5 December, 2020

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Reducing Of Sri Lanka’s Judiciary To A Mockery

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Nowhere in South Asia or indeed the entire world (excepting in failed states) would a responsible government hire thugs and party supporters to jeer and hoot at the Chief Justice of the country while she was leaving the superior courts complex to appear before a parliamentary select committee considering her impeachment.

 

Yet in Sri Lanka, this is what happened a few days ago. Nowhere in the world except in pariah nations would government members of parliament have been allowed to verbally insult the Chief Justice (Sri Lanka’s first woman Chief Justice at that) and her lawyers while they were participating in the deliberations of a select committee.

Yet this is what is reported to have happened on Thursday. Unable to bear the continuous insults, the Chief Justice’s decision to walk out of the select committee proceedings must be commended. Her courage in facing such an inquisition with head held high must be recognised.

Spewing of vile abuse against the head of judiciary

This is the culmination of a process that has brought Sri Lanka tremendous shame and lent credence to the claims of its detractors who refer to the country as a democratic graveyard. For the past several weeks, the Chief Justice was mercilessly hounded by government media propagandists as they spewed vile abuse on radio talk shows.

Blatantly contemptuous placards were carried by three wheeler drivers and lottery sellers right outside the seeming citadel of justice on Hulfsdorp Hill. State protection was provided for all these acts.

The government appeared to have abandoned all norms of ordinary decency befitting treatment of a human being let alone a judge, let alone the head of the judiciary. It appeared to have turned virtually mad in its desperate struggle to counter what has turned out to be a huge embarrassment for it.

No wonder that judges and lawyers throughout the country rallied to the support of the beleaguered Chief Justice, from provincial Bars as remote and diverse as Matara, Anuradhapura, Kandy, Jaffna and Vavuniya.

It was as if with a rush, the legal profession and the judicial service particularly in the outstations realized the great dangers that they were in (at last) and decided to push against the rock of executive humiliation of the judiciary with determination.

Walkout of the Select Committee a foregone conclusion

From the commencement of this fiasco, the issue was less the constitutionality of the process, (regardless of the vehement submissions made by lawyers appearing in cases challenging the impeachment), and more the fairness of the procedure followed and the clearly political timing of the impeachment itself.
Certainly the impeachment procedures as constitutionally stipulated violates basic norms of fair adjudication both domestically and on international standards.

They deny an appellate court judge even the most rudimentary rule of law safeguards afforded to a common criminal. But in previous impeachments, convention and good sense dictated that an unwritten line of propriety was not crossed. Through its intemperate fury at being challenged, the Rajapaksa government has however put paid to that past practice.

In no seemingly democratic country would a Chief Justice be subjected to an impeachment process distinguished by the inquiry committee’s inability to prescribe rules of procedure for its sittings (as pointed out by its members representing the Opposition in the public interest), its refusal to open the hearings for public scrutiny in the interests of transparency and accountability and its reported refusal to allow the Chief Justice’s lawyers to cross examine witnesses cited in the documents filed against her or to allow more time for her to answer allegations contained in a thousand page bundle of documents. Her walking out of the Select Committee proceedings this Thursday was therefore a foregone conclusion.

No need for a contempt law now

From 1999 to 2009, we had a Chief Justice whose conduct in and outside Court as documented opened up the judiciary to unrelentingly harsh public scrutiny. And as much as water rushes out when the walls of the dam is first breached, former Chief Justice Sarath Silva’s successors could do little but pay obeisance to the executive. It was when the judicial tide turned as a result of one humiliation being enforced a step too far that we saw the avalanche of executive anger being unleashed.

The Minister of Justice has pontificated to the media this week that the government plans to enact a contempt of court law soon. But let it be clearly said that there is now little purpose for such a law. The primary aim of a contempt law is to protect the administration of justice and the dignity of the courts while allowing for reasoned and crucial debate on the functioning of the justice system. Yet the administration of justice has already been rendered a snarling mockery and the dignity of courts has been remorselessly stripped away by this government and its media hounds. Day after day, the Chief Justice is attacked beyond all norms of propriety with a government giving the full seal of its approval. A contempt of court law has become quite redundant in this post Rajapaksa impeachment climate as much as the concepts of justice and fairness have also become redundant. This is undoubted.

Painful destruction of an independent judicial system

Those who willfully turned a blind eye to the internal politicization of the Supreme Court from the year 1999 onwards, those who were foolhardy or blinded by their own interests to applaud the handing of a blank cheque to this Presidency to do what it would with Sri Lanka after the ending of the conflict and those who looked away when the 18th Amendment was enacted, should now rue their folly and culpable ignorance.
In previous columns starting from almost a decade ago, predictions that this precise fate would befall the Sri Lankan judicial and legal system if there was no course correction were greeted with shrugs and smiles from members of the legal profession. Some condemned these predictions as unnecessarily dire. Others were cynical enough to say that the system had survived despite past beatings.

But now as we see a Sri Lankan Chief Justice humiliated by common ruffians who hold the money which they were paid in one hand while they shout slogans with their other hand upraised, these complacent characters may well ruminate on their unfortunate inability to recognise the warning signals. This column makes no apology for repeatedly stressing the most coruscating lesson to emerge from this cataclysmic upheaval, particularly for those of us trained in the discipline of the law.

Even if new struggles are born as a result of the ongoing inquisition cum impeachment of the country’s Chief Justice, this is the comprehensive end of Sri Lanka’s independent judicial system as we have known it since 1948. It is a sad day indeed.

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Latest comments

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    Why did the Supreme Court approve the 18th Amendment within 24 hours.
    Surely 24 hours was not enough to consider this Amendment which overturned the constitution in favour of the Ruling Clique.
    The Court should have asked for at least a month – regardless of the “24 hour Rule”
    Do we have the FASTEST SUPREME COURT in the world?
    Only one MP from TNA spoke againsst it during debate and was drowned in a “Kottiya” chorus by government MPs.

    Why did not all who now object to the impeachment,NOT object to the 18th Amendment – which led to this ‘impeachment crisis?

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      Justice, a similar incident occurred in 1973 under the previous Republican Constitution which also had this ‘Supreme Court’s determination in 24 hours’ built into the constitution to speed up the legislative process. When HNG Fernando, father of the late Mark Fernando,J, tried to do a comprehensive examination of a new law which the government wanted to pass without delay, Dr NM Perera, Minister of Finance, announced in Parliament that it would not pass expenditure for the running of SC if it takes longer time to give its determination. Thus, poor HNG had to give SC’s determination within two weeks.

      Parliament with its power to control public finance of a nation according to its own wishful and fancy thinking without consulting the people immediately can threaten any public body with a huge penalty. This is not something expected of those who are trustees and not owners. But when systems collapse, wrong precedents established, and ethics and morality ignored, no better practice cannot be expected. Adam Smith, knowing this perilous outcome when mundane people with self interest at heart are given powers to rule others, prescribed in the Wealth of Nations that under no circumstances the legislators be allowed to reduce the salaries of judges, no can they increase such salaries without a pre-announced transparent plan.

      It is time to wake up Adam Smith and bring him back to SL.

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        An oldtimer:
        Thank you for that piece of history. Many of us who, in the old days, believed that NM, Colvin et al were the epitome of decency were disabused of such beliefs over the years!
        I don’t know about bringing Adam Smith back, but I know we desperately need to rid ourselves of the motley crew that is our cross to bear at the present time because they are not only venal, they are stupid, as well!

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      Kishali, do not despair! When Winter Comes Can Spring be far behind?
      Now that the Kangaroo Courts of the Diya-wenna Parliament run by the Rajapassa brothers have brought singular disrepute to the sovereign people of Lanka, the citizens, professionals, students, trade unions, joint opposition will give their response on the streets of Colombo in 2013.
      The Rajapassa brothers are increasingly discredited by the Kangaroo Court – just see the uneducated clown Chamal Rajapassa. The brothers are increasingly isolated from the party and fighting among themselves. Rajapassa has practiced MONEY POLITICS, but now the people have had enough of the corruption and want PRINCIPLED POLITICS.
      2013 will be the year that Lanka starts the long slow hard march back to PRINCIPLED POLITICS.
      Women should lead the way toward a return to PRINCIPLED POLITICS in Lanka, starting with support for the unlikely heroine – the Chief Justice.

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      It is Mahinda Rajapassa who should be impeached and his nasty brothers and sons imprisoned for corruption. Look at the corrupt crooks and conies that Chamal summoned as witnesses – Laltih Weeratunge and Nivard Cabraal – what a frigging joke – Kangaroo COurt!
      The Rajapassa bros. have overplayed their hand and the beginning of the end is in sight- Lanka will soon be liberated from the cursed family of corrupt war criminals !

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    Kishali seems to have got wrong information. The people did not hoot at the CJ . It was a demonstration and there is nothing wrong with a show against the CJ. None of the papers ever mentioned about hooting at the CJ. If the “Black Coat Sharks” can cheer and bash coconuts and make all the noise in the presence of the CJ, what is wrong in a demonstration. We agree that the CJ should not have been ‘insulted’ at the PSC meeting. In the same vein the CJ should not have got involved in Corruption and misconduct. There are 14 charges against her.Who will have 20 Bank accounts. And her husband is charged for corruption. In the past 3 Chief Justices had been probed in the same way. JR sacked 8 Judges with his new constitution in 1978. What did you say about that.
    P.A.Samaraweera

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      You probably was not in this world mate? see the well planned protest against the CJ by some dwellers from Peliyagoda who was organized by the learned Dr. Silva of Kelaniya and to shout for 500Rs and a bath packet.

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      Well the long and the short of it is she is not guilty of an impeachable of fence so it is hidden and , the class of the people in the committee shows the intentions. You get lawyers and lawyers. Mrs B let all the rif raf in parliament to get a semblance of authentication by letting the get a VIVA diploma from law college.
      The chairman of the committee what is his experience as a lawyer? Defending pimps and prostitutes? Even then the kind of language used his Kekille court would have been unacceptable.
      Some one please launch a campaign never to vote for any one who signed the petition . And those in the opposition who never did any thing and, above all never ever vote for those seven jokers.
      Samara seekers says it was a demonstration yes it was organized by one of the brothers and yes they did hoot you could hear the hoot on TV so I think you were the one to get your facts wrong

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      You are again talking history. JR did lots of wrong things including the constitution, and organizing or encouraging the riots against Tamil etc etc ,etc. so did Premadasas, and Chandrka and now these are taking those wrongs to another extreme. Learn to see and acknowledge wrong when you see it

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      P.A. Samaraweera:
      One of the good things about Australia is that it keeps buggers like you from the shores of Sri Lanka where we have too many of your kind. By the way, do your handlers pay you in Australian dollars or Swiss francs for your services? In any event, moronic utterances should not be rewarded in ANY currency!

  • 0
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    To All Opposition Party Members.

    We as devoted suppoters of Hon.Chief Justice ask for all your help be given to Madam CJ. She needs all your support including all the opposition parties, trade unions, Clergy, sudent unions, mothers movements, International community, Human right/ Amnesty , FUTA, Teachers Asso. all professionals Asso. etc,ect,

    It should be a collective effort to save our country from absolute tyranny and Dictatorship and from thugs and crooks like Mervin Silva, Duminda Silva, Sarath N.Silva ,G.L. Peiris etc.

    Therefore I have jot down few things that you may consider.

    1) Absolute intelligence gathering on Govt.movements as to security apparatus, Spies, Moles, etc.

    2) Constant communication with all the JSC, SC, Bar Association, CJ Defense Lawyers, all loyal opposition party heads, Religious Heads, foreign missions and exchange views.

    3) Safeguard Supreme Court Building and all the important file and information ans extra security for CJ, her family her defense Lawyers etc.

    4) Lay out Plan A,B, and C in case Govt. instigate violance to disrupt communities, opposition parties and Judiciary and others.

    5) Lay out Plan A, B, and C in case Govt. instigate another 1983 like riots which could lead to mass blood shed and arrests etc.
    Therefore work with USA, UK, India and EU and Malaysia if anything like that occures, to come into rescue. I think USA and India has RRF’s (Rapid reactionary Force) and to cordinate with them on rescue mission.

    6) To educate Masses, International Community, and the Sri Lankan Diaspora on developments on current situation through Internet,Web, Radio/ TV broadcasts and Print media. (The Video Clips appear in computer news briefs are very helpful)

    6) Both Offensive, Defensive and Legal knowledge to be used to win the CJ Trial, where CJ has to prove her innocence ONLY ON CHARGES 1, 4 and 5.

    She could have her Trial in front of a bench of senior supreme court Judges while having witnessed by Clergy, a segment of population, Bar Association ,UN, CW, and Diplomatic community and other necessary witnesses, and could be broadcast live on local and international TV/ Radio AND INTERNET.

    All these will prove if CJ is guilty or not, and the people and international community will accept the verdict.

    Hope you will consider this request.

  • 0
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    Now that the hora judgement is known the public needs to decide whether we are going to meekly submit to the dictates of this uncouth hooligans or standup for our rights and justice. The death knell of justice would mean that the Govt can pass whatever resolution within 24 hrs and get away with even murder. No need for a constitution or opposition.

    Parliment and a subdued Judiciary will merely rubber stamp their approval for every wish of this family junta. Moreover public moneys will be squandered without any transparency or accountability rendering the public ever more to rising prices and taxes.

    Still it is observed that the opposition is divided and slow to react. Strong leadership is required to counter this brutish regime. The critical mass of opposition and protest must be built up.

  • 0
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    Jayantha always writes sensible comments.The hanky panky Kekille court composed of court jesters refused the CJ the right to cross examine the socalled witnesses,refused her request for a public hearing, humiliated her with foul oncouth language and completed a one sided inquiry and found the CJ guilty.If it was open to the public we would have seen whether she is gilty or not.Their strategy of removing the Cj from outset was to intimidate her until she has had enough.When she showed her courage in the face of powerful Govt, MR was furioes.He got the two jesters to abuse her in filth. Yet she left the proceedings but did not resign.What a couragous lady.Rally round her to chase the Regime.I will not be surprised if they rob her of civic rights.These things happen only in failed States and hora countries.All what the CJ requested is a fair trial.The PSC kekille court cooked up evidence of financial impropririty with rogues like Nivard .Jayanthe please meet with the organisations you named.This is the only way to redeem a Nation in the clutches of a Monstorous family of crooks.

  • 0
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    Well the long and the short of it is she is not guilty of an impeachable of fence so it is hidden and , the class of the people in the committee shows the intentions. You get lawyers and lawyers. Mrs B let all the rif raf in parliament to get a semblance of authentication by letting the get a VIVA diploma from law college.
    The chairman of the committee what is his experience as a lawyer? Defending pimps and prostitutes? Even then the kind of language used his Kekille court would have been unacceptable.
    Some one please launch a campaign never to vote for any one who signed the petition . And those in the opposition who never did any thing and, above all never ever vote for those seven jokers.

  • 0
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    As long as a Chief Justice acts in the role of primus inter pares then there was no trouble. Those were the times in a 3 Judge bench, while the Chief Justice allowed a murder appeal, the other two judges who were appointed just the other day (Raw juniors) could dissent. Now!!!

    How many lawyers left the country after a particular person became the chief justice, (the lady is not referred to). The problems in the Apex court were simmering for sometime. In fact there were thoughts that the period of office in the Apex Court should be time limited. The moral degradation of the Sri Lankan society was taking place for some time. Judges too are a part of the Sri Lankan society.

    Demonstrations of the kind that is reported here nor impeachments for that matter is not warranted had people held on high moral ground. It must be quoted that the then Governor General Late Mr. William Gopallawa wanted to step down in 1968 or 1969 in the wake of his son Late Monty taking into politics. But the Gentleman of a Prime Minister Late Mr. Dudley Senanayake prevailed on Mr. Gopallawa that it was not a necessity.

    In the first place, the spouse of Chief Justice or for that matter even a spouse of a judge of any court of superior record,
    ( I think the Supreme Court and the Court of Appeal) should not be a part of either the executive or legislative branch of the Government. In short the activities of the spouse have to be curtailed so that conflicts of interests are avoided. Secondly, if a judge, or his/her spouse or children are charged in court on a criminal matter, the judge should obtain long-leave until the matter is disposed. The personal conduct must be above board (Not under the shrubs of Diyawanna!) so that not only justice is done but seem to be done. No taking sides !!! (Good example in the world: Queen Elizabeth II)

  • 0
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    Dear oldtimer

    do you remember the case involving HNG Fernando?

  • 0
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    In the days long gone by, husbands were liable for the wife’s debts, the wife’s property belonged to the husband and she could not deal with her property on her own. That was quite long ago.

    Even then it was never the other way round.

    As one said in one of these columns some time ago, if every woman is held responsible for her husband’s wrongs, then very few marriages would remain intact.

  • 0
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    You are a great lady and come out with truth. The idiots who go and nee down at MARA’s ass like samaraweera cannot look at the truth. Dr Mrs. Sriyani Bandaranayaka had very clearly and publicly had requested a fair trail in accrdance with the section 13 (#0 of the constitutiion. She had challnged that she will prove all charges melicios and come out with the truth. Hence , she should be allowed all nomai and internatinally accepted natural justice process. This has not been avail to her. This what the issue. Two previous cases they were allowed the clean natural justice process. Bloody bastrda Sarath Nanda Silve is the culprint and people shall take him to Gall face and stoned until he finish his this life.

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