25 August, 2019

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The Disappearance Of A System Of Law

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

With the dust uneasily settling over a legal community thuggishly coerced into fuming silence, an unjustly ousted Chief Justice Shirani Bandaranayake may yet be proud.

Disastrous steps in a dictatorial journey

Despite overwhelming odds, she succeeded in uniting a deeply divided Bar, rallying judges to her side, provoking strongly worded editorials and unexpected protests from the normally quiescent business, investment and employment sectors, quite apart from religious leaders and concerned citizens.

Most of all, her dogged determination not to resign effectively pushed the political leadership over the brink, forcing it to take a series of disastrous steps in a dictatorial journey that surely cannot continue for too long. For, if any among us believed that President Mahinda Rajapaksa would have been capable of a statesmanlike stepping back from the brink which would have instantly turned hostility into accolades, those naïve illusions were dispelled in no uncertain terms. As security personnel peered into the vehicles of lawyers and judges entering the superior court complex this Tuesday as much as if Bandaranayake was hiding under the seat and the entirety of Hulfsdorp resembled a war zone with lawyers not being allowed freedom of movement, no reasoned person could profess ignorance of the iron hand now thoroughly out of the velvet glove.

Janus-faced weapons of threat and promise

That the political leadership is well aware of the deep anger felt by the legal community is evidenced by the use of its customary Janus-faced weapons of threat and promise. Thus, even as threatening letters were sent by vigilante forces to lawyers at the forefront of the anti-impeachment struggle, empty reassurances were made by ministers that the constitutional process relating to impeachment of superior court judges will be overhauled. And from farce we progressed to unbearable comedy as a National Human Rights Commission, which has manifestly failed to live up to its statutory responsibilities, solemnly announced that it will initiate a reform process. These games may be entertaining to those who paddle where the Government tells it to go but they are scarcely credible.

Of course the Government would not have been so hard pressed if it had been able to coax a convenient resignation of the ousted Chief Justice, which indeed was the mistaken basis on which it first acted. The Minister of External Affairs and former law professor was reported to have stated this week that he was not proud of some of the actions of his former student. He may be unequivocally informed that the thinking citizenry is not only, not proud of him for his singular hypocrisy but further roundly condemn for his allegiances to and justification of a political leadership that, much as the Nazi boot did, engages in mercilessly grounding and stamping democracy into the dust in Sri Lanka.

From start to finish, this impeachment process was riddled with impropriety and at certain points, distinct illegality. The resolution was framed without formulating the charges in the expectation that the Chief Justice would be pressurized to step down. The hearings violated the right to natural justice in almost every conceivable way, despite President Mahinda Rajapaksa’s repeated mantra that the constitutional process was followed to the letter. Finally, in the ultimate idiocy, the wrong resolution was reportedly voted upon by the House on 11th January 2013. The Minister of External Affairs, who is blind, deaf and dumb to all these happenings, is a living example of the deplorable limits of seeming intellect. Such is the stuff of unreasoned ambition.

Recovery of the democratic spirit

Meanwhile, it is interesting that alarm cries raised in regard to the judiciary struggle have raised skeptical eyebrows in a context where the summary disposal of a Chief Justice may seem to be somewhat dry and legalistic as compared to the decades of still unresolved killings, disappearances and extra judicial executions.

Some time ago, this column posed the question as to what was worse, the disappearance of individuals or the disappearance of a system. Answering this question has great significance now more than ever. The horrors of the Southern disappearances in the eighties or the tragedy of Tamil civilians ruthlessly dispensed with as ‘collateral damage’ in May 2009 are events that a country could still recover from if its systems and its citizens have the inner strength to withstand barbarities of a period.

We saw this in 1994 when Sri Lanka shook off a dark decade of the Southern terror, ushering in a new government on a mandate of peace. That Chandrika Kumaratunga failed to deliver is another question altogether. But the important fact was that Sinhalese, Tamils, Muslims and others dared to hope. And they did so because, despite the brutalities, the country’s judicial institutions remained essentially intact and before long, judges and lawyers stood up for what was right. Flawed as it was, the notion of justice had not yet disappeared from the turning of the legal wheel. Consequently, from the mid to late nineties, the Supreme Court did the country proud in asserting the rights of all citizens, minorities and majority through voluminous jurisprudence that could have held its own anywhere in the Commonwealth.

Such recovery of the democratic spirit will not be so easy now. Ironically, we have not only a former Army Commander declaring that he is the actual President with the incumbent being a rogue president but also an ousted Chief Justice raising a similar cry. In that context, the promise made to uphold the Rule of Law and the legal system by Sri Lanka’s new Chief Justice, former Attorney General and legal advisor to the Cabinet Mohan Peiris sounded particularly hollow, even given the cynicism that normally attaches to these statements.

The repercussions of dissent will continue

So while it hectors to the Bar quite spine chillingly not to use the courts as a political platform, the Rajapaksa Presidency has ushered in the ‘disappearance’ of an entire system. The institutional memory of an independent judiciary will be remorselessly erased and the very notion of legality lost, even though lawyers may practice and judges may ascend the bench. As much as an animal frantically struggles for the last time before it dies, we may look upon the events of the last few months as symbolizing a judiciary in its death throes. Consequentially, to underestimate the danger of what Sri Lanka is now facing only for the Sinhala majority but for the Tamil minorities, is to be abysmally if not myopically ignorant.

Granted that, given the nature of this regime, the result of the anti-impeachment struggle was a foregone conclusion. In an appropriate analogy, it would be as if during the recent FUTA struggle, the Government had sent the army into the universities. In regard to the FUTA demands, it was a question of ego with the administration’s arrogant refusal to back down. In the case of the judiciary, what was in issue was far greater, going to the root of the political survival of the regime. Naturally therefore, the tactics used and the methods employed were far more brutal.

Yet amazingly enough, the Bench and the Bar, even despite the Judas-like betrayal of the leadership of the Bar at a game-changing meeting with the President this week, threw its weight together in a unified stand which lasted for several months. That by itself, was near miraculous. This dissent is not momentary. Its repercussions will continue to be felt.

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Latest comments

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    The law exists only in word but not in sprirt. It is undermined and denigrated by the politicians in high office. Yet it is a calm before the storm. The presidiential mole has crept into the hallowed office of CJ. He is the eyes, ears and gavel of the executive. We are yet to see how he performs on the bench.

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    Oh he will do very well, as the dust settles down and our Sri Lankans realize that they have made a mistake in protesting wrongly, things will come back to normal.

    We are all always smiling even when we make mistakes. I was happy to see Wijedasa Rajapaksha nicely smiling and saying he is going to support the new CJ. So even the big man of constitutional law knows his mistake. He even told H E that he will support it seems.

    The new CJ has many detractors, but he wont be put off by acts of vengeance. The president picked him because he is a patriot unlike the former CJ and wont give in easily to foreign conspiracies.

    Also you know she is easily misled, being a woman and all but see he won’t be misled by NGO’s and other political fellows with stupid ideas.

    You see he was in Geneva and the US also telling everyone how we fought the war and how we kept the casualties to a minimum. Because of that there were no more problems from UNHCR.

    Look at his experience in Business, as AG, and all. So when cases which affect common people come up like Golden Key he will give good judgments. He can also teach the other supreme court judges also.

    Only problem with political cases. that he will support the government because they gave him the job no? Its all right for him to support because we don’t want people supporting eelam to win cases. Also there wont be fights with the president . He can finish cases over the telephone after discussing with the president. No need to embarrass the president.

    All is well that ends well

    Mama Gona

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    Love mama gona’s comment so packed with cynicism. Like him/her many have seen through the Rajapakse tactics. They regime have been given enough rope now to summarily hang themselves and all their puppet supporters. I see this take over of the judiciary as another milestone in the sure and steady decline of the Rajapakses. As stated in the article the velvet glove has been removed to reveal the ugly iron hand.

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    Great Article, Kisholi, as always has been. But only a few of us seem to be worry about the judiciary has been raped by MR and thugs. That is very sad actually :(

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    Sri Lanka will continue to move forward, if you say it is going backward then you do not know what is politics in the strategic location of the Indian Ocean, but listen to the foreigners who are the masters of dividing and fooling others. I have an obligation to support the President as a Sri Lankan intellectual. I do not take arms against fellow countrymen. I do not join with the foreigners to undermine fellow countrymen either. I work with fellow countrymen to change or develop the country. I lead others by my intellectuality and good deeds. Let’s ask ourselves one important question. What is the value of the Democracy and Commonwealth? The Chinese do not believe in democracy, nor part of the Commonwealth, but they are advancing much faster than us. The Westerners ruled and ripped off our country for more than 440 years, but they never done anything to eliminate the caste systems, gender inequality, and racial, language and religious discriminations. Because they knew it will continue to eat us and keep us under them forever. Furthermore, India the largest democratic country by its population created the Tamil armed groups to keep Sri Lanka under its wings. However, India also understood that letting the Tamil armed groups grow beyond its control would be detrimental to India. This is the reason Prime Minister Rajiv Gandhi reached a very good political solution for the Tamils’ issues in Sri Lanka under the Indo-Sri Lanka agreement. Unfortunately the LTTE did not see what Rajiv Gandhi did, because of the Tamil diaspora. The 2002 ceasefire agreement between the LTTE and the Sri Lankan government also broken by the LTTE. A reasonable political minded person knows that Prabhakaran would not have fought against India without the help of the Westerners through the Tamil diaspora. And also Prabhakaran would not have broken the 2002 ceasefire agreement with the Sri Lankan government without the help of the Westerners through the diaspora. If you can answer the following questions you will know who have most of the Tamils’ and Sinhalese’s blood on their hands. Who have been deliberately stopping the peace agreements? Who have been guiding the diaspora? Who have been fuelling “hate and bitterness” among the Tamils and Sinhalese? Who have been facilitating the funding to the LTTE, even though they had everything within their reach to stop money get transferred from the diaspora to the LTTE. The answer is Western political minds through their intelligence network. Think about the lost lives since 1987, think about the suffering since 1987, think about the lost opportunities to develop the country and people’s lives. The Westerners created bitter divisions among the Tamils, Sinhalese, and the Indians through the diaspora. The Westerners act like peace makers, but they are not. They talk about democracy and human rights to fool others, in order to turn people against their own governments to destabilise the developing countries. The truth is, the Westerners have a vital interest to divide every community and every country to rule others. There is a most ugliest face underneath their white faces, it is pure evil. Not many people have the ability to see their real face, but few of us do through our hard work and sacrifices. Ask Julian Assange and Bradley Manning, they will tell you more about the Westerners evil side. Julian Assange and Bradley Manning are Westerners, but they exposed the truth and ended up in a prison in the US and stuck inside an embassy in London, UK. Some Sri Lankans and some other Asians are backing the Westerners for their own self-centred lifestyle, they don’t care about their own people, or their motherland.

    The removal of the CJ is not something new in the world, it happens in the world, including in the United States. However, some eliments may use this opportunity to bring chaos into the country, in order to achieve their ulterior motives. Remember, few eliments were fuelling the civil war and benefited by the war, but not the Tamils or Sinhalese. We must not let that happen again. The president appointed the CJ, the 2/3 of the parliament wanted her to leave the office. If I was the CJ, I would have resigned once the parliament decided to remove me from the office. Taking this matter to the UN is not advisable. It is a new beginning for the CJ. The Chief Justice Shirani Bandaranayake has a huge potential. She has a lot to give for the country. She must get involved in politics and bring new ideas to the table. Lets people decide whether she is worthy or not. She must not go to the UN, but go to her people and put her ideas forward, in order to develop the country. She must not go to the enemies who divide others, invade others’ countries and kill millions of people to keep themselves on top. Do not go to the devil to get justice. I encourage every Sri Lankan to bring forth good ideas to the table to develop the country. If you want to get involved in politics to help the foreigners then you will fail utterly as Sarath Fonseka. Mr Fonseka recently reiterated that he needs outside help to topple the government. I am extremely disappointed by his statement. I urge every Lankan to stop listening to the enemies who divide us, they use every opportunity to bring chaos into the country to rule us. We must understand what is missing, then find a solution within us, looking outside will create more problem and chaos than a solution. The country has been fighting for thirty years, people are free from fighting for only three years. Just wait for few more years, be patient, you all went through the bloody war for thirty years for nothing. The Sri Lankans have been suffering from the independence, due to lack of smart leadership. As intellectuals, we are sharing our ideas with the leaders to make them act wisely, it is a process it will take time. I know very well about the parliament members, can we change those MP’s mindset overnight? I am also well aware that Rajapaksa brothers are dominating the country. Does it really matter if Rajapaksa brothers are developing the country? The extremely talented Sri Lankans will continue to direct the country leaders into the right path. The President does not have an answer for everything, but he has the ability to deal with the external threats better than any other leader, this is extremely important to the country, because Sri Lanka is in a strategic location, the past, the present and the future superpowers want to influence the country. Therefore, Lets approach matters very pragmatically for sake of the innocent people who have died due to the bloody war. The Tamils are in the bottom, because of their disunity. I never seen such a unity among the Tamils as I seen among the Rajapaksa brothers. May be we need such a close family ties to overcome the Westerners’ and Indians’ divide and conquer strategy. The Indians and the Westerners can easily fool the Tamils, because of their disunity. People like us who are enlightened and committed to bring a change can’t do anything. I am isolated by the Western governments. The propaganda against me are shocking, even my family members, relatives, and friends believe the Westerners more than me. Due to my writing the Westerners do not even allow me to get a job, they did not even allow me to sell my house for a profit, because they knew the money will be used to expose their evil deeds. They are keeping me in financial hardship and perfect isolation by their dirty propaganda. My fellow Tamils are keeping silence, they gave millions of dollars to the LTTE, but nobody would support me to have a website to expose the Westerners evil deeds. The Tamils are prepared to undermine their fellow Tamils, in order to cater their own self-centered lifestyles. We all know how the Tamil armed groups fought and destroyed each other, the TNA has its own agenda, the TGTE has its own agenda, Global Tamil Forum has its own agenda. They all concern about being leaders, they are not concern about the Tamils. If the TNA is leading the Tamils, then why TGTE leader call himself a Prime Minister for the Tamils? I am ashamed to call myself a Tamil. I really don’t believe the Westerners could have isolated me this much if I am a Chinese, because the Chinese are very close to each other, this is the reason the West could not invade China, or could not stop China overtaking the United States economically.

    The Westerners ruled and ripped off the Indian Subcontinent for more than 440 years, but they never done anything to eliminate the caste systems, gender inequality, and racial, language and religious discriminations. Four hundred years is very long time, at least 10-12 generations. The Westerners could have done a lot to the Indian Subcontinent, but they deliberately done little to keep the Asians under them. The Westerners have a lot to talk about the Indian Subcontinent’s failure than China’s communism, but they won’t talk about it, because it will highlight their deliberate misleading to keep the Asians under them, plus the Indian Subcontinent is not a threat to their dominant power, but China. “English are to blame for India’s backwardness” published by the Dominion Post, written by Philip Collins, on page B5, Dated January 5, 2013. The Dominion Post is one of the major newspapers in New Zealand. Not all the Westerners are naive or blind, there are people like Philip Collins who sees the Westerners’ evil side. The Indian Subcontinent has enough intellectuals to develop the Subcontinent, but the system won’t allow the intellectuals to lead. Therefore, the intellectuals leave the Subcontinent and develop the Western Countries. This system was developed by the Westerners, in order to keep the Indian Subcontinent poor and weak. We fought against the Westerners to have our freedom, but we still trust them, listen to them and run our political system according to them. This is a huge disaster. The Indians are too scared to change the manufacturing sector, because they don’t want another East India Company. However, they are happy to run a political system recommended by the Westerners. The Chinese are really smart, because they have chosen a political system to suits their culture and ideology. The Chinese did not choose a political system recommended by their enemies. We must stop listening and trusting our enemies. We must develop a system according to our culture and ideology, like the Chinese did, otherwise the Indian Subcontinent will be struggling forever. We must depart from the old system and bring some changes. Being part of the Commonwealth is only helping us to stay behind. Time for us to move forward, our policies are not helping the Indian Subcontinent to move forward as China. Am I recommending a communist system? Not at all, but we need some changes, if we come up with something good, the Indians may even consider our system in the future. We must find a way to lift the whole Indian Subcontinent. India can’t try something new, because it is too big. In India 627 million people do not have access to toilets, the Indian politicians do not even provide basic needs to their own people, but they believe in God and democracy, they are vegetarians too, but love their bribes. Sri Lanka is a small country, and its leaders are committed to their people more than the Indian leaders, at least the Sri Lankan leaders provide access to toilets to their people. As Sri Lankans we must try something new and help the whole Indian Subcontinent, otherwise we will be betraying our future generations.

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      great article Peter

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    All these anti government pundits are still talking about impeachment. Get a life you Morons and move on! The Ex CJ is history and lies in the dustbin of politics just like her new Guru Gonseka Fonseka, Remember both are finished, Kaput, Ende, Finis, Finale! But don’t you worry you Piss Heads another issue will come up or you will find one to attack the government of our Illustrious Leader and Great Helmsman, Mahinda the Great! Ha ha you simpletons something will come up for you to whinge about! Namaste, Salutaris- Your loving Sudu Akka signing off!

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    Aney! This woman seems to be having a deep hatred with Mahinda Rajapaksha. The whole article is like that.

    Words = Hate!!!

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