NAKED MORE THAN TRANSPARENT
Posted on November 7th, 2012

By Gomin Dayasri

 Impeachment is an eerie prospect – a legislative lasso twirled to hurl a justice up for unseating. It dispatches a chilling message where a government holds a majority. If the parliamentary majority is overwhelming, logistically the judiciary is tied to a kennel lashed by the party whip. Dice is heavily loaded against “”…” unfairly. Citizens face similar ordeal when Justice takes them on contempt of court.

 Chief Justice Bandaranaike always ensured a proper hearing when she heard a case likewise she must enjoy a fair trial. Deficient impeachment procedure stood in the rulebook for 30 years: judiciary should have rectified it since touches only them, as did journalists on criminal defamation.    

 Executive and legislature are voted in and out by the people. 

If elected representatives act unfairly against the judiciary and public opinion is of like mind: voters can banish the elected. Judiciary is justifiably insulated and do not have to grovel at the feet of the people for their survival. Politicians have to face the wrath. Sri Lankans have twice reduced powerful governments- UNP (1956) and SLFP (1977) “”…” to a single digit in Parliament. Learned judges should not be equated to petty politicians: standards maintained are higher in the public esteem; if they live up to it – deserve reverence.

 Executive appointed a spouse without allegedly the necessary qualifications to hold high posts and was removed for reasons now subject to inquiry. The executive installs many without merit in favored positions for extraneous reasons and the country suffers. Presumption being such appointments is made in search of benefits or goodwill- donor or recipient cannot be unaware of the side effects. Big Foot has put his shoe on the wrong foot.

 Equally blameworthy is the acceptance of such dubious office- creates unwanted obligations and makes clean hands unhygienic. Those in high places cannot disburse benevolence with the public purse to suit their fancy or act greedy for any falling crumps – should set standards befitting the posts they hold. Justices are presumed to maintain higher standards in propriety since they hold the legal scales to distinguish the good from the bad. Most judges live up to expectations to make the judiciary the cream of our public services. Few don’t and should know better. Long before it reached crisis proportion, the controversial appointment was an embarrassing talking point that left an ugly blot on bodies executive and justice “”…”discrediting both.

 Visualize the reaction if the Executive dared to offer a job for the spouse of Victor Tennekone CJ or E.H.T. Gunasekera J or T.S. Fernando J? They would quit home or office or both abodes if a wife were errant.  Executive selects soft targets likely to fall prey.  Who could defend whom when those in high offices are jointly culpable? In another country it could possibly give rise to a wrong or offence “”…” embarrassing to spell it. Life at the top does not smell of roses.    

 An independent judiciary is the roadblock to the tyranny of an administration. If the judiciary fails, the country can be set on on fire and call is for the fire brigade. Has the judiciary being the firefighter or arsonist? If the executive is the executioner: legislature the holder of the guillotine trap door; has the judiciary indulged in a bout of attempted self-immolation?

 Courts judge cases; judges are judged on decisions of courts: respectability and reliance on the judiciary originates from the justice it serves. Was justice done when the ruling party was allowed to swell its majority by a process of acquisitions from the Opposition on the strength of judicial decisions? The underlined fundamental on the franchise in the constitution is to vote first for the party before the candidate. The government took a route judiciously plotted through decisions of court to reach a secure nirvana by adding to their numbers in parliament.

 Technicalities raised successfully in court caused an enfeebled and depleted opposition. Judiciary has assisted, not arrested, the tragedy of violating the spirit of the constitution, in granting an implied license for parliamentarians to switch parties without any consequent disqualification. The handshake the judiciary offered the government, gave it the handle it requires to increase the tribe and comfortably impeach a member the judiciary. In hindsight judiciary dug its own grave donned resplendently in wig and gown.

 People are last bulwark to save the judicially since public opinion can bring a government on its knees. They will align with the judiciary, if the judiciary had fulfilled its obligations. Unfolding events will speak for it – too early to foresee on a crystal ball. Impeachment of a judge will be a non-event, if the performance of the judiciary has not won the hearts and minds of the public, by being exemplary or had made efforts to tame unkempt governments.

 Sheer respect for the judiciary in Pakistan brought the black coat fraternity to the forefront to topple a government through a revolution in court. Will Sri Lanka provide a similar reawakening? It won’t, if the marching crowds consist of NGO folk artists, human rights activists, anti war crime trustees, left over leftists and decadent groupies from prominent forums “”…” over identified with anti- Sri Lankan movements. It might, if thousands of independent lawyers from a rainbow coalition march in unison without a difference of opinion. Bar is too weak to whine and the issues are too clouded for comfort – an easy way to fall into slumber.  

 People love the Forces because they saved the country from terrorism. Notwithstanding allegations of war crimes, the country stands nearly to a man with the Security Forces because they served the country well. People cheer the President for winning the war. Did the judiciary play the role assigned to it in recent times or did it play coy with the powers in their chummy days? It was the judiciary that gave the license to the executive to hold a referendum denying the right to exercise the franchise for 6 years at an election?  Few mighty judges wrote bold dissenting judgments without cuddling in a comfort corner to declare: “I agree” to the powerful executive. Today a dissenting judgment is a rare treat.

 Neville Samarakoone was impeached for making a speech at a night school prize day against the executive. He retired before Parliament took a vote. Bar wilted before a strong President instead invited Samarakoone for a farewell supper being more a diners club.

 Executive with a massive majority needs curtailment and it’s the judiciary that can check mate. Divinaguma bill: blame the draftsmen for the stupidity not the judiciary for a proper decision. Why is the police mum on the assault on the Secretary of JSC? The personal vilification of him by the executive left a bad taste.

 Storm could have been averted if the Judicial Service Commission acted with prudence. When the President sought a meeting it was the proper moment to ventilate complaints, face to face. Three senior judges who constitute JSC including the Chief Justice can surely confront the President on a hard talk on alleged judicial interferences. President being an experienced politician faces cruel criticism daily in the media than judicial officers often flattered by fawning counsel.

 Instead imprudently JSC sneaked two press releases that sent a message worldwide that Sri Lanka is an impugned society with a threatened judiciary. A responsible institution has a duty to initially attempt to cure deficiencies through discussion and mediation, especially with Sri Lanka placed in the international doghouse. An invitation to meet the head of state should not be treated with disdain and invite trouble. Distance is better displayed with the executive by not accepting favored offers made to the family. A refusal would win respect and make the executive learn a lesson the hard way. If the correct options were taken the country would have been saved of an impeachment. Face it “”…” JSC sadly pressed a faulty accelerator to create an unnecessary conflict.

 The Chief Justice is a respected academic, elevated to the Supreme Court, where she discharged her functions to satisfaction. Misunderstanding and mishandling by both parties contributed immensely to a storm in a teacup becoming a category five hurricane. Timely intervention of saner counsel with experience and wisdom would have reduced the presently over burdened fault list.

 

23 Responses to “NAKED MORE THAN TRANSPARENT”

  1. David Appuhami Says:

    Dear Gomin

    We all know that you have a soft corner for your colleague in the same profession. For me as a Simple Simon, I really hate you lot.

    Last time I have encountered one, when I had to retain a lawyer for a minor land dispute in Sri Lanka. A retired district judge who is now residing in New Zealand recommended this guy through my brother living there.

    As agreed I met him at his makeshift office in a rundown and messy building by the side of Gampaha District Courts.

    As soon as he realised that I am from England, he immediately demanded Rs 10,000 in cash as a retaining fee.

    He did not bothered to issue me a receipt or any piece of paper saying that I made that payment, anyhow, I gave all the information necessary for him to prepare the case on my behalf and returned back to England. After two weeks, when I phoned him he told me to wait for his telephone call and days, weeks and months passed by he never contacted me. Then my sister tried to contact him from Sri Lanka and he gave the same reply. That was the end of my Rs10000.

    It is a very disgraceful profession. That’s why lawyers are called Sharks (Courtesy internet lectlaw.com)

    Shark comes from the German schurke, meaning greedy parasite. While no brave soul has gotten close enough to determine where lawyers come from, logic and common sense dictate a similar derivation.

    Sharks, unlike most fish, have no bones; their skeletons are made entirely of cartilage. Lawyers, too, are spineless as willing to argue one side of a case or the other for the right price.

    Best known as scavengers of the dead and dying, sharks have well- honed sensors with which they can track the sounds of other injured and struggling beings. They are also equipped with fine sense of smell that allow them to detect minute dilutions of blood (one part blood to one million parts water) up to one-quarter mile away. Similarly lawyers are also equipped with fine sense of smell that allow them to detect minute dilutions of money to flush victims pockets mercilessly.

    From the moment of birth, shark skin is tough and rough covered with thousands of tiny hard teeth call denticles that abrade any passer by made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

    A shark will swallow anything up to half its own size in one gulp. Several hundred years ago, a naturalist wrote that the headless body of a knight in armor was found in a white sharks stomach. Inside another was more recently found a sea lion, a horse and the body of another seven-foot-long shark. Lawyers, too, will swallow anything even their pride as increasing numbers of lawyer hopefuls trudge to law school each year for three years of browbeating in the hopes of financing their Porsches.

    Some sharks even prey on their own kind. The smell and taste of blood in the water can trigger them into an obsessed feeding frenzy, in which they often eat their own bodies while twisting and turning to get more food. This is not unlike the litigation frenzy, where lawyers are pitted against other lawyers, and ultimately themselves, to waste reams of paper while losing sight of a fair resolution for their clients.

    Ichthyologists scientists who study fish contend that sharks, dreaded carnivores of the deep, have simply been given a bad rap. They may stalk, snap at and swallow their prey alive, but, after all, they have to eat.

    So far, no one has successfully defended lawyers for preying on an unwitting public. Beyond that, the similarities between the two species make them well-nigh indistinguishable.

  2. NeelaMahaYoda Says:

    Gomin
    Why are you beating about the bush, Just ignore all other 13 charges mention against her on the order paper of Parliament, then, We have a serious case of conflict of interest when her husband is accused of corruption in a pending case and definitely she is unfit to remain chief justice because she has the power to transfer or take disciplinary action against judges or examine case documents.
    Conflict of interest arises in a situation that has the potential to undermine the impartiality of a person because of the possibility of a clash between the person’s self-interest and public interest.
    What are you talking about she must enjoy a fair trial, even a school boy can understand what is conflict of interest.

  3. Charles Says:

    I am surprised that a respected lawyer like you write in defense of a Chief Justice. Impeachment of Judges are not unknown in legal history of any country. The best another lawyer can do ina situation when one’s colleague is impeached is to keep silent. In defending the case out side the court destined to hear the arguments for impeachment is also perhaps not legal if not unethical.

  4. Sunil Vijayapala Says:

    u have to look at the issue objectively not subjectively. the issue at hand is ‘would the jsc be impeached if the divinaguma bill was okyed by cj?’ that is the root issue. if she okayed it, there would not have been an impeachment. why wait for a confrontation to expose the dirty linen? this is what is happening in sri lanka for the last 60 odd years.
    the independent of the judiciary, (an absolute corrupt institution in sl as david a observes except for some incorrupt genuien lawyers) is apparent even in corrupt countries in our region as corrupt political leaders were brought to book and jailed and some hanged. but this is not seen in sl although we have had so many corrupt politcal leaders and politicians in our recent history and no one (except sb) was legally dealt with. they had this ‘undeclared impunity’.

    another salient fact is that why wasn’t this person not ‘screened’ before giving her the highest office in judiciary. there may be a loop hole in the system. my pathetic understanding is that the president appoints the person he or she wants. is there a logical process/recommendations/feed from the the judiciary on this vital appointment.

    lastly i like to make this statement – i observe that some in this forum seem to be blindly supporting the incumbant president. if blind support is the norm i would be one of the first to be behind this man mahinda. when a person makes a mistake he should be corrected and just supporting him on doing ‘wrong’ is immoral and unwise as this man holds the higest office in the land. i am pretty aware many in this forum did not sign the sinharaja petition as it was bitter to many as most respect mahinda or didn’t much worry about the development and ‘islandarisation’ of sinharaja.

  5. Kit Athul Says:

    Charles, I certainly non-concur with your statement about defending the CJ by Gomin. First it is not defending CJ because she is in the same profession. The logical argument you present is that “IF you are a lawyer, then you cannot publish an article on a internet news webpage”, as a journalist? Then you are asking GOMIN to be silent! Why? In a democracy you never be silent. Even if Gomin published this in a LAW journal, it cannot be taken as commenting on an on going case. He can report it as a journalist, this type of reporting happens every day in USA. Just read what valuable info he has privided as an investigative journalist. I quote from the article. “Why is Police mum on the assult on the Secretary of JSC?” Lets analyse what MR administration attempted to do:

    Wanted to pass Divinaguma bill. CJ gave a verdict stating that under the present constitution it cannot be passed, but if you pass a bill with 2/3 majorty in the parliament, then it can be done. This is the area MR administration will not go because when MR went to INDIA last month. Indian Prime minister WARNED MR, “IF THE 13A is nullfied”, we will invade the Northen Province and mange it from INDIA. Now what will replace the provincial counciles if 13A is removed? The THUN RATA KARMAY. When MR mentioned it to the Indian Prime Minister he bluntly told MR never to mention this THUN RATA KRAMAYA in his office and told him to laeve his office at once, which MR did. Hanuman Singh also told MR if you implement the THUN RATA KARAMYA, INDIA will invade the Hambantotta hrabor and occupy it.

    Analyse it in the correct way. 1. MR is right trying to pass a bill without Nullifying 13A (for the above reasonning). CJ is right because she cleraly told that the bill violates the SL constitution and told them how to remerdy it by passing a bill with a 2/3 majority. Wimal Weerawanse’s protests might force MR to nullify 13A, then what we have to watch is what Jayalalitha will do, she wanrts to appoint a Governer from Tamil Nadu to manage Northern Province. One never know, MR might agree to it. Like letting Navi Pillai woman to visit SL in January 2013.

    Charles I hope I presented my case properly. Now it is up to you to tear it apart as a prosecuting attorney. Read David Appuhamy’s (I think this is Roland Appuhamy’s son) comments. It has nothing to do with Gomin’s article.

    Sunil, this is one rare occation I agree with your comments.

  6. Dham Says:

    There is a point made by Gomin here. He did not defend CJ. Appointment of an unqualified husband to high positions with the help of maharaja is unforgivable.
    The point Gomin making,
    “If the parliamentary majority is overwhelming, logistically the judiciary is tied to a kennel lashed by the party whip.” is a valid one.

    Just imagine 200 Mervyn Silvas come together !

    Whatever it is this stupid action now becme more urgent than the main national issue of burning 13A.

  7. Dham Says:

    Kit,
    We should agree more frequently. I suppose Dilrook,you, and Sunil are on the same side here and it is logical.
    Whatever it is we have no choice but to confornt India, without that there is no future. CONFRONT NOW as Sinhale has the most powerful governement at the moment. After 2 years will be gone.

  8. samaraweera Says:

    Gomin says, ” The CJ is a respected academic elevated to the supreme court” And she and her husband did all the corrupt things done by drug lords and the mafia. Rs. 34 mn in foreign currency undeclared. 20 bank accounts which were headlines in all Sri Lankan papers. We thought Gomin as a Snr. Attorney would take an independent view. Instead he is backing a corrupt CJ against whom 14 charges had been levelled. She has brought disrepute to the Judiciary !

    P.A.Samaraweera
    Melbourne

  9. nandimitra Says:

    Let the President mete out the same treatment to the people who imported inferior oil, the scandal of hedging, importing inferior drugs etc which are much more serious and detrimental to the country. Then he deserves to be in that position. If not he will be as JRJ, Mubarak of Egypt in the dust bin of history.

  10. Dilrook Says:

    I agree with Gomin to a great extent not just because I’m an attorney at law but impeaching a Chief Justice for her husband’s conduct, disagreement with the verdict of the Supreme Court or other allegations as in the impeachment is not a wise thing to do when there are other important matters affecting the nation.

    All those financial issues may well be done by her husband for which she cannot be held accountable (unless she was an accomplice in any criminal act.)

    Repealing 13A is the main requirement. There is no connection with impeaching the Chief Justice.

    Shirani is known to be a good judge. I don’t agree with her verdict on Divineguma Bill. However, what the government has in mind is far worse. They want to keep 13A and want people and the judiciary to believe 13A is a harmless part of the Constitution.

    Government’s tri-lingual initiative which is a wasteful and useless act that will make Sri Lanka an extension of Tamil Nadu is also based on the legal framework of 13A.

    18A was passed to strengthen the position of the rulers. This steady fall into dictatorship is dangerous because in the hands of an future irresponsible leader, much damage will result and Rajapakshas will give anything to India, Tamil separatists and UNHRC to evade war crimes investigations to save themselves. No one will be able to stop them. Take de-militarisation for instance. Can a government manipulate the military in the north according to its fancies without regard to needs? No; but that is what happened as the family controls it and all other avenues have been shut out.

    No such powers were needed even to win the war. Why need them now?

    This is the same problem that happened during JRJ’s time. Simply by threatening him, India managed to wrest control of the nation. This is the bane of the two thirds majority.

  11. Lorenzo Says:

    OK. The govt. has its problems. But can we give them support to do what is necessary? To SCRAP 13?

    How many problems they had during the war.

    There was a set of ministers so huge as Mathivathani’s backside. Corruption, thuggery, etc. etc. But we put up with those. Why? Because the govt. was doing something about the biggest problem then.

    Now the biggest problem is 13. We have to support the govt. scrap 13.

  12. callistus Says:

    This is not what Gomin said in ITN interview. There were 21 PC elected recently,and I didn’t see Gomin there. He has changed. Don’t trust lawyers.

  13. Dham Says:

    In 10-15 years time Tamil (nadu) sakkilis will invade sri lanka using Indian centre. will say OK now whole eelam is ispeaking Tamil and make it official language.

  14. Lorenzo Says:

    With all due respect to all, can we PLEASE give the govt. some time to get their act together?

    What if the govt. tries to scrap 13 amendment now? It will be ruled against by the supreme court.

    That is why the supreme court must be fixed first.

    Impeachment is not a drastic thing. It is not uncommon.

    Please consider the CONTEXT.

  15. mjaya Says:

    Well said David Appuhami!

  16. Charles Says:

    There was a very patriotic Sri Lankan Stanley Perera who came to Sri Lanka determined to file a FR case against theTNA, He was discouraged by the Ministers and the so called Leading Lawyers. The leading Lawyers had said that they would appear for a case in the SC for Rs.100,000 a session. And they were making all sorts of demands such as to search into TNA reports for the last 15 years. And some said that it is useless filing an action against TNA as the Sri Lanka Judges cannot be trusted.
    Minister Wimal Weerawansa did not have the courtsy to offer him a seat when he went to see him on an appointment. Then he excused himself to attend a meeting without having had any meaningful discussion. Finally he Stanley Perera went back disappointed.

    The other heroic Sri Lankan who has taken up the case against TNA too faced the same problem with lawyers, who would not make any concession on their fees for the sake of the country, and he is therefore appearing for the case himself.

    Kith wants me to put up my case what a joke in these circumstances described.,

  17. HussainFahmy Says:

    The approach to repeal 13th Amendment through unconstitutional means would create more frustration to the minority communities and challenge the neighbours ability to flex its muscles. This should be approached through diplomacy and assurance to the parties in question.

    We Hope Sri Lanka builds its future on the foundations of:-

    (A) MULTI-CULTURE (B) MULTI-LINGUAL (C) MULTI-FAITH (D) EQUAL OPPORTUNITIES TO ALL CITIZENS (E) RESPECT ALL COMMUNITIES, THEIR HONOUR AND PROPERTY RIGHTS. (F) NO COMMUNITY CLAIMS SUPREMACY OVER THE OTHER OR MANIPULATES ELECTION OUTCOME (G) STRICTLY MERIT BASED GOVERNANCE (H) ALLEGIANCE TO ONE COUNTRY, ONE NATION. (I) MAKE A DIPLOMATIC EFFORT TO CONVINCE THE NEIGHBOUR TO BE PART OF THE SOLUTION AND RELIEVE THEIR CONCERNS AND ASSURE THEM OF A FAIR TREATMENT TO ALL
    COMMUNITIES.

  18. Susantha Wijesinghe Says:

    SUNIL V. !!! A salient feature is, why was this person not SCREENED ? Absolutely. A very moot point indeed.

    His Excellency the President has ERRED, in not screening a FEMALE to a top position in the Judiciary. He has used his authoritative Excecutive Powers as President to make an arbitrary appointment. Notwithstanding, He cannot ERR the second time, to appoint the HUSBAND of this FEMALE to a top position, which undoubtedly is a POLITICAL APPOINTMENT, using the same clout. There is much more to this than meets the eye. Contributors to this site, PLEASE READ BETWEEN THE LINES. DO YOU ALL SEE WHAT I SEE ??? Arrangements have become bitter as the lines of this song depict:-

    Love and marriage, love and marriage
    Is like a Horse without a carriage
    they both go together. etc.

    Why nobody wants to say anything about it is~~~because they dont wish to confront the Presidential Sucurty Goons, and be a victim of the White Van.

    The matter is now sub-judice, but yet, we are all throw our half past two comments.

    The charges become technical offenses, when it is His Excellency, The President, who has to take the blame for the whole sordid episode. Sorry, I do not want to be white vanned.

    Since Iam a Goda Peraka-doruwa, my prediction is that the case will be unsustainable.

  19. Lorenzo Says:

    For a peaceful SL.

    1. BAN all racist parties (TNA , SLMC)
    2. SCRAP RACIST laws – Vesawalami, Muslim law, Sharia law, Kandyan law
    3. SCRAP 13 amendment.
    4. BAN POLYGAMY
    5. BAN female genital mutilation
    6. DEPORT all illegal immigrants.
    7. PUT UP army camps in every town in the north and east. Colombo, Puttlam, Nuwaraeliya.
    8. BAN all foreign religious organisations.

  20. David Appuhami Says:

    Dear Gomin
    You must have graduated from the Law College named after King Kekille.

    Are you trying to give her a character reference letter, but it will help only in portraying a positive character, in case if she has been falsely implicated.

    The hearing should be based on declaration of facts and I don’t think she has a chance to escape and you will see how facts coming into place during PSC hearing.

    As far as offering a job to CJ’s husband is concern, it is neither illegal nor unethical to offer a decent job for her husband and he screwed it up on his own accord. You can’t blame president for that.

    As far as we can see Cj’s appointment was purely based on recommendations by others in the Law college and how can president or the GOSL know her unethical and illegal dealings before hand.

    As far as I know President has not developed his clairvoyant capabilities or his extra-sensory perception yet.

  21. Lorenzo Says:

    At the same time lets not forget the services done by Gomin and Wimal Weerawansa particularly in SPLITTING the eastern province from the north in 2007.

    Had they not succeeded, we would be in DEEPER trouble today.

    Patriots are losing hope. Time is running out.

    I hope the govt. understands this.

    Sharks are tigers in salt water!!!! :))
    They can smell blood 4 km away!!!

  22. Sunil Vijayapala Says:

    divid a – being a lawyer himself mahinda should have known better to select the right person. in this anaagatte ratey everything is muddled up! a solid process must be in place as seen in advanced countries to elect persons to high office or a voting procedure with the institution concerned. instead of ‘listening’ to people at law society or law college(strange!) the president should formulate a proper procedure at least now to select a CJ so that this kind of crap never happens again. if this person did something wrong while holding office a case for impeachment is justified. dirty politicians pulling out dirty linen of dirty judiciary is truely dirty. the title of this article should have been ‘naked truth’.

  23. Naram Says:

    As GOmin says learly CJ has to not only to be impartial but sebe seen as totally independent icon in the sky above the petty interests.
    US Bar has time and again interpreted the crucial aspects of legal framework time and again to uhold the rights of men independentt f ethnic enclaves, re-interpreting the constitution to fit with the modern conscience.

    In the Divineguma Judgement the CL has clearly failed to distinguish wood from the trees. A closer look at her finances show the shameless manner she had conducted her affairs ; further her spouse too is facing a judicial investigation. One can argue how such individuals seem to rise to the very top of the establishments – but that is not uncommon world over. Presidents have to work with limited pool of people available possessing the right experience.

    Famouus British Justice Bacon, a philosopher and mathematician of great repute went to prison for corruption in the 16 the century, but wrote a famous essay accepting that he was the most corrupt judge for centuries.

    Shirani can do well to write her own memoirs in that fashion.

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