Friday, November 30, 2012


Speaker’s Ruling Has No Bearing Upon The Substantive Issues In The Impeachment – AHRC

Speaker

By Colombo Telegraph -November 30, 2012
Colombo Telegraph“The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive.” says the Asian Human Rights Commission
We below publish the full text of the statement;“A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.” issuing a statement AHRC further says.
The Speaker‘s ruling relating to the Supreme Court’s notice to the Speaker and the members of the Parliamentary Select Committee does not in any way prohibits the constitutional right of the Court to entertain and to determine the Reference made by the Court of Appeal for a specific question relating to the scope of Article 107 (3) of the Constitution. Since the issue mooted is of utmost importance, various aspects relating to it should be reflected upon on the basis of constitutional principles and logic.
Based on this the following issues could be highlighted:
The basic structure of Sri Lanka’s constitution as a democracy – It is beyond question that Sri Lanka’s constitution is that of a republic and a democracy. In this there is no fundamental difference between the Indian constitution and the Sri Lankan constitution. The Supreme Court of India finally laid the issue to rest through a historic judgment, Keshavananda Bharati vs. Union of India and others. In going into the questions referred by the Court of Appeal to the Supreme Court, the issue of the basic structure of the Constitution of Sri Lanka is an unavoidable issue. All the maters arising out of the Speaker’s ruling should be considered relative to the basic issue of Sri Lanka as a democracy. The Speaker’s powers need to be looked at within the constitutional architecture that defines Sri Lanka as a democracy.
Any reference to the ultimate supremacy of the parliament should only be understood with reference to the overall consideration of Sri Lanka as a democracy. Such phrases as “supremacy of the parliament” should not be given any meaning that will be detrimental to Sri Lanka’s constitutional structure as a democracy.
The Speaker’s ruling cannot limit the power of the Supreme Court to decide on the constitutionality of any matter – It is a settled principle that the primary opinion on the question of constitutionality of any issue is with the judiciary. To hold otherwise would be to deviate from the basis that Sri Lanka is a democracy.
Even a decision of the parliament arrived through a vote in the parliament is subject to judicial review - There is no limitation for the Supreme Court’s authority for judicial review concerning any decision of the parliament or that of a Select Committee constituted by the parliament. The Court has also the power to review the material on which the decision of the parliament or that of the Select Committee is arrived at. The Indian Supreme Court in the S. R. Bommai case has dealt with this matter in great clarity.
The cornerstone of the objection concerning the impeachment process is that a Parliamentary Select Committee cannot exercise judicial power and that such a Committee cannot be considered an impartial and a competent tribunal to decide on the matters relating to the charges against the Chief Justice. This being so from the beginning the functions of the Select Committee in this regard would have no impact on law and could not this lead to any valid decision relating to the impeachment. Therefore the Court has the jurisdiction to declare the legality and the constitutionality of such a process and to declare it void.
The Court has the power to examine the material on which the decision is made - the decision of the Select Committee that is acting as a tribunal cannot lead to a valid decision, and therefore even if the parliament is to vote in favour of an impeachment on the basis of such finding the court has the power to declare such a decision as one that violates the constitution.
The actions of a Select Committee or the Parliament are actions of the government and therefore the court alone has the jurisdiction to review the constitutionality of any such action by a government – The decision relating to the impeachment and the process thereto are not different to any other action by the government. These cannot be claimed as exceptions to the rule that the court has the power to examine the constitutionality of any action of the government.
On the basis of the above considerations the ruling of the Speaker is of no practical importance to the substantive issues relating to the impeachment – Since no substantive issue rests on the Speaker’s ruling there is no reason to give any serious consideration to this ruling as a substantive obstacle to the Court entertaining its jurisdiction in the matter.
The Speaker’s ruling may indicate that the government may not abide the decision by the Court in this instance – This possibility exists relating to all decisions that a court make on the constitutionality of any law or other acts of the parliament or that of the executive. A government could ignore the court, and if does so, it openly violates the constitutional architecture and the law. On no instance should a court desist from making decisions on matters referred to it on the basis that the government may disrespect its ruling. If a court were to take such a view, it would be in no position to decide any matter at all. If the government decides to take a confrontational approach to the Supreme Court, that is a matter left to the government, and upon such an event the outcome should be left to the people to decide what course they should take.


Sinhala doctor attacks nurse at Vavuniya hospital
[ Friday, 30 November 2012, 01:52.20 PM GMT +05:30 ]Doctor attacks nurse serving at the Chettikulam base hospital in Vavuniya yesterday.Doctor has order the nurse to inject injection for a patient at the hospital, when the nurse engage in the preparation work anger doctor carried out attack against the , sources said.
Nurse is a resident of Batticaloa area and the doctor is member of majority community.
When the nurse informed the director general this regard he advice the nurse to maintain silence where the particular doctor has political influence.


Court Of Appeal Ordered To Provide Fonseka’s Release Document

Fonseka
Colombo TelegraphBy Colombo Telegraph-November 30, 2012
The Registrar of the Court of Appeal has been ordered to provide former Army Chief and Common candidate at the 2010 Presidential election, Sarath Fonseka, with a certified copy of the document pertaining to his release from prison.
The Counsel told the Court the document pertaining to the release of the former Army CommanderSarath Fonseka is necessary for the Writ Petition filed against his expulsion from Parliament. The hearing on the case was put off to 13 December.
A Bench comprising Judges of the Court of Appeal, Sisira de Abrew and Sunil Rajapaksa, made the directive to the Registrar of the Court of Appeal following the submission made by Counsel Saliya Pieris on behalf of the former Army Commander, yesterday.
“I still don’t know the details of my release. All I was told was to bring my bag of belongings and come outside. They didn’t tell me anything else. I think that in some ways I am still a prisoner in Welikada. The only difference is that I am outside those walls. Other than that I have not seen a single letter. In fact, when I was leaving Welikada Prison, I didn’t even sign a book saying I was leaving to go home,” the former General told last week.
Related stories;


Supreme Court states that it is aware of the powers vested in it by the constitution
Friday, 30 November 2012 - 01:16 PM
The Supreme Court today declared today that it was fully aware of the
powers vested in it by the countries constitution.

The observation in this regard was made during courts arbitration
regarding the parliamentary select committee appointed to investigate
the impeachment motion filed against the chief justice.

The Supreme Court also noted that its actions were well within the demarcations
of its constitutional endowments.

5 petitions requesting of the Supreme Court to issue a writ order
against the PSC are currently being considered before a trial at bar
comprising of justices
Nimal Gamini Amarathunga, K. Shripawan & Priyasad Depp.

Notice was issued to the respondents cited in three of these petitions
when they were taken up before the Supreme Court on a previous
occasion.

Accordingly Leader of the House Nimal Siripala De Silva speaking in
parliament yesterday noted that the speaker as well as the members of
the PSC had been issued notice.

None of the respondents or attorneys representing them were present in
court today.

Lawyers appearing on behalf of the petitioners however presented the
speakers ruling which was issued in parliament yesterday in this
regard.

In his ruling yesterday, Speaker Chamal Rajapaksa noted that no
external institution could notify, order or direct Parliament.

Taking the facts presented before it to consideration the Supreme
Court directed the Attorney General to issue written submissions
pertaining to the matter within 14 days, commencing from the 26th of
this month.

Accordingly the petitions will be recalled before court on the 13th &
14th of this month.
Attorney at law Krishmal Warnakulasuriya appearing on behalf of the petitioners expressed the following views to our news team regarding the day’s court proceedings.


Impeachment And Dilemma Of Independent Judiciary

Colombo TelegraphBy Kamal Nissanka -November 30, 2012
Kamal Nissanka
If my recollection is correct from Sir Edmund Codrington Carrington the first Chief Justice of Ceylon (maritime areas) to the Hon Dr (Mrs.)Shirani Bandaranayake there had been 43 chief justices in Ceylon and Sri Lanka. After the introduction of the 1978 Republican Constitution the judiciary was under eight Chief Justices beginning from Hon Mr.Neville Samarakoon to incumbent Dr (Mrs.). Shirani Bandaranayake. Out of eight Chief Justices three were destined to face impeachments. It is noted that Impeachment motions of both Hon Mr. Samarakonn and Hon.Dr (Mrs)Bandaranayake were initiated by the respective governing parties in the parliament of the day under the tenure of respective Presidents. The two impeachment motions against former Chief Justice Mr.Sarath Nanda Silva were initiated by then governing United National Party (UNP) government without the blessings of the President Mrs.Chandrika Kumaratunga. Mr. Silva was lucky to evade from the impeachments firstly as a result of proroguing the parliament and secondly by dissolution of the parliament by Mrs Kumaratunga. According to Sunday Leader of 28th September 2008 in an article written by Ms. Sonali Samarasinghe (MR gets set to battle the judiciary as war takes its toll on IDP)an attempt had been taken to impeach Hon Mr.Saleem Marzoof, a judge of the present Supreme Court against a comment made by him on non implementation of 17th amendment to the constitution.(17th amendment to the constitution is repealed now)
So, under this 1978 constitution as at present isn’t that there is a chance of 37.5 percent for a Chief Justice to be impeached? If this is so, it is a grave situation and I must suggest that this unfortunate occurrence should be a deep concern to all honorable judges in Sri Lanka specially the superior court judges. In scrutinizing the manner of appointments of these three judges who faced or facing impeachment one salient feature that could be clearly identified is that all three were not carrier judges. For some reasons , late Mr.J.R. Jayawardene , former President ,founder of the 1978 constitution had relied and trusted on Mr. Samarakoon ,a respected lawyer among the legal fraternity but who at a crucial stage of the understanding of the present constitution felt that the judiciary in Sri Lanka was not independent as same as under the Soulbury Constitution. Further he clearly understood that the president of the day, his personal friend was marching expressly towards authoritarianism under the blessings of his draconian constitution. A man of principles and much respected Chief Justice Mr. Neville Samarakoon courageously faced the proceedings of “Standing Orders” which were solely framed to trial him under the direction of his estranged friend, Mr. J.R.Jayawardene. (Similar to the Criminal Justice Commission that was formed to try Mr. Rohana Wijeweera in 1971 or 1972) Read More


Rift between Judiciary and Parliament ignites as Speaker , the President’s brother allegedly acts partially
http://www.lankaenews.com/English/images/logo.jpg
(Lanka-e-News -29.Nov.2012, 11.50PM) The elder brother of the President Chamal Rajapakse an erstwhile Policeman and present speaker of Parliament today announced to the Select Committee hearing the impeachment motion appointed by himself and his (br)other self to reject the notice issued by the Supreme court (SC).

The Speaker’s announcement this afternoon on the impeachment motion inquiry constituted a gross betrayal of the confidence of the entire nation and undermined the sacrosanct judiciary of the country to which every individual including the highest in the hierarchy must bow down. The speaker while expressing his view rejected the notice issued by the SC yesterday directing the members of the Select Committee inquiring into the impeachment motion to appear in court following the hearing of a petition filed by the SL Bar Association and a group in the SC . In the petition it was clearly stated that the controversial Speaker is himself a respondent as the Select Committee that is not eligible to inquire was appointed by the Speaker. The petition further made it abundantly clear that since the Select Committee has no powers of a judicial court , it is an unlawful Committee. 
When the Parliamentarians expressed their opinions today , it was the view of the opposition leader that though the Select Committee has no judicial powers , he concurs in the view that was expressed by a former speaker Anura Bandaranaike. After the Govt. and opposition Parliamentarians discussed this issue for over two hours , the speaker made his bizarre announcement . The opposition leader became notorious when he agreed with the view of the Govt . on this issue imperiling the judiciary and the entire nation’s interests.

A legal luminary speaking on this subject said , the basic truth pertaining to this issue must be crystal clear to the people. Since the President himself takes his oath before the chief Justice (CJ) , he by swearing before the CJ is bowing to the judiciary, and is expected to respect the law.
Therefore neither the speaker nor the members appointed to the Select Committee can take the law into their hands.
Though the Parliament legislates it is the judiciary that holds the highest position in the implementation of the laws. It is the duty of all irrespective of their positions to bow to the laws that are legislated , and those who do not are bestial and they naturally will respect jungle laws .It is very unfortunate that because of the Rajapakse family ‘s maniacal obsession with power greed and its perpetuation , they are hell bent on subjugating the judiciary at any cost , but it is the entire nation that has to pay a heavy price for the devastation of justice and the rule of law wrought by this demonic family, he bemoaned.
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Palestinian UN vote will hurt peace, says Israel’s Regev

Mark Regev: “This is negative political theatre because it takes us out of a negotiating process”
BBC
Israel says a vote upgrading the Palestinian status at the United Nations is “negative political theatre” that will “hurt peace”.30 November 2012
Government spokesman Mark Regev said the move had taken Palestinians and Israelis out of a negotiating process.
The General Assembly voted resoundingly to recognise the Palestinians as a non-member observer state on Thursday.
The Palestinians can now take part in UN debates and potentially join bodies like the International Criminal Court.
Palestinian President Mahmoud Abbas said it was the “last chance to save the two-state solution” with Israel.
There were celebrations on the streets of Ramallah in the West Bank as the result was announced.
But Mr Regev, a spokesman for Prime Minister Benjamin Netanyahu, denounced Mr Abbas’ bid as “litany of libellous charges against Israel”.
“This is negative political theatre that takes us out of a negotiating process. It’s going to hurt peace,” Mr Regev told the BBC.
‘New ball-game’
Some 138 members of the assembly, including many EU states, Russia, China, India and Brazil voted in favour of recognising the Palestinians as a non-member observer state.

President Mahmoud Abbas: “The last chance to save the two state solution”
Israel the US and seven other states, including Canada, the Marshall Islands and Panama, voted against the resolution. Forty-one nations including the UK and Germany abstained.
“The General Assembly is called upon today to issue a birth certificate of the reality of the State of Palestine,” Mr Abbas told the assembly in New York shortly before the vote.
Opponents of the bid say a Palestinian state should emerge only out of bilateral negotiations, as set out in the 1993 Oslo peace accords under which the Palestinian Authority was established.
US Secretary of State Hillary Clinton called the vote “unfortunate and counter-productive”, saying it put more obstacles on the path to peace.
UN Secretary General Ban Ki-moon also called for more talks, saying the resolution underscored the need to resume meaningful peace negotiations.
The Palestinians are seeking UN recognition of a Palestinian state in the West Bank, Gaza and East Jerusalem, the lands Israel captured in 1967.
While the move is seen as a symbolic milestone in Palestinian ambitions for statehood, the Yes vote will also have a practical diplomatic effect, says the BBC’s Barbara Plett at the UN in New York.
A successful application for membership of the ICC would give the court jurisdiction in the territories, and could potentially be used to accuse Israelis of war crimes.
“This is a whole new ball-game now. Israel will be dealing with a member of the international community, a state called Palestine with rights,” the Palestinian Liberation Organisation’s Hanan Ashrawi told the BBC.
“We will have access to international organisations and agencies and we will take it from there.”
There had been lobbying by Israel and the US to try to delay the vote or change the text to obtain guarantees that no international legal action would be taken against Israel.
Settlement-building
Palestinians celebrate in the West Bank city of Ramallah on 29 November 2012While Palestinians celebrated, Israeli officials denounced the UN General Assembly vote
Last year, Mr Abbas asked the UN Security Council to admit the Palestinians as a member state, but that was opposed by the US.
Two decades of on-off negotiations between Israel and the Palestinian Authority (PA) in the West Bank have failed to produce a permanent settlement, with the latest round of direct negotiations breaking down in 2010.
In January, several months of indirect “proximity talks” ended without any progress.
Palestinian negotiators insist that the building of Jewish settlements on occupied land must stop before they agree to resume direct talks.
Their Israeli counterparts say there can be no preconditions.
Mr Abbas was much criticised by many Palestinians for remaining on the sidelines of the conflict between the militant Hamas movement and Israel earlier this month in Gaza.
His Fatah movement, based in the West Bank, is deeply split from Hamas, which governs Gaza. Hamas has not been part of any peace talks with Israel and does not recognise Israel’s right to exist.
Israel, the US and EU regard Hamas as a terrorist organisation.
Gaza’s Prime Minister Ismael Haniyeh said in a statement sent to the BBC that Hamas support for the UN bid “is based on the ‘rule of non-recognition of the occupier’… and the right of Palestinians to return to their homeland”.
In the aftermath of the latest fighting, both Israel and Hamas have joined the international community in calling for a durable and comprehensive solution to the conflict.


Unity In Diversity: My Personal Experiences As Head Of State Of Sri Lanka

By Chandrika Bandaranaike Kumaratunga -November 30, 2012
Chandrika Bandaranaike Kumaratunga
Colombo TelegraphI wish to express my gratitude to the Osigwe Anyiam-Osigwe Foundation for giving me the privilege of being with you today, to deliver the Thirteenth Emmanuel Onyechere Osigwe Anyiam-Osigwe Lecture. I am also glad, this has given me the opportunity to visit Nigeria for the first time. I must hasten to add, I am not a stranger to Nigeria since that I have read much about Nigeria, its people, its politics and I am also familiar with some of your great writers.
Osigwe Anyiam-Osigwe Foundation has been created to fulfil the noble philosophy expressed by Emmanuel Onyechere Osigwe Anyiam-Osigwe. His vision was to work for the good of humanity. His philosophy envisioned a holistic view of the world and the place occupied by Man in this world. He believed in a Truth and Ultimate Reality which was a higher knowledge and understanding of human existence and its purpose, at a level that is higher than the mundane.
He did not only expound his philosophy but his quest also led him to action. He created the West African Academy of Science to continue in his search to understand the spirituality of Man. At the same time he has created an organization for the purpose of spreading the message of democracy in Africa. This was called the Mission for Democracy in Africa. He has also undertaken various enterprises for rural development, as well as other philanthropic initiatives.
His family and followers have undertaken the laudable initiative of creating the Osigwe Anyiam-Osigwe Foundation to progress the great philosopher’s thinking and objectives. This is a rare occurrence in the third world. I wish the Foundation good luck and much strength to continue along its inspired path.
I wish to talk to you today, of the need to build inclusive and integrated societies in our countries. I shall attempt to demonstrate the relationship between inclusion of all groups of citizens in the process of governance and achieving sustainable progress and prosperity, or in the inverse case, the relationship between exclusion or marginalization and conflict.
Poverty and conflict are two issues that have caused many setbacks for developing Nations.
Poverty is considered to be the greatest challenge facing all countries. Governments have formulated and implemented thousands of programmes to alleviate or end poverty and deprivation.
However, rarely do governments recognize the importance of searching out the causes of conflict and resolving them. Unresolved conflict invariably leads to violence and civil war. This in turn compounds the problems of poverty.Read More


25 yrs on, veteran’s book throws IPKF debate wide open

The Indian Express
Pranav Kulkarni : Wed Nov 28 2012
’There would be replacement of every dead LTTE cadre as long as the idea of Eelam remained’
“There would be prompt replacement of every dead LTTE cadre or leader as long as the idea of Eelam remained,” Brigadier (retd) Ravi Palsokar quotes Lt Gen AS Kalkat, who commandeered the IPKF in Sri Lanka as having said, in ‘Ours Not to Reason Why’.
Pune-based Palsokar, who raises questions on the operational goals of the Indian Peace Keeping Force (IPKF) 25 years after it was sent to Sri Lanka as part of the Indo-Sri Lankan Accord (ISLA) comments, “Do I detect a hint of exasperation and frustration in the above words of our senior officers? Forgive me, but I do.”
Published by Power Publishers ‘Ours Not to Reason Why’ is Palsokar’s narration of commanding the 7 Infantry Brigade in Sri Lanka, the then LTTE citadel, Mullaitivu. Incidentally, it is the same brigade Brigadier John Dalvi commanded in the 1962 operations along the Thang La ridge. And like Dalvi’s ‘Himalayan Blunder’, Palsokar’s book is factual, and raises similar questions, and leaves the interpretation to the reader.
In the same vein, Palsokar admits his own occasional errors.
Referring to B G Deshmukh’s ‘A Cabinet Secretary Looks Back’, where the then Army Chief General K Sundarji has been quoted as saying that the Indian Army will finish LTTE in 10 days, Palsokar says, “What did neutralise mean? Did it mean LTTE’s capability was not to be entirely destroyed, but only partially so? Were we to go in for a Bangladesh-type surrender by LTTE? If we were to ‘finish’ LTTE, we should have used all the strength and firepower at our disposal. Much of the confusion of the task of IPKF stemmed from lack of a clear objective. We went into this adventure with eyes wide open, and the fact that LTTE may have confronted us militarily did not come as a surprise. Yet, two weeks stretched into months…two years.”
… contd.
Palsokar does not forget to name those who fought bravely and lost their lives. This without excusing those in the higher formations who put the soldier in the situation without basic equipment like bulletproof jackets or AK-47 rifles, which even the LTTE had. Palsokar says, “How did we arrive at the figure of 50,000 troops?” Just one ‘arrangement’ - reinforcing all infantry battalions under his brigade with an additional rifle company- narrated by Palsokar is enough to show lack of planning by the higher formations.
“The book is not a complaint. I am putting down facts for everyone to judge. My Brigade and IPKF as a whole did not receive the credit. I have written this book to put on record the heroic work of the 7 Infantry Brigade. What I did is on record. 25 years later, shouldn’t anyone above me, political or military, answer as to why the IPKF is not considered to have succeeded,” said Palsokar.



Protest in front of Archeological Dept.

Nov 29, 2012 
“Bodu Bala Sena” an organization of Buddhist monks and laymen today came to the Department of Archeology to urge the authorities to protect the archeological sites in the Eastern Province.

National Heritage Minister Mahinda Balasuriya and Archeology Department Director General Senerath Dissanayake assured the Buddhist monks they would do everything possible to secure the sites by January next year. Pix by Pradeep Pathirana