka they have also created a revolution worldwide in the way we think.

    English school teacher you came over to the land of the native speakers of the English Language and were interviewed by simpleton Jon Snow who lives in the same borough of the late Bernard Shaw. Sadly you blew it all up for all Sri Lankans by behaving like Gota when you had the golden opportunity of staying calm because the world was with Sri Lanka and not the tiger that perfected the suicide bomb. RM family is using this hate of suicide bomb to stay in power as long as it takes and knows quite well there won’t be an inquiry into crimes for the next 3 decades if it continues to point fingers at any Tamil in the west. Like you on the government side the low caste are stupid too by holding their tiger flag.

    The positions you and the other professors have taken are a case of pure ambition and you have proved that you cannot be diplomats saying the nastiest things in the most pleasant way.

    In the words of Bernard Shaw a politician is one who speaks the truth and sandwiches it with lies. Dayan and you sadly have displayed this and you cannot undo it because the channel 4 series is the thing at the apex that is moving the world bodies not any books, protest functions etc. Though you lived in England before you have never learned one important thing about English culture one does not insult them directly because they don’t- it done finished and there is nothing to forgive because the world saw it.

    “b) remove the absolute power of the Chief Justice to allocate ….”
    Even in jazz it is always one person who takes the decision not the holy trinity you suggest. Take a book on psycho and read you petty journalist RW.

    “c) prevent any spouse of a judge accepting office from government”
    This suggestion of yours is a clear cut violation of human rights. To quote Premadasa: Did you know which place which family you would be born? Neither did I.

    “Redraft the form to ensure that manipulation of assets is detected”
    Paradox: The more laws that are drafted and the more that is written only creates more loop holes.

    The rich don’t pay taxes anywhere in the world that is why we have flourishing cost and management firms world over like the Rothschild’s who have created the financial crash for the PIGS.

    I wish you and dayan well but you must change your ways and not behave like Gota because the lives of 20 million are at stake.

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    Is this series of smokescreens by this politically absolutely amoral man never going to cease?
    Come on CT, give us a break!

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    Yes CT looks like you simply publish anything from “famous” people with impressive CV s.

    You guys are losing your heads with all the hits you are getting.

    Only a matter of time whn the CT becomes so boring that the readership will drop off.

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    Looks like Rajiva is thrashing around trying to get some of the shite he has been wallowing in off his person in a last effort at damage control. But we won’t be surprised if he is rejected by one and all – you can’t fool all of the people all of the time! He’ll soon be neither here nor there and it will serve him right.

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    Professor Wijesinha,

    We like your suggestions as to what steps needed to take for future good governance of the Judiciary.

    Similarly we also have to look for a holistic remedy to the whole Governing body (Legis..,Execu.. and the Judici..)to serve the people who elected them with honesty, transparent and equal justice.

    As you are aware, and may agree at the moment we have a system of “WINNER TAKES ALL” system applied to all three governing bodies and as a result this has created MINI DICTATORSHIPS.

    At the moment what we see is while the Executive has already taken the Legislature under his wings….he also trying to take the last pillar which is Judiciary also under it’s wing.

    The reasons to prove this is…
    —————————————————————-

    1)MR three brothers control 90% of the Budget allocations.

    2)While President handles the Cash Box(Finance Minister) of Sri Lanka….his daily personal budget alone is 20 Million Rupees per Day.

    3)No transparency on Tender precedures, to whom the contract are awarded to and with no Pre.Feasibility studies been carried out before commencing a project…..namely Hambantota Harbour, Airports, stadium, Nelum pokuna, Many roads and other constructions awarded with no informations as to what price and with what commission percentages etc..etc..

    4)Also land sale or leases without any transparency……and the commission percentages etc….

    5)I still do not know the LIMITS AND CAPACITY OF ECONOMIC DEVELOPMENT MINISTER…..AS THE WHOLE SRI LANKAN ECONOMY FALLS UNDER THIS MINISTRY.

    Starting from opening a small grocery store, to a selling of a retail box in super market (Nugegoda bus stand) or a vegetable box (lella) in a day pola…upto Free trade zone, hotels, clubs, apartments, airport, harbours, car parks, malls…etc..etc…all falls under the ECONOMIC DEVELOPMENT MINISTER.

    Also if the DIVINEGUMA BILL IS PASSED…..IT WILL BE A “SUPER MEGA ECONOMIC DEV. MINISTER”

    6)Defense secretary became the URBAN DEVELOPMENT MINISTER. Then Ratna Lanka Security service, Hotel Builder, Looking after Colombo Municipalty, Land scaper, In charge of all three defense services, police, prisons, military service for schools and universities etc…etc…

    THEREFORE THE WHOLE SRI LANKAN ECONOMY, ADMINISTRATION AND SOCIAL LIFE IS COMING UNDER THE FOUR RAJAPAKSE BROTHERS.

    THEREFORE CAN YOU EXPLAIN THE POSITIONS THEY ARE IN CHARGE TODAY….AND WHERE THEY ARE PLANNING TO TO TAKE THE COUNTRY.

    Also please see the following discussion ex. CJ Sarath N.Silva had with Dilka at Derana 360 talk show.

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

    You could see the rest of the clips if you type page= 1,3,4, etc.

    Just listen to the video clip and analyse yourself ….the president’s mind set.

    Also If you listened to today 360 program Dilka at Derana had with Minister Rajitha Senaratne(Video clip is not out yet)…………You will note what Rajitha say about President’s mind set…..which is come January 12th 2013 after the favourable Parliament Verdict….President plans to use even Buffalo solja…….to liberate Judiciary from CJ.

    PLEASE DO SOMETHING BEFORE IF YOU CAN TO STOP THIS……AS THIS WILL LEAD TO TOTAL ANARCHY…..AS THERE WILL BE NO WINNERS BUT ONLY LOOSERS.

    Please let me have your views.

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    Rajiva Wijesinha is on the wrong track. CJ and her husband had been making use of their position to enrich themselves. The charges have not been denied, and there is no other way to stop corruption by the highest official of the Country other than by removing her by impeachment.

    All those suggestions of Mr. Wijesinghe should have been followed by the CJ without any one having to say that to her. But the fact is she completely ignored them and took over the cases with which she had a conflict of interest herself. A Chief Justice should be moulded in good ethics and good moral. It cannot be given as friendly instructions over a dinner.

    The Impeachment is now in motion and it should be allowed to continue.

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    Mr. RW it is not necessary to make available rules, regulations and laws for each and every minor areas If the government is genuinely act in terms of good governance from top to bottom.

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    your suggestion for the future is very fine.The current question is ‘what is to be done now on what already has happened’.If we ignore them and take any action then future judges get the right to do the same and go unpunished.Certain charges are now public.These charges continue to be unanswered and much shouting is done on procedure, indiveduals,isultings, extra honour shown and given etc. Let these charges be answered and made public at least for the people to know the real situation.
    If charges remain unanswered one gets the (correct)impression that they are true. If they are true the best action for the person accepting guilt by nor responding to charges is to resign.The only other alternative is to continue with to impeachment.

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    If the elected government does not want an appointed CJ then the Government should have the power to remove CJ after all a CJ was appointed by the elected parliament. Look at all the anti government pundits and traitors trying to split hairs with the impeachment issue . Where were these pundits when the JVP and the Tigers were killing thousands of innocent people ? Where were these traitors when the previous government was prepared to hand one third of the country to the Tigers? Mahinda destroyed the terrorists and saved the country now all these pundits and traitors have got the freedom to undermine the government and try to defend a dodgy CJ. I ask the government to sack all these dodgy judges in the Supreme Court and Appeals Court and throw out the dodgy CJ and also kick the back side of the Black Coats as well. Media people give a place to my comments as you give a lot of publicity to the anti government forces.

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    Sudu Nandamma should better get married to Mervin and leave us all that seek the respectful life in peace.

    If you have a brain the size of a mustard seed, you should be able to differentiate the problems that the country after post war s been facing today.

    Not only Mahinda but any other previous leaders incl Premadasa could destroy the terrorists together with larger numbers civilians as killer minded Mahinda and bunch has done. I remember how the folks reacted after the insurgency of 89, but today, as it was towards the predominant minority folks – the masses still bend their heads to the incumbent ALUGOSUWA- president repeating his wisdom liberated the country from the terrorists.

    And the manner as your ilk of people interpret it – no any previous govt would have given parts of the country to the terrorists. If that was the case, why the CBK govt introduced the devolution package ? Devolution is the only way to peace for the all folks in the island. Federalism has been successful almost any western country sofar.

    If the current CJ should be dodgy, you would not find words to name the incumbent leader and the behaviours of his henchmen.

    So long, your ilk of people would stay as you are – they the rulers can brainwash you easily for their advantages, but leading the country to an another NORTH KOREA.

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