5 December, 2020

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Senior Most Judge Seeks Fair Trial For CJ

By Colombo Telegraph

Justice C. G. Weeramantry, former senior vice president of the International Court of Justice and the Senior Most Retired Judge in Sri Lanka, said yesterday it was essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing, the Sunday Times reported today.

C. G. Weeramantry

If any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing, that tribunal ceases to be impartial, Justice Weeramantry said in a statement amidst a growing controversy over the impeachment of Chief Justice Shirani Bandaranayake.
Justice Weeramantry said:
“As the senior-most retired judge in the country and as one who has been associated with the law both locally and internationally for 65 years I feel compelled to make some observations in regard to the current crisis facing the Sri Lankan Judiciary. It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.
“An independent judiciary is vital to democracy, for without it citizens lack the basic protections, without which a democracy cannot exist.
“The concept of judicial independence is not a one way street depending on the judges alone. It needs not only strictly independent judges but also a commitment by the state to respect and protect the independence and security of tenure of judges.
“The independence of the judiciary and their security of tenure are hard won rights secured after centuries of struggle against authoritarian regimes. Such hard won rights need considered attention and protection by citizens and governments alike. An independent judiciary is the last bastion of protection of the rights and liberties and the equality and freedom of every citizen.
“The following propositions, which are associated with the independence of the judiciary, are unassailable and require observance and protection in any democratic state.
“In the first place there can be no democracy in a country unless the rule of law prevails at every level from the humblest to the most exalted citizen.
“In the second place the rule of law is not present unless a fair hearing is available to every citizen who is called upon to defend himself or herself before a tribunal on a matter affecting his or her rights.
“In the third place there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.
“In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.
“In the fifth place the rule of law demands that every person investigated by a tribunal has a right;
to be informed of the charges
to know the evidence against him or her
to have a full and fair opportunity to scrutinize that evidence and to respond to it.
“A denial of any of the above factors vitiates the inquiry and its findings. Such an inquiry is a violation of the rule of law, a denial of basic human rights and a negation of democratic principles.
“So fundamental and universal are these principles that even the Universal Declaration of Human Rights spells out in Article 10, that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations …’ Since the Universal Declaration asserted this principle in 1948, there has been extensive development of it over the years in all jurisdictions committed to human rights and the rule of law.
“Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness that is possible and it is the duty of the inquiring authority to ensure these basic safeguards which human rights demand.
“Traditional constitutional law depends heavily on the principle of separation of powers which gives each of the three organs of government a province of its own, with authority which is to be exercised without fear or favour.
“It is a prerequisite to the rule of law that each of the three organs of government – Executive, Legislature and Judiciary – must act according to the rules and principles set out earlier.
“As I have said in many of my writings and lectures, all three branches of government – Executive, Legislature and Judiciary – rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom. Every citizen from the lowest to the highest has the right to defend himself or herself before a patently impartial tribunal and with full knowledge of the evidence against him or her and with a full opportunity of scrutinizing and refuting it.
“In short unless all these principles are observed in an inquiry where security of judicial tenure is involved, there is profound damage to the independence of the judiciary with a resulting undermining of the rule of law and of democracy itself.
“This should be a cause of concern to every citizen and every institution in the country.”

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Latest comments

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    Not only the Judiciary but the Legislature has sustained serious damage to its credibility by manipulating a fraudulent trial of thsi nature. Being the law makers they should first understand the fundamental tenets of justice as set out by Justice Weeramantry.

    By engaging in a fraudulent trial where 117 have blindly signed a document without even reading the contents or not knowing the evidence they have compromised the trust placed in them by the people and violated the oath taken by them as members of parliment. They are destroying not only the Judiciary but the Legislature as well.

    The role of the Executive in this whole farce has exposed his interference in the judiciary and parliment. The Presidiency too is now tainted by this scandal.

    • 0
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      Send the all 117 jokers who blindly signed the impeachment motion to deaf and blind school for lessons on how to sign a document without knowing the content (blindly?. It looks like that their conscience is also that of Prez MR and that the UPFA is breeding robots as MPs and Ministers programmed to think and act like the Prez MR.

  • 0
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    As long as you dumb ass pundits keep preaching eloquent shit without any action (NATO = No Action Talks Only) the rulers will thrive in their shit road ahead hell.

    • 0
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      Very correct

  • 0
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    well said!

    Is it not a little late?

    Thanks god at least now!

  • 0
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    You don;t expect the members of thePSC to understand the fundamental tenets of indepedence of the judiciary or the procedure of inquiry into allegations against the CJ with their bias and limited knowledge or education.These are voices that will fall in deaf ears.Someone says the judiciary, legislature and the executive should work together Would that mean that the Judiciary and the Legislature dance to the whimps of the Executive.Already the Legisalature if you call it as most of the members part of the Executive damcing to the tune of the Pied piper.God save the People and the country

  • 0
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    Well said Sir! Unfortunately, your valuable comments fall on deaf ears.

  • 0
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    Sir,

    I value your sagacity and principles. But the operation takes place on a Constitution enacted more than 30 years ago. It provides for the very disorder and chaos which you express concern.

    I wish, you could have advocated a better process in 1978 for the then rulers to ensure the independence and the integrity of the Judiciary whether in appointing the right persons an /or the righteous conduct of Judges and making judgments in a manner that judges ought to do.

    In the recent past it is no secret that some of the big-wigs of the robed and bewigged community to be:

    (1) Philanderer, rob wives of others, get caught under the bushes of Diyawanna and prove that the decision of any case depends on his fancies and he could find the law for it.

    (2) Philanderer, not necessarily rob wives of others, draw the salary here while working abroad, hear cases of persons with whom one has commercial dealings.

    (3) Getting involved in conflicts of interest. Commercial trickery. Making incorrect declarations etc. etc.

    The fact remains Sir, Nobody is clean enough to cast the first stone. We have lost our integrity as a nation.

    • 0
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      yes, Jayagath Your point is very correct. It is typical of these bigwigs like Weeramantry to stay quiet all this time and now start crying out when his words would definitely fall on deaf ears.

      Sarath Silva ruined the judiciary for a full ten years. Asoka de Silva took it further. At that time, if these brave words had been said, they may have made some people at least sit up and take notice.

      Now we are trying to lock the stable door after the horse has bolted!

      This is a good failure of the so called intellectual class in Sri Lanka

  • 0
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    When the system of people becoming MPs is corrupt, and only corrupt people can now become MPs and party leaders decide who are going to be the crooks to be listed as would be MPs, how can the legislature become the agent of people’s sovereignty?

    This system must changed. Crook MPs will not agree to kill it. It must be an extra-legislative solution.

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    I am not sure who this call/opinion is aimed at because the uncultured and uneducated hooligans in the government and the thug president won’t be listening and changing their actions.

    The only way to save the country is by overthrowing the dictatorial Rajapaksa regime by any means without delay.

  • 0
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    So if we lie to the government it’s a felony.
    But if they lie to us its politics.

    ;)…..was introduced as a fraud; it has been nursed as a fraud.

  • 0
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    Rule of Law?
    Where is it? How were 16 prisoners shot dead,while a few were in handcuffs?
    How were 11 who had been called out by name,shot dead next morning before dawn?
    Who ordered both massacres?
    Why were students arrested at Jaffna University,not produced before a magistrate within 48(earlier 24)hours, and are even now being held incommunicado?
    When there is no commitment for Human Rights and Rule of Law,how are suitable persons who have not expressed opinions on the impeachment to be found?
    Prof.Weeramantry is living in a ‘perfect’ world.
    But what he suggests is not possible.
    Cannot he suggest some names – even of foreign juriats who will give impartial opinions?

  • 0
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    Mr Weeramanthri and all the learned legal minds in this country,
    IS THERE ANY WAY OF GOING TO THE SUPREME COURT, TO OVERTURN THE JUDGMENT GIVEN BY THE EX CJ . ?
    HOW CAN ANY ONE ASK FOR OUR VOTE BASED ON PRINCIPALS X EXAMPLE CAPITALISTIC VALUES AND IF , AFTER WINNING JVP OR LSSP PAYS THE m X AMOUT OF MONEY UNDER THE TABLE AND THE MAN SITS WITH THEM., IS THIS NOT CHEATING US OF OUR VALUABLE FRANCHISE TO VOTE FOR A SET OF VALUES/PRINCIPLES WE BELIEVE IN?

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