The CJ Story: Is Dictatorship Crowning the Pinnacle of Democracy Unfounded?
Posted on November 4th, 2012

Prof. Hudson McLean

The proposed impeachment of the Chief Justice Shirani Bandaranayake, where a Committee appointed under the Standing Orders of Parliament, comprising mainly of pro-government MPs, will leave a dark cloud, if the Final Judgment is against the Chief Justice. These are the likes & sounds of Adolf Hitler marching in Austro-German borders.

Whilst there were other options to wage against the “possible (?) questionable” conduct of the CJ, was it naive that, Chamal Rajapaksa – The Speaker, the brother of the President was made the scape-goat of the entire Shakespearean Farce?

Whilst the mighty Rajapaksa clan has contributed a tremendous amount to the development of Sri Lanka, supported  by the regular Daily New Front Page photo-opportunity slot, entanglement with the Judiciary, is a wholly negative Black Mark.

Now the involvement of Namal Rajapaksa in the Colombo Road Races which may lead to the next F1 candidacy with the billion-dollar midget Bernie Ecclestone, is on the cards. Most certainly, this event will make the next generation of Rajapaksa into billion-dollar stars, not just controlling but owning Sri Lanka per se!.

Quoting Hitler:
He alone, who owns the youth, gains the future. – Adolf Hitler


Most good leaders, crazed by power and mainly influenced by their coterie of parasites, “Ride in an illusion of The Invisible Silk Robe”! ……..ride into the sunset, stark-naked, as Lord Buddha predicted.

A Sri Lankan Story……..

If and when the judiciary was under threat from ex-dictators such as in Iraq, Pakistan, and from current leaders of Russia, China, is this a sign that the  “Sri Lankan Democracy” zooming towards a house-trained Executive Presidential-Pet judiciary?

Only Fools learn from their Own Mistakes!

PS: The Hotel Rates in Sri Lanka fixed by Presidential Decree might bounce back with a negative vengeance resulting from the natural disaster in USA and from the grave economic crisis in Europe. Will the President allow the “market forces” to decide on the Hotel Room Rates or help drive the business to Thailand?


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15 Responses to “The CJ Story: Is Dictatorship Crowning the Pinnacle of Democracy Unfounded?”

  1. Lorenzo Says:

    Some valid points by the good prof.

    But with all due respect I disagree with the rest.

    The impeachment is the right thing to do because the CJ has done a huge professional mistake in her judgement. SL is a UNITARY nation. Parliament can make WHATEVER laws it can. Only the constitution NOT the provincial councils can restrict it.

    The impeachment is the first step to gain TRUE independence from India by scrapping 13 amendment.

    The end JUSTIFIES the means.

    But it is always good to hear different views.

  2. NeelaMahaYoda Says:

    Dear Prof. Hudson,
    I totally disagree with you this time

    Probably you are not aware, that there are more reasons for this chaotic situation than what you have mentioned in your letter. Problems what we are facing here with the Sri Lankan judiciary are somewhat more complex than what you have envisaged.

    According to MPs who initiated this motion against the Chief Justice, the impeachment motion had been necessitated by the judiciary’s attempt to disregard the supremacy of Parliament.

    As you know, a unitary state is a sovereign state governed as one single unit in which the central government is supreme and any administrative divisions (sub national units) exercise only powers that their central government chooses to delegate. Further, that the devolved governments (sub national units) cannot challenge the constitutionality of acts of Parliament, considering the fact that the powers of the devolved governments can be revoked or reduced by the central government

    So, the seven charges said to constitute “improper behaviour”, pertained to the Chief Justice’s conduct both in her official and personal capacity has been the basis of this motion and according to the speaker, these charges will not be disclosed for public scrutiny,unfortunately, before appointment of a Parliamentary Select Committee and without knowing these allegations and counter allegations it is worthless for us to speculate our two cents worth of opinion to dismiss it.

    On the surface value, our judiciary system is not that squeaky clean as you can expect it from United Kingdom perspective. Unlike in UK or any other democratic system, our legal profession is not monitored or self-controlled by the Bar Association of Sri Lanka and it is almost like an open gold mine for those professionals deeply engaged in the otherwise noble profession.

    Unfortunate, members of the public who opt out to seek judiciary help for solving their minor legal conflicts can easily get flushed out their pockets by these legal luminaries as their fees can be anything by the face value in thousands and not accordance with a billable hour structure as in UK. Most of the time they don’t issue receipts to avoid income tax liabilities just like builders those who come to mend your fence in London.

    Do you know that there is a fundamental rights case, master-minded by the UNP and petitioned by 11 Trade Unions, pending against the husband of the Chief Justice. He is accused of improper handling of Employees Provident Funds while he was in charge of the funds handling institution. (Is EPF FR Case Designed To Embarrass SC?

    Then Chief Justice son’s has allegedly challenged the supremacy of the parliament by publishing a challenging letter on a Sri Lankan Website. Please see Ref 1 for more details.

    Problem we face at the moment, is that, once appointed, the Chief Justice remains in office for life until his or her retirement age or death. This is the place where our national weakness of corruptions can easily be proliferated even in the judicial system and that can jeopardise the very basic foundation of the democratic process in Sri lanka.

    So, We have only one option for remedy , i.e. through a process of impeachment by Parliament and let us eagerly wait and see.

    Ref. 1-
    My Mother Is The Chief Justice Of This Country And She Will Not Back Down From Anything

    Ref 2
    Is Employees? Provident Fund (EPF) Fundamental Rights (FR) Case Designed To Embarrass Supreme Court?

  3. samaraweera Says:

    We have always read good comments from the Prof. Unfortunately, this time he had got wrong information. As any other person this is the only way the Chief Justice could be shown her ‘misdeeds’ and where she had erred. If an impeachment could be moved against the President for any of his misdeeds, then why not the Chief Justice ? The CJ is not GOD !

  4. Susantha Wijesinghe Says:

    NMY !! Judiciarys attempt to dis-regard the Supremacy of Parliament ~~Please elicit. In what way ?


    Yes, while the matter is still sub-judice in Parliament, The son should not have given a testimonial to the mother. Agreed.

    The misdeeds are still kept confidential, that is the reason for everybody to go at a tangent in their comments.

    To err is human, to forgive is divine.

  5. Vijaya97 Says:

    I want to add my voice to this discussion. While impeachment of a CJ should be an ultimate and major step in any country, we need to wait and see what the specific allegations are before coming to a judgement on the impeachment itself. I will reserve my judgement on that for later.

    But I do want to set the record straight on one matter. In Sri Lanka, neither Parliament, not the President nor the Judiciary is SUPREME. There is only one thing that is supreme when it comes to governance in Sri lanka – and that is the CONSTITUTION. Read the preamble to the Constitution for yourself. It says “We the People of Sri Lanka…do hereby adopt and enact THIS CONSTITUTION as the SUPREME LAW of the Democractic Socialist republic of Sri Lanka” ( Take a look at Chapter X of the Constitution of Sri Lanka which establishes Parliament. Nowhere is it declared to be supreme. The Supremacy of Parliament is an English Constitutional Law concept that has NO PLACE in Sri lanka or in other countries which have constitutional government. That has been well established for over a century in constitutional jurisprudence in many countries, including in Sri Lanka.

    Because the CONSTITUTION is Supreme, all the organs of government (parliament, President, Cabinet, Judiciary etc) must function within the powers and functions assigned to them by the constitution. That is becuase the Constitution is supreme. It is the supreme law. Nothing and no one – is above the constitution and laws made in accordance with it. At least that is the legal position.

    Let me turn briefly to the 13th Akmendment to the Constitution. This was an amendment that was hurriedly enacted by the then UNP government headed by the late Preseident J R Jayawardene under pressure by the late Prime Minister Rajiv Ghandi of India and the Indian Government. It essentially grafted onto Sri Lanka’s unitary Constitution the Indian quasi federal system – establishig Provincial Councils (PCs), three legislative lists and provisions as to how Parliament and the PCs can legislate (pass laws) relating to the powers of law making entrusted to them under those lists.

    The Constitution is very clear as to how Parliement and PCs can pass laws when a subject is on the thrid (concurrent) list. This is a list of subjects on which both parliament and PCs can pass laws. The issue that the Supreme Court has to often decide is whether a draft law (bill) presented to Parliament or a PC covers matters on the concurrent list and if so what procedure should be followed to pass such a law. The Constitution is clear that in such cases Parliament and PCs must “consult” each other before adopting the law. Parliamentary bills and PC statutes have been challenged before the courts of Sri lanka from time to time on the basis that the procedure in the 13th Amendment was not followed. The courts have had to decide such issues before. The courts have to decide those issues becuase it is the Judiciary (not the President or parliament) that has been given power to interpret the Constitution under the Constitution (supreme law) itself.

    Now, if folks are unhappy about this situation and feel that the 13th Amendment is not a good idea, then there is a way for Parliament to repeal (abolish) that Constitutional amendment and do away with PCs or amend that law. The prblem is therefore not with the Supreme Court’s decision. the Court merely re-iterates or interprets what the current Constitution says. After all the CONSTITUTION is the Supreme law and MPs, the President and Judges and Public Officials all take an oath to uphold and defend it as such. If a Supreme Court decision creates a problem for the government, the remedy lies not in blaming the Court, but rather in taking bold steps to amend, revise or abolish the 13th Amendment or the law itself.

    I am neither advocating for nor against the 13th Amendment here. I am merely pointing out that the idea of the supremacy of parliament in Sri Lanka is a falacy and myth and that if folks don’t like the 13th Amendment, then something should be done about that.

  6. Dham Says:

    Commenting on another writing, Melbourne Patriot said,

    “The recent discourse by the goverment may have been initiated due to Divineguma, once it is resolved, the idea (of scrapping 13A) may again be swept under the carpet.”

    Impeachment is FOOLISH, if not DICTATORSHIP. I belive it is just FOOLISH.

    Maharaja is going crazy with too much greed, in my view – like Mugabe or Sadaam.
    In that sense I agree with Professor.

    “Whilst the mighty Rajapaksa clan has contributed a tremendous amount to the development of Sri Lanka, supported by the regular Daily New Front Page photo-opportunity slot, entanglement with the Judiciary, is a wholly negative Black Mark.

    Now the involvement of Namal Rajapaksa in the Colombo Road Races which may lead to the next F1 candidacy with the billion-dollar midget Bernie Ecclestone, is on the cards. Most certainly, this event will make the next generation of Rajapaksa into billion-dollar stars, not just controlling but owning Sri Lanka per se!.”

    Very true.

    What is the problem with Son writing about mother in a democracy NMY tell me ?

    If his father has done wrong prosecute him. If it can be proven the UNPiers of Bar association has influenced CJ , take similar action.

    This exercise should not be a mere patch up work to preserve 13A.

    Kicking out PCs and 13A is the most urgent national action , only 2nd to defeat of LTTE.

  7. nilwala Says:

    A son making an impassioned plea on behalf of mother is understandable and portrays his loyalty, but does not affect the facts undelying the impeachment issue of this case Sending the letter via Facebook amounts to media gimmickry and smacks of something else that is not quite as morally on the high ground.
    That said, we all know very little about the real facts except the gossip that is being reported. So let us patiently await the facts as this unfolds.

  8. Raj Says:

    The professor got it wrong this time. We do not quite know what CJ has done wrong to be exact. So, best way is to wait and see before jumping into the band waggon to blame Rajapaksas. Is someone else writing with the prof’s name?

  9. Fran Diaz Says:

    Prof is not showing his usual acumen in his observations here.

    Since the 13-a brought about all the dissent with the SC & CJ, we have to address the 13-A. It was imposed under Duress using India, during Cold War times, as JRJ went too far west. Unfortunately, Separatists elements in Sri Lanka saw it as an offering on a gold plate !

    About 90-95% of people of Lanka want the13-A removed as it carries with it the seeds of Separatism plus possibilities of increased foreign interference in internal matters which may result in a weak & dysfunctional government.

    The DiviNeguma Bill is, ( I presume), a prelude to removal of the 13-A, as some forms of governance have to be put in place prior to removal of the 13-A. The 13-a benefits the neglected rural folk mostly, neglected for over 500 yrs of Colonial rule, and ultimately the entire country as we all reap the dividends of peace & prosperity. Not having future insurrections and terrorism is the real bonus.

    Question to ask : Who else benefits, other than Separatists, from keeping the 13-A ?

  10. Marco Says:

    I don’t see anything wrong with the Prof observation.
    I wonder if the CJ had made a favorable decision on DB, if she would have faced an impeachment motion.She clearly interpreted the Constitutional Laws however unpopular or “under duress” the 13th Amendment.
    The 13th is in the Constitution whether we like it or not. The seven charges are said to be for “improper behaviour” and not “incompetent” or loss of confidence etc.
    Regrettably, she finds herself in the “middle” of what MR GOSL always wanted to do, to nullify 13th by introducing various amendments and bills. (17,18, DB).
    MR will not repeal the 13th using his 2/3rd majority instead he plays the good guy and bad guy (Gota – civil servant not a politician) with India & US. After all did he not give an undertaking to implement the 13th as a quid pro qou for India & US to keep out during the last stages of the war. Even the LTTE Tamil Diaspora are well aware of this, hence they themselves do not care about the 13th but waiting to pounce as and when India & US get tired of MR double speak.

  11. Fran Diaz Says:

    correction: “The REMOVAL of the 13-A benefits the neglected rural folk mostly, neglected for over 500 yrs of Colonial rule, and ultimately benefits the entire country, as we all reap the dividends of peace & prosperity”.

  12. Fran Diaz Says:

    Removal of 13-A : Is it better to do it through a Referendum through the People or have Parliament remove it through 2/3 majority ?

    If through a Referendum, then the People would have participated in the process, weighed the pros and cons, educated themselves on governing processes, and decided what is best for their own progress – (see Dr Gavin Karunaratne’s article on 13-A : “The 13-A : Devolution of Powers …” ). This would be high Democracy in practice.
    If through Parliament, then It would seem that GoSL made the decision all by itself.
    Which path is better ?

  13. Lorenzo Says:

    Now we have decided to follow one path, lets stick with it.

    SB cannot hold CJ post with her situation. She must go.

    There are protests against impeachment. Those who support 13 amendment are behind these!! What a strange accident!!

  14. Dilrook Says:

    The ruling party is fooling the people with 13A.

    Why impeach the Cheif Justice without doing anything to repeal 13A?

    Government badly wants to keep 13A. Possibly give 13P. But wants to tone down 13A on money matters. Also wants the supreme court to interpret the law relating to 13A in government’s favour. That’s why the impeachment. Attention it gets from the whole episode will actually make repealing 13A more difficult.

    All this effort should have been chanelled towards repealing 13A with the concurrence of the supreme court. When an action is brought, there is no way the supreme court can stop it.

    SLMC, CWC and the like will support the impeachment on condition that 13A stays. SLMC support to UPFA in eastern provincial council was also based on condition that 13A stays.

  15. M.S.MUDALI Says:

    CJ is the authority in constitutional matters. Parliament has many fools and criminals. Duminda Silva, Mervyn and many more frauds are there. Government or ruling party cannot expect the CJ to dance to their music. CJ has to work according to the law of the land. She do so. If CJ tell everything in favour of Gota or Mahinda, they can appoint Shiranthi or Namal as the CJ!

    Prof. is right and I agree with him.

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