The Supreme Court (SC) is now possessed with several cases where the
Court is constitutionally bound to interpret the constitution and to
determine the constitutionality of the Standing Order 78A, that deals
with the impeachment procedure. The Supreme Court has made a
recommendation that the Select Committee of Parliament (PSC) should
not proceed with the impeachment inquiry until the SC examines the
validity of the questionable Standing Order on which the impeachment
inquiry is being based.

We view the Recommendation given by the Supreme Court as a great
opportunity for all parties to restore mutual respect and rule of law
and to avert a constitutional crisis in the country. We are dismayed
that the PSC has, by majority, rejected the recommendation of the
Supreme Court and to proceed with the inquiry, with scant disregard to
the constitutional traditions.

There is no legitimate basis to expedite this inquiry ignoring the
Supreme Court recommendation. The manner in which the inquiry is being
conducted has converted the inquiry against the Chief Justice into a
trial on the parliament itself.

In the mean time the Chief Justice and the judiciary are subjected to
all possible humiliation to an unprecedented level. We note with
regret the level of media attacks in State media and the circulation
of mudslinging booklets/posters obviously, instigated by the
Government, to discredit the Chief Justice and the judiciary.

In a democracy, public expect all the institutions including the
parliamentarians to respect the recommendations and orders of the
highest Court of the country. Unless the public, lawyers and judges
come forward to the protect the judiciary, our future generations will
be left with a lawless state. We call upon the Parliament and the
Executive to display maturity when dealing with the impeachment, and
not to proceed with the impeachment until the Supreme Court exercise
its constitutional duty in the relevant interpretation.

Singed On behalf of Lawyers for Democracy

Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan , K.S.
Ratnavale, J.C. Weliamuna, Sudath Netthisinghe ,Sudarshana
Gunawardana, Lakshan Dias , Sunil Jayaratne, Harin Gomas, S.G.
Punchihewa

Lawyers for Democracy (LfD) is a representative body of legal
practitioners throughout the island. Conveners include Lal Wijenayaka,
Chandrapala Kumarage, E. Viwekanandan , K.S. Ratnavale, J.C.
Weliamuna, Sudath Netthisinghe ,Sudarshana Gunawardana, Lakshan Dias ,
Sunil Jayaratne, Harin Gomas, S.G. Punchihewa.

1. I am Sergei GOLUBOK. I hold postgraduate degrees of LL.M. in
International Human Rights Law awarded by the University of Essex in
the United Kingdom and Candidate of Juridical Sciences in Public
International Law and European Law awarded by the St. Petersburg State
University in the Russian Federation. In 2008-2011 I had an honour to
serve as a legal secretary at the Registry of the European Court of
Human Rights in Strasbourg, France. Currently I am a practicing
attorney and member of the St. Petersburg Bar Association appearing
before Russian courts including the Supreme Court of the Russian
Federation and before the international human rights tribunals such
as, for example, the Committee against Torture. I am also a deputy
editor-in-chief of the International Justice law journal which is
published by the Institute of Law and Public Policy and teach
international law at the Russian Academy of Justice in Moscow.

2. It was brought to my attention that the following question had
been referred to the Supreme Court of Sri Lanka: Is it mandatory under
Article 107 (3) of the Constitution  to provide for
matter relating to the forum before which allegations are, the mode of
proof, the burden of proof, standard of proof etc., of any alleged
misbehaviour or incapacity in addition to matters relating to the
investigation of the alleged misbehavior or incapacity?

3. Pursuant to Article 107 (3) of the Constitution of Sri Lanka in
conjunction with Article 107 (2) of the said Constitution Parliament
shall by law or by standing orders provide for all matters relating to
the presentation of the address on removal of the serving Judge of the
Supreme Court and of the Court of Appeal on the ground of misbehavior
or incapacity (“the impeachment procedure”) including the procedure
for the passing of such resolution, the investigation and proof of the
alleged misbehaviour or incapacity and the right of such Judge to
appear and to be heard in person or by representative.

4. I was approached by the Asian Human Rights Commission with a
request to prepare this opinion on international legal standards
concerning the fair-trial guarantees in the impeachment procedures
against serving judges.

5. The most important point of reference is the International
Covenant on Civil and Political Rights (hereinafter, “the Covenant”)
to which Sri Lanka is a State Party. Article 14 § 1 of the Covenant
provides that all persons shall be equal before the courts and
tribunals and that in the determination of his or her rights and
obligations in a suit at law everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal
established by law. Further, under Article 25 (c) of the Covenant
every citizen shall have the right and the opportunity without any
distinction on the basis such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status and without unreasonable restrictions
to have access to public service in his or her country, on general
terms of equality.

6. In its jurisprudence the Human Rights Committee (hereinafter, “the
Committee”), an independent expert body tasked with the interpretation
and application of the provisions of the Covenant, has developed the
meaning of the rights listed in the preceding paragraph of this
opinion with relation to the impeachment and other types of
involuntary removal from office of serving members of the judiciary.

7. The Committee found that a dismissed judge should have at his or
her disposal the availability of effective judicial protection of his
or her rights and be able to effectively contest the removal (see
Views of the Committee rendered on 5 August 2003 in the matter of
Pastukhov v. Belarus, Communication no. 814/1998, UN Doc.
CCPR/C/78/D/814/1998, at para. 7.3).

8. With respect to the parliamentary impeachment with no subsequent
judicial remedy the Committee found violations of Articles 14 and 25
of the Covenant referring to the conclusion that such procedure would
not ensure required objectivity and impartiality (see Views of the
Committee rendered on 24 July 2008 in the matter of Bandanaranayake v.
Sri Lanka, Communication no. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005,
at para. 7.3).

9. In its concluding observations on Sri Lanka the Committee
expressed concern that the procedure for the removal of judges which
is set out in Article 107 of the Constitution of Sri Lanka is
incompatible with the Covenant as it allows Parliament “to exercise
considerable control over the procedure for removal of judges” (UN
Doc. CCPR/CO/79/LKA, at para. 16). The Committee went on to recommend
to Sri Lanka to provide for judicial, rather than parliamentary,
supervision and discipline of judicial conduct.

10. The then Special Rapporteur of the United Nations Human Rights
Council on the Independence of Judges and Lawyers (hereinafter, “the
Special Rapporteur”) Mr Leandro Despouy of Argentina opined in 2009
that the irremovability of judges was one of the main pillars
guaranteeing the independence of the judiciary and that that
fundamental principle might be transgressed only in exceptional
circumstances (see UN Doc. A/HRC/11/41, at para. 57). Special
Rapporteur Despouy further expressed his strong concern about the
situation in those countries where, like in Sri Lanka, the legislative
or executive branches of the government play an important or even
decisive role in disciplining judges (see UN Doc. A/HRC/11/41, at
para. 60).

11. The serving Special Rapporteur Mrs Gabriela Knaul of Brazil
issued a special press statement on 14 November 2012 expressing her
concern about reprisals against judges in Sri Lanka and urging
reconsideration of Chief Justice’s impeachment. Having reiterated her
predecessor’s thoughts as summarized in the preceding paragraph of
this opinion, the Special Rapporteur expressed her uneasiness with the
procedure of impeachment of the Chief Justice of the Supreme Court of
Sri Lanka. She shared the view of the Committee that the procedure for
the removal of judges of the Supreme Court set out in Article 107 of
the Constitution of Sri Lanka allows the Parliament to exercise
considerable control over the judiciary and is therefore incompatible
with both the principle of separation of power and Article 14 of the
Covenant. The Special Rapporteur urged the Sri Lankan authorities to
reconsider the impeachment of Chief Justice and ensure that any
disciplinary procedure that she might have to undergo would be in full
compliance with the fundamental principles of due process and fair
trial.

12. The European Court of Human Rights (hereinafter, “the European
Court”) in its jurisprudence likewise considers possibility of
independent judicial review with full fair-trial guarantees to
constitute inalienable element of any involuntary removal from office
of a serving judge.

13. Thus, in its recent judgment in Harabin v. Slovakia (Application
no. 58688/11) the European Court found the following: “The mission of
the judiciary in a democratic state is to guarantee the very existence
of the rule of law. The  Court therefore sees as a matter of
major importance when a Government, as in the present case, initiates
disciplinary proceedings against a judge in his or her capacity as
President of the Supreme Court. What is ultimately at stake in such
proceedings is the confidence of the public in the functioning of the
judiciary at the highest national level. It is therefore particularly
relevant that the guarantees of Article 6 [of the European Convention
on Human Rights which is substantially similar to Article 14 of the
Covenant] should be complied with in such proceedings” (at para. 133
of the European Court’s judgment rendered on 20 November 2012).

14. The European Court has earlier found that Article 6 § 1 of the
European Convention is fully applicable in the disciplinary
proceedings against a sitting judge (see the judgment of 5 February
2009 in Olujić v. Croatia, application no. 22330/05).

15. It follows that a serving judge in disciplinary proceedings which
might ultimately lead to her or his dismissal should be entitled to
fair-trial guarantees including a right to be tried by an independent
tribunal. According to the international legal standards all
disciplinary (including those ultimately potentially leading to
removal) proceedings against members of the judiciary must be
determined in full compliance with the procedures that guarantee the
right to a fair hearing and to an independent review (by a court of
law).

16. Given the absence of such guarantees procedure as currently
established by the Standing Orders enacted by the Parliament under
Article 107 (3) of the Constitution cannot be legally used.

A Statement from the Asian Human Rights Commission

INDIA: Does impeachment of the Chief Justice in Sri Lanka matter?

The Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, is facing
impeachment in that country. Those who know the state of affairs in
Sri Lanka, might have no doubt, that the impeachment is politically
motivated. To justify the process, the government has levelled
allegations of corruption against Justice Bandaranayake. The
Constitution of Sri Lanka (Article 107) and the Parliamentary Standing
Orders, though allows such a process, in law and theory, the entire
process is devoid of legal and jurisprudential merits, a question that
the Supreme Court of Sri Lanka is now considering, by way of receiving
a reference petition to consider the constitutional vires of Article
107 of the 1978 Constitution.

Sri Lanka is not a country far and distant from Indian shores.
Neither are the people, culture and politics of Sri Lanka alien to
India. Though some people in both countries would argue for and
against India’s involvement in Sri Lankan affairs, the impeachment of
the Chief Justice for purely political reasons is not something that
India could pretend to ignore. Sri Lankans and Indians and all those
who believe in democracy have the moral duty to express their opinion
about the impeachment process. New Delhi has a little more difficult
job, perhaps in expressing its concern about the impeachment process
to Colombo, a responsibility nonetheless. The notion of state
sovereignty is not a moral or legal impediment to this.

That no government in India would ever dare to initiate impeachment
proceedings against a judge in the country, without complying the
constitutional requirements that guarantee universally accepted norms
of justice, fair trial and due process strikes a stark contrast to the
process adopted in Sri Lanka.  That none of these guarantees are
offered to a judge, when a judge is judged in Sri Lanka, is reason
persuasive enough for any government to express its concern to Colombo
about the impeachment.

Whenever in India, the state legislatures or the central parliament
has tried using parliamentary privilege for unjustifiable reasons
against the judiciary, the judiciary has corrected the legislative
houses. Additionally, the basic structure doctrine, postulated in
Kesavananda Bharati (petitioner) against State of Kerala and others
(respondents) [All India Reporter 1973 Supreme Court p. 1461],
triumphs the clarion call of the power of judicial review and the
limits drawn upon the parliament, even in its legislative authority.
Justice J. R. Mudholkar who first postulated the concept in 1965
proposing a limit to legislative power of the parliament, or Justice
Hans Raj Khanna and his brother judges who together in 1973 put the
concept into practice were not attempted to be impeached by the then
all-powerful Prime Minister of India, Mrs. Indira Gandhi, though the
fallout from the judgment resulted in the promotion of junior judges.
That too was not left without critique, immortalised in the words of
former Chief Justice Mohammad Hidayatullah as an “attempt of not
creating ‘forward looking judges’ but ‘judges looking forward’ to the
office of Chief Justice.”

At the core of the issue is the concept of independence and
separation of powers in governance. Power of judicial review, is one
of the building blocks required by all states to prevent the
deterioration of democracy into dictatorship. In that, the impeachment
of a judge in Sri Lanka is the impeachment of the entire justice
process in that country. The asphyxiation of what is left of judicial
independence in Sri Lanka will have far-reaching and damaging effects
upon its neighbours, India included.

During Ms. Aung San Suu Kyi’s visit to India, she said that India’s
active appreciation of the military junta in Burma saddened her. Ms.
Suu Kyi said that she was not surprised by India’s accommodation of
Burma’s military dictators, who have brutally denied and continues to
do so, the people of Burma, their freedom. Pretending ignorance of the
impeachment proceedings in Sri Lanka will only cement this image.

Democracy and institutions of democracy are not internal affairs of a
country, since no country can claim absolute ownership of democratic
norms and values. Neither is this concept western, as often wrongly
portrayed by individuals like Mr. Lee Kuan Yew, who has self-assumed
the right of all Singaporeans to decide what is best for them, on the
basis of a fake Asian value doctrine, or like Mr. Hun Sen of Cambodia
who has decided on behalf of the Cambodians to continue in power until
he is 80 years old.

The concepts of democracy and freedom, the institutions necessary to
sustain these concepts and the character of these institutions and
their relationship between each other are the results of centuries of
human struggle to free the public from unwarranted state control over
fundamental freedoms. Crystallised into legal theory, these concepts
translates into legal restrictions against arrest and detention; as
concepts of bail; presumption of innocence; right against torture and
everything that is understood as fair trial. In constitutional theory
this means among others, the separation of powers between the organs
of the state and the respect state institutions maintain about each
other while discharging constitutional mandates.

The quintessence of democracy is freedom and administration by
consultation, embodied in the concept’s ability to check absolute
control. Judicial independence is elementary to this premise and the
judiciary’s ability to review acts of the executive, legislature and
the judiciary itself, openly and freely is a prerequisite to realising
democracy. When these spaces of freedom and consultation are shrunk,
no matter where it happens in the world, it is the moral and legal
responsibility of everyone who values these concepts to express
concern and be worried.

When it happens in the neighbourhood, it brings matters close to
home.

/*For information and comments*: Bijo Francis, AHRC. Telephone: + 852
– 26986 339, Email: india@ahrc.asia/

Read this statement online
<http://www.humanrights.asia/news/ahrc-news/AHRC-STM-238-2012>
# # #

About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation that monitors human rights in Asia,
documents violations and advocates for justice and institutional
reform to ensure the protection and promotion of these rights. The
Hong Kong-based group was founded in 1984.

‘Silenced Voices’ කැනඩාවේ .
by paristoday7

ශ්‍රී ලංකාවේ පිටුවහල් ජනමාධයවේදීන් පිළිබඳව සැකසුනු ‘Silenced Voices’ වාර්තාමය සිනමාපටය හෙට (23) කැනඩාවේදී ප්‍රදර්ශනය කෙරේ.

ජාත්‍යන්තර ක්ෂමා ආයතනය හා පෙන් ජාත්‍යාන්තරයේ කැනඩා ශකාවන් මෙම ප්‍රදර්ශණය සංවිධානය කරයි. ටොරෙන්ටෝ නුවර අංක 214 ,

කොලේජ් විදියේ රොබට් ගිල් රංග ශාලාවේදී පැවැත්වෙන මෙම සිනමා දැක්මට එහි අධ්‍යක්‍ෂක නෝර්වීජියානු සිනමාවේදිනි බෙත් අර්නෙස්ටඩ්

ද සහභාගී වීමට නියමිතය . ප්‍රදර්ශනය අවසානයේ සංවාදයකි. මේඅතර ශ්‍රිලංකාවේ හිටපු බී බි සී මාධ්‍යවේදිනී ෆ්රාන්සිස් හරිසන්

ශ්‍රීලංකාවේ යුද්ධය අලලා ‘Still counting the dead’ නමින් රචිත ග්‍රන්ථයද මෙහිදී අලෙවි කරනු ඇත .

PARIS TODAY

Cancer hospital.

Cancer hospital in Mharagama don’t have  CT scan machine. only one  machine in hospital that also broken.  patient are facing so many difficulties on t  this matter.

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