By Charles.S.Perera

ƒÆ’-¡ƒ”š‚ A good Lawyer is not one who hasƒÆ’-¡ƒ”š‚  qualifiedƒÆ’-¡ƒ”š‚  passing Examinations. One may know the law as he may have read them in books or heard from lecturers.ƒÆ’-¡ƒ”š‚  A good lawyers is one who can think beyond the lawƒÆ’-¡ƒ”š‚  and understand the application of it correctly in relation to a demand and to see that good justice is dispensed.ƒÆ’-¡ƒ”š‚  A Judge goes beyond that definition, which requires experience to dispense correct judgment not being evasive and taking shortcuts to justice. A Judge does not make a mockery of justice overlooking the violation of the lawsƒÆ’-¡ƒ”š‚  that bind the officials and citizens to justice, and give the plaintiffƒÆ’-¡ƒ”š‚  a lecture on morality overlooking the substanceƒÆ’-¡ƒ”š‚  of the redressƒÆ’-¡ƒ”š‚  theƒÆ’-¡ƒ”š‚  lawƒÆ’-¡ƒ”š‚  provides to him.

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The expense makes law firms, particularly big ones, acquire the capability to engage in discovery of this kind in every case, leading to a costly structure that has to be fed with, of course, the expense of more discovery in more cases. Lawyers get comfortable doing what they know best. There is another reason, too. It happens because many lawyers believe that learning ends when they graduate from college and law school. It seems to be easier for them to fight cases on procedural grounds, which are as familiar as an old pair of shoes. Learning something new is unpleasant for such people; they shy away from educating themselves about new technology or new facts. They are afraid. Besides, they can spend more of their clientƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s money and time quarrelling over documentsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚» Joseph N. Hosteny intellectual property litigation attorney with the Chicago law firm of Niro, Scavone,Haller & Niro.

http://www.hosteny.com/archive/Hosteny%2010-02.pdf

ƒÆ’-¡ƒ”š‚ Recently in a Fundamental Rights action ƒÆ’-¡ƒ”š‚ in the Supreme Court of Sri Lanka a case which was filedƒÆ’-¡ƒ”š‚  for the violation ofƒÆ’-¡ƒ”š‚  the Article 109 of the Constitution, which was evident, the Judge ƒÆ’-¡ƒ”š‚ ShiraniƒÆ’-¡ƒ”š‚  Thilakawardhane decided not to proceed with the case according to the lawƒÆ’-¡ƒ”š‚  on the evidence of facts, but took the short cut to give the plaintiff a lecture on toleration and how to liveƒÆ’-¡ƒ”š‚  in harmony with other Communities.ƒÆ’-¡ƒ”š‚  The plaintiff was asked to withdraw the case.ƒÆ’-¡ƒ”š‚  That was plain injustice meted out by an immature judge who did not read the law to even understand the reason for theƒÆ’-¡ƒ”š‚  FR case which demanded ƒÆ’-¡ƒ”š‚ judicial intervention for justice.

ƒÆ’-¡ƒ”š‚ A lawyer when he takes a case should be all out to serve his client, and a judge should give a judgement not evaluating the evidence from his point view butƒÆ’-¡ƒ”š‚  onƒÆ’-¡ƒ”š‚  ascertaining the whole case and looking at ƒÆ’-¡ƒ”š‚ the case broadly from every possible angles of the law.

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-My respect is reserved for lawyers who discover and try cases on the factsƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  ( Joseph N. Hosteny intellectual property litigation attorney)

ƒÆ’-¡ƒ”š‚ A lawyer cannot defendƒÆ’-¡ƒ”š‚  even the Chief Justice without being independent.ƒÆ’-¡ƒ”š‚  It is only when a lawyer is independent he will be able see clearlyƒÆ’-¡ƒ”š‚  whether the cause he is fighting is justified.ƒÆ’-¡ƒ”š‚  None of these Hultsdorf Black Coats know exactly what the CJ Shirani BandaranaikeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s intentions was when she opened 20 Bank accounts and kept themƒÆ’-¡ƒ”š‚  with zero balances at the end of the month.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Nor couldƒÆ’-¡ƒ”š‚  have these ƒÆ’-¡ƒ”š‚ Black Coats understood on reading the Charge Sheet against the CJ whetherƒÆ’-¡ƒ”š‚  she was guilty or, not of the Charges, as Learned Counsel for the Chief Justice ƒÆ’-¡ƒ”š‚ had ƒÆ’-¡ƒ”š‚ said ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- The Charges containedƒÆ’-¡ƒ”š‚  factual matters which required reference to various documents and Bank Statements itƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦..was humanly impossible to comply within ƒÆ’-¡ƒ”š‚ the said time limit.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

ƒÆ’-¡ƒ”š‚ The Black Coats of HultsdorfƒÆ’-¡ƒ”š‚  are half learned fools trying to make an issue of a Charges Against the Chief Justice which are ƒÆ’-¡ƒ”š‚ still under investigation despite the report of the PSC. They jumpƒÆ’-¡ƒ”š‚  to defend the CJ without knowing whether sheƒÆ’-¡ƒ”š‚  is guilty or not of the Charges.

ƒÆ’-¡ƒ”š‚ Having an independent view with regard to a legal problem is a quality of a good Lawyer, which our Hultsdorf Black Coats unfortunately lack.

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-A good lawyer has to maintain independence and a reasonable degree of impartiality. Do speak up for your client, but donƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t become the clientƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s mouthpiece. When I watch the nightly news and see a defendantƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s lawyer protesting his clientƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s innocence in the lobby of the Dirksen federal court building, or at the state criminal court at 26th and California, I sometimes wonder how those attorneys have so much personal knowledge of what their clients did or did not do that they can vouch for them so confidentlyƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦.If you do not preserve your independence, you will not be able to advise your client, because you will be indistinguishable from him or her. You must be able to be objective, and to tell your client the bad, as well as the good, news about the case.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

(Joseph N. Hosteny intellectual property litigation attorney)

ƒÆ’-¡ƒ”š‚ Do these Hultsdorf Black Coats take the trouble, to read the law ? Reading ƒÆ’-¡ƒ”š‚ what some of them have written it is clear that ƒÆ’-¡ƒ”š‚ they have not even ƒÆ’-¡ƒ”š‚ read and understood the Constitution of Sri Lanka.ƒÆ’-¡ƒ”š‚  If they had they would not make asses of themselves criticisingƒÆ’-¡ƒ”š‚  an Impeachment Motion carried out successfully in termsƒÆ’-¡ƒ”š‚  of the Constitution, which is a great honour to Sri Lanka.

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- Laziness in reading the law is another hallmark of the bad lawyer, or at least the slothful one. We were taught in law school to read the case, and perceive the facts that controlled the courtƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s decision about the law.

But many lawyers these days are not readers. ,They believe in the quantity, not the quality, of their citations. The only thing they read are the head notes, which I would eliminate from published decisions if I could.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

(Joseph N. Hosteny intellectual property litigation attorney)

ƒÆ’-¡ƒ”š‚ TheƒÆ’-¡ƒ”š‚  most ridiculous decisionƒÆ’-¡ƒ”š‚  the Appellate court of Sri Lanka has doneƒÆ’-¡ƒ”š‚  is toƒÆ’-¡ƒ”š‚  challenge the PSC appointed to hear the Impeachment Motion against the Chief Justice. It should make the Judiciary of Sri Lanka the laughing stock of the legal fraternity of the world. But as at the moment Sri Lanka is the centre of attack by the West for the elimination of the terrorists dear to them, thisƒÆ’-¡ƒ”š‚  scandalous decision of the Sri Lanka Appellate courtƒÆ’-¡ƒ”š‚  may still find ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-fansƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.

ƒÆ’-¡ƒ”š‚ Many writes against the ƒÆ’-¡ƒ”š‚ ImpeachmentƒÆ’-¡ƒ”š‚  Motion moved byƒÆ’-¡ƒ”š‚  117 Parliamentarians , when it can in no way be called a violation of the Constitution of Sri Lanka.ƒÆ’-¡ƒ”š‚  Each anti Impeachment writer to media ƒÆ’-¡ƒ”š‚ quotes ArticlesƒÆ’-¡ƒ”š‚  of the Constitution in support of their arguments .ƒÆ’-¡ƒ”š‚  But ƒÆ’-¡ƒ”š‚ none of the Articles ƒÆ’-¡ƒ”š‚ cited by them are relevant to the Impeachment. No where in the constitution one could find that the Supreme ƒÆ’-¡ƒ”š‚ Court or the Appellate Courts of Sri Lanka could take decisionsƒÆ’-¡ƒ”š‚  against any acts of the Parliament other than to interpret the BillsƒÆ’-¡ƒ”š‚  passed by the Legislature or interpret the ConstitutionƒÆ’-¡ƒ”š‚  to the ƒÆ’-¡ƒ”š‚ lower courtsƒÆ’-¡ƒ”š‚  on their decisions affecting the Constitution.

ƒÆ’-¡ƒ”š‚ Professor Nalin de SilvaƒÆ’-¡ƒ”š‚  had recently written anƒÆ’-¡ƒ”š‚  article ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The Logic of the ImpeachmentƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ ( not published in the Island but Published in Lankaweb), in simple straight forward EnglishƒÆ’-¡ƒ”š‚  explaining the three pillars of Democracy, theƒÆ’-¡ƒ”š‚  Legislature, the Executive and the Judiciary and the Impeachment Motion by the Legislature. No one had so far written any thing more clear.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  Even the honourable International Judge Weeramantry had failed to explain the Impeachment issue more acceptably.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ There is a difference between the Parliamentary Standing Orders and the Constitution. The Standing Orders are the procedural rules pertaining to the Parliament.ƒÆ’-¡ƒ”š‚  ItƒÆ’-¡ƒ”š‚  is the normal procedure of the Parliament to follow themƒÆ’-¡ƒ”š‚  and the Judiciary has no rightƒÆ’-¡ƒ”š‚  to interfere with those rules.ƒÆ’-¡ƒ”š‚  Nor has the Judiciary any right to decide for the Legislature how it should act in terms of the Articles of the Constitution.ƒÆ’-¡ƒ”š‚  All those Hultsdorf Black Coats including the Judges of the AppellateƒÆ’-¡ƒ”š‚  Court of Sri Lanka have acted in contempt of the ParliamentƒÆ’-¡ƒ”š‚  in criticising in public the Impeachment Motion it had put in motion in terms of the Article 107 of the Constitution.

ƒÆ’-¡ƒ”š‚ It is interesting to find out the relevance of the Articles in the Constitution referred to by the SC and various anti impeachment writers on ƒÆ’-¡ƒ”š‚ the Impeachment Motion against the Chief Justice.

ƒÆ’-¡ƒ”š‚ The petition to the SC by the Chief Justice against the appointment of the PSC refers to article 125 under which the SC recommends to the PSC to defer the inquiry to be held against CJ.ƒÆ’-¡ƒ”š‚  Here the Article 125 states:

ƒÆ’-¡ƒ”š‚ 125. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceeding in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.

ƒÆ’-¡ƒ”š‚ This article states the right of the SC to interpret the Constitution ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-onlyƒÆ’-¡ƒ”š‚  where such question arises in the course of proceeding in another court or tribunal or institution empowered toƒÆ’-¡ƒ”š‚  administer justice or such functionƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚.ƒÆ’-¡ƒ”š‚  No where is it statedƒÆ’-¡ƒ”š‚  ƒÆ’-¡ƒ”š‚ in the Article 125 that the SC has a legal right toƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  interpret ƒÆ’-¡ƒ”š‚ the Articles of the ƒÆ’-¡ƒ”š‚ Constitution to the Parliament or to the PSC appointed by the Parliament under the Parliamentary Standing Orders.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  It is a wrong interpretation of the SC toƒÆ’-¡ƒ”š‚  cite the Article ƒÆ’-¡ƒ”š‚ 125 of the Constitution to interfere on appointment of the ƒÆ’-¡ƒ”š‚ PSC by the Parliament, which isƒÆ’-¡ƒ”š‚  its proper responsibility

Then Eran Wickramaratne UNP MP ƒÆ’-¡ƒ”š‚ in an article ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Govt Creating Constitutional Crisis by Violating Supreme Court DeterminationƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ states:

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The refuge of the citizen is in the fact that Article 120 of the Constitution states that the Supreme Court shall have sole and exclusive jurisdiction to determine whether any Bill or any provision thereof is inconsistent with the Constitution. By violating the determination of the Supreme Court the Government is creating a Constitutional Crisis.COURTESY:FINANCIAL TIMES.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ The Article 120 of the Constitution cited in the above excerpt is :

ƒÆ’-¡ƒ”š‚ 120. The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution:

ƒÆ’-¡ƒ”š‚ This Article has to be read along with the sub items (a) toƒÆ’-¡ƒ”š‚  (d)

ƒÆ’-¡ƒ”š‚ In the case of item (a) (c) and (d) it is stated that the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83; In the case of Item (b) it is about amendments to the Constitution where the SC is excluded from exercising any jurisdiction.

ƒÆ’-¡ƒ”š‚ Hence it is very clear that SC has no Jurisdiction what so ever over actions of the Parliament under Article 120 of the Constitution, except with regard to a bill requiring approval by the people in a referendum.

Then in an article, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…- Issuing notices on Speaker et al, a legal obligation ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Court of Appeal:CJƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s writ Application against PSC findings ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-, by Chitra Weerarathne, it is reported:

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦..The judgement explained that the PSC appointed by the Speaker had exercised powers of a judicial nature in finding that the charges 1, 4, and 5 were proved against the Chief Justice. Whether the PSC had the power and authority to act in the manner it had acted or whether it had exceeded its power or had failed to act judicially in arriving at its finding are matters subject to judicial review under Article 14 of the Constitution. ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

The Article 14 is reproduced below.ƒÆ’-¡ƒ”š‚  Does it mention any where about Judicial review of the SpeakerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢sƒÆ’-¡ƒ”š‚  function in the appointment of the PSC ?

Freedom of Speech, assembly, association, movement, &c.

14. (1) Every citizen is entitled to –

(a) the freedom of speech and expression including publication;

(b) the freedom of peaceful assembly;

(c) the freedom of association;

(d) the freedom to form and join a trade union;

(e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching;

(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;

(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;

(h)ƒÆ’-¡ƒ”š‚  the freedom of movement and of choosing his residence within Sri Lanka; and

(i) the freedom to return to Sri Lanka.

(2) A person who, not being a citizen of any other country, has been permanently and legally resident in Sri Lanka immediately prior to the commencement of the Constitution and continues to be so resident shall be entitled, for a period of ten years from the commencement of the Constitution, to the rights declared and recognized by paragraph (1) of this Article.

ƒÆ’-¡ƒ”š‚ ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The Court of Appeal on 21 December,2012 observed that it has the jurisdiction to hear the writ petition filed by Chief Justice Shirani Bandaranayake challenging the findings of the Parliamentary Select Committee (PSC) and as such issued notices on the Speaker and PSC members returnable on January 3, 2013.

The Appeal Court also observed that the Speaker and the PSC members should advise themselves not to act in derogation of the rights of the CJ and that any act disregarding the ongoing case and moves to alter the status quo may lead to a chaotic situation in the country.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ TheƒÆ’-¡ƒ”š‚  Impeachment Motion has beenƒÆ’-¡ƒ”š‚  brought underƒÆ’-¡ƒ”š‚  the article 107 of the Constitution.

ƒÆ’-¡ƒ”š‚ Appointment and removal of Judges of the Supreme Court and Court of Appeal.

ƒÆ’-¡ƒ”š‚ There are 5 sub items under this Article. And no where has it been mentioned that a decision of the PSC is subject to scrutinyƒÆ’-¡ƒ”š‚  by the Supreme Court.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ The ƒÆ’-¡ƒ”š‚ Court of Appeal order on the writ application of the CJ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ mentions that neither theƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  Article 107 of the Constitution nor the Standing OrdersƒÆ’-¡ƒ”š‚  excludedƒÆ’-¡ƒ”š‚  judicial scrutiny of the decision of a PSC.ƒÆ’-¡ƒ”š‚  It is therefore it seems that the Appellate CourtƒÆ’-¡ƒ”š‚  had sat to decide on matters pertaining to the Legislature knowing well that it is above the Judiciary as it represent the people.

ƒÆ’-¡ƒ”š‚ The fact that a judicial scrutiny is not mentioned in the Article 107 does not mean that the Supreme Court could interpret it to say that not mentioningƒÆ’-¡ƒ”š‚  a judicialƒÆ’-¡ƒ”š‚  scrutiny is not excluding a judicial scrutiny.ƒÆ’-¡ƒ”š‚  That puts the Legislature to be ƒÆ’-¡ƒ”š‚ subject to and under the jurisdiction of the Judiciary.ƒÆ’-¡ƒ”š‚  This isƒÆ’-¡ƒ”š‚  an attempt to amend the existing Constitution by the Supreme Court or an attempt to rewrite A new Constitution inserting what has not been said but understood by the anti- Impeachment Judges of the Supreme Court.

ƒÆ’-¡ƒ”š‚ The whole attempt of the Supreme Court and the Appellate Court of Sri Lanka on the Impeachment Motion is an attempt to confuse and bring discredit to Sri Lanka.ƒÆ’-¡ƒ”š‚  No where in the world had there been an attempt on the part of the Judgers and lawyers to usurp the power of the Legislature and the Executive and set up a Judicial Dictatorship byƒÆ’-¡ƒ”š‚  holding up the function of the Judiciary and blocking administrative functions.

ƒÆ’-¡ƒ”š‚ There is no legal obligation for the Speaker orƒÆ’-¡ƒ”š‚  the Members of the PSC toƒÆ’-¡ƒ”š‚  honour the summons of the AppellateƒÆ’-¡ƒ”š‚  Court or the Supreme Court as the summons issued by them are illegal and a violation of the Judicial Powers under the Constitution.