15 August, 2020

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Remote Control Of Justice

By Basil Fernando

Basil Fernando

Next Saturday, the Bar Association will meet to discuss the resolution of non-cooperation with anyone who may be chosen to be the next Chief Justice in the event that the incumbent Chief Justice is impeached.

While that matter is being considered, a question may also be asked as to whether any person with integrity and commitment to the rule of law and independence of judiciary would want to become the next Chief Justice, or a superior court judge for that matter, in such an event. The responsibility of the superior court is to uphold the rule of law and the independence of the judiciary. Their primary task, of course, is to safeguard the individual liberties of all citizens in the event of those liberties being threatened by the executive. Such a task would become impossible in if the judiciary is reduced to being a stooge to the executive. There will be a fundamental contradiction between the very meaning of being a judge and meeting the expectation of the executive to serve it wholeheartedly without regard to whatever implications that may have on the individual liberties of citizens.

It is an unfortunate fact that, in Sri Lanka, there is such an attraction for higher positions and status. In popular drama and other works of art, this is often depicted by the character of the “arachi”, who has such a great love for his black coat and the silver buttons. It is unfortunate that, in the past, when there was competition in the elite families, becoming a judge in a superior court was considered more from the point of view of family prestige rather than from the point of view of onerous responsibilities that are inherent in holding such a position. The seriousness of responsibilities is symbolized by Thomas More, who has earned the title of “man for all seasons” due to his willingness to give even his life in defence of a principle.

When the judiciary is expected to play a stooge’s role, it will not be a symbol of honor or prestige, but rather a symbol of shame and willingness to sacrifice integrity for the sake of  demonstrating loyalty to the executive, irrespective of whatever burden the executive may cause on the liberties of the citizens.

For the legal profession and the judiciary, their role will significantly change as, by a final act of callous disregard for the rule of law and the independence of the judiciary, the Parliamentary Select Committee – members representing the government – have declared the Chief Justice to be guilty of some counts, despite the opposition members and the Chief Justice and her lawyers have refused to participate in the committee proceedings after raising very serious matters of principle. The Parliamentary Select Committee report, according to a government spokesman, is supposed to contain a hundred and twenty odd pages. The spokesman has also claimed that the document contains the arguments of law on the basis of which the PSC arrived at its conclusions. It is an amazing feat of genius for these seven members from the government, none of whom have any claim for proven intellectual excellence, to be able to write such a report within just a few hours.

The truth seems to be that the report was written by others and was already written before the inquiry was concluded. As for the finding, the public already knew that it was already predetermined from a higher source than the seven members of the PSC.

The most important criticism is that the PSC has pretended to be an impartial tribunal when it is not.  Not only the conduct of the proceedings but also the manner in which the final written document was prepared demonstrated that it was not an impartial tribunal.

This matter is significant as, with the executive subordinating the judiciary to its will, even the basic procedural aspects that people are used to expecting from the courts are likely to disappear. I am reminded of watching a trial at a Cambodian court at the time of the United Nations transitional authority in Cambodia, which was expected to assist Cambodia to recover from the losses suffered under Pol Pot’s regime.

It was a trial for theft. The evidence consisted of reading a confession supposed to have been made by the accused, who was still a teenager, and the only defense allowed was to give reasons for reducing the sentence. When this was done (trial lasted an hour or so) the judge retired to his chambers and returned in 10 minutes. Then he began to read from a written text consisting of several pages. Obviously, the verdict had been written before the trial. When this matter was raised with the then Minister of Justice in Cambodia by the UN officers, the Minister explained that he did not rely on these not very qualified judges and that the verdicts are written in the Ministry of Justice, in which he had a few more-qualified persons. He further explained that if a person was already not found guilty, they will not bring him to a trial. The trial presupposed that the person was guilty. This Minister later expressed this same position to a Phnom Pehn Post journalist, who reproduced it in an article during the time.

The implications of having a stooge judiciary are similar. In a recent PhD thesis, which was received with honors at the Australian National University, Dr. Nick Cheesman writes a whole chapter on court proceedings in Myanmar, which he described as juridical proceedings in a marketplace. Long years of dictatorship have caused the loss of fair trial In Myanmar and today the young lawyers with whom I had a few discussions with could not even grasp the meaning of what law is.

All these are the considerations that Sri Lankans should face now. In fact, sober reflection would reveal that the impeachment proceedings and the verdict have nothing new in them. The causing of the forced disappearances of Prageeth Eknaligoda, the killing of the Sunday Leader editor Lasantha Wickramatunge and all the other episodes that are so commonly known to Sri Lankans are illustrations of a radical transformation of the manner in which “justice is meted out”. In an earlier article I have mentioned that since the start of the forced disappearances of persons, which started with the large scale killings in 1971 under the coalition government, heinous crimes have begun to be considered as legitimate actions. What is new in the impeachment motion, proceedings and verdict is that this common phenomenon of lawlessness has found expression in a dramatic manner that no honest person can ignore.

The path for the rule of law and the independence of the judiciary lies now on the courage of the lawyers judges and citizens to actively engage in continuous non-cooperation with all schemes of illegality that the executive wishes to pursue. In the past, the great legal minds were tested by the cases they win and the precedents that they may help to create. However, in the midst of such lawlessness as now, the test of those who help to create the rule of law is a firm commitment to reforms. This alone is the only legitimate path open to anybody with a conscience and a sense of integrity who wishes to take any steps on the path of law.

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Latest comments

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    Todays papers carried a photo of John Amaratunge in friendly discussion with the President at a function held by the speaker. Dayasiri joking with Modawanse. I wonder if we can believe and trust any of these politicians. To them this is all game, a life of lies and deception while the sovereign people have to sweat it out.

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      Safa:

      Yes, I saw the photo.

      This is the same crook Who rigged all the elections by rigging the UNP votes…..and Bought over 60 UNP’s to cross into their party by giving unknown amount of bribery ……..and constantly tear gassed, water cannoned, batton charged and sent many UNP supporters to hospital during the past protest marches….and now putting the arm round the shoulder of a UNP member and taking photoes.

      I am still confused as to say if this is Birds of feather….or…..
      real wolf in sheep cloth.

      Anybody’s guess.

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      Safa

      I understand what you are talking about. You should also know that where we came from…We are Rude,Ruffian King Vijaya’s desendents and we still carry that blood.

      Ever since we got Independence, our Socially, morraly and extremely jealous,negative, degenerated, selfish, politicians ruined out country.

      The first a..ho..SWRD Bandaranaike who along with D.A. Rajapakse (President Mahinda Rajapakse’s father) left UNP to form his selfish LSSP party, brought Sinhala only policy in 24 hours…and ever since that our country went down the drain.
      And for doing this great sin he payed the ultimate price by getting shot by Somarama a buddhist monk.

      The Britishers are the first to build tar roads, railway, Tea,tea plantations, bunglows, Rubber plantations, Schools, Universities, Libraries, Hospitals,medicine, Churches, Electricity, water, gas, brought in cars, trolly busses, lorries,Helicopters, planes,Police, Army, Navy, Airforce, Courts, parliament, Cricket, football, netball, rugby, athletics,swimming,golf, cadating, scouts, dams, furniture, cement, Radios, record players, movies, cinemas, shoes, shirts and slacks, hotels, bunglows, guest houses, glass, plates,pots and pans, fork and knives,flour, bread, cheese, cakes, butter, wisky, elephant house soft drinks, banks, Pens,western music, weddings, pencils,telephone,telex, post office, harbours, airports,etc etc. …..I could write a book.

      BUT WHAT I WANT TO SAY IS AFTER DOING ALL THESE FOR SRI LANKA WITHOUT BORROWING OR TAKEN A SINGLE PENNY ON LOAN…..I MEAN WITHOUT BORROWING A SINGLE PENNY FROM ANYBODY, STILL OUR UNAPPRECIATIVE, UNCULTURED, THUGS WHILE STILL USING ALL OF THESE WHAT THEY GAVE US FREE….STILL BLAME WITHOUT ANY GRATITUDE JUST FOR THEIR POLITICAL GAINS.

      THIS IS THE CURSE THAT OUR COUNTRY IS PAYING TODAY….OUR BAD, SELFISH, UNGRTITUDE, SWOLLEN HEAD,INSANELY PROUD, BAST..DS.

      If the politicians would have allowed us to learn in english medium…..all our town and village women would have gone to Europe, USA,Canada or Australia as Nurses or montessori school teachers or baby sitters which those countries still have a very good demand…..but with no proper english education now they go to Middle East as servants….and those house maids are our main foreign exchange earners. Even Bangladesh, India, Malaysdia and Phillipines have curbed sending their women to some of these ME countries…but the ‘cursed’ Sri Lanka Govt. still send them. ALL BECAUSE OUR SWOLEN HEAD BAST..DS DON’T KNOW HOW TO APPRECIATE AND BE THANKFUL.
      IN FACT OF LEARNING THEIR TALENTS AND GOOD OF THEM…WE TRY TO SHOW OFF TO THEM THAT WE ARE MORE BIGGER THAN THEM. IF NOT FOR THEM OUR POLITICIANS WILL BE STILL GOING IN GON KARATTA (Bullock Carts) eating Aggala and wearing Amude, Holding King’s Pandama.(Koppara Lamp)

      I WILL BET YOU TODAY…NOW… IF WE EMPLOY TEN QUALIFIED BUSINESSMEN FROM ENGLAND OR USA…..THEY WILL DEFINITELY DO A BETTER JOB AND WILL DEVOLOP THE COUNTRY MUCH MORE THAN THE 225 PARLIAMENT PIN PADI JOKERS WHO ARE EVER SUCKING PEOPLES BLOOD MONEY DOING ABSOLUTELY NOTHING. INFACT THEY ARE A BURDEN TO OUR COUNTRY WITH ALL THE CORPORATIONS THEY RUN ARE RUNNING AT MULTI BILLION RUPEE LOSSES TO THE COUNTRY. THEY ARE NOTHING BUT RATA KANA KELAWADDAS.

      I BET TEN EUROPEAN BUSINESSMEN WILL DO THE 225 parliament MP’S JOB AND WILL BRING OUR COUNTRY OUT OF THIS CATESTROPHE.

      SUBA ANAGATHAYAK…….G.N HAR K.

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        Dear Jayantha, Your comment and information are very correct to me though I am from a remote village. However, majority of less educated and low educated both rural and urban folk never understand the gravity of the situation..due to some selfish roles played by highly educated professionals/officers in the state sector. Sri Lanka lacks the quality people both at politics and administration. We remote villagers are in dark.

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    A good presentation.

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    THE MUD HUT OWNERS SHOULD RETURN TO THEIR HUT TO SING “SONDURU GAMMANE’ ME’ THAAMA NATHA RAAVUNE’. YES FOR SURE IT WILL BE DARK FOR A WHILE WHEN THE MAYAN PREDICTION IS VERIFIED.

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    As far as the lives of rural Sri Lankans go there is no difference between remote controlled chief justice independent chief justice. Hardly a whimper from the rural areas, where this regime gets it votes. Bread and butter issues dominate the lives of rural folk countrywide. The Impeachment of a Chief Justice, is hardly worth any thought. Only people in and around Colombo are crying foul. But then again Colombo people never gave a damn about villagers other than when bargain hunting for domestic servants. So why should the rural folk care? The regime knows this.

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    The denigration of the Chief Justice by members of the PSC with words ‘pissu gani’,’an eve who had more than 20 adams’,’nona’etc.
    reduced the ‘trial’ to a farce, and probably,purposely inflicted,to compel her to withdraw from the proceedings.
    This was successful and enabled the PSC to call ten or more witnesses in her absence,without ‘danger’ of cross examination – though earlier the president had said that no witnesses were to be called – so that an ex-parte ‘trial’ could proceed, which did happen.
    The verdict is a foregone conclusion.

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      It is important to note [also] that it is a fimrly established Judiciary Principle that: Ignorance of a law is not a lawful excuse for breaking it [or, even a failure to enforce it]! Why, should that matter? Because, We The People are subject to these laws and our own leaders refuse to even read them or familiarize themselves with them after [supposedly] themselves having devised them . Isn’t something strange with that concept? Doesn’t it bother anyone?I wonder how many of our legislators even read The Constitution before swearing to uphold it do you think any? Well, I don’t! Heck, why should they they have no intention of living up to it! After all, its just another dirty rag to them for wiping their Fascist boots on, when arriving in Washington.

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    I give below a picture of how the Parliament is comprised and the rest of the Govt. VIP’s and Senior Executives:

    1) Sri Lanka Parliament consist with 225 members which is the most highest in the world representing mere 20 million people.

    2)Over 100 parliament members are cross overs from other parties….bribrd with unlimited amount of money paid by the President.
    Most of them are jiust idling and many have not spoken a word for two years.

    Highest payroll, perks and benefits including additional security,luxury vehicles, house allowance and free electricity, telephone, water,Health, full pension after 5 years, childrens education etc. all met by people’s money.

    3)Speaker of the parliament-Chamal Rajapakse- President’s Brother – Ex Poliofficer turned into Security Officer after retirement ( Academic Qualifications unknown)

    4)Govt. PSC member – Wimal Weerawanse ( Grade eight school drop out another cross over from JVP)

    5) Govt. PSC HEAD- Anura Priyadarshana Yapa ( Low end Lawyer hearing cases on moonshine-illicit Arrack/ drug peddling etc.)

    6) Minister of Social Affairs – Mervin Silva( No academic Qualifications…doesen’t show even studied upto grade five, except paid to somebody and wearing a fake Dr.rate – another crossover from UNP)

    7) 90% of the parliament members do not have a basic Degree

    8)60% are low end traders, Bar and Tavern owners, race bookie owners.

    9)Minister of defense – Gotabaya Rajapakse- Presidents brother- Grade 10 ex serviceman employed in USA as office assistant.

    10)Minister of economic Affairs-Gotabaya Rajapakse- Education unknown…worked in USA as petrol pump attendent.

    11) MP Namal Rajappakse – President’s son.- Only Sri Lankan to score 98 marks ever in the history of Sri Lanka, answering the Law paper in a seperate Air conditioned room with a computer beside.

    12) Chairman Sri lankan Airline – Nishantha Wickremasinghe – President’s brother-in-law – former planter.

    13) FRormer Tea salesman of president relative now serving as Ambassador in a western nation.

    14) Central Bank Govenor – Ajith Nivard Cabraal – Former Chartered Accountant.

    Many to follow…. Also please contribute and add if you have any information.

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    Pissu (Mad) MARA thought the way he kicked out Mr.Pradeep Kariyawasam, he could easily kick the Madam CJ also.

    But sorry to say MARA with his uneducated, uncultured and gon(Mad) harak (cow) mind jumped into the Goo(shit) bokkuwa(hole) thinking it’s a peni(honey) bokkuwa(hole).

    Poor Ass H..le now looking for his only hope Kudu and Badu kelani pachha Mervin Silva to win the case by threat and violance….which will never work and will ground him more into the goo(shit) bokkuwa(hole).

    The more earlier he realise this the better.

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    Safa,

    My hat off to you sir/madam

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    Adverting to the previous comment,I endorse his view that none can be trusted.They all hoodwink the gullible masses.The pole Vaulters had no shame and the judiciary with the great buddhist who omits one of the five precepts womaniser Sarath Silva allowed cross overs.
    SL Gunasekera is the only man so far who has displayed principles and its he who suggested not to co operate with anyone who accepts the post of CJ if the present CJ is impeached based on a sham inquiry by some nitwits who never appeared in the SC.NONE OF US DEFEND THE PRESENT CJ AS STOOGES IF SHE HAS COMMITTED ANY WRONG. TO SAY THAT SHE WAS CORRUPT, A PROPER INQUIRY MUST BE HELD WHICH IS TRANSPARENT FREE OF BIAS AND IF FOUND GUILTY SHE MUST BE REMOVED.ALL WILL BLESS SUCH AN IMPEACHMENT,NOT THIS MOVE BECAUSE SHE PRESIDED WITH TWO OTHERS WHO CONCURRED AND INTERPRETED THE LAW WHICH WAS NOT TO THE LIKING OF A CORRUPT SIBLING OF THE RAJATHUMA.
    THIS ISSUE MUST BE LOOKED AT WITHOUT PRECONCEIVED AND EMOTIONAL NOTIONS BUT ON A PPRINCIPLE AS THE JUDICIARY IS A VITAL COMPONENT OF A VIBRANT DEMOCRACY.THAT TWO SILVA DESTROYED THAT IS NOW WELL KNOWN AND THAT ASOKA SILVA PLAYED BALL AND IS NOW ROOSTING IN THE PALACE IS ALSO KNOWN.SHAME ON THAT SPINELESS FELLOW ASOKA WHO SOLD ALL OF US DOWN THE DRAIN

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    The duplicity of our politicians is once again revealed

    “The letter sent by Matara District United National Party (UNP) parliamentarian, Mangala Samaraweera, to the Commonwealth Secretariat, requesting its intervention to investigate the impeachment proceedings against Chief Justice, Dr. Shirani Bandaranayake, had not had the approval of the party top command. According to President Mahinda Rajapaksa, this fact had been personally disclosed to him by UNP Leader Ranil Wickremesinghe, who had lamented that he had not known about Samaraweera’s letter to the Commonwealth.” DBSJ Blog

    Therefore it is clear that whatever the feelings of the people our politicians are undermining the whole affair by their own understandings and arrangements.

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      Safa,

      Looks like politics in Sri Lanka is a Mafiosa orgn… consist of Moles, Decoys, Dummyes and spies….. These are the ones who double screw, double tongue, double acting clownes who screwed the citizens and the country ever since Independence. They cannot be trusted anymore…. Period.

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    Long live King Percy and Prince Namal!

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    Who is going to win?
    Tsunami Hora or Baby Nona?
    It is interesting to watch.
    Anyways, my heartfelt condolences to the citizens of Lanka on the passing away of Justice.

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    Basil Fernando’s is an extremist view point. He seems to ba calling for a rebellian by law professionals to create anarchy.

    Basil is very careful not to talk about the charges against CJ or how CJ’s husband received all those lucrative giovt appointments. Aren’t they bribes? Hasn’t CJ accepted them through her husband? Wouldn’t it be a mockery of justice for her husband to be tried by a judge whose career may be decided by CJ?

    The lawlessness in this instance didn’t occur with the impeachment process or actions of PSC. It started with the aforementioned dealings between govt and CJ+her family. CJ has compromised her position long ago with such dealings.

    The walkout by CJ seems to be a strategy to discredit PSC though it does not reflect well on CJ who needs to demonstrate compliance & respect for existing laws, and applicable procedures/rules of legislature (as a branch of democratic system of governance). In my view she shouldn’t have even attended the public religious blessings and mob gatherings at Hulftsdorp which is more akin to political activism.

    This incident should not be used to create anarchy just because one opposes the current regime. This is especially so for law professionals who have to be much more far sighted. The seeming hatred of Basil Fernando against MR regime seems to have blinded him in this instance.

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    This shows how divided and useless the UNP leadership is and shame on Mongol Samaraweera to act against the motherland and these traitors have to be taken to task sooner than the later.

    Whatever Mongol Samaraweera does to discredit the motherland, CHOGM will be held in Hambantota and the country will move into a new era.

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      This is an imposter

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    Was wondering why Leela has not commented till now. Guess it’s too much to comment based on her literacy level hence the single line… Another loser !!!!

    Mahela – I think you missed MARA’s qualifications, which is also a joke of the century…

    And Jayantha – Leave along the foreign businessmen, we have much more educated and successful Sri Lankan businessmen who will run this country to larger heights given the opportunity.. Unfortunately they are not politically connected.

    The man who takes the street for rallies and picketing does not understand the state of the current issues and the people who understand the plight of the country are unable to take the streets nor file a law suit since the judiciary is also at stake.

    It’s very sad to see Sri Lanka being ruined by a greedy family in power and a bunch of uneducated so called ministers and a powerless spineless opposition!!!!

    Though I don’t believe in the doomsday or the Mayan Calendar, I hope something happens to cleanse the crap out of the country!!!

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      Hitler,

      I am looking for MR’s qualifications. I know his final school was Thurstan College, colombo…but I don,t know upto which grade he studied and qualifications.
      Also I know he has LLB….but if has a Jenuine LLB degree he wouldn’t be acting this stupid. I am also looking for other MP’s qualifications.

      I suggest if they could publish their Academic qualifications in the Parliament Web or in a booklet form so public is aware of them.

      I also think upto certain extent Jayantha is right. It is Similar to having South African cricket coach and other foreign cticket coaches and the new SLC adviser we have.Their thinking is more broad and more methodical.

      Also most of the private corporates such as Uni Lever, Union Carbide, Glaxo Smith Clyne, Tobacco etc, etc,…. have foreign corporate consultants who operate from abroad.

      I myself have experience working under PROFESSIONALS AND I KNOW THE DIFFERENCE.

      THEREFORE BY EMPLOYING FOREIGN BUSINESS PROFESSIONALS TO GOVT. CORPORATIONS YOU AVOID GOVT. BUREAUCRACY AND RED TAPE …..AND THIS IS A MUST TO BUILD OUR AILING CORPORATIONS AND AVOIDING MEGA BILLION LOSSES AND START MAKING PROFIT WHILE REDUCING THE COST TO CONSUMER.

      Any suggestions…..

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