22 June, 2021

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The Good News And The Bad News

By Kath Noble

Kath Noble

The good news is that there is nothing illegal about impeaching the Chief Justice. If one third of MPs sign a petition requesting it and one half approve the petition once it is presented in Parliament, the Constitution says that she has to go.

That’s reassuring isn’t it?

It is what the Government has been claiming, in any case.

Unfortunately, the bad news is that if Mahinda Rajapaksa can remove the Chief Justice for doing nothing more than failing to support him wholeheartedly, tomorrow it may actually be illegal to fail to support him wholeheartedly. For who is to stop him passing a bill to that effect? It won’t be MPs, that’s for sure. They are firmly stuck under Mahinda Rajapaksa’s thumb. And the Chief Justice would by then know better than to rule the legislation in violation of the Constitution, since to do so would be to guarantee early retirement.

The matter of proving ‘misbehaviour’ or ‘incapacity’ is totally insignificant in the circumstances, as the administration has demonstrated that it has absolutely no shame.

International scrutiny is laughably ineffective – the Government was perfectly happy to announce the impeachment attempt as its representatives were preparing to defend its record at the Universal Periodic Review in Geneva, where it was bound to attract condemnation.

Indeed, it seemed determined to antagonise its critics, as just days before Gotabhaya Rajapaksa had once again raised the prospect of repealing the 13th Amendment.

Let this be a warning to those who look overseas for solutions to Sri Lanka’s problems.

The only opinions that matter are those of voters.

This is good news for the judiciary, since people can relatively easily be persuaded of the importance of the law and judges who apply it judiciously. The attempted impeachment of the Chief Justice has already drawn a forthright and near universal response in the media. Public opinion will eventually follow, and we will soon find out whether or not this will happen in time to save the current incumbent. Let us hope so, whatever we think of Shirani Bandaranayake.

Although the Government hasn’t deigned to explain what she has done to attract its ire, we can assume that it has to do with the Divi Neguma Bill, which I discussed in these columns some months ago.

Curiously enough, the same dispute has also been used to justify the repeal of the 13th Amendment.

The Chief Justice delayed the Divi Neguma Bill by insisting that it first be approved by the provincial councils, since its subject falls in the concurrent list. Hence both the provincial councils and the Chief Justice must go? It is ridiculous. Even supporters of the Divi Neguma Bill must admit that it is not more important than the Constitution.

The bad news for minorities is that it is very difficult to persuade the majority in Sri Lanka of the importance of devolution.

This is ironic, since both the provincial councils and the Chief Justice are means of distributing power away from the President. Everybody accepts that it is dangerous to make one person all powerful. Absolute power corrupts absolutely, as the now often quoted saying goes. Thus a little power is entrusted to the Chief Justice, and much less is given to the provincial councils. I stress, we are not talking about a lot of power. That still remains with the President.

But the 13th Amendment was a response to war, and people struggle to separate it from the suffering Sri Lanka has undergone in the last three decades.

I have argued for the full implementation of the 13th Amendment on too many occasions already, and I struggle to summon up the enthusiasm to do so again, since the level of debate is frankly pathetic. The argument that India foisted it on Sri Lanka so it must be rejected is totally unconvincing. That was then and this is now. Sri Lanka can very well judge the 13th Amendment on its own merits. Just as it can very well re-demarcate its provinces if it wants, rather than complaining that the ones that it has were defined by the British. This is simply a distraction.

The same goes for the alleged waste of money. I am quite sure that everybody reading this article can write a list of at least ten things that cost the Government more than the provincial councils that are definitely more wasteful. Let them first save that money before they start getting rid of institutions that minorities want.

This is what matters. As Mano Ganesan reminded us the other day, all Tamil parties want the 13th Amendment, whether they are in the Government or with the Opposition. The only group that didn’t want it was the undemocratic one that perished with Prabhakaran in Nanthi Kadal. And why did the LTTE not want it? Because Prabhakaran realised that it wasn’t going to bring him a separate state, now or later, and that’s what he was committed to achieving, extremist that he was. The most vociferous in calling for the repeal of the 13th Amendment, ignoring the views of minorities, used to argue that Prabhakaran did not represent them and that people should pay attention to those who were willing to use the ballot box rather than bullets and bombs. It seems that they prefer terrorists after all.

I do not say that the 13th Amendment is the best solution to any problem, just that it must not be abandoned unless the minorities can be persuaded that something else would be an improvement.

But unusually for a post-conflict nation, Sri Lanka has not a reconciliation policy but a policy of antagonism.

The only people with whom the Government is keen on reconciling are those who can help it to remain in power.

Hence the ‘release’ of KP. It is of course highly unusual that official spokesmen cannot agree on whether or not the man the Government abducted from Malaysia is still in custody or not. But the fact is that he is definitely not in jail, as are hundreds of people who participated in a much smaller way in the LTTE’s terror campaign. He is back in Kilinochchi, running an NGO.

Justice does not require his prosecution, but surely it demands an even-handed approach?

(The Government is now promising to bring cases against members of the Security Forces accused of excesses. Why on earth should they suffer more than KP?)

Perhaps this is Plan B.

If Plan A of repealing the 13th Amendment cannot for some reason be implemented, the Government will want to do everything possible to keep control of the provincial councils. It has managed to delay elections in the North for a very impressive three years already, but it may eventually have to call them. It is currently talking about September 2013. Plan B may be to use KP to collect votes for the Government, to supplement the support enjoyed by Douglas Devananda.

This may not be illegal either. But it is probably more bad news than good.

*Kath Noble’s column may be accessed online at http://kathnoble.wordpress.com. She may be contacted at kathnoble99@gmail.com.

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Latest comments

  • 0
    0

    surely Tmils are no fools to follow KP if he is a Regime plant, as much as following Karuna or Pilliyan?
    Dogoulas of course is lossing by the day – and his activites for the last
    3 & half years will not attract any free Vote.

  • 0
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    Its my belief that this regime cant be ousted by any means democratic or other wise.Only international pressure can bring down this govrnment to its knees.Elections will not help the masses to oust this government because the elections are held under them.Rigging, manupulations activated by the government with the backing of the government and the private media will white wash all these malpractices.This is the sad story of Srilanka.

    • 0
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      SL needs FREE and FAIR elections.
      This is the top priority.
      The citizens must be able to cast votes without fear.
      If this does not happen,this regime will last forever.
      But,strangely,most legislaters DO NOT want an independent & free Election Commission.
      Even this regime does not want one.

  • 0
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    As per report of 2009 by the international crisis group, from the time since independence, the current crisis has been in the making.

    http://www.crisisgroup.org/~/media/Files/asia/south-asia/sri-lanka/172_sri_lankas_judiciary___politicised_courts__compromised_rights.ashx

    Regarding the Soulbury Constitution post independence it states

    ‘Little came of this judicial review power. The Soulbury Constitution contained few means to judicially enforce rights.16 The only attempt by a court to strike down a law as in conflict with the constitution came in 1956, when the district judge of Colombo invalidated
    the Official Language Act No. 33 of 1956, which had made Sinhala the official language.17 Be-cause the decision was vacated on other grounds on appeal, it had little practical impact. As a result, the
    possibility that Sri Lanka’s courts might have restrained rising communal tensions of the 1950s and 1960s went unrealised and is today largely forgotten.’

    The next nail in the coffin was in 1972 with the republican constitution.

    ‘This 1972 constitution elevated parliament and the cabinet of ministers over the judiciary. While expanding the 1947 constitution’s sparse detailing of rights, the 1972 constitution terminated all judicial review of executive or administrative action, while shifting jurisdiction over constitutional rights outside the formaljudiciary. The constitution’s drafters explicitly aimed to repudiate judicial
    independence.’

    Then came the 1978 constitution that seems to have improved the standing of the judiciary

    ‘The current constitution, adopted in 1978, reversed course and strengthened judicial independence, but without abandoning key constraints on judicial power. It abolished the constitutional court, moving all judicial powers back into a hierarchy of courts headed by
    a Supreme Court.28 It mandated not only a Supreme Court but also a Court of Appeal and a system of high courts.29 The new constitution also included a section captioned “independence of the judiciary” that mandated judges exercise their powers “without being subject to any direction or interference proceeding from any other person except a superior court, tribunal, institution or other person entitled under law to direct or supervise such judge”.30 Chapter III of the 1978 constitution listed eight fundamentalrights, including free speech, association and conscience; freedom from torture and illegal detention;
    and equality.31 Chapter III took a “minimalist” approach to human rights, taking no account of developments in civil and political rights since the 1950s, or economic, social and cultural rights.32 Finally, the constitution allowed more restrictions on rights – including on the presumption of innocence and the immunity from ex post facto criminal punishment – than are permissible under international law.

    However this was soon undone by the dictatorial tendencies of the Executive Presidency.

    ‘The United National Party (UNP) government’s unwillingness to tolerate alternative centres of political power soon undermined the judiciary’s new independence. President J. R. Jayawardene used the 1978
    constitution to stack the judiciary with allies. Article 163 of the new constitution terminated the service of all judges of the Supreme Court and the sole high court then existing, requiring all the judges to swear a new oath. While all nineteen judges were forced to resign, seven were not reappointed.33 Some junior judges were shifted to the Supreme Court. More senior judges were relegated to the new Court of Appeal.34 The result was “naked and unashamed … ‘court-packing’”.35
    On 11 June 1983 three Supreme Court judges’ homes were stoned by crowds brought in on governmentowned buses. Police failed to respond to the judges calls for aid. Two days earlier, the same judges had
    ruled against a police sub-inspector for illegal arrest and fined him 25,000.

    Now we have the latest saga in this battle against the judiciary where the Govt is levelling some irrelevant charges aginst the CJ in order to pass a bill in parliment. The Judiciary is expected to interpret the constitution according to the dicates of the President or face impeachment. The Presient has stated publicly that the CJ has become ‘too big for her boots’. This has now become a farce.

  • 0
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    Did Gota order the killing of surrendering tigers Shavendra?
    No comment?

    • 0
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      Gota ordered at the behest of the Americans. That is why the feet draging by the UN and accomodating the guys as Shavendra and crowd as Diplomats in most countries that shouted of War Crimes due to American pressure. Running with the Hare and Hunting with the Hounds.

  • 0
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    In first parliament of independent Ceylon the minister of public affairs told the house look around you 90% of the Foreign Service and local government are Tamils. This angered JR and SWRD so you see Gota and familia still bounty hunting. This did not happen to that extent (only religion not race) in India or Pakistan because both Indira and Ali Jinnah married Parse’s.

    The Rajapakistan familia is very much like Franco the man born with an inferiority complex.

    Watch the space just after 2014 when South China Sea and Indian elections calls for no wheeler dealer down under!
    Creation of Bangladesh 7 days. Creation of Ceylon 3 days.
    Modi, carries out development with transparency and accountability.
    Congress carries out development over dead bodies like Gota.

  • 0
    0

    Procedural manipulations, legality, policy, tradition, governance, financial integrity, constitutionality, devolution, minority rights, equal opportunity, justice, fairness, policing for law and order, criminality, fraud, embezzlement, cover-up, double standards, mutual favours, and a host of other terms mean nothing to the people when the criteria have been changed along just one paradigm; absolutism…

  • 0
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    SL cannot have a Scottish type of referendum as there are elements of terrorist world over waiting for the opportunity. So how can the innocent folk of the whole island live at peace?
    Come 2014 with Modi as PM
    SL would become the one and only “Sinhala Buddhist State of India with Schedule Cast Status” giving it a 30% quota for education, employment etc.
    The long standing Buddhist Kingdom is Bhutan and the Hindu Kingdom is Nepal- notice both are kingdoms and we all don’t want rajapakistan.
    To achieve this IPKF have a bone to pick off all Lankan Politicians since there are many of them hero’s some dead some live others maimed especially in the north of India
    They have exhibited that they can create “Sinhala Buddhist State of India with Schedule Cast Status”
    In 3 days like the naked fakir- OM TAT SAT.

    • 0
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      Attention Wuliangguobinjiu, Mental Health Patient No. 3358198765

      Please log off the internet and return to your ward to continue with the medication. Medical staff will be arriving shortly with restraining equipment.

      Senior House Officer at Rampton Hospital

      • 0
        0

        Un Gran Salud Terrorista,
        Isn’t it a way of pandering to the prejudices of those who want Dhemalas to be treated differently? WoooHooo

        • 0
          0

          Attention Wuliangguobinjiu, Mental Health Patient No. 3358198765

          We have increased SSRI antipsychotic drug dosage to control your outbursts, but be aware that this drug has severe neurological side effects, including involuntary jerking.

          Signed, Senior House Officer at Rampton Hospital.

      • 0
        0

        Sri Lanka belongs to the Singhalese- ad infinitum

        Sri Lanka does not need more ghettos or suicide bombers.

    • 0
      0

      Kote Boooooy

      Stubborn and ardent clinging to one’s opinion

      is the best proof of stupidity.

  • 0
    0

    MR wants power and to be the supreme leader for ever. Opposition also wants grab the wealth, power and resources from him. TNA and the alies want to make the tamils seperated from sinhalese thereby to become the only leaders of tamil. But ultimately the ordinary tamil civilians suffer day by day. No other way if all think about their future forgetting their birth.

  • 0
    0

    Yako meeharako, Sri Lanka will never become a state in Indian… Dream on wadurooo.

    • 0
      0

      Pudu Bandu Madalanda

      Bolo Hindustan Ki Jai!

  • 0
    0

    This regime buried democracy alive when it got the spineless henchmen and turncoats to vote for the 18th Amendment. It was quite obvious where MR was heading for when he jettisoned the 17th Amendment and assumed dictatorial powers under the 18th Amendment. Still our so called intellectuals, progressives, leftists and some bhikkhus, particularly those who entered Parliament on the strength of a promise to usher in a `Dharmarajya’ remained blind to the dawning reality – the emergence of a dictatorship. Let the move to impeach the Chief Justice at least now serve them as an eye opener!

  • 0
    0

    I don’t know Kath Noble coming from which country to write this type of article. I am sure she may be funded by LTTE rump or LTTE rump wrote this article. I am a German living last 35 years in Sri Lanka and I can say SRI LANKA belongs to Sinhalese and Tamil Nadu belongs to Tamils same as Israel belongs to Jews, Malaysia belongs to Malays, Fiji Islands belongs to Fijians and Zimbabwe belongs to Zimbabwean

    • 0
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      Norbert, you may be living in Sri lanka for 35 years, but you don’t know the core history of Sri Lankans it seems. Sinhalese were the migrants from North India, the offspring of Notorious prince Vijaya, who initially matted with Kuweni, the jungle queen. By then there were already Tamils living in Northern part of the Island.

      Only the Indian Tamils were brought by deceit by the English rulers to work in Tea plantations as the native Sinhalese refused to work for them. Eventually the Indian Tamils who made Sri Lanka famous for the Best tea in the world, out of their sweat.

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