By Colombo Telegraph –
The President made a show of appointing her in place of Chief Justice Asoka de Silva, who was thought to be more sympathetic to the case
“The court was presided over by Acting Chief Justice Shirani Bandaranayake, considered a Rajapkasa loyalist. Several days ago, the president made a show of appointing her in place of Chief Justice Asoka de Silva, who was thought to be more sympathetic to the case but is traveling abroad.” the US Ambassador to Colombo wrote to Washington.
A leaked US diplomatic cable records the Supreme Court decision on General Fonseka’s Fundamental Rights petition re his unlawful detention. The Colombo Telegraph found the cable from WikiLeaks database. The cable written on February 24, 2010 and classified as “CONFIDENTIAL” by the Deputy Chief of Mission Valerie Fowler.
The US Ambassador to Colombo Patricia A. Butenis wrote “On February 23, the Sri Lankan Supreme Court denied former presidential candidate General Fonseka’s petition for release as interim relief in his fundamental rights case challenging the legality of his detention. The court ruled that because the basis of the submission for interim relief was ‘linked’ to the final relief requested, the court was ‘not in a position’ to grant the interim relief.”
There was no reason to detain him
“The court adopted the Attorney General’s argument that Fonseka’s claim that there was no reason to detain him could be verified until the investigation had been completed. While no charges have been filed against Fonseka, areas of investigation mentioned by the Attorney General included the alleged 400 army ‘deserters’ at the hotel with Fonseka during election day, Fonseka’s statement that he would release ‘top secret’ information on the final stages of the war, and the Hi-Corp military procurement corruption case involving his son-in-law.” ambassador Butenis further wrote.
Several senior human rights lawyers practicing in Colombo have told the Colombo Telegraph that Chief Justice Bandaranayake cannot be regarded as impartial and independent in cases involving sensitive political issues, particularly those that have a connection to the Rajapaksas. Dr. Shirani Bandaranayake’s direct elevation to the Supreme Court from the Faculty of Law at Colombo University during the Kumaratunga administration was itself a political appointment, in which her mentor at the Law Faculty, the then Justice Minister, and present Foreign Minister G.L. Peiris played a key role. Following her husband’s acceptance of a political appointment from the Rajapaksa regime, however, any semblance of independence that remained has completely disappeared. From the US Embassy cable below, which deals with the fundamental rights application of Sarath Fonseka challenging his detention following the presidential election in January 2010, it would seem that Ambassador Butenis also did not believe in the judicial independence of Justice Shirani Bandaranayake.
To read more about Sri Lankan Judiciary click here
Below we give a part of the confidential cable.
VZCZCXRO1439 OO RUEHAG RUEHROV RUEHSL RUEHSR DE RUEHLM #0132/01 0550154 ZNY CCCCC ZZH O 240154Z FEB 10 FM AMEMBASSY COLOMBO TO RUEHC/SECSTATE WASHDC IMMEDIATE 1354 INFO RUCNMEM/EU MEMBER STATES COLLECTIVE PRIORITY RUEHKA/AMEMBASSY DHAKA PRIORITY 2443 RUEHIL/AMEMBASSY ISLAMABAD PRIORITY 9460 RUEHKT/AMEMBASSY KATHMANDU PRIORITY 7715 RUEHLO/AMEMBASSY LONDON PRIORITY 5453 RUEHNE/AMEMBASSY NEW DELHI PRIORITY 3882 RUEHNY/AMEMBASSY OSLO PRIORITY 0039 RUEHOT/AMEMBASSY OTTAWA PRIORITY 0239 RUEHSM/AMEMBASSY STOCKHOLM PRIORITY 0855 RUEHKO/AMEMBASSY TOKYO PRIORITY 4502 RUEHCG/AMCONSUL CHENNAI PRIORITY 0021 RUEHBI/AMCONSUL MUMBAI PRIORITY 7255 RUEHON/AMCONSUL TORONTO PRIORITY 0234 RHEFDIA/DIA WASHINGTON DC PRIORITY RUEHGV/USMISSION GENEVA PRIORITY 0146 RHHMUNA/HQ USPACOM HONOLULU HI PRIORITY RUEHBS/USEU BRUSSELS PRIORITY RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC PRIORITY RUEKJCS/SECDEF WASHDC PRIORITY C O N F I D E N T I A L SECTION 01 OF 02 COLOMBO 000132 SIPDIS DEPARTMENT FOR SCA/INSB E.O. 12958: DECL: 02/23/2019 TAGS: PGOV PREL PREF PHUM PTER EAID MOPS CE SUBJECT: FONSEKA CATCH-22: SUPREME COURT RULES NO RELEASE WITHOUT CHARGES COLOMBO 00000132 001.2 OF 002 Classified By: DEPUTY CHIEF OF MISSION VALERIE C. FOWLER. REASONS: 1.4 (B, D) ¶1. (C) SUMMARY: At a Fundamental Rights hearing on February 23, the Supreme Court denied General Fonseka release as interim relief because his claim that there was no reason to detain him could not be verified until the investigation was completed and, presumably, charges were filed. At the same time, however, the court authorized protection of Fonseka's security, greater access by his family, access by his attorneys, and possibly access by his physicians. The next hearing was scheduled for April 26, 2010. Embassy PolOff attended the hearing. END SUMMARY. RELIEF DENIED ------------- ¶2. (SBU) On February 23, the Sri Lankan Supreme Court denied former presidential candidate General Fonseka's petition for release as interim relief in his fundamental rights case challenging the legality of his detention. The court ruled that because the basis of the submission for interim relief was "linked" to the final relief requested, the court was "not in a position" to grant the interim relief. (NOTE: The court was presided over by Acting Chief Justice Shirani Bandaranyake, considered a Rajapaksa loyalist. Several days ago, the president made a show of appointing her in place of Chief Justice Asoka de Silva, who was thought to be more sympathetic to the case but is traveling abroad. END NOTE.) Fonseka was not present at the hearing and his attorney had not had access to him. The next hearing was set for April 26, 2010, after the parliamentary elections. ¶3. (SBU) The court adopted the Attorney General's argument that Fonseka's claim that there was no reason to detain him could not be verified until the investigation had been completed. While no charges have been filed against Fonseka, areas of investigation mentioned by the Attorney General included the alleged 400 army "deserters" at the hotel with Fonseka during election day, Fonseka's statement that he would release "top secret" information on the final stages of the war, and the Hi-Corp military procurement corruption case involving his son-in-law. BUTENIS
Sarath Silva / October 31, 2011
Who Made Thee a Ruler and a Judge Over Us?
/
D.M.Thushara Jayarathna / October 31, 2011
Even now we don’t take decision about our judiciary, all right thinking people will face trouble
/
Sam_Subasinghe / October 31, 2011
Dr B is a SLFPer and , always had political appointments from SLFP regime.
/
DG UK / October 31, 2011
DHER……………… That is not rocket science. All the judges are. They have NO Conscience.
/
sonna boy from Kandy NOT from Matara / October 31, 2011
Quite right bro, Even in the US its the same…And we SriLankans think its ONLY happening in SL irrespective of what party/Gov is in power
/
Sarath / October 31, 2011
Hell, if it happens in the US then it must be all OK!
/
S R - UK / October 31, 2011
when justice dies in a society
everything else is cremated
from DSS to PMR all SL leaders in different degrees, dismantled the justice system for their own interest
so where there is no rule of law only animals can roam
/
laksiri / October 31, 2011
The day she was appointed to supreme court from back door and asked her to keep this corrupted system and politically motivated legal system salves to them ,she is suitable to be chief justice. look the sevenagala sugar corporation case.it is shame to say that when supreme court delivered basically wrong judgment in law. and , factually wrong in entire judgment,JUST to bail out wrong doing political leaders and loss billion to public and white washed by supreme court who were responsible for such matter .she was even unable to understand different between legal right for concluded contract and legitimate expectation for finalized deal.it was first politically motivated judgment by her.if some one sited same wrong case for future reference in her court room TODAY does she ready to accept that ? or she has to tell them that is only for government special.I would like to invite legal community to read this wrong judgment(1998-FR264) written by her to understand her capability or how she delivered 100%WRONG such judgments.what to do this is the actual and true position of the country.I am asking from her today can you accepted that wrong judgment by yourself after having over 17 year experiencing heavy cost to the public????????????????? but you will never have answer for this question in your entire legal carrier but it was wrong and shameful and BLACK MARK.
/
B.Fernando / October 31, 2011
The husband of the Chief Justice is a political stooge of the President, holding a political appointment. The only hope Sri Lankan’s had, Justice system too is no more. There is no rule of the law, the police too are puppets of the Politicians, innocent civilians have no where to go. Unless the International Community put pressure on the corrupt family regime, the consequences will be really dangerous.
/
Wasantha / October 31, 2011
all true bro..But still Sri Lankans idots woreship this stupid regem and vote for them,What we need id big sunami come and wash the whole country and start from Amiba.No one can change our attitude Country second bath gotta first.
/
sunil / October 31, 2011
Hey man, stop calling us idots (sic). We voted for Rajapaksa because we got a Buriyani and a blue and white cap from him (those who got a T-shirt also voted twice but not me). What did you get? Who is idiotic now?
Roads are being built throughout the island. OK, I can’t afford to buy fuel anymore but I’m going to ride my bicycle in the Southern Expressway very soon.
How brilliant is Mahinda Chinthanaya? It is his idea, that through “Api Wawamu Rata Nagamu”, we should grow our own food so we don’t even have to go to the shop to buy stuff. What other leader thought of asking people to make their own damn food? OK, now the thing is called something else but if we didn’t vote for him we would have never known about this concept of growing our own food, now would we?
Look how much money he earned by selling land to foreign companies. Next he is going to introduce a new law and take back all those land sold to private companies. You’ve got to hand it to him, don’t you think?
/
sonna boy from Kandy NOT from Matara / October 31, 2011
Judges Are for Sale — and Special Interests Are Buying
By ADAM COHEN | Time.com –
The Occupy Wall Street movement is shining a spotlight on how much influence big-money interests have with the White House and Congress. But people are not talking about how big money is also increasingly getting its way with the courts, which is too bad. It’s a scandal that needs more attention. A blistering new report details how big business and corporate lobbyists are pouring money into state judicial elections across the country and packing the courts with judges who put special interests ahead of the public interest.
A case in point: West Virginia. In 2007, the West Virginia Supreme Court, on a 3-2 vote, threw out a $50 million damage award against the owner of a coal company. Funny thing: the man who would have had to pay the $50 million had spent $3 million to help elect the justice who cast the deciding vote. The West Virginia ruling was so outrageous that in 2009 the United States Supreme Court overturned it. But that was unusual. In most cases, judges are free to decide cases involving individuals and groups that have paid big money to get them elected. (MORE: Justice on Display: Should Judges Deliberate in Public?)
So who is paying? The new study — by New York University Law School’s Brennan Center for Justice, the National Institute on Money in State Politics, and the Justice at Stake Campaign, a non-partisan reform group — found that a small group of super spenders plays the biggest role, using their money to buy the kind of judges they want hearing their cases. These super spenders are the usual suspects: mainly big business, corporate lobbyists, and trial lawyers. Also high on the list: a disturbing category called “unknown.” In many states, disclosure laws are so weak that special interests can buy judicial elections without the public even finding out.
There is also a lot of one-issue money sloshing around. In 2010, three Iowa Supreme Court justices who ruled in favor of gay marriage were voted out of office — after a bitterly fought campaign dominated by money from out-of-state groups like the National Organization for Marriage and the American Family Association. Much of the special interest money is used for attack ads, which leverage hot-button issues to demonize judicial candidates. Has a sitting judge ever reversed a criminal conviction because the law was not followed? Then they must be soft on crime — and not care about victims.
Why does all this matter? Because as money floods into judicial elections, we are getting courts that are filled with judges whose first loyalty is not to justice — or to the general public — but to insurance companies, big business and other special interests. It’s not hard to guess what insurance companies want their judges to do. They want them to rule against people who have been injured — even when they deserve compensation, and they want damage awards to be slashed. Big business wants weak enforcement of laws against discrimination and pollution. On the other side of the political spectrum, trial lawyers want verdicts for plaintiffs — and large damage awards.
The report’s authors have some suggestions for minimizing the impact of payola. They want to see more public financing of judicial campaigns, although it is unclear how much the current United States Supreme Court will allow. (The conservative majority has been recklessly striking down campaign finance rules in recent years.) Many reformers think that the answer lies in ending the direct election of judges, and switching to a system (which some states already have) of appointing judges. That takes away the problem of elections, but special interests can shift their strategy to lobbying governors to appoint sympathetic judges. (MORE: John Paul Stevens Publishes Supreme Court Memoir)
Clearly, this is not a problem with easy solutions. But there need to be solutions. The American ideal of justice requires neutral judges, whose only commitment is to the law. Judicial elections that are dominated by special interest money make a mockery of that ideal.
Cohen, the author of Nothing to Fear, teaches at Yale Law School
/
Kalyana / October 31, 2011
NOT ME,,PLz HELP THE POO
/
Suddhodhana / November 30, 2011
Sinhalese Buddhists= deaf and blind
/
DS / October 31, 2011
WHAT GOES AROUND , WILL FOLLOW U NO MATTER WHAT… IT IS HAPPENNING TU ALL, ATROCITIES , TU ALL NATIONS,,, PEOPLE ARE UPRISING, AGAINST COWARDNESS,OF IMMORTALITY,THE TRUTH,WHAT IS NOT WHAT,,, THE JUSTICE OF ALL HUMANS , SHOULD HAVE AN, EQUAL SHARE OF FREEDOM, NT BASED UPON YR RELIGION, COLOUR, GENDER PR THE RELIGIUON
/
Malcolm - Negombo / October 31, 2011
Sad to see the greatest General in Sri Lankan history wearing prisoners suit.
/
Ravinath / October 31, 2011
Dear sir,your the best Commander in SLA,,,,,,,,,,,,,(As per ur plan we did it)
/
Peter Casie Chetty / October 31, 2011
The man is purported to have made a statement putting Sri Lanka in a very embarrasing position world wide. He said what he said and that appeared in the Sunday Leader. He did not deny that then and Fredrika Jansz went on and gave evidence in Court that he did say that the Defence Secretary made the statement to an Army Officer who was in the presence of a journalist. Neither Jansz nor Fonseka heard the statement being made and cannot vouch for the veracity. In law this is an illegal statement called “hearsay”. But the world media did not see it like that and with the help of the Sunday Leader and the LTTE fronts all over the world Sri Lanka is now a country of war criminals. One because one man had not got the brains to keep his mouth shut and the other a frustrated woman scorned by all her ex lovers who had no brains to see that she had no right to carry the story. She is vindictive and I hope earnestly that Sarath Fonseka will be liberated and that Fredrika Jansz will be sentenced to 10 years for spreading false rumours that brough disrepute to our country.
/
Sarath / October 31, 2011
I don’t get these people…
The rule says the President will appoint the Chief Justice. All you guys are up in arms because he appointed a loyalist? Isn’t it a bit too late for this outrage? Shouldn’t you have been upset when the made the rule?
/
Pandukabaya de Silva / October 31, 2011
All Presidents would like to appoint their loyalists. The rule is by way of seniority. Who upset the applecart first? Kumaratunge, by appointing that madman Sarath Silva and pushing aside one of our best judges, MDH Fernando. After that, the rest was all downhill. These jokers, Asoka de Silva and Bandaranayake included do not have a basic capacity to be a judge, let alone a Chief Justice.
The point is that when you are appointed to the post, you are supposed to act independently. not kowtow to politicians. Sri Lankan judges have forgotten that. The time will come when, like mobs attacking police stations which is common ow in Sri Lanka, they will also attack and stone judges
Pandukabaya
/
gamini / July 24, 2012
Pandukabaya de Silva, I totally agree with you. I believe it is time for a vigilante squad to bump off families including the Judges who contribute to miscarry justice by pandering to corrupt Politicians. A couple of such incidents will make one think before delivering lop sided judgements, just to appease the Rulers. At the moment they do so and enjoy our hospitality as well. These are not outsiders but our own kith and kin. They should be taught a lesson.
/
Don Martin / October 31, 2011
Why America president and congress only appoint chefe justist? Any other country should have to do American advise. This is all American shit, they want’s to dominate world, we SriLankan fortunate there are some other world dominate country like China, Russia and such as India as our freiends, Otherwise America will get all other counties as their slaves. Mhinda Rajapaksa did as what America did. Writer should have to mind your own buisness please.
/
Pingback: WikiLeaks: Attorney General declined to guarantee Fonseka’s “life “ « Colombo Telegraph / November 1, 2011
/
Pingback: WikiLeaks: Attorney General declined to guarantee Fonseka’s “life” « Colombo Telegraph / November 1, 2011
/
Nihal M.... / November 1, 2011
Guys Do not bark…JR started all these, got thugs to stone the Supreme Court judges houses…were you all sleeping at the time?????????
/
gamini / May 13, 2012
Nihal M you seem to be suffering from amnesia when you say that JRJ started all this. What did Felix Dias Bandaranayake as Min. of Justice do from ’70 to ’77? Did you not see the film Sagarayak Mada by Gamini Fonseka?
/
Jim Hardy / May 13, 2012
Change SriLanka to socialism like in France, Capitalist UNP & SLFP Bungaweva.
Country is robbed from top to bottom.
Exactly like Pandu says Judges Houses will be stoned by the public in near future.
/
gamini / May 13, 2012
I do not condone the act of thugs throwing stones at the houses of the Supreme Court Judges then. How it resulted was when the Police Officer was trying to hold the crowd back on the pavement, Vivian Gunawardene stepping back tripped over the pavement kerb and fell back. There was never the case that Police Officer slapping or throwing a punch at Vivian Gunawardene. But in Courts the Judges interpreted the Police Officer’s act as an assault. In hind sight when this type of character holding office as CJ, there were similar stooges as Judges then in the past. Then is it any wonder people will resort to only throwing stones or manhandle them with the contempt they deserve.
/
Senguttuan / May 14, 2012
Justice Mark Fernando, a brilliant jurist, being ignored for the post of CJ probably was the beginning of the slide under CBK. CJ Sarath Silva, nonetheless, knew the law and was able to articulate his views in flawless English – a necessary “must” for any CJ – whose tenure includes many visits abroad on judicial Conferences. After all, Sri Lanka was always known as a country where the leadership spoke in good English. It is unfortunate even the current holder of the top post in the BASL writes and speaks the Queen’s language poorly. My views are not going to be taken kindly by the nationalist fringe. So be it.
Worse, the current CJ is knee-deep in scandals – much of it from the misdemeanours of her spouse described as a “failed marketing man”
Surely Conflict of Interest is something even lawyers in the lowest tier of the profession are expected to observe scrupulously.
At least in the future let the post of CJ and those of the Supreme and Appeal Court judges be filled duly and with competent persons recommened by the Judicial Services Commission following established process.
Senguttuvan
/
Barbara Seneviratne / May 14, 2012
The best that the CJ’s husband could is to resign ,at least he can claim that he is the first political appointee that resigned , this probably would give chance to the other rogues who obtained similar positions,to resign and there many including AGs.Also right think CJ too should resign. This will at least be the beginning of cleaning TtThe Mahindahe whole rotten system.
/
The last dinasaur / May 14, 2012
Gota is the reincarnation of Hitler..
/
Pingback: WikiLeaks: Chief Justice Shirani Is A Rajapkasa Loyalist « Sri Lanka / May 14, 2012
/
Pingback: The Public’s Right Know,The Remarkable Transformation Of The Ex-CJ And The Sitting Judges | Colombo Telegraph / June 19, 2012
/
Pingback: The Die Is Cast For The Lankan Judiciary | Colombo Telegraph / July 22, 2012
/
Pingback: Attacks On The Judiciary Intensify | Colombo Telegraph / July 22, 2012
/
Pingback: WikiLeaks: EX CJ Sarath Silva’s Judicial Pedigree | Colombo Telegraph / August 1, 2012
/
Pingback: Appeal to the Executive and the Legislature to Guarantee Respect for the Judiciary and the Chief Justice and to Guarantee the Independence of the Judiciary - Groundviews / November 16, 2012
/