20 September, 2019

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Should The Dentists Conduct Trials?

By Basil Fernando

Basil Fernando

The state media continues their non-stop misinformation campaign on the impeachment move by the government. Several ministers also participated in this media campaign. The central topics of the campaign are that it is the charges that are important, and not the process – meaning that whether the inquiry took place by a competent and impartial tribunal does not matter – and that judicial review into the proposed actions of the executive, such as the Divenaguma Bill, amount to sabotage.

If this campaign approach is correct, then there need not be any trials regarding anybody charged with anything in Sri Lanka. All that needs to be done is for the public to debate on the charges. For example, if someone is charged with murder or rape or fraud, then radio programs should be held, where discussions could be conducted on these charges. Of course, in this instance, only those who are making the charges are allowed to speak in these programs. Even if it was otherwise, this would simply make the right of having a fair trial completely unnecessary.

In the same line as this argument was the statement of Minister Rajitha Senaratne, who said that Mr. Romesh De Silva, the Senior Counsel appearing for the Chief Justice, and the rest of the legal team, raised hairsplitting arguments before the PSC. What a dentist such as Rajitha Senaratne thinks of a legal argument is hard to imagine. Suppose a patient who goes to get medical treatment were to protest that the doctor is calling for X-Rays, blood reports, urine reports and many such tests, saying that all he needs is treatment for his illness, and that all these tests are a waste of time. This is similar to saying that the issues raised by lawyers are “hairsplitting”.

That brings us to the issue of why a fair trial is conducted by impartial and competent persons, and why certain procedures are followed. Fair trial is a legal concept. It involves many complicated issues, such as how the truth of a matter should be inquired into before conclusions are arrived at; what rights the person accused of charges has in the process of such an inquiry; what rights the lawyers representing both parties have in raising issues which relate to the legal process; and in what manner the impartiality of the tribunal and the competence of the persons to deal with all these complicated issues are guaranteed. Just as not just anybody can practice as a dentist (if it was otherwise, it would be a rather dangerous situation), similarly not just anybody can practice as a judge. If this is not the case, trials could be held by dentists or accountants or others, and that would of course be an absurdity.

Also, the absence of bias is an essential element of a judicial officer. Even a competent and experienced judge who has a bias relating to some aspect of a case is expected to step aside and, if they don’t, the final judgment will be held invalid solely on that basis. In the famous Pinochet case, the judgment was set aside solely on the basis that one of the judges had a previous connection with Amnesty International, which brought the case. There was no allegation at all that the judge deliberately acted in favour of the plaintiff. The mere fact of such distant connection was considered adequate for him to be disqualified.

All the seven members of the government in the PSC are naturally biased on this matter. In fact, if they were not so, they would not be allowed to continue as parliamentary members on behalf of the government. This is not a case where there can be any doubt about the bias. Thus, one of the cardinal principles of a fair inquiry was violated in this instance. This is like a relative of a murder or rape victim being the judge in a case relating to the same murder or rape.

The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, has mentioned the principles that are universally followed in the case of the removal of judges.

 “The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.” In her view, the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.

As regarding Australia, two law professors have summarized the principles followed relating to such matters in their country.

Professor Adrienne Stone and Laureate Professor Cheryl Saunders AO

Judicial removals are treated by the vast majority of governments with the utmost seriousness. As extraordinary decisions that must only be made in extraordinary circumstances, judicial removals must be treated with that level of seriousness.

Australian and international standards on the removal of judges from office clearly reflect a requirement that prior to any consideration by a parliament to remove a judge, a thorough, cautious, fair and independent investigation into alleged misconduct or incapacity by former judicial officers must take place.

Any procedure which does not fulfil that standard is inimical to the rule of law and the independence of the judiciary, and no government that refuses to afford its judicial officers these standards of protection can claim to legitimately represent its constituent people, or act with the legitimate authority which only the people may bestow upon their governors.

For their full statement, please click here

Now, as far as Sri Lanka is concerned, what is needed is to have a campaign through the radio or another medium on the charges.

Regarding the other aspect of the campaign, that the Divenaguma judgment was sabotage, there is no charge to that effect made against the Chief Justice. Anyway, by this it would be implied that all review of the proposed legislation would amount to sabotage if the judges gave an opinion adverse to the government. If the obligation under the constitution is that the judges should have favourable decisions regarding all the bills presented by a government, then, in fact, there is no purpose in placing them before the courts at all. The constitutional obligation is for the Supreme Court to say whether the proposed bill is in conformity with the constitution and, if that is not so, to declare it. Thus, these state media attacks on judicial review, calling it sabotage, are an attack on the constitution itself.

One of the purposes of the impeachment is to create a stooge judiciary, which means a judiciary that will not declare bills to be unconstitutional even if they are. It was on this basis that it was argued on the Sri Lankan state media that, in the United States, judicial review was invented by a “devious” and “cunning” person. It was argued that the United States constitution does not have judicial review. That judicial power implies judicial review was scorned. That is as if to say that someone having a nose does not imply that he can breathe, or that someone is an alcoholic but he does not drink liquor.

This whole approach of conducting an inquiry by way of giving the highest possible publicity to the charges is a dangerous and primitive practice, against all legal and ethical norms. Such media campaigns are hate campaigns and an incitement to violence. This will put Sri Lanka behind civilization by several centuries.

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Latest comments

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    In Rajapassa’s Miracle of Asia – the courts, the judiciary and legal system is redundant!

    Nahinda, Gota, Chamal and Basil Rajapakse’s and Namal’s Carlton sports racket’s massive corruption and conflicts of interest mean that they should all now be behind bars if the same logic is followed!

    NO NEED TO TRY THE CORRUPT RAJAPAKSE FAMILY, LETS JUST LOCK THEM UP and send the big three to the Hague for a war crimes trial!

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    Credibility of this dentist is well known.He was appearing on public media and fought tooth and nail for UNP and its leader even on the day before he was sold on auction.Soon after he was appearing again and did the same for the government without any reservation.What is very unfortunate here is still there are people to vote him.

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    This fool could not extract a tooth properly. Now he is trying to be a judge!!!

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      It appears that a simple fact has to be explained to everyone.Rajitha is a dental graduate and to be a dental graduate is not easy in Sri Lanka.They cannot be compared with the lawyer lot in Sri Lanka.In many western countries to be a lawyer one must have very high marks at the university entrance.Sometimes higher than what is required to do Medicine. This is not the case in Sri Lanka.

      In Sri Lanka those who could not get in to universities can get into the Law college.Those who enter law faculty are art students who were filtered before O levels as not fit enough to do science.
      So the argument is, even the best law man in Sri Lanka theoretically of a lower league in the IQ or studies.Certainly there are exceptions.

      So stop bashing Rajitha as a dentist!

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    Minister Rajitha Senaratne is annoyed with the judiciary because it had earlier given a ruling that his MP post was null and void, says the UNP Western Provincial Council Member, and President’s Council, Mr. Srinath Perera, as reported in the Ravaya newspaper. ‘ Mr. Dilan Perera in ‘98 filed action against MP Rajitha Senaratne. Mr Perera’s had alleged that due to certain irregularities, Mr. Rajitha Senaratne should be removed from Parliament.

    Thereafter, as far as I can recall Mr. Senaratne presented his case via Mr. Choksy in the Courts. The Court thereafter decided that Mr. Senaratne should vacate his parliamentary seat. Accordingly, Mr. Senaratne lost his parliamentary seat. Thus, we know that when MPS say that parliament is supreme, the judiciary has removed MPs from parliament. So how can they say that the judiciary cannot even issue notice s on MPs and that the Judiciary cannot look into parliamentary matters?

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    I am sure the Detist’s wife in her matter before the SC through her lawyers would have raised hair splitting arguments that the Dentist failed to understand. So he would not have understood what Romesh said. The other comic character the Ata Pass malakada Baas Booruwansa will not know the meaning of the words “Bias” “Prejudice” and so on. He must make some contribution at the hearing so he opended his foul mouth. The Dentist should have treated Booruwansa when the foul smell started to emanate from Booruwansa’s mouth. That was a job for the Dentist.
    Srinath

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    Should MODAWANSA conduct trials?What is his qualification?

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    Basil, you might have a 1950s degree from the Law school in Sri Lanka where all drop puts from Medicine, Engineering and Accountancy went as the last resort for a degree.

    You cant run down Rajitha Senaratna because he is a dentist. He would have done ten times better than you at the A Levels and he is a bright chap who can hear the facts of this case. She acted for her sister to get a 15 lakh discount from Ceylinco and let them off the hook at the Golden Key trial. If she didnot do these things she would not have walked out of the PSC trial. She had no answers.

    Most of all, Rajitha has teeth. And yours have been blunted by eating crap in Hong Kong.

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      Rajitha is the not a dentist – but more likely an oral patient. Alone listening to his speeches I feel, even if he could be a dental graduate, but he cant even speak good English.

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    Don’t take seriously what pscho says. He talks tosh, because he is psycho.

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    At least this fellow is a dentist, what about Wimal Monkeywamsa the SL parliment jester??? Should Monkeys conduct trials???

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    The evidence of 1.5M discount could be a ploy arranged by government by giving that Director something like “cash” or “Threats” How can we believe that he gave clean evidnce. If it is refpected in their books of accounts we can believe
    Srinath

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      Yes this is very likely, mere heresay. The books will have to be examined in detail to ascertain how many others have been given discounts. It is not possible to just take the word of a persson without objective evidence.

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    Quote-The state media continues their non-stop misinformation campaign on the impeachment move by the government. Basdil.F of AHRC

    Basil goes to Kade daily with his rhetorics for his Principals pay masters who pay him through Denmark.

    Where Basil is concerned there is nothing called a ” Free Lunch”.
    One has to sing for it and he certainly does.

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    This is what another jackass has to say

    Minister of Co-operatives and Internal Trade Johnston Fernando stated that the impeachment motion is similar to the plastic crate issue.

    The minister also stated that the Chief Justice is acting and that she has a month to resign from her post. The minister made it clear that if she fails to do so she will be sent out of her post.

    Speaking on the plastic crate issue, the minister stated that the move is successful and people who do not use them are being prosecuted. He further stated that information regarding such raids are not released to the media due to problems which may arise.

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    [Edited out] Basil,
    …….

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    http://colombotelegraph.com/comments-policy/

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    This is the problem in Sri Lanks doctors think they are the only one know about medicine and treatments’ same as Lawyers think they are the only one know about Low any person can learn any area if he or she have interest.
    Unlawful thing happening harming to People every one can understand
    Don’t try to defend Accused Charges wants go away no matter who investigate

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    If a crook can be a CJ why not a dentist. What about a Jury then. CJ was the one who opened up war fronts in social media, NGO circles, diplomatic fronts, and sought divine help publicly rather than face the charges with a dignity of a judge. Reason: The charges are true and she cannot defend them even with the assistance of whole Kothalawala legal team.

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