{"id":2773,"date":"2011-12-18T00:00:32","date_gmt":"2011-12-18T00:00:32","guid":{"rendered":"http:\/\/colombotelegraph.com\/?p=2773"},"modified":"2011-12-18T00:00:32","modified_gmt":"2011-12-18T00:00:32","slug":"wijedasa-vs-tirantha-vs-independence-of-the-judiciary","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/wijedasa-vs-tirantha-vs-independence-of-the-judiciary\/","title":{"rendered":"Wijedasa Vs Tirantha Vs Independence Of The Judiciary"},"content":{"rendered":"<p><strong>By Uvindu Kurukulasuriya<\/strong> &#8211;<\/p>\n<p>UNP Parliamentarian Wijedasa Rajapakse has officially announced that he will be in the running for the post of President for the Bar Association of Sri Lanka(BASL).\u00a0So, last week The Sunday Leader journalist Raisa Wickrematunge met with him to discuss his reasons for stepping forward and his thoughts on what needs to be changed.\u00a0Raisa asked him; you have been involved with both the government and the UNP, in fact you are still a Member of Parliament. Do you think you would be able to remain impartial and free from political bias, if you were elected?<br \/>\nWijedasa replied;\u00a0\u201cI believe that I can. I have 100 percent confidence in my experience, which I demonstrated in court. Despite the fact that I was a Member of Parliament representing the government coalition, I knew how to draw the line between party affiliation and performance of my duty on matters of national interest. I was not bothered even when I was sacked from the\u00a0 Parliament and the party. I still did my duty without any fear or favour, even while there were severe threats to my life. Since I performed there on an apolitical basis, to perform my duties as President of the Bar Association in the same way is a simple matter.\u201d (The Sunday Leader, December 11)<br \/>\nHas he ever demonstrated his impartiality or bravery with regard to the independence of the judiciary? My answer is no!<\/p>\n<div id=\"attachment_2776\" style=\"width: 410px\" class=\"wp-caption alignright\"><a href=\"http:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2011\/12\/wijedasa-tirantha-colombotelegraph.jpg\"><img loading=\"lazy\" decoding=\"async\" aria-describedby=\"caption-attachment-2776\" class=\"size-full wp-image-2776\" title=\"Wijedasa - Tirantha colombotelegraph\" src=\"http:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2011\/12\/wijedasa-tirantha-colombotelegraph.jpg\" alt=\"\" width=\"400\" height=\"418\" srcset=\"https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2011\/12\/wijedasa-tirantha-colombotelegraph.jpg 400w, https:\/\/www.colombotelegraph.com\/wp-content\/uploads\/2011\/12\/wijedasa-tirantha-colombotelegraph-287x300.jpg 287w\" sizes=\"auto, (max-width: 400px) 100vw, 400px\" \/><\/a><p id=\"caption-attachment-2776\" class=\"wp-caption-text\">In conjunction with an independent judiciary and a free media, a robust and independent legal profession is essential for maintaining the rule of law and ensuring the protection of human rights in a Democratic society. Lakbima News Chief Editor Rajpal Abeynayake was assaulted at the annual dinner of the Bar Association of Sri Lanka held on the night of December 3. Abeynayake was assaulted on that night by another lawyer, for remarks he made about the former chief justice Sarath Nanda Silva. Did you condemn this assault? If not why?<\/p><\/div>\n<p>A fact-finding mission by the International Bar Association visited\u00a0 Sri Lanka between August 28, 2001 and August 31, 2001. The focus of the mission was twofold: (1) to identify the circumstances surrounding the calling of a referendum on the Constitution, assess the constitutional position of such action and the implications for the rule of law; (2) in the light of recent cases seeking to disbar the Chief Justice from practising as a lawyer and attempts by over one-third of Members of Parliament to have him impeached, to examine the guarantees for the independence of the judiciary, and the practical respect these guarantees receive.<br \/>\nWhat was Wijedasa\u2019s position on these two critical issues? The Constitution provides just two routes for constitutional reform. The first requires the placing of a Bill setting out the amendments before Parliament and no less than two-thirds of all MPs voting in support of it. The second applies to the reform of \u2018core\u2019 provisions within the Constitution and requires the support of the Sri Lankan people through a referendum, in addition to a two-thirds majority in Parliament. The President, at his\/her discretion, can hold a referendum of the people under Article 85. However, constitutional reform via an Article 85 referendum is specifically prohibited. Under Article 86, the President may submit to the people by referendum any matter which, in her opinion, is of national\u00a0 importance. However, as there are no prescribed consequences flowing from an Article 86 referendum, any result is almost certainly not legally binding as to any constitutional effect. The Supreme Court has never been asked to consider the legality of a referendum under Article 86. In that time, the Centre for Policy Alternatives organised a seminar regarding the matter. I was there too. Wijedasa was a speaker. What did he say? He said such a referendum was lawful and he justified it using the principle doctrine of necessity. But, what did the IBA say? The delegation concluded that the Government\u2019s call for a referendum as a route for constitutional change was: i) Unconstitutional. And ii) Framed in terms that were not readily comprehensible to lawyers and certainly not to electors.<br \/>\nSo, why then did President\u2019s Counsel Wijedasa Rajapakse defend that unconstitutional position? It was a well-known fact that he was an apple-polisher.<br \/>\nWith regard to Sarath Silva\u2019s misconducts has he ever spoken against him? No! Instead of condemning the most corrupt Chief Justice Sarath Silva and his misconducts he spoke on behalf of him and spoke against the activists, journalists and lawyers who raised that issue. (read the Silumina\/Dinamina\/Daily News and listen to ITN\/Rupavahini talk shows for Wijedasa\u2019s attitude on these issues).<br \/>\nFormer President Chandrika Kumaratunga during her tenure publicly criticised one of the Supreme Court judges at a public meeting, stating that he is an obstruction to the Government\u2019s progress. Further, the then President accused an unnamed Supreme Court Judge of taking a large financial bribe. This accusation was widely published in Sri Lanka\u2019s press. What did Wijedasa Rajapakse do? Has he spoken against it? No!<br \/>\nOkay, these issues are now history. I am not saying one cannot change. If Wijedasa has indeed changed he must have shown it. Sadly, he hasn\u2019t shown it either.<br \/>\nThe former Chief Justice has done immense harm to the Judiciary and Justice in this country. I think there should be an investigation by Parliament. But since Parliament does not\u00a0have legal minds an International panel of Jurists should be appointed as a Commission of Inquiry by Parliament to go into the allegations that stand against him. What, Mr. Wijedasa is your opinion on this issue.<br \/>\nLord Goodhart QC, who led the IBA delegation to Sri Lanka between February 28 and March\u00a0 06, 2009, said: \u201cMany of the problems identified in the 2001 IBAHRI Report continue to affect the independence of the legal profession and the rule of law in Sri Lanka and in some respects the situation has deteriorated significantly.\u201d The 155-page report entitled\u00a0Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka contains several recommendations to protect the independence of the judiciary, legal profession and media.<br \/>\nIt says; \u201cA Chief Justice ought to assume the role of first among equals. He or she ought to inspire independence in his or her fellow judges and lead them in overcoming any threats against, or attempts at undue influence over, the bench. The IBAHRI expresses hope that the new Chief Justice, who is due to be appointed in June 2009, adopts internationally-accepted best practice in his or her stewardship of the Supreme Court in order to assist in boosting standards of judicial independence in Sri Lanka.\u201d<br \/>\nInstead of adopting internationally-accepted best practice the new Chief Justice Shirani Bandaranayake has let her beloved husband accept political appointments such as Chairman of Sri Lanka Insurance Corporation,\u00a0 a member of its Board of Director the Lanka Hospitals Corporation PLC and Chairman of the National Savings Bank.\u00a0So, what is your opinion on this issue Mr. Wijedasa? Don\u2019t you think,\u00a0like Caesar\u2019s wife she too must be above suspicion? Don\u2019t you think this is a conflict of interests? Don\u2019t you think conflict of interest is a form of corruption?<br \/>\nAnother issue; the appointment of retired Chief Justice Asoka de Silva as Senior Legal Advisor to the President. Today, the Chief Justice, tomorrow an adviser to a controversial Head of the State. What does this imply? Where is the integrity of Sri Lanka\u2019s judiciary? So, what is your opinion on this issue, Mr. Wijedasa?<br \/>\nThere is also a new tradition of judges inviting\u00a0politicians to parties.\u00a0 Justice Sathya Hettige invited President Mahinda Rajapaksa, his brother Minister Basil Rajapaksa, and the Prime Minister D. M. Jayaratne and some other politicians to celebrate his promotion to the Supreme Court. So, what is your opinion on this issue Mr. Wijedasa?<br \/>\nTwo Sri Lankan Supreme Court Judges are also Judges of the Supreme Court of Fiji, which is under a military dictatorship.\u00a0The main issue here is the impact their Fijian jobs have on Justices Marsoof and Hettige when they are sitting in the Supreme Court at Hulftsdorp. Can we expect justice and independence from servants of military dictators? What is their judicial mentality? What is their ethical compass in relation to the judicial function? What principles of judicial independence do they adhere to? Do they make a distinction between their Sri Lankan and Fijian judicial roles? Can someone serving under a foreign military dictatorship, legitimately and credibly, sit at the same time on the bench of the Supreme Court of Sri Lanka? What can be expected of judges in Sri Lanka who serve a military dictatorship elsewhere? So, what is your opinion on this issue, Mr. Wijedasa?<br \/>\nNow, let us see what Wijedasa says about his opponent President\u2019s Counsel Tirantha Walaliyadde. He says; \u201cthe BASL passed a resolution not to appear for the accused in the late Ambepitiya\u2019s murder case. It was a unanimous decision. Despite that, he appeared for Potta Naufer.\u201d So what is wrong with it?\u00a0 Article 13 of the Sri Lankan Constitution enshrines the right to a fair trial and to legal representation in criminal cases. Besides Principle 18 of the UN Basic Principles on the Role of Lawyers says; that lawyers shall not be identified with the causes of their clients as a result of discharging their functions. His comment regarding Tirantha shows the level of his impartiality and the level of his legal education.<br \/>\nUnder the subheading \u201crecommendations to the Bar Association\u201d 2001 IBA report says \u201cThe delegation is firmly of the view that an active Bar Association must play an important role in preserving the rule of law and independence of the judiciary. The delegation was sad to note that the SLBA is not functioning to its full effectiveness at present and that it is divided along party political lines.\u201d In 2009, its report says, \u201cThe IBAHRI is saddened to hear that in 2009 that politicisation of the judiciary continues.\u201d Politicisation is the main issue here. So how is a politician going to depoliticise the judiciary? If Wijedasa Rajapaksa can do it next time Namal Rajapaksa also can contest!<br \/>\nThough his opponent President\u2019s Counsel Tirantha Walaliyadde is not a practising politician he too must answer the above questions. I have never seen or heard Tirantha raise the issues related to the independence of judiciary too. If both of you think those questions are too much to answer then please consider this one. In conjunction with an independent judiciary and a free media, a robust and independent legal profession is essential for maintaining the rule of law and ensuring the protection of human rights in a Democratic society. Lakbima News Chief Editor Rajpal Abeynayake was assaulted at the annual dinner of the Bar Association of Sri Lanka held\u00a0 on the night of December 3. Abeynayake was assaulted on that night by another lawyer, for remarks he made about the former chief justice Sarath Nanda Silva. Did you condemn this assault? If not why?<\/p>\n<p>uvindu@journalist.com<\/p>\n","protected":false},"excerpt":{"rendered":"<p> [&hellip;]<\/p>\n","protected":false},"author":21,"featured_media":2775,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[43,31,8,65],"tags":[6986,1627,1333,1139,1134,1628,1349],"class_list":["post-2773","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-anti-corruption","category-judiciary","category-editorial","category-press-freedom","tag-anti-corruption","tag-bar-association-of-sri-lanka-elections","tag-corruption-in-sri-lankan-judicary","tag-democracy","tag-human-rights","tag-international-bar-association-on-sri-lanka","tag-sri-lankan-judicial-system"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v26.3 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Wijedasa Vs Tirantha Vs Independence Of The Judiciary - 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