Clarification sought of functions and limits of the Judicial Service Commission – an interview aired on the SLBC
In an interview aired by the Sri Lanka Broadcasting Corporation on 30th December, lapses of the Judicial Service Commission has been discussed and also pointed out of shedding crocodile tears regarding the Independence of Judiciary, when it has been already lost on 22 May 1972, when the Republican Constitution was promulgated.
Sri Lanka Broadcasting Corporation, country’s premier broadcasting organization interviewed Mr. K.T.Rajasingham, Chief Editor of the online news daily Asian Tribune.
Mr. K.T. Rajasingham told that the country has lost its independence of its Judiciary when the 1972 Republican Constitution was promulgated.
He also asked why there is any necessity to drop crocodile tears by the present so called champions of judiciary, who were either toddlers, kids or they were even not born when the country lost its independence of its judiciary in 1972.
Also, Editor of Asian Tribune discussed about a letter he has written to the Chairman of the Judicial Service Commission regarding issues connected with Mannar incident and also he pointed out that in that letter he has written to Chairperson, he has sought clarification about matters connected with the Judicial Service Commission in the backdrop of the cases connected with Mannar Magistrate Anthonypillai Judeson and Minister Rishad Bathiyutheen MP.
He said that to-date the Chief Justice who is the Chairperson of the Judicial Service Commission has failed to respond to his queries.
Given below the full text of the interview:
SLBC: We are going to have a discussion with a senior journalist who has put on more than 50 years of media experience and right now he is running an internationally recognized website and he is also the Chief Editor of that website known as ‘Asian Tribune’.
We have with us K.T.Rajasingham on studio. And we welcome him to SLBC.
K.T. Rajasingham: Vannakam and thank you for having me.
SLBC: You have experience in writing articles in many fields especially about Sri Lanka and the juridical system of Sri Lanka as well. Before we start on with the important topic, I would like to ask you an important question about the Tamil Diaspora. What are the latest thinking process of the Tamil Diaspora and the elements of the Tamil Diaspora? Do you find any changes in the thinking process?
K.T. Rajasingham: Why do you want to ask me about Tamil Diaspora? There is no such thing as an organized Tamil Diaspora movement at present in any part of the world. They are all separative group. After 2009, when the LTTE was disseminated, the Tamil Diaspora was set free and there is no compulsion for them to follow the ‘ Dicta.’
Now some of the groups such as Global Tamil Forums and others are trying to embrace the Tamils living in foreign countries, but I think so far they have miserably failed and I think the Sri Lankan government is trying to give some chance for them by taking some drastic steps against the students and the youths in Jaffna. If this can be stopped, then there won’t be any chance for the Tamil Diaspora in Europe or in the west to flourish.
SLBC:Now coming back to the main point, at present in Sri Lanka we don’t talk about this Tamil Diaspora even though I asked you a question about this. But we talk about CJ- Chief Justice and impeachment against CJ. How do you feel about this situation?
K.T.Rajasingham: Government is in power wanted they can do anything they want, because parliament has the power even to make a man a woman and a woman a man- this is democracy. This is what parliamentary system of governance means. But if anybody is in power, for example the government of Mahinda Rajaspakse is in power today, if they wanted to do something- they have two third majority and if they feel like they wanted to do something, then they can do, but the only thing is they must have the arrangements to make the people understand what they are up to and why they are doing it.
I know that they have many media organization under their control, such as the Lake house, SLBC, Ruphavahini, ITN. These media organizations are not geared to tell the people why the Government is doing this. This is the biggest failure in the part of these government controlled media organizations. That is why, whatever the government is trying to undertake is being criticized and given so much of opposition and it is being challenged internationally and nationally.
SLBC: So in your personal view, tell me, why the government has put forward the impeachment of CJ? How do you look at the story?
K.T.Rajasingham: As I told you that the government in power, if they feel that they want to govern by impeaching the CJ, they have all the right to do that. But they must obey the rules of the game?
SLBC: Do you think they are following the rules according to the constitution?
K.T. Rajasingham: Yes .. of course, they gave the proper motion, the number on MPs who has to sign they have signed and the motion has been put in the order paper by the Speaker and subsequently the speaker has appointed the Parliamentary Select Committee and the Parliamentary Select Committee report is there with the Speaker now. And the Speaker has given one month time, after one month time, whatever the report that has been given by the Parliamentary Select Committee will be thrashed in the Parliament and everyone will be given a chance. I think the Speaker has given ten days for both the government and the opposition party to debate, discuss and thrash and come to a conclusion. When finally, at that point of time a resolution is made, the resolution will be passed over to the President and the President will decide whether to impeach or not.
SLBC: Do you think that the allegations put against the CJ are justifiable and has a reasonable background to impeach the CJ?
K.T. Rajasingham: That is what they have said, even the Parliamentary Select Committee’s President had said that he has found 2 or 3 valid allegations which have been proved. So we have to wait, we have to wait until the report by the Parliamentary Select Committee is made public by the Speaker of the Parliament.
SLBC: How do you look at this situation? The PSC were looking in this and they have completed their task and they are about to give their report to the parliament…
K.T.Rajasingham: They have already given the report to the Parliament.
SLBC: Apart from that, His Excellency Mahinda has decided to appoint a special committee; he said he will appoint the special committee to find out facts according to his self conscience. How do you feel about this situation?
K.T. Rajasingham: There is no need for an extra parliamentary group; there is a parliament, there is a constitution of Sri Lanka, under the constitution there is a parliament and the parliament has a set of rules. And according to the set of rules of the Parliament, the impeachment motion has been filed. It has been put on the Order Paper, the Speaker has appointed a Select Committee and according to the finding of the Select Committee the Parliament has to thrash out, debate and come to a conclusion … that is the law. Beyond the law you don’t need an extra organization or a group to go into all what the Parliamentary Select Committee has done. So there is no need for the President to do that, this is my humble advice.
SLBC: So now you have written a letter to the Chairperson of the Judicial Service Commission. Can you just brief us on the content of that letter?
K.T. Rajasingham: Yes … sorry I can’t brief the content. If you want I will read what I have written to her. The Chairperson is also the Chief Justice. I have written a letter to her on the 24 October 2012, it was a coincidence that I have written and sent a fax to her on that day on the impeachment motion was also announced about presenting to the Parliament by a group of Members of Parliament.
I read ….
“The Chairperson ,
Judicial Service Commission,
24 October 2012
Sub: Seeking clarifications about matters connected with rhe Judicial Service Commission in the backdrop of the cases connected with Mannar Magistrate Hon. Anthonypillai Judeson and Minister Hon. Rishad Bathiyutheen MP)
My name is Mr. K.T.Rajasingham, living in Sweden. I am a Journalist with 50 years of experience and presently the Chief Editor of Asian Tribune, (www.asiantribune.com) an online news daily, published by World Institute For Asian Studies.
The readers of the Asian Tribune, since of late have shown keen interest in the case being heard against Sri Lankan Minister of Industries and Commerce Hon Rishad Bathiutheen and they have written several letters to the Editor, seeking clarifications on several matters regarding the cases pending against him in the Magistrate Court of Mannar (Case No: B 408/12) and in the Appeal Court (Case No:CA 205/12 ).
Among the several matters they showed interest were about the Judicial Service Commission and hence this letter. I would very respectably suggest that responses to these matters may help clarify issues that may have been even misunderstood by readers of Asian Tribune.
I am interested in seeking clarification regarding matters given below:
1. The Secretary of the Judicial Service Commission the learned Mudiyansale Ruwinda Manjula Tilakaratne and he has filed an affidavit dated 23rd July and sent it to the Secretary to the Bar Association of Sri Lanka. This affidavit of the Secretary to the Judicial Service Commissioned has been made use of as evidence for one party in CA 205/12 filed in the Court Appeal.
The Secretary of the Judicial Service Commission has made the following under oath stating that Hon Rishad Bathiutheen had visited his office on 18 July 2012 at about 1.15 pm and requested that Hon. A. Judeson, be transferred from the Mannar Magistrate Court with immediate effect. He also has stated that Hon. Rishad Bathiutheen has called him earlier on the phone.
Therefore I seek your clarification on the following:
1. Is the JSC aware that the Secretary to the JSC has issued an affidavit dated 23 July 2012 to the Bar Association of Sri Lanka giving details of Hon. Rishad Bathiutheen’ s visit to his office on 18 July and also prior to that visit he had received a telephone call from Hon. Rishad Bathiutheen.
2. Has the JSC met and discussed and approved its Secretary issuing an affidavit in his capacity as Secretary to the Judicial Service Commission to the Bar Association of Sri Lanka, which is now being used as evidence in a case filed in the Court of Appeal.
3. By having used the affidavit issued by the Secretary to the Judicial Service Commission as evidence, I am of the opinion that by filing such an affidavit in the Appeal Court case amounts to the Judicial Service Commission itself taking one side against the other and being put on the dock, being subjected to cross-examination etc. in that case? If the JSC or its Chairperson had approved the affidavit, will it not compromise the JSC as an independent body and influence the Court of Appeal in its determination and if the JSC or its Chairman had not authorised the affidavit, has the Secretary, JSC either in his personal or official capacity compromised the independence of the judiciary and the JSC in as much as making representations to the JSC against the conduct of a Magistrate is not an offence?
4. Is the JSC aware that the Muslims of Mannar had demonstrated peacefully against the Magistrate of Mannar on the 16th of July 2012 and they had also staged a second demonstration on 18 July 2012 against the Magistrate, also peacefully for nearly three hours though it ended up in throwing stones at the Police and the Court house allegedly after the Magistrate came within yards of the demonstration and ordered the demonstration to be dispersed even by shooting, according to reports in Case No 403/12 and 408/12? Has the JSC investigated into the representations made by the Mannar Muslims against the Magistrate from 2009 onwards?”
K.T. Rajasingham continues: You know that from 2009 onwards Muslims of Mannar are making so many representations , they have written so many letters to the Chairperson of the Judicial Services Commission. So far no action has been taken by the Judicial Services Commission.
SLBC: Sorry to disturb you, but when you say Judicial Services Commission, whom do you refer?
K.T. Rajasingham: Chairman is the Chief Justice and two other judges. It constitutes three judges but I will come to that.
“ Why has the JSC not sent any of its officials to Mannar to investigate the allegations against the Mannar Magistrate and to charge those responsible if the representations were false? Has the JSC tried to find out why the refugee-fisherfolk had two demonstrations against a sitting Judge?
5. Kindly clarify, if the public comes to know that a Magistrate is partial in his / her judgements and supporting a particular ethnic group or a religious group, then what can the public do?
The Court is open not only to the litigants but also to the public and what is the remedy left for them in the circumstance when a judge is openly seen partial and biased to his ethnic/religious group?
6. An elected Member of Parliament is the representative of the people and in his capacity as the Member of Parliament if that parliamentarian visits the JSC office and represents matters about a Magistrate on behalf of the people to the JSC, does it amount to influencing in the matters of the JSC or acting in contempt of the JSC?”
K.T. Rajasingham continues: Mr. Risha Bhahudein is an elected member of the parliament, he represents Vanni which compose of Mannar also and in his capacity he can go and make representation to anybody. Is this a contempt of court? This is the question I am asking.
“7. The Secretary of the JSC has to be appointed from the Senior Members of Courts either from one of the High Court Judges or from a District Court Judge. Kindly confirm whether the rule has been adhered to in appointing a Magistrate as the Secretary to the Judicial Service Commission?
(111G. There shall be a Secretary to the commission who shall be appointed by the Commission from among senior judicial officers of the Courts of First Instance.)”
Rajasingham: So according to the set out rules the judicial service commission Secretary should have been a senior judge. As far as I know Manjual Tilkeratne is not a senior person, how can he be appointed?
“8. Kindly clarify whether the other two Hon. Members of the JSC Hon.Jus.R.A.N.Gamini Amaratunga and Hon.Jus.S.I.Imam were appointed by the Chairman of the JSC or by the President of the Republic?”
There is confusion, the JSC should constitute three members, the Chairperson has to be a Chief Justice and two other judges. Here the other two justices are Hon.Jus.R.A.N.Gamini Amaratunga and Hon.Jus.S.I.Imam. I just wanted to whether these person are appointed by the President of Sri Lanka or the chairperson of JSC.
SLBC: What is your finding sir?
K.T. Rajasingham: Let her tell us how they were appointed and how they became members of the JSC. Normally the person has to be appointed by the President.
SLBC: Do you think they have done justice to the matter?
K.T. Rajasingham: I refrain from making my comments, let the CJ tell us. Why should I say? I have sought her clarification, it is her duty to tell, not only to me but to the country as a whole.
“(111D. (1): There shall be a Judicial Service Commission (in this Chapter referred to as the "Commission ") consisting of the Chief Justice and two other Judges of the Supreme Court appointed by the President, subject to the provisions of Article 41C.
Due to the highest regards I have for judiciary, I am taking this opportunity to refer these matters to Your Ladyship and awaiting the kind response.
I trust and hope the matters raised by me falls within the purview of journalistic practices and in no way intended to show any disrespect or disregard to the exalted seat of the Judiciary in Sri Lanka.”
SLBC: You have written this letter in October 2012, did you receive any response?
K.T. Rajasingham: No I have not received any response. I checked with the Secretary to the CJ whether she has received the fax and she informed me that she has received the fax and forwarded it to the CJ. And when I asked whether there has been any response, she said no, she has not received any feedback from CJ.
SLBC: Just tell me if you can, has the CJ with the other two judges have done any partial judgment?
K.T. Rajasingham: We don’t know. As long as the Mannar case is concerned whether the Judicial Service Commission has ever meant to authorize the Secretary to the Judicial Service Commission Majula Tilkeratne to issue an affidavit to the Bar Council. The Bar Association President Mr. Rajapakse has written a letter and the Secretary has issued an affidavit.
I don’t know what made him to issue such an affidavit and that affidavit has been taken as a material witness in the case number CA205/12.
We don’t know whether JSC has been constituted properly, the CJ has to tell us whether the JSC has been constituted correctly according to 111D
(1). All these things are to be told to the country. I don’t believe in the independence of judicial or anything. We have a Constitution where it says these are the powers of the judiciary, these are the powers of the legislations, and these are the powers of the executives. You have to follow what is said in the constitution only and you can’t say that you have to maintain the independence of the judiciary.
What were you doing in 1972 when the independence of judiciary has been taken away by the Republican Constitution? Were you all lamenting or dropping crocodile tears? In 1972 we lost the independence of judiciary, those people who are making so much of noise they never came forward to shout in those days.
I think some of them were just toddlers, kids and other were not even born, that is why they are talking all these nonsense. You must see at the issue historically, we have lost the independence of judiciary in 1972 on May 22 when the Republican Constitution was promulgated by the person – leading lawyer called Dr.Colvin R.de Silva. we have lost it. Why are you shedding crocodile tears now?
Now the laws are there, these are the things you have to do and that is all they can do and you can’t go beyond that. The constitution is very clear.
Click below to listen to the interview:
- Asian Tribune -