REFLECTIONS ON THE IMPEACHMENT AND THE CONSTITUTION

MARK COORAY
LLB (HONS)(CEY), PHD (CAMB), PHD (COL)

SRI LANKA

BY

NILOUFER SELVADURAI

DEDICATED TO

REFLECTIONS ON THE IMPEACHMENT

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FOREWORD I have perused Dr Coorays brief treatise on impeachment procedures with interest. Dr Cooray who was also my lecturer at the University, is a renowned authority on Constitutional Law and is the author of a number of authoritative works on related matters.

His views on this crucial issue of impeachment are based on a comparative analysis of international law on the subject, ranging from ancient Law and the Latimer Principles which are now being advocated by the international community. He has set out an impartial and lucid commentary on what is and what should be. Dr Cooray has discussed at length regarding the justiciability of Parliamentary proceedings vis a vis the judicial process and as such this commentary will be of invaluable assistance to those who study the Constitutional implications in impeachment procedures. Asoka de Silva

A Former Chief Justice of Sri Lanka

This writing has two parts: (i) the legal and constitutional issues raised by the impeachment and (ii) the wider dimensions to the impeachment and what drove me to prepare this publication.

PREFACE

I severed connections in 1995 with employment in an University School of Law in Australia and Law related work, to be at home and look after my wife who was physically disabled and restrained in movement. Her mental faculties were perfect. The period 1995-2003 in Sydney Australia, was the best part of my life, when I ran a house, including all housework and cooking. I did for my wife what she had done for me selflessly through 30 years of married life, up to the time she was disabled. After her death, and even while she was alive, I spent my time on thinking, researching, seeking revelation and writing about the things (non-legal) which I believe important. One of subjects I am working on is: what moulds human character, beyond the genetic inheritance and makes us what we are. This will be my magnum opus.

Part II of this publication is a window on work in progress. I followed the debate on the impeachment issue. My impression was the debate was progressing, without knowledge and understanding of important dimensions.

Therefore I set aside my writings and important voluntary welfare work, to make a contribution to the debate. No one asked me or made any suggestion to me to write this. I was driven by the dimensions ignored in the impeachment debate. The best possible arguements to support the impeachment
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were not made. Some extreme, ridiculous and exaggerated arguements were put forward to support the impeachment. I had no desire to write, given the work commitments (voluntary) which I had. I earn no income. I struggle financially, but am fulfilled and have joy in the voluntary work I do. In haste I have set down my thoughts on the dimensions missing in the present debate. I apologise for the imperfections in the writing, prepared in haste. Perhaps it should have b een written earlier. But I thought that after 38 years in the law, I had completely divorced myself from the law for ever.

I never in my life imagined that I would write a monograph of this length in one week and have it published. I thank Rohitha Bogollagama, without whose advice and encouragement, this writing would not have seen the light of day. I thank C A Chandraprema for his invaluable help and contribution to the publication in the section Background to dismissal of judges in superior courts and inferior courts. I thank Usitha Ranatunge and Rashane Saverimuttu for their invaluable assistance.

I give permission to anyone to use and circulate this writing in any way they wish. A periodical which uses this material may pay me in accordance with their way of payment.

I have given permission to the Government of Sri Lanka to circulate this writing. I emphasise that I was not commissioned or even asked to write this. I was reluctantly driven by my conscience, to take time off a very busy schedule, to write.
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Lore of the Law and Other Memories, by S L Gunasekera was a book I read from cover to cover, with substantial agreement and also much laughter and enjoyment. The author writes about the Judiciary and Jayewardene regime and how the Government through the Constitution and specific actions undermined the judiciary. The seeds had been sown earlier but Jayewardene nourished the plant which grew into a tree. The author may write another book about specific actions by all governments to undermine the judiciary. The Bar recently took a right stand against the stoning of a Court.

However on the impeachment issue lawyers and the public, should have confined themselves to believed ethical issues conceding that the actions of President and Parliament were constitutional. The Bar could have provided leadership on this issue. The principle that a court cannot interfere in the internal affairs of and functioning of Parliament is a part of the fabric of the Constitution. The courts cannot interfere.

I was driven to write articles to the newspapers, and now publish this book, to expound what I believe are the governing principles of constitutional law. The courts were embarking upon what I believe was a wrong course of action in interfering in the affairs of Parliament. Such interference would have been disastrous, with continuing consequences for the Courts, the Parliament and the nation. The TNA and the JVP will welcome and work towards an Asian Arab Spring. There will be many who will not desire an Asian Arab Spring. But all protests, even well intentioned can be used towards a goal which some desire and are working towards.
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I believe that those who desire to replace a government or achieve reform must have better policies and higher standards of behaviour. The problem is that in many places, including Sri Lanka, the political opposition has neither. Hate drives many protesters. Hate never leads to a fruit of better government.

REPRODUCTON Permission is given for reproduction subject to following conditions: The whole may be reproduced and published with no variations, provided it is distributed free; A part may reproduced for limited circulation. It must be accompanied by statement that it is a part of a longer article, accompanied by reference to web site from which the whole document may be viewed. The web site is cjimpeacment2013 Permission is given for publication of article to a periodical, provided payment is made in accordance with usual method of calculation of payment by the periodical, and sent from a bank direct to Savings Account of Dr L J M Cooray, at Commercial Bank, Wattala 7056 056 8560048676. Where part is circulated or published, it must be accompanied by a statement that it is part of a larger writing and whole of article may be viewed on web site cjimpeachment 2013.

TABLE OF CONTENTS
PART I : REFLECTIONS ON THE IMPEACHMENT DEBATE Three constitutions and the independence of the judiciary Differentiate between the legal and the other dimensions The missing dimensions in the debate on the impeachment The background to dismissal of judges of superior courts and inferior courts Article 107 and Standing Order 78A Judicial review, judicial power and natural justice, Judicial intervention Address by Parliament to President Judicial decisions and power of court`to investigate parliamentary procedure Court of Appeal error in issuing writ against PSC The cause of a chaotic Situation The President and Parliament The Parliamentary Select Committee The conduct of Opposition Members of the PSC The alleged wrongs are not crimes or minor offences A former Speaker and UNP Mayor speaks sense 12 12 13 13 17 28 34 36 38 39 45 52 53 54 56 57 58

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Issues outside the legal and constitutional PART II : REFLECTIONS ON THE IMPEACHMENT DEBATE My beliefs and political position Human values more important than human rights Political realities Conclusions and the debate on the impeachment APPENDIX: About Mark Cooray Comments on the Reception in Ceylon of the Trust A review of an article in Modern Ceylon Studies, Vol. 1 Comments on Conventions, the Australian Constitution Comments on a letter " Abandoned our Moral Duties " References

59 61 62 69 76 78 81 89 91 92 97 99

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THE CONSTITUTIONAL ISSUES THE CONSTITUTIONAL AND LEGAL IMPLICATIONS

IMPEACHMENT DEBATE

REFLECTONS ON THE

PART 1

Three constitutions and the independence of the judiciary

Sri Lanka has a constitution which has many defects. The 1931 Constitution was not perfect. The 1948 Constitution was not perfect. The 1972 Constitution was not perfect. The 1978 Constitution was not perfect. Where do you find a perfect Constitution, on this side of heaven and eternity? I express some views on the Constitution and what constitutes independence of the judiciary.

I have in my books; The History of Constitutional Government in Sri Lanka 1796-1972, Reflections on the Constitution of Ceylon and Essays on the Constitution of Ceylon and other writings in local and foreign (UK, Canadian, Australian) academic publications commented on the 1948 and 1972 Constitutions. I have at some length examined the sections in the 1972 Constitution on judicial review and exposed severe short comings. I have not written on the 1978 Constitution. I believe the 1978 Constitution made worse, an existing bad situation, in relation to the independence of the judiciary under the previous Constitution. Each of the three Constitutions was imperfect. There is no

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perfect Constitution. Each Constitution was progressively more imperfect.

The source of our problems today around the independence of the judiciary are the two immediately prior Constitutions. The 1948 Constitution was neutral and British conventions relating to independence of the judiciary were observed. The following Constitutions wilfully undermined the independence of the judiciary.

Differentiate between the legal and the other dimensions The analysis to follow focuses on (i) constitutional and legal consequences (ii) the rights and wrongs of specific actions, based on ethical values and (iii) the wider ethical, philosophical, social, political and other factors.

It is important to understand the difference, between what is illegal and unconstitutional and also between what is not legal and not constitutional, but permissible. The clear and honest thinker keeps (i) separate from (ii) and (iii). I believe in the importance of obedience for fundamental laws of a state. I might disagree with content, but I believe in obedience. The debate on the impeachment has tended to blur these dimensions. The missing dimensions in the debate on the impeachment

The reception by the Sri Lankan public and the international community of the impeachment proposal would have been different, if the initiators and supporters of
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the impeachment had observed the following factors:

(i) The focus had been on the clear inability of courts to interfere in the internal affairs relating to the functioning of Parliament, without strident and arrogant references to Parliamentary sovereignty and supremacy;

(ii) The distinction between the principles applying to minor and superior courts was explained and understood; (iii) The distinction between Parliamentary sovereignty and Parliamentary supremacy and different meanings of sovereignty was explained to and understood by participants in the debate; (iv) If Parliamentary sovereignty which is a peculiarly UK (British) concept was explained and understood.

(v) The allegations in Report of SPC had been written in simple language.

Parliamentary sovereignty doctrine is that Parliament can pass any law, Parliament is not bound by any prior law and anything proceeding from any source outside of Parliament, with the principle of inability of courts to interfere in the internal affairs of Parliament, including procedure of passing proposed Acts and moving of an address, as an off shoot. The off shoot is followed in many countries including the United States. This off shoot principle (inability of courts to interfere in the internal affairs of Parliament) is accepted in US and other democratic constitutions without reference to sovereignty or supremacy. US has accepted the principle of inability of courts and any outside source to judicially review the internal affairs of Congress and State legislatures.
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The UK doctrine of Parliamentary sovereignty is that Parliament can pass any law, even a law which states that Mr Smith, a biologically established male is a female and for the purposes of law he is a female. This is a concept which is peculiar to U K Constitutional law. This principle has been qualified in UK consequent to UK accession to EU. Now Parliament is supreme within UK, but its Parliamentary is subject to EU law. There has been a quiet dropping of sovereignty and replaced by reference to supremacy of Parliament in UK. The Constitution of Sri Lanka (like any representative democratic constitution) gives AREAS of supremacy (not sovereignty) to each organ - Legislature (Parliament), Executive and Judiciary, accompanied by principles for co-existence, balance and separation, with conventions (UNWRITTEN rules) playing an important part. There are constitutional issues and ethical issues in relation to the impeachment. One part of my writing is primarily about the constitutional and legal issues. I do not analyse the validity of the allegations. The focus is on the constitutionality of the address presented by Parliament and the Presidents assent to it. The ethical issues are a matter for public debate by the PEOPLE OF SRI LANKA in a non violent atmosphere, with respect for opposing views. I believe in the SOVEREIGNTY of the nation of Sri Lanka in the world community.
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The sovereignty of the people is a philosophical democratic principle not to be confused with different concepts of UK parliamentary sovereignty and national sovereignty.

The UK doctrine of Parliamentary sovereignty in Sri Lanka was qualified in the first Constitution, which took effect in 1948. Section 29(4) provided a qualification. It was qualified in that the power of Parliament to pass any law was limited. However the principle (inability of courts to interfere in the internal affairs relating to the functioning of Parliament) applies, unless there is a SPECIFIC mandatory (not discretionary) article of constitution which limits power, for example a fundamental rights provision. The words SPECIFIC is emphasized. But the principle that (inability of courts to interfere in the internal affairs of Parliament) is not qualified. This principle carries the corollary that courts cannot interfere in the internal working of Parliament and its Committees. The PSC in the recent controversy played a difficult and unfortunate role. The Jayewardene Government inserted Standing Order 78A, is the source of the problem. This was inserted due to failure to understand the different principles relating to dismissal of judges in superior courts and inferior courts. If there was no 78A, the procedure would have been documents tabled in Parliament by those who proposed an address, followed by a long Parliamentary debate, followed by a vote on the Address. It would have been better if there was no PSC

Two issues which were not understood in the debate on the impeachment are (i) the clear inability of courts to
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interfere in the internal affairs relating to the functioning of Parliament and (ii) the distinction between the principles applying to minor and superior courts. The reader is asked to focus on these two issues, which are explained in depth in the succeeding pages.

The background to dismissal of judges of superior courts and inferior courts The Court of Appeal relied on an interpretation of Article 138(1) of the constitution which gives it the power to correct all errors in fact or law which may be committed by any court of first instance, tribunal or any other institution. Why the Court thinks it has the jurisdiction to correct perceived errors in fact and law made even by Parliament is because of the phrase any other institution which also appears in Article 140, which the Court has emphasised in bold letters in its determination. Even a cursory reading of articles 138 and 140 will show that the term any court of first instance, tribunal or any other institutions refers to judicial bodies below the Court of Appeal (written from the high to the low). The term any other institution in articles 138 and 140 obviously refers to minor judicial bodies ranking below even the tribunals. If the term any other institution is so broad that it includes the parliament, then it has to inevitably include the Supreme Court as well. Does that mean that the Court of Appeal has the power to correct all errors of fact or law that may be committed by the Supreme Court? This kind of determination will be summarily brushed off by Parliament. Constantly having their decisions publicly ignored will do no good to the judiciary in this country. The
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Parliament Powers and Privileges Act of 1953 is very clear on the powers of Parliament. Section 7 of the Act states that the immunities and powers of members of Parliament will be those conferred by this Act and those exercised by the UK House of Commons. The Joint Committee on Parliamentary Privilege of the British Parliament of 1999 had the following to say:

Section 229 What happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts. So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges. Section 232 Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliaments claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act or consider themselves competent to consider the processes within Parliament preparatory to enactment. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament. In the landmark Privy Council case of Madzimbamuto v
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Lardner Burke (1969) Lord James Reid said the following about the powers of the courts vis-a-vis the Parliament: It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid.

The UNP has taken the position that the CJ should be removed only through a process based on the Latimer House Principles. As such it is pertinent to examine the argument put forward regarding the Latimer House principles. The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence dated 19 June 1998 had the following to say about the procedure to remove judges In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to: (a) inability to perform judicial duties and (b) serious misconduct.
The important phrase here is to be judged by an independent and impartial tribunal.

Britain is the head of the Commonwealth and we may perhaps gather what exactly was meant in terms of the Latimer House Principles by studying the British Constitutional Reform Act of 2005 which was promulgated long after the
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Latimer House Principles were formulated. One of the most radical aspects of the British constitutional reform was that a new 12-member Supreme Court was created to be highest court in Britain and it would function outside the House of Lords breaking with centuries of British tradition. The interesting factor to note is how these judges of the Supreme Court were to be removed. Article 33 of the British Constitutional Reform Act of 2005 is as follows: A judge of the Supreme Court holds that office during good behaviour, but may be removed from it on the address of both Houses of Parliament. That is all this huge 323-page Act of Parliament says about the removal of judges of the Supreme Court. This provision to remove Supreme Court judges basically follows the time honoured British practice. There is no talk of an impartial tribunal or about filing charges, hearings and the right to defend oneself. Somebody files a motion in parliament and after due debate, parliament will decide whether to sack or retain the judge. This was the good old system that the British bequeathed to us when we gained independence. Article 52(2) of the Ceylon Constitution of 1947 was identical to the above quoted article in the British Constitutional Reform Act of 2005. When Ceylon became a republic, the same tradition was followed and Article 122(2) in the 1972 Republican Constitution also had the identical wording as the 2005 British Act. Even though the 2005 British Constitutional Reform Act does not apply the so-called Latimer House Principles to the
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Supreme Court, these principles have been applied to the lower courts. Take Articles 133 and 135 of this Act which lays down the rules for the removal of judges in Northern Ireland. It stipulates that the Chief Justice, Justices of Appeal and judges of the High Court of Ireland hold office during good behaviour and they can be removed only by an address presented to the British Parliament in Westminster (not the Northern Ireland Assembly) and before such an address is presented to Parliament, the allegations have to be inquired into by a three member tribunal which will recommend whether such an address for removal should be made to parliament. Such a tribunal will comprise of a judge of the British Supreme Court, a sitting or former judge of the Appeal court of England or Scotland and a person from outside the legal profession.

Thus the British Constitutional Reform Act of 2005, gives much greater protection to the Lord Chief Justice of Ireland than to a member of the British Supreme Court. We must take care not to be misled by nomenclature here. According to the British Constitutional Reform Act of 2005, England, Ireland and Scotland all have Chief Justices but these so called chief justices are all ranked below the 12member British Supreme Court. The person who holds a position analogous to that of the chief justice in Sri Lanka is the President of the Supreme Court of Britain. The important thing to note is that the Latimer House Principles have been applied by Britain only to the subordinate judiciary not to the highest court. The British Judicial Discipline (Prescribed Procedures) Regulations 2006 which complements the Constitutional Reform Act of 2005 confirms this application of the Latimer House Principles to the lower judiciary.
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What this means is that the British constitutional experts have given due recognition to the fact that being in the highest judicial body is a different ball game altogether and the rules that may apply to the lower judiciary cannot be applied to the highest court. The Constitutional Reform Act of 2005 shows clearly that the British, like the Americans, believe that the most competent body to remove judges of the highest judicial body is the legislature. Like the Americans, the British too have placed the fullest confidence in their legislature to be able to make a considered decision to remove a judge of the highest court. Australia is the current Chairman of the Commonwealth. In Australia, until a few days ago, the provisions relating to the removal of judges of the highest courts was identical to Article 33 of the 2005 British Act. According to Article 72(ii) of the Australian Constitution, judges of the highest court can be removed on an address presented to both houses of parliament. Then just last month, the Australian Parliament passed the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012, which on the face of it seems to bring the judges of the highest Australian courts under the Latimer House Principles. Article 13 of this brand new Act, has provided for the appointment of ad hoc parliamentary commissions to inquire into the conduct of a judges before impeachment motions are proceeded with. Such a commission will consist of three individuals appointed by the prime minister after consulting the leader of the opposition. At least one member of such a commission should be a former senior federal or state judge.
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Even though this new piece of legislation appears to indicate that Australia has implemented the Latimer House Principles in full, closer scrutiny will show a different picture. In this regard the following should be taken note of:

1. The Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012, does not alter in any way, Article 72(ii) of the Australian Constitution which says that judges of the highest courts can be removed by means of an address in both houses of parliament.

2 The appointment of a Parliamentary Commission to inquire into allegations does not take place automatically when Parliament receives a motion to remove a judge. Separate motions have to be presented in both houses of parliament (in the same session) to institute such a parliamentary commission.

3. There is no permanent Parliamentary Commission to examine impeachment motions they will be created (if at all) only as and when an impeachment motion comes before parliament. 4. There is no mandatory requirement that the Australian parliament has to appoint such a parliamentary commission every time an impeachment motion comes before them.

5. Section 3(2)(a) of the Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act itself states that this Act is not necessary to institute a parliamentary commission to investigate allegations of misconduct against judges which means that commissions of inquiry can be appointed even outside the provisions of this act if the Australian Parliament decides that such would be the best
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course of action.

6. Even if a Parliamentary Commission is appointed to inquire into the allegations against judges, section 3(2) (b) of the Act stipulates that the findings of such commission will NOT be the only means by which Parliament will decide whether to impeach the judge concerned. What this means is that the decision of the Parliamentary Commission is not binding on the Australian Parliament and whatever the decision arrived at by the Commission, parliament will still be free to do as it sees fit.

Even in the Australian Constitution, the original Article 72(ii) which allowed for the removal of judges on an address in both houses of parliament is completely intact. That right has not been undermined one whit. All that the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012 has done is to give the Australian Parliament the OPTION of appointing a Parliamentary Commission to inquire into allegations of conduct. There is also the added convenience that this Act lays down a procedure for such inquiries. The Australian Parliamentary commissions to inquire into the conduct of judges will be both non-binding and non-exclusive. The report of the Parliamentary Select Committee that inquired into the impeachment motion against the CJ came out last month, printed in two thick volumes. When examining the transcripts of the arguments that went on in the PSC, it always seemed to centre on matters of procedure, with John Amaratunga asking at one point what the burden of proof was going to be. The burden of proof in impeachment motions has been well established. The Australian Judicial Misbehaviour and Incapacity (Parliamentary Commissions)
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Act which we have just referred to, states in article 19(1) that the Parliamentary Commission set up under this Act are not bound by the rules of evidence and may be informed on any matter in any manner it thinks fit. Article 20 of this Australian Act stipulates that a Parliamentary Commission must act in accordance with the rules of natural justice which was specified as (a) giving the defendant particulars of the allegation being investigated (b) offering the defendant a reasonable opportunity to make an oral or written statement in his defence (c) offering the defendant reasonable access to any documents or other things acquired by the Commission for the purposes of the investigation (d) giving the defendant a draft of the report and an opportunity to give comments on the draft report. If one reads the voluminous report of the PSC in the Shirani Bandaranayake case, all the above requirements seem to have been fulfilled except the last which obviously could not be done because the defendant and her lawyers walked out of the proceedings. However under the Sri Lanka Constitution a Parliamentary Commission is not necessary for reasons stated in this section and the following section. With regard to the burden of proof in impeachment proceedings, the 1933 impeachment trial of Federal Judge Halsted Ritter in the USA is of special significance. During the hearings of the Ritter case, Congressman Hatton W. Sumners, Chairman of the Judiciary Committee of the US House of Representatives explained that impeachment was essentially an ouster proceeding as opposed to a criminal
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proceeding. Agreeing with this view, the presiding officer at the Ritter impeachment hearing Senator Nathan L. Bachman of Tennessee made the observation that an impeachment proceeding before the Senate has neither of the harshness and rigidity of the criminal law nor of the civil proceedings requiring less particularity.

Congressman Sam Hobbs another Member of the House of Representatives appearing before the Senate articulated three principles on the burden of proof and evidence in an impeachment trial: 1. Impeachment trials are not criminal trials in any sense of the word. 2. The burden of proof in this case is not beyond a reasonable doubt, as it is in criminal cases.

3. The presumption of innocence, which the accused has in a criminal case, is not available to a respondent in an impeachment trial.

Sri Lankans should take particular note of the third point articulated by Congressman Hobbs to the effect that respondents in an impeachment proceeding are not supposed to enjoy even the presumption of innocence.

Congressman Hobbes asserted further If judges can hold their offices only during good behaviour, then it necessarily and logically follows that they cannot hold their offices when they have been convicted of any behaviour that is not good. If good behaviour is an essential of holding the office, then misbehaviour is a sufficient reason for removal from office. During the US Senate trial of Judge Ritter, several
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Senators made observations which are of relevance here. In a joint statement, Senators Borah, La Follette, Frazier, and Shipstead said: We did not, seek to satisfy ourselves as to whether technically a crime or crimes had been committed, we sought only to ascertain from these facts whether his conduct had been such as to amount to misbehaviour,There are a great many things which one must readily admit would be wholly unbecoming, wholly intolerable, in the conduct of a judge, and yet these things might not amount to a crime.

Senator Elbert Thomas of Utah declared during the Ritter case Tenure during good behaviour is in no sense a guaranty of a life job, and misbehaviour in the ordinary, dictionary sense of the term, will cause it to be cut short In Congressman Sumners (The House of Reps Judiciary Committee Chairman) final argument before the Senate in the Ritter impeachment, he made the following points: 1. We do not assume the responsibility of proving that the respondent in this case is guilty of a crime as that term is known to criminal jurisprudence.

2. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause the people to doubt the integrity of the respondent. 3. We take the position, first, that justice must be done to the respondent. The respondent must be protected against those who would make him afraid.

4. But we take the position also that when a judge on the bench, by his own conduct, does that which makes an ordinary person doubt his integrity, that judge must go.
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5. If confidence in the courts of this country is destroyed it is going to be destroyed from within by the judges themselves. That is one thing which neither the House nor the Senate can permit.

6. When the people put him (the respondent) there, they said to him, All we ask of you is to behave yourself. Good behaviour! What does that mean? It means obey the law, keep yourself free from questionable conduct, free from embarrassing entanglements, free from acts which justify suspicion; hold in clean hands the scales of justice. 7. That means that he shall not take chances that would tend to cause the people to question the integrity of the court, because where doubt enters confidence departs. When a judge on the bench, by his own conduct, arouses a substantial doubt as to his judicial integrity he commits the highest crime that a judge can commit under the Constitution.

8. It is not essential to prove guilt. There is nothing in the Constitution and nothing in the philosophy of a free government that holds that a man shall continue to occupy office until it can be established beyond a reasonable doubt that he is not fit for the office. It is the other way. When there is resulting from the judges conduct a reasonable doubt as to his integrity he has no right to stay longer. Judge Halstead Ritter was removed from office. Article 107 and Standing Order 78A The roots of the concept of an address presented by Parliament or Congress for impeachment are analysed above. A very important distinction is drawn between minor judiciary and the highest courts, in relation to removal of
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judges. In the light of the above analysis the focus shifts to Article 107(2) of the prpresent Sri Lankan Constitution. Article 107(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978 enacts: Every Judge shall hold office during good behavior, and shall not be removed except by an order of the president made after an address of parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity: The word address and power to Parliament for dismissal of a superior court judge was used first in the Act of Settlement of 1701. Under the present Constitution what is required is an address by Parliament and an order by the President, which follows the principle in the Act of Settlement, 1701 and re-enacted in same wording more recently, as stated above. Many countries all over the world have adopted this principle. The words address and Parliament raise immediate connections with the Westminster constitutional system. A fundamental and elementary principle which extends to all Parliaments, and also Congress Senate and House of Representatives in United States is that the internal procedures of Parliament or Congress are not justiciable. They are not subject to judicial review. The procedure of legislation is not justiciable, unless there is a mandatory constitutional provision. The workings of Parliament
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including proceedings of Parliament are not justiciable and cannot be subject to judicial review. Judicial review is for completed legislative and executive action.

The functioning of a Parliamentary Committee can never be the subject of judicial review. A Parliamentary Committee is not bound to follow principles of natural justice. This is both a fundamental and an elementary principle of constitutional law. This topic is analysed in my books Reflections on the Constitution and the Constituent Assembly and Constitutional Government in Sri Lanka 1796-1977. Constitutional lawyer, Presidents Counsel and former UNP Minister K N Choksy has stated his views on the impeachment in The Sunday Island December 16, 2012 and The Sunday Observer, December 16, 2012.

He says Article 107 specifies that a judge of the Supreme Court cannot be removed from office, except by Order of the President made after an address of Parliament is presented to the Parliament for her removal. Article 107(2) stipulates that the address of Parliament to the President must be supported by a majority of the total number of Members of Parliament. He expressed the view that action in relation to the impeachment had proceeded in accordance with the Constitution. I agree. The provisions of the Constitution are brief. They may be inadequate. But they were followed.

Choksy also said that if Parliament decides to impeach the Chief Justice, and the President decides otherwise, a conflict arises. He says that the will of Parliament, consisting of the elected representatives of the people must prevail.
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This is clearly wrong. An analogy to the position of our President receiving an address from Parliament, is a Head of State under the Westminster system or the President under the United States Presidential system, receiving a bill from Parliament or Congress or the legislature. In such a situation there is a legal power for the Head of State, to assent or refuse to assent to the Bill which the legislature has enacted. The power to refuse to assent exists, but is generally not and only exceptionally exercised. The Head of State and the legislature must combine for enactment of legislation.

Likewise in the current situation, there are two parties, Parliament and President, who must combine for the impeachment of a Chief Justice. There is no conflict situation. The impeachment is valid if Parliament presents an address and the President assents and proclaims an order. The word address in the context of dismissal of a judge was used first in the Act of Settlement of 1701. Under the present Constitution what is required for removal of a judge is an address by Parliament and an order by the President. Article 107(1) of the Constitution is as follows:

107 (1) The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.

(2) Every Judge shall hold office during good behavior, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority
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of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity:

Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of the Members of Parliament and sets out the full particulars of the alleged misbehavior or incapacity.

(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including all the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.

(4) Every person appointed to be or act as Chief Justice, President of the Court of Appeal or a Judge of the Supreme Court or Court of Appeal shall not enter upon the duties of his office until he takes and subscribes or makes and subscribe s before the President, the oath or the affirmation set out in the Fourth Schedule. (5) The age of retirement of Judges of the Supreme Court shall be sixty-five years and of Judges of the Court of Appeal shall be sixty-three years.

The President has an important role in the appointment, the oath and dismissal of a judge. The word shall in 107(3) has recently been interpreted by the Supreme Court as being a mandatory requirement.
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I question that. It is a rule of statutory interpretation that may could mean shall and shall could mean may depending on the context. Thus the use of the word shall is not conclusive. The context is all important. From the context it is my opinion, based on reasoning that follows, that shall means may in Article 107. Further, what is said in the early part of this writing about the history of impeachment for misbehaviour, dating from the Act of Settlement, 1701, is relevant. A constitutional lawyer finds it strange that on a fundamental principle of dismissal of a judge, that the Constitution abdicates and gives power to Parliament to add to or fill in the Constitution. For this reason, I do not regard 107 (3) as a mandatory requirement. There is a more important reason for this conclusion. Wherever the concept of dismissal through address has been adopted, all over the world, it has been regarded as a matter between head of state and the legislature.

The consequence is that the dismissal of a judge is dependent on (i) an address by Parliament and (ii) an order of the President or Head of State. That is the top line and the bottom line.

Each MP makes up his mind on evidence available and exercises his vote. The President makes up his mind and proclaims the order or does not do so. 78A of the Standing Orders enacts: 78A (2) Where a resolution referred to in paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament
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consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehaviour or incapacity set out in such resolution. (6) At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring to the notice of the Parliament; The Select Committee investigates, and reports. The words investigates and reports are important. The word decides is not used. An investigation is not an activity which is the basis for judicial review, unless defamatory comments are made. Section 107 refers to the word investigation Judicial review, judicial power and natural justice There is a clear constitutional principle, which is explained in this writing and earlier published books and other writings. The conclusion is that the internal affairs of Parliament cannot be questioned in a court of law. Where there is legislation the Courts cannot (HAVE NO POWER) to go beyond the Speakers certificate. The internal affairs of Parliament are not justiciable. This is so even if there is clear error in the Certificate of the Speaker. Only Parliament through the Speaker can make a correction. This is explained with supporting authority above and in what follows in this writing.
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The assent of the Head of State to what Parliament has decided on the basis of the Speakers certificate is not justiciable. Justiciable means that the matter cannot be raised or taken up in a court of law.

Principles of judicial review and natural justice are irrelevant.

Where legislation has been enacted, the words of the Act may be examined and reviewed by the Courts, PROVIDED THERE ARE ARTICLES IN THE CONSTITUTION FOR REVIEW. But the procedure of legislation may not be questioned. This is a principle of British constitutional law. The United States have adopted the same principle and use the phrase justiciable and non justiciable.

Section 78A of the Standing Orders has complicated the situation.

The first factor to note is that section 78A is a standing order and not a law. Has it added on to clause 107 of the Constitution? Has it qualified clause 107? My inclination is that 78A has added on to clause 107. I do not discuss this issue further as it is not relevant in the present context. It could have been raised before or when the SPC was appointed.

The original Constitution has made no provision for the proving of an allegation against the Chief Justice. When an actual situation occurred, the effort of the Jayewardene Government to deal with WHAT IT THOUGHT was a failure on its own part in drafting the Constitution, was a hurriedly drafted standing order 78A. In terms of practice
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all over the world in relation to address and impeachment of superior court judges the SPC was not necessary. The difference between inferior court judges and superior court judges is explained earlier in this writing. The idea of a standing order regulating the Constitution is strange for a constitutional lawyer. Likewise it is also strange for an Act of Parliament to regulate the Constitution.

The procedure as explained above is for Parliament to examine the facts in the Special Committee Report as advice for each MP on how to vote. Each MP makes up his own mind. No MP is bound by the Report the SPC. The word investigates and investigation supports this conclusion.

If a body with judicial power made a determination it would undermine the power of Parliament. Judicial intervention The question I have for those who argue that there is a right of judicial review: is what are the Articles of the Constitution which provide authority for court to intervene in the constitutional provisions relating to address and Presidents order under article 107? The practice in other countries referred to above is relevant. The comments made above about articles 138 and 140 are relevant in this context. Where judicial review exists in a constitution there are specific articles in the Constitution which provide the extent and limits of judicial review. The example in the present Constitution for judicial review are the freedoms and rights provisions. But review is confined to specific areas. There
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is also a time frame within which a bill must be challenged. There is also a time frame within which the judicial decision must be made, which is totally inadequate and which courts sometimes do not observe. But Courts respect the time frame within which a proposed law may be challenged.

I ask the question from those who make the assertion that the courts have the power of judicial review, what is the Article which provides court authority to intervene in relation to a procedure which involves the Parliament and the President. There is no Article which supports judicial review in relation to the address and the Presidents order.

During litigation in relation to impeachment Articles 125 and 126 have been referred to. These Articles confer power which provide for judicial review on the basis of Articles of the Constitution which SPECIFICALLY provide authority, such as the rights provisions. The word litigation is put in inverted commas, because there is no authority to courts to permit litigation.

It is not right for a lawyer or anyone to assert that judicial review exists in a vacuum as it were. They must cite specific provisions of the Constitution which support the right of the court to interpret the Constitution on the specific matter. The answer must be based on what the Constitution says or permits. Articles 125 and 126 enact principles relating to interpretation of the Constitution and judicial review.

Article 125-26 must be interpreted in the light of powers given by the Constitution or in some circumstances Acts
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enacted by Parliament. It is totally wrong to cite article 12526 to justify intervention in the internal affairs of Parliament, where there is no specified power to intervene and it is contrary to history and practice. The Constitution of no country confers a power of judicial review in the abstract or in every conceivable situation. The Constitution states the circumstances in which judicial review is permissible. An example is in relation to freedoms and rights provisions. But even where there is a power to court to review, there are limitations. Article 15 provides limitation on review in relation to rights. This is elementary. But a recent emission from a court in relation to impeachment made a pronouncement which contravened this elementary principle. The impeachment issue is between the President and Parliament. The constitution gives the court no role. Sarath Silva, a former Chief Justice made this point on Articles 12526 in the DAILY NEWS January 8 2013.page 4. Sarath Silva is a critic of the present government and this adds credibility to what he says. His intellect is widely respected. Address by Parliament to President

The above analysis of the constitutional and legal principles are in conflict with some of what has come out (emissions) from Court. The words are carefully chosen. The Courts must not move into areas where they have no power what so ever. They should decline jurisdiction. The dismissal of a superior court judge, is a matter for Parliament and President. The procedures followed by Parliament are constitutional.
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Judicial decisions and power of court to investigate parliamentary procedure There are observations in favour of the principle that the courts cannot investigate the internal proceedings of Parliament in some few cases under the Independence Constitution of 1948, including the opinions of the highest court at that time. The cases are about legislation. The relevance of these cases to the impeachment of a Chief Justice is, that Court (including the highest judicial authority at that time) conclusively expressed the view that the interval workings of Parliament are not justiciable and the courts have no power to review what Parliament does within its walls. What is said about internal proceedings in relation to passage of a bill is equally relevant to the presentation and passing of an address. Ceylon (as it then was) had a Parliament under the 1948 Independence Constitution. Sri Lanka had a National State Assembly under the Colvin R de Silva 1972 Constitution. Sri Lanka reverted to a Parliament under the 1978 Jayewardene Constitution. The word Parliament imports the traditions and concepts of the British Constitution, where they work in harmony with the words of the Constitution. Therefore the two following cases are relevant today. They may not have been relevant in the same way for the National State Assembly under the 1972
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Constitution, because it was a legislature which was not called a Parliament.

The following is an extract with some additions from my book Constitutional Government in Sri Lanka 1796-1977. In P.S Bus Co. Ltd v. Members and Secretary of the Ceylon Transport Board, (1958) 61 NLR 491 the plaintiff sought to challenge the validity of the Motor Transport Act on the ground that the House of Representatives was not properly constituted when it passed the Transport Bill. Under 1l{l} (a)of the Constitution the House of Representatives; was to consist of ninety-five elected members elected by the voters of the electoral districts specified in the Proclamation made under section 43 of the Constitution. It was alleged that one member so elected had been elected to two constituencies so that the number of elected members was ninety four and that, therefore, the House of Representatives was not duly constituted. The plaintiff's petition for one of the prerogative writs was refused on the ground that the court had a discretion to grant the writs and that it had decided to exercise the discretion against him. But Sinnetamby J. made some further points in this case. He referred to section 19 of the Constitution. He pointed out that Section 38 of the Constitution provided for the use of certain words of enactment. Then he referred to section 35, which made certain declarations by the Speaker in regard to money bills and certain aspects of the procedure involved in passing money bills and other bills, where affirmative vote of the senate was not required, conclusive for all purposes and beyond question in any court of law. In contrast he observed that no conclusive effect was given to the enacting
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words of a Bill under section 38(l) and stated:The question is a difficult one and not free from doubt, but it can certainly be stated that the effect of the enacting words is at least to create a strong presumption in favor of validity." Some extracts from the judgment of Sinnetamby J follow: The first question that immediately arises for consideration is whether a Court of law can go behind an Act of Parliament and investigate the question of whether it had been duly passed. The learned Counsel who appeared for the petitioner was unable to cite one single case in which the prerogative writs were invoked in order to test the validity of an Act passed by the British or any Dominion Parliament. It was conceded - and, indeed, there are decisions of this Court to that effect - that in regard to prerogative writs the Supreme Court follows the practice and procedure obtaining in England. It was contended by learned Counsel that the reason why no applications for a prerogative writ were made in England was because of the sovereignty of the British Parliament and because it was not open to a court of law to question that sovereignty. This was finally established in Prince's case1[1 Hood Phillips-Cases on Constitutional Law-page 1] and is embodied in the trite but commonplace saying that the British Parliament can do anything except make a man a woman and a woman a man. It is now clearly and firmly established that legislative acts passed by the British Parliament cannot be impeached in Courts of Law. Are the same principles applicable to acts passed by a Dominion Parliament? In regard to this matter it will be useful to state what the
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position is in England. It would appear that no English Court would "have jurisdiction to adjudicate upon the procedural steps resulting in the enrolment of a measure as an Act of Parliament. In the case of Edinburgh & Dallceith Railways v. Wauchope 1[1 (1842) 8 C l. & Fin. 710 (Also reported in 8 Eng. Rep. 279).] the House of Lords refused to declare a private Act invalid on the ground that it had been passed without the giving of notice as required by the Standing Orders of the House. Lord Campbell in the course of his judgment stated: " All that a Court of Justice can do is to look at the Parliamentary roll: if from that it should appear that a Bill has passed both Houses and received the Royal Assent no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through the House." This statement applies equally to what happens in Parliament in relation to an address. The effect of the certificate of the speaker under section 29(4) has been discussed. G. P. A. Silva J. observed in Kariapper v. Wijesinha (1966) 68 NLR 529,551: This provision is in fact tantamount to two requirements for a bill which amends or repeals the constitution, namely, a vote of two-thirds of the whole number of members of the House and a certificate of the Speaker to that effect. If these requirements are satisfied, as they have been in this case The above statement is open to the construction that a
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certificate of the Speaker alone was not enough but there must also be a vote of two-thirds of the membership of the House (though Silva J. does not specify how the courts will determine whether a two thirds vote was present). But such a construction of the statement is not supported by the last sentence in which G. P. A. Silva J. appears to take the view that the requirement had been satisfied in the particular case by the speaker's certificate alone, because apparently the court had not made any inquiry as to whether a two thirds majority was in fact present. But if the dictum referred to above is construed to mean that the courts could go behind the speaker's certificate, it is contrary to the approach of Lord Pearce in Bribery Commissioner v, Ranasinghe (1966) 66 NLR 73,79. When the Constitution lays down that the speakers certificate shall be conclusive for all purposes and shall not be questioned in any court of law it is clearly intending that courts of law shall look to the certificate and no further. In this case it was argued that the Royal Assent to an amending bill established conclusively its due passage into law, that the proviso deals only with a matter of Parliamentary procedure, and that even though the bill was not endorsed with the certificate, a court must nevertheless regard it as having been validly enacted, and cannot inquire into the question of compliance with terms of the proviso. This argument was rejected in the following manner by the Supreme Court, per H.N.G. Fernando in Ranasinghe v Bribery Commissioner 64 NLR 449 at 454. Of course, if the intention of which the Proviso in
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the expression is in accordance with this submission, the matter ends there. But is that the intention? In my opinion, the language clearly manifests an intention that no bill to amend any provision of the Constitution shall pass into law unless it had received the requisite majority in the House of Representatives. The passage by such a majority is made a condition precedent for enactment. Ordinarily, the question of fact, whether such a condition has been satisfied, is determinable by judicial inquiry'. But in this context, where the question relates to the proceedings in Parliament, the possibility of a judicial inquiry is very properly avoided. Instead, the proviso prescribes the sole means by which the question is to be determined, namely the certificate of the speaker endorsed upon a bill that it was passed by the requisite majority. The Certificate is conclusive for all purposes and shall not be questioned in any court of law. These words indicate the function which a court is intended to perform in the case of a constitutional amendment, that is, to ascertain whether the Bill bears the Speakers Certificate, for it is upon proof or production the Speakers certificate that the court becomes bound by its conclusive effect. The very proposition that a court cannot look behind the Certificate implies that in the first instance the court must look for the Certificate". The absence of the certificate is as conclusive as its presence and in the absence of a Certificate the Court cannot be invited to inquire and determine whether, nevertheless, the condition precedent was satisfied, for it is just such an inquiry that the subsection intended to prevent. In my book Constitutional Government in Sri Lanka 17961977 I said quoting Bribery Commissioner v Ranasinghe
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that the English authorities have taken a narrow view of the Court's power to look behind an authentic copy of the Act. In Sri Lanka the position is different because The Court has a duty to see that the Constitution is not infringed and to preserve it inviolate. The reference here is to a specific mandatory provision which confers power. The Independence Constitution contained a mandatory provision in section 29 (4) for amendment of the Constitution. A current example would be the fundamental rights provisions in the Constitution. Court of Appeal error in issuing writ against PSC An extract from the Daily News January 10, page 1

A majority of Appeal Court judges have written to the President of the Appeal Court Justice S Sri Skandarajah squarely finding him at fault over the writ that was issued in quashing the Parliamentary Select Committee findings in Application number 358/2012, made by the Chief Justice.

The Judges have said explicitly in the letter (quoted below) that the judiciary cannot issue a writ on Parliament or Committee of Parliament. This very important letter was ignored by most of the newspapers.

One newspaper carried a summary of the 74-DAY IMPEACHMENT SAGA totally ignored this letter, while highlighting the decision, which was made in an irregular fashion. An extract from the Daily News January 10, page 3 The majority of the Judges of the Court of Appeal admit
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that the Court of Appeal had erred in issuing a writ against the PSC which is a creature of the Parliament.

Most of the Judges of the Court of Appeal are against the President of the Court of Appeal in relation to the manner in which he handled the matter concerning the impeachment application of the CJ. They are of the view that had he consulted them before making these decisions, the present conflict between the legislature, executive and judiciary could have been avoided. The Court No 303 handles all writ applications filed in the year 2010-2013. At present the case allocation in the CA is as follows:

The Court No 206 is the other writ Court which handles all writ applications filed prior to 2010. In Court no 303, the cases are presided by the President of the Court of Appeal namely, Justice Sriskandarajah who sits with Justice C Jayatillake. Justice Anil Gooneratne sits in Court No 206.

Justice Salam sits in the Court that hears D C Final Appeals.

(For this paper it is relevant to mention only these three Courts) In early December the writ application bearing No 358/2012 was filed and was to be supported before Court No 303 in which the President of the Court sat with Justice Jayatillake. But most unceremoniously Justice Jayatillake was dropped from hearing the said case and the President of the Court of Appeal handpicked two judges of his choice
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to hear the case. It is unprecedented to constitute a bench of three judges at the commencement of a case as at that time the Court had not even decided whether to accept the application or dismiss it. At that time the two regular judges could have conveniently decided whether there was merit in the application to issue notice or not. When Justice Jayatillake questioned the President as to why he was dropped from hearing those cases the reply given by the President was, that such matter was his prerogative.

Having supported the application before the handpicked judges the Court issued notices on the respondents. On the day fixed for hearing the Court then referred to the Supreme Court questions relating to interpretation of certain provisions of the Constitution. (reference to the SC). The reference from the SC under Article 125 was sought by Court in case 358/2012 CA.

The SC reference bearing No 3/2012 was sent to CA on 2-01-2013. The reference was in relation to case CA 358/2012. In the meantime the Hon Chief Justice filed writ application bearing No 411/2012. That morning of the 3rd January, the President of the Court of Appeal again unceremoniously dropped the permanent judge Jayatillake and directed the lawyers to support it before the earlier handpicked judges. In 3rd January was a vacation court day. The SC reference was read in open Court. But the Court did not hear the arguments or make any determination in respect of the case bearing No 358/2012 on which the SC reference was sought. In short though the Court sought SC reference for that case the Court did not proceed with that case.
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The reason may be as I feel that, if the Court were to make a determination in that case based on the SC reference, the party affected by that decision would have had the right to appeal against that decision to the Supreme Court. In that event the said case could not have been considered as a precedent to the latter case filed by CJ. Why did the Court of Appeal presided by the President of the Court of Appeal use a reference sent in relation to case bearing No 358/2012 for case 411/2012, filed by the CJ. In the case filed by the CJ, the Court had not made any reference to the SC under Article 125. Hope the CA will be able to answer this issue. The President of the Court of Appeal may also answer why he chose two judges on the day of the vacation Court and give preference for a case that came as any other case and decide to hear with three judges. These other two judges had no notice of this additional case unless they had been made aware before, that such a case would be supported on that day and to be ready. At this moment of time unless warned earlier the said two judges could not have even seen the brief in case 411/2012 filed by CJ. Although the case 411/2012 was to be supported in the vacation court in which Justice Jayatillake was sitting, but it was immediately transferred to the three bench which had been specially constituted to hear the case 358/2012. All the other cases fixed on that day was postponed to give preference for this case filed by CJ. Having heard the case 411/2012 on 3rd January the Court issued notices on respondents. It is unprecedented and against the Supreme Court Rules to give a party only one working day to appear for notice issued by Court.
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Notwithstanding this unprecedented hurry the Court took the case for argument on the 7th January. The case was argued and decided on the same day. It was not a bench order. It was a comprehensive judgment with other judges agreeing with the President of the Court of Appeal. The other two judges merely agreed and though could not have possibly seen the draft judgment as the case was argued and concluded and decided in one day. Usually when a case is heard by two or more judges the draft judgment is sent to other judges for their comments and approval or disapproval. But in this instance there could not have been any such discussion as the judgment was given on the same day the arguments were concluded. Mr President of the Court of Appeal could you please show us one case where three judges have heard and concluded in one day and a comprehensive judgment had been delivered on the same day with references to case law citations in the judgment. It was our view that after argument is over the parties are allowed to file written submissions citing the case law and the judgment is thereafter reserved for a future date. Mr President of the Court of Appeal please let us know the names of respondents in your judgment in case bearing No 411/2012? How can you bind a party by your judgment that is not mentioned in your judgment? How many respondents have been discharged? How many persons have been added as "intervened"? Your judgment does not show any of these. Your judgment merely says "And 12 others". Who are these twelve others? What was the hurry Mr President of the Court of Appeal for you to overlook all these? Her Ladyship pleaded that the PSC in hearing her Articles of impeachment did not give adequate time to prepare. But
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Mr President you have given only one day for the respondent to prepare. Is that adequate time? Mr President of the Court of Appeal, you obviously attached very high importance to the case filed by CJ since you felt that it should be considered by a bench of three judges, and two handpicked by you. There were two more senior judges whom you have decided to overlook. I am informed that Justice Sisira De Abrew had declined to hear the case. But you thought that the other senior judges were not fit to hear this application. Mr President of the Court of Appeal, how is that you have in page 7 and 8 of the judgment made reference to foot notes. But in the body of the judgment there is no reference to those foot notes. Additionally, those foot notes begin with no 11 and did not see the prior numbers in the body of the judgment. Was the judgment written is such a haste. Mr President of the Court of Appeal for your easy reference let me put below your unprecedented actions so that you may be able to explain why you have acted in such manner. 1. You have never delivered a judgment where three judges had sat and heard the arguments and decided the case in one day. As you know on that day the parties made lengthy submissions, but all three of you decided the case and delivered the judgment the same day. In other cases you have heard how many times have you postponed the judgments? 2. You have never given one working day's notice for a party to appear before Court other than in this case.
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3. The SC reference 3/2012 was for case bearing No 358/2012. But you have used that reference for case bearing No 411/2012. In these two cases the reliefs sought were different. In the former case the relief sought was for a writ of prohibition, and in the latter the relief was for a writ of certiorari to quash the PSC determination.

4. You have concluded the writ application 411/2012, but the cases for which SC reference were sought are not even taken up for argument.

5. You have ousted the regular judge of the writ Court without having the courtesy to mention that fact to him and broken a valuable tradition that prevailed in the Court of Appeal.

Mr President, do you not think that the other judges of the Court of Appeal are of the view that you have brought disrepute to the Court of Appeal, as most of the other judges of the Court of Appeal are not in agreement with the manner in which you have behaved in handling the cases relating to the impeachment of the CJ. I am informed that most of the judges are of the view that you have purposely failed to consult them before making any of these decisions and had made wrong decisions in hasty manner. They expressed that you have erred in issuing a writ against the Parliament. This as they expressed was the principle of Montesqui and separation of powers which you had failed to consider. Accordingly, due to the principle of separation of powers mentioned by Montesqui, one component of government cannot restrain the functions of another component of government. Therefore, the judiciary cannot issue a writ against the
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Parliament or any committee of Parliament. The writ of certiorari is an order. And, the Court has no power to issue an order against the Parliament. The Court can only request. Therefore, you have erred in issuing a writ of certiorari against the PSC which is a creature of the Parliament. Most of the judges of the Court of Appeal are of the view that if you had consulted them before making these decisions, then the conflict that has now arisen between the legislature executive and the judiciary would have been avoided. The Cause of a Chaotic Situation Daily Mirror 22/12/12 Pg. 1 says The Court of Appeal while observing that the executive and legislature cannot take away the courts constitutional power of judicial review, yesterday cautioned the relevant authorities from acting in derogation of the rights of the petitioner Chief Justice Shirani Bandaranayake disregarding the court proceedings as it may lead to a chaotic situation . Did the court say that if rights of petitioner were disregarded it would lead to a chaotic situation? Is that what the court said? Chaos and violence is a choice. Where there is chaos or violence, the protesters are the cause, through disobedience to law or over zealousness in believing in their point of view and disregarding other views and legal authority of government. They are responsible for a chaotic situation. A court of law must encourage citizens to peacefully exercise the fundamental rights of free expression and free assembly.
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The President and Parliament

He may take advice from any source. He may seek the advice of experts and make the right decision according to his conscience. The President taking advice is an action which is not specifically stated in the Constitution. It is not constitutional. BUT IT IS NOT ILLEGAL OR UNCONSTITUTIONAL, provided he receives nothing more than advice.

The President may seek advice from any source.

The President (like any Head of State under the Westminster or Federal systems) may seek advice from any source. Generally the advice is sought in private conversations and writings. But there is no restriction to private communications. The President may seek advice from any source, within the established British constitutional convention that the head of state may seek advice from any source, but is not bound by such advice. This convention has been followed in Britain and in Sri Lanka and all parts of the world. Such advice is generally given and received in private. But there is no objection to the President taking advice and publicising the advice. Parliament COLLECTIVELY AS A WHOLE, on whom the responsibility of submitting an address to the President falls, DOES NOT DECIDE. The PSC investigated and reported on the allegations. These are the words used in Article 107 and section 78A. The PSC did not DECIDE. If the PSC decided it would be
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The first step is debate in Parliament and a decision.

ultra vires. The procedure is for each MP to examine the evidence and make his/her own decision and vote. She/he is not bound by the report. THE COLLECTIVE WILL OF PARLIAMENT EMERGES FROM THE FINAL VOTES OF INDIVIDUAL MEMBERS OF PARLIAMENT. A natural justice based hearing or judicial inquiry is not consistent with the concept of an address, in terms of practice in UK, US and other countries, as detailed above. The PSC A few words on the establishment and work of the Parliamentary Select Committee. The PSC was asked to do a difficult job. The difficulty arose from the concept of dismissal through an address. Where the concept of address arises it provides no scope for natural justice, judicial review or judicial power. The difficulty of the task of the PSC came from the Constitution and a hastily inserted provision through standing orders introduced by the Jayewardene Governemnt. Where in the world do we have standing order regulating conduct under the Constitution? Where in the world do we have a Court which does not know or understand the difference between standing orders and law (in 78A law means Act of Parliament). The fault for the difficulties that have arisen for the Special Committee lies at the feet of the Constitution and the
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drafters of section 78A. A Parliamentary Select Committee NEVER exercises judicial power. By its very nature a select committee is under no obligation to follow rules of natural justice. What is the constitutional provision or article which requires this?

It must be emphasised for many who do not know, (lay people and even some lawyers) that standing orders are rules made by a parliament or a legislative house in relation to functioning of parliament or House. Examples of legislative houses are the Senate and Parliament under the 1948 Constitution or Senate and Congress in the United States. The concepts of natural justice, judicial review and judicial power have been tossed around during the recent controversy. They are totally irrelevant. In my view, it is impossible for anyone from within or outside the Parliament, who knows about Parliament and the concept of judicial power, to think of a parliamentary or legislative committee exercising judicial power. In my view, it is equally impossible for anyone from within or outside the Parliament, who knows about Parliament and the concept of natural justice, to believe that the courts can investigate a parliamentary or legislative committee exercising judicial power in its internal working.

The concept of judicial power first surfaced in Ceylon (as it then was) when it was used by Privy Council to invalidate legislation under the 1948 Constitution. The drafters of the 1972 Constitution were at pains to bury the concept of judicial power and it was equally shut out by the 1978 Constitution, in relation to actions unconnected with SPECIFIC powers given to the NSA or Parliament.
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I have written about judicial power. The present leader of the opposition was a student to whom I taught constitutional law in the University of Colombo. The President was a student at the Law College when I was a Reader at that institution. The present opposition leader Ranil Wickremesinghes failure to attend court, was perhaps due to understanding of the functioning of Parliament. This is to be commended. His stature as a statesman will be enhanced, if he openly expresses the beliefs which I think are within him about justiciabilty and the absence of power of court to interfere in the internal working of the Parliament. The exception is where it is specifically given power by Parliament or the Constitution in relation to parliamentary privileges. It is desirable, WHERE APPROPRIATE, for a Parliament in a particular situation, to follow principles of natural justice or subject itself to judicial power in its internal workings. Where in the world however has there been a demand for a Parliament or a special committee to follow principles of natural justice AS A PRINCIPLE OF LAW to be reviewed by the courts?

It is also important to note that section 78A under which the Committee was established is a standing order. The report and investigation of the PSC is not binding on Parliament or President. It gives information for guidance of individual Parliamentarians and President. The Conduct of Opposition Members of the PSC The opposition members walked out of the PSC. They thereby lost the opportunity to present a dissenting report. They had an opportunity to present the causes for
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their opposition in a reasonable and rational manner. The conclusion is inescapable that they did not have valid reasons to present. Were some of them more concerned in causing disruption? Even after the walk out they could have presented reasoned response to allegations made.

The Alleged Wrongs are not Crimes or Minor Offences Supporters of the Chief Justice tend to brush aside the reports on the allegations or state that they are fabricated. Some who support the Chief Justice argue that if the three allegations which the PSC determined are true, they are not crimes or, or if they are crimes are minor offences. This arguement is without merit. The Golden Key allegation is not a minor matter, if it is true. It is a dishonourable act which raises a cause for resignation. Was the motive for the walk out by the opposition members in the PSC, that there was substance in some of the charges. There was no defence to some things. Therefore they could not write a dissenting report. The motive of some is to disrupt the government and create disruption and turmoil in the nation. What is the agenda of the TNA? Was the Chief Justices walk out from Committee proceedings due to the same cause? A newspaper report contained a response by lawyers to some of the allegations. There was no report of a response to allegations on Golden Key issue, and alleged interference in appointment of judges hearing case involving husband. There was also no response on failure to follow judgement of Justice Mark Fernando in an order delivered by court.
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The Golden Key issue demanded a response from those who opposed impeachment. A Former Speaker and UNP Mayor Speaks Sense A former UNP Mayor and Speaker of the House of Representatives M H Mohamed made a plea (Sunday Observer, December 16, 2012): The developments in relation to the impeachment of the Chief Justice are being used by various elements to politicise a simple procedural process of a functioning democracy aimed at reaffirming the supremacy of the people. The source of all executive, legislative and judicial power in Sri Lanka is derived from the Constitution. The Constitution unequivocally states that the sovereignty of the people shall be exercised and enjoyed through the legislative, executive and judicial power of the people. Section 107 of the Constitution clearly lays down the manner of appointment of and removal of judges of the Supreme Court and Court of Appeal. The section makes it abundantly clear that the Government has followed the due process in initiating the impeachment motion against the Chief Justice. Politicising a duly constituted procedural aspect of the Constitution to circumvent the mandate of a democratically elected government ... needs to be condemned in the strongest possible terms in the very name of democracy. As a senior politician I call upon all citizens to rally round President Mahinda Rajapaksa and the government ... to solve this matter through due process and protect the sovereignty of the people.
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ISSUES OUT SIDE THE LEGAL AND Having commented on the legal issues, I proceed to make some comments on the ethical and non legal issues and the accompanying public debate. At the outset I said there must be clear distinction between the legal and the ethical issues. There has been no such separation and the waters of debate have been muddied. Freedom of expression with full scope for opposing views is the cornerstone of democracy. Yet in the debate there has been little respect for opposing views. There are some who are motivated by hopes of an imminent Asian Arab Spring. There are some virulent opponents who may not intend an Asian Arab Spring, but who are unwittingly supporting or being used to establish conditions for an Asian Arab Spring. The public debate has been at a very low level. A few words on public comment that has taken place. CONSTITUTIONAL

There are those who blindly support the government with wild arguements. There is too much focus on parliamentary supremacy and too little on non-justiciability.

There are those who speak and write making submissions with respect for opposing views, honestly stating their point of view. On all sides there is aggressive assertions and lack of respect for opposing viewpoints. The persons who express their views with respect for opposing views are in a minority in the debate.

Constitutional law is a very specialised subject. Many

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lawyers and lay people speak with lack of understanding of constitutional law and principles. The case for the government has been inadequately made. The US government criticism of the impeachment is prepared and made by those with ignorance of the way in which their own state and national legislatures have functioned, which has been described above. The Bar Council has held a meeting. It is alleged that proper procedures were not followed, an opportunity was not given for expression of views contrary to that of proposers of the motion and a proper vote or count of votes did not take place. There are imperfections in all constitutions. The three post independence Constitutions are no exception. Constitutions must be followed. Persons may non violently and with respect for dissenting opinions of others, campaign to change the constitution. I will in a future writing suggest corrections for the present constitution including judicially enforceable rights, with no limitations of time within which action must be instituted, in relation to legislative and executive action which discriminates against citizens on grounds of caste, community, language, religion or race. I also believe in need for amendments to some provisions to remove limits of time within which a challenge is made. Others may likewise campaign, non violently and with respect for opposing opinions, for amendments to constitution they believe are important.
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PART II

IMPEACHMENT DEBATE
THE WIDER CONTEXT A QUESTION AND ANSWER Does Sri Lanka need an Asian (Arab) Spring? There will be wide agreement on a negative answer. However some "Protesters" may not understand that they are supporting, those who desire an Arab Spring, operating from within parliamentary political parties, outside of Parliament and individuals and organisations in Sri Lanka and overseas, including supporters of Prabhakaran style terrorism. The TNA has not to my knowledge ever spoken out against LTTE terrorism. We need a revival of true religion pervading the nation, government, business, voluntary organisations and people. All else is secondary. This writing was inspired by what I believed were wrong ideas on the constitutional principles relating to impeachment and the possibility that disruptive protest around the impeachment would be the first step towards an Asian (Arab) Spring. There seems to be a total abandonment by the United Nations and Human Rights advocates of the concept of Gandhian non-violence and the examples of Martin Luther King and very recently Aung San Sui Kyi and the many who have worked non-violently for reform.
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REFLECTIONS ON THE

A subject which very few have specialised in, is Constitutional law. It also seems to be a subject on which people think they can freely express their views, without knowledge and training in the discipline. In life there are things we know. There are things we know that we do not know. There are things which we do not know, that we do not know. Many, including first class lawyers, fall into the third category in relation to constitutional law. MY BELIEFS AND POLITICAL POSITION I believe in the FUNDAMENTAL FREEDOMS of freedom of person, freedom of speech and expression, freedom of assembly, freedom of property and equality of opportunity (with reservations on Marxist equality of outcome). I enthusiastically accepted the Universal Declaration of Rights of the United Nations, 1948, which focused on freedoms, even though the word rights was used. In my early lectures on constitutional law I drew on the Universal Declaration. However the International Covenant on Civil and Political Rights which replaced it, along with a succession of Covenants, has led the United Nations on a slippery downward slope. The above fundamental freedoms give rise to duties (primarily on governments) to respect the freedoms in action. The duties give rise to rights. The duty is for all organs of government to respect rights. Proessor W N Hohfeld enunciated the theory that there can be no right, without a corresponding duty. Wesley Newcomb Hohfeld (1879-1918) was an American
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jurist. He was the author of the seminal Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1919). The work remains a powerful contribution to modern understanding of the nature of rights and the implications of liberty. To reflect Hohfeld's continuing importance, a chair at Yale University is named after him. Hohfeld noticed that Even respected jurists conflate various meanings of the term right, sometimes switching senses of the word several times in a single sentence. He wrote that such imprecision of language indicated a concomitant imprecision of thought, and thus also of the resulting legal conclusions. Extracted from Wikipedia. The imprecision of thought is to me evident about so much said and done in the name of human rights. Hohfeld did not live to see the emergence of the concept of human rights. It would have killed him or he would have been a powerful opponent of human rights. Rights without duties or a focus on duties, leads on to the slippery slope and is the basis of my critique of human rights, indirectly referred to in what follows in this writing. Duties are an important part of religion, which sometimes becomes too important in religion. I am both a supporter and critique of religion. The critique is due to intolerance and over emphasis on duties and morals without loving kindness and grace. Human rights activists focus on rights ignoring duties and the ethical values common to all religions. I believe the importance of human rights is over emphasised. All statements about human rights and United Nations,
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which follow, must be seen in the light of this statement of belief. I am writing on my magnum opus, developing what is said above. I have written four books in the 1980s published overseas on Human Rights in Australia, From Freedom to Bondage, The Western Democratic Tradition and Conventions the Australian Constitution and the Future. I write about a legal subject (the impeachment) which has political implications.

I write with no affiliation to a political party. I write with love for the land of my birth. At this point of life, in my 75th year, my love for the land of my birth is growing. Therefore I make some comments about myself and my fundamental beliefs around human values and my non partypolitical beliefs. I believe passionately in the equal dignity of every human being. I look up to no one. I look down on no one. I believe passionately in equality of opportunity. I have reservations about equality of outcome policies. I believe whatever you do, do well.

I believe in love your neighbour, the importance of responsibility and duty, honesty, hard work, a society where family life and commitment to marriage, which leads to loving care of children. I believe in the dignity of the individual and grace: to people with alternate life styles, to those who do not believe in what I believe in and wrong actions according to my
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ethical standards. At this stage of my life I condemn no one. I merely express views which may affect actions of others. I regret all actions of condemnation in writing and relationships in the past. The common core of all religions espouses values such as honesty, the pursuit of truth keeping one's word and promises, responsibility, duty, integrity in interpersonal relations, concern for immediate neighbours, respect for property, loyalty, marriage and family integrity and responsibilities, chastity within marriage and the work ethic. The emphasis is upon the duty and responsibility of the individual. No society can function efficiently or humanely and no civilisation can endure without these values. The failure to assume responsibility for one's actions and the tendency to look to the government for everything are among the consequences of the break down of traditional morality I believe in freedom of expression and EQUALLY respect for those who hold opinions different to mine. The number of those who extol freedom of expression without respect for those opposing their views is growing steadily. Too many of those who fall within the second part of the last sentence are involved in the present debate over impeachment. I believe passionately in non violent reform. I admire traditions and life work of truly great twentieth century leaders of reform like Mahatma Ghandi, Martin Luther King, Kwame Nkrumah, Nelson Mandela and Aung San Sui Kyi and the many who worked non-violently to bring about the collapse of communism, the Soviet Union and the Berlin Wall. Nelson Mandela was in prison during a struggle
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with violence against oppression. But on his release he acted as Head of State without rancour and with grace, fairness and justice, to initiators and supporters of one of the most manipulatively oppressive and disgusting regimes the world has ever known. I believe that those who desire to replace a government or achieve reform must have better policies and higher standards of behaviour. The problem is that in many places, including Sri Lanka, the political opposition has neither. If I passionately oppose anything it is intolerance, especially by those who extol freedom of expression and assembly (fundamental human values), accompanied by abusive and divisive protest and civil disobedience and above all terrorism. I have never belonged to a political party. I applied to join the LSSP in my University days. I was put on probation. My application was discontinued due to dissent. I have had no connections with the SLFP, MEP or UF. I earned the enmity of Felix Dias Bandaranaike for opposition to some of his policies with reference to Law College and his judicial reforms, which I supported in part. I have met Mahinda Rajapaksa once. At one time Ranil Wickremesinghe was a frequent visitor to my home, during his University student days. Dudley Senanayake and J R Jayewardene have visited my home to seek advice on constitutional matters. I have not been consulted by any other political party in Sri Lanka. I have given legal advice to Rohana Wijeweera in maximum security prison. I have been consulted overseas on constitutional and legal issues by
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leaders. Benazir Bhutto and her brother, when I was living in Cambridge, came to our flat to consult me. The brother was assassinated soon afterwards. I supported the establishment of a Constituent Assembly which drafted the 1972 Constitution and the establishment of a Republic within the Commonwealth. I was an academic apologist for the Constituent Assembly. I welcomed the 1970 UF Government, when it came to power. I was a founder member of the Civil Rights Movement, which was founded by those who supported the new government in 1970 and wished to keep it honest. I supported the move to a republic in the 1972 Constitution. I wrote a critique of the provisions in the drafting stage of the 1972 Constitution for limitations on judicial review of legislation and I earned the enmity of the then government. My family has had long and loyal connections with the UNP. The roots of the UNP lie in the Ceylon National Congress of which my grandfather Sir James Peiris was a founder member and my father G L Cooray was the first secretary. I have for as long as I can remember been interested in politics. I have imbibed much from my grand father, whose motto on his armorial bearings was Veritas Vincit meaning Truth Conquers". The life and principles of Sir James Peiris have inspired me. When Sir James Peiris died the Editorial of the leading newspaper at that time, when Sri Lanka (then Ceylon was a colony) written by an Englishmen, said: His end has come in the fullness of time and he passes away full of honour, full of dignity, leaving to his countrymen a priceless heritage, the memory of a life nobly spent in the countrys service.
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The people of Ceylon will long remember with gratitude his splendid labours in the cause of political reform, his invaluable contributions towards the social uplift of the poorer classes, his services in the field of education. They will remember with pride his culture, his scholarship, his rhetorical gifts, and above all his high sense of honour and uprightness of life. He was a Christian knight standing for purity of thought, integrity and selfless service to his country his church. Sir Ponnambalam Arunachalam, the leading Tamil politician in the 1920s said of Sir James Peiris the leading Sinhala politician of that time. Sir Ponnambalam described him as A man of ripe culture, trained and sober judgment, high character and public spirit. His opinions are formed with deliberation, they are based on reason and principle and guided by zeal for the public welfare and loyal attachment to the country. Everybody feels that he has nothing up his sleeve he is proof against official blandishments and knows not how to trim his sails to every wind. No wonder that he enjoys the confidence of the people of Ceylon, without difference of race or creed. Today could any Tamil leader say that of a Sinhalese leader? Could any Sinhalese leader say that of a Tamil leader?

My grand parents and parents taught me about the God they believed in and endeavoured to follow. They taught me about values by example and not by preaching or discipline and made me believe that I was and always would be great and good. They believed in me. They told me what was right. They did not tell me what was wrong. That I learned in
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Sunday School, which I hated. They left me a great legacy, more valuable than titanium, platinum or gold. Some of the values I learnt from their example and their loving discipline are: Life is about do what you do, do well Life is about doing the best possible you can in your circumstances. When my brother before an exam feared he would fail, my father said Do the best you can, that is all we ask of you". Life is knowing that even if the best possible has been done, there is always a better way to move towards in the future Life is about living in the present and the future, looking to the past only to redeem the future, avoiding recrimination, revenge, retaliation and retaining grievances. My grand father and mother always saw the best in people and blaming was not part of their nature. Further my grand mother and father never blamed me. I was the youngest in large families. Some thought I was thoroughly spoilt. HUMAN VALUES MORE IMPORTANT THAN HUMAN RIGHTS

I now make some comments as a human being who loves Sri Lanka, even though I have spent a part of my working life overseas. The students whom I have taught at the University of Ceylon, the University of Peradeniya, the University of Colombo and the Law College will know that I gave my all to them not just as a teacher, but as a human being attached to human values. My primary aim as a teacher was
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to do the best I can for my students in every possible area, NEVER PLACING MYSELF ABOVE A STUDENT. The government authority I exercised as an University teacher was equally above me and also the student. My fundamental belief was in the equal human dignity of every human being, even when I exercised government authority as a teacher and administrator and briefly as a judge of the Income Tax Board of Review and in various capacities in employment in Australia. My students were always my equal. I was a teacher for 37 years and never said Be quiet. I never asked for or demanded respect, but fortunately and happily I received it. I gave my best for my students, with a passionate desire that every student would prosper and students understood this. When you feel right, those round about know it. You do not have to say anything. The Sydney Morning Herald, the newspaper in Australia with the largest circulation, in an article about L J M Cooray said: The students called him coach, because of his fatherly concern for their welfare. I lectured to the largest class at Macquarie University, Sydney, Australia in the School of History Philosophy and Politics. After I had finished a course of lectures as a visiting lecturer, the lecturer in charge said Do you know this is the most unruly class in the University and it is also the largest. Yet they listened to you in silence. I exercised discipline, without demeaning the student, showing him what was right, rather than what was wrong. Students in Australia and Sri Lanka will testify to this.
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I am at present writing a book about human values and human rights and human wrongs. I believe that human values and human love of man for and human duties must come before human rights. If human duties are followed in an atmosphere of respect for differing views of others, there will be as an essential corollary, the observance of human rights.

The reverse does not follow. Human rights do not lead to human duties. Human rights do not have a place for human ethical values, human duties and most importantly for love and family values. The UN Convention on the Rights of the Child demonstrates skewed up thinking. What is needed is a Convention on Family Love and Duties of Parents and Children.

The call for human rights without human values, duties and exchange of human love is laughable, if it did not have such serious consequences. The call and the fight for human rights, without human values (the values common to all religions and right behaviour based humanism, agnosticism, atheism) and love for fellow human beings and human duties, is the great problem of our times. The call for human rights without human values is I believe the greatest evil present in the world today.

Sri Lanka needs NON VIOLENT REFORM. It needs leaders like Martin Luther King who can say We shall overcome. This was the song and basis of action of King as the leader of a hugely oppressed people, confronting the most powerful nation on earth, and the might of existing
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oppressive and discriminatory laws and persecution and exploitation.

Sri Lanka or no country needs an Arab Spring. Martin Luther King won the battle. The Soviet Union collapsed and the Berlin Wall came down without violence.

There is no single word about which more hot air is released in the world, especially in the United Nations and its cohorts, than the word peace. Peace is a human value for human beings. Individuals may move in peace. Peace driving a human being is a noble ideal. This will lead to reform. The role for a government is justice and order. If leaders of government and opposition have peace in their thoughts and actions, peace will extend to the nation. A dictionary explains peace as the absence of war, conflict, noise or disturbance. This is as far as the concept of peace extends in relation to a nation or any large body of persons. Beyond that peace is an individual characteristic and its presence in human hearts will transform a nation. Martin Luther King showed that. The Bible warns about crying peace, where there is no peace. Where there is no peace in thoughts and actions of reformists (first), and then people, government and opposition, there is no peace. Peace starts with the individual.

What is the purpose of talking and writing about peace in a nation where there is no or little peace in human actions of government and opposition members? An opposition, which intends to defeat a government, must first and foremost demonstrate higher standards of conduct. Does the UNP, especially in relation to internal procedures
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and election of party leader, follow higher democratic standards than the government? I see no evidence of this. I say this as a person whose family has consistently supported the UNP. Religions have failed because of (i) intolerance of other religions, (ii) warfare and dissension within and between religions and (iii) hard persecution by moralists of those who do not follow their moral values. Many moralists profess values, which at best they imperfectly follow. Respect for differing opinions, love for all mankind, absence of grace by the righteous towards the unrighteous have been significant weaknesses in all religions in human history. I have used the word moral and derivations of it in the past. I will not use them in future, referring to human values or ethical values, due to excesses and intolerance associated with the word moral and its derivations. The word religion is a dirty word for some because they associate it with intolerance. What the world needs is TRUE RELIGION as the prime focus with the common values of all religions. People of all religions must work together on the common core of ethical values of all religions. The word values in previous sentence is emphasised. Is this an impossible dream? It is a possible dream for a better government and society. It is an impossible dream at an utopian level. After much conflict in religion, the time is now ripe for religions to work together on public issues, promoting ethical values, without ideology. This will pose the true challenge to all other secular doctrines and the Taliban and terrorism (including UN, NATO and US terrorism). Human rights and peace without human love and
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human duties is an impossible dream. The message for Sri Lanka and the world, where there is injustice is: WE SHALL OVERCOME WITH NON VIOLENCE. Sri Lankan at this point needs to ask the question: Do we need an Asian Arab Spring? Do we need B Obamas planes, drones and UN, US and EU planes over our beloved Sri Lanka. B does not for Bad. I admit there is good in B Obama, who sets a great example of private ethical values and family life, which he should preach to a nation with increasing internal violence and lack of concern for ethical values and family life. This alone can lead to halt the decline of the US and restore its standing as a former great nation. With unprecedented violence within US, the decay of family life and caring for children and elected by a very small percentage of the able to vote population, Obama and the US government are in no position to preach to Sri Lanka and the world. Hilary Clinton (and her successor) and Blake need to be told this and shown the exit door. The LTTE supporters in Sri Lanka (led by TNA parliamentarians) and overseas and sections of opposition parties, in cohorts with foreign sources and funds, are working for an Asian Arab Spring. Many are unknowingly supporting them. My forecast is that in every country where there is an Arab Spring, a bad regime will be replaced by a worse regime. H Clinton and Obama are doing favours for the Taliban and terrorists. So many violent uprisings lead to worse regimes, replacing bad regimes. Vietnam and Iran are examples.
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The Soviet Union and the Berlin Wall came down without violence and due to inner contradictions.

The United Nations, have forgotten the example of truly great twentieth century leaders of reform like Mahatma Ghandi, Martin Luther King, Nelson Mandela, Aung San Sui Kyi and Kwame Nkrumah, as well as the freedom fighters in Sri Lanka like James Peiris, Ponnambalam Arunachalam, Ponnambalam Ramanathan, E W Perera, Baron Jayetileke, D S Senananayake and S W R D Bandaranayake. Gandhi, King and many others have understood clearly that violence, even for a good cause begets violence, and the next stage is worse than the previous. Hatred ceases not by hatred. Hatred ceases by love.

Martin Luther King said and sang We shall OVERCOME and an oppressed people overcame. There is no end to overcoming in gradual stages in an imperfect world. The challenge is to believe I will overcome and move so that inner contradictions will work to bring down despotism in its various manifestations. The Berlin wall collapsed without violence. The Soviet Union was dissolved without violence. There is always a higher level of conduct with non violence in an imperfect world.

Let us sing WE SHALL OVERCOME and move into love, human duties and non-violent action. WE SHALL OVERCOME WITH LOVE AND NON VIOLENCE. The great challenge of the previous and this century are those who have - and seek to educate about ideology of equality, human rights, humanism, socialism, liberalism, Marxism or any ism with no or little concern to educate on the human values and the spirit of TRUE religion which is
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search for truth, love, respect for opposing views and respect for human dignity whatever a person does or whatever his state or station in life. One of my core values is no one is better than me, no one is worse than me. I believe in non-violence in the face of perceived injustice. However I support violence by governments (NOT INDIVIDUALS) against supremely evil political leaders, such as Prabakaran, Hitler, Idi Amin, Saddam Hussein and Milosevic. Lord Devlin, in an essay "Morals and the Criminal Law" in The Philosophy of Law (ed R M Dworkin) Oxford (1977) at p 74 said: ... society means a community of ideas, without shared ideas on politics, morals, and ethics no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. POLITICAL REALITIES AND THE DEBT SRI LANKA OWES TO MAHINDA RAJAPAKSA

Ranil Wickremesinghe, when he was Prime Minister, said to me: "I would dearly like to know what Prabhakarans
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bottom line is". I said nothing. I believe the LTTE was one of the most evil organisations the world has ever known. Prabakaran is on par with or greater than Hitler, Stalin, Idi Amin, Saddam Hussein and Milosevic. I believed that the LTTE was unbeatable and a compromise on whatever terms was necessary. On reflection, my answer (not given to Ranil) was: Prabakaran has no bottom line. His first goal is a federal state with a line from Mannar to Batticaloa, including the hill country. The second goal is an independent Tamil nation consisting of this territory and Tamil states in India, with Prabhakaran as President. He was a man of conflict who would have gone on indefinitely, if he did not achieve his first goal. The TNA is now receiving support from those who have the same objective for a new nation with a South Indian Tamil leader. The problems of staying in power has blinded the Indian Prime Minister to this reality. I thought if there was no settlement with Prabakaran, the struggle would go on like the Irish civil war. I would have supported a settlement. I am glad that Mahinda Rajapaksa proved me wrong. The LTTE was destroyed with a small fraction of the collateral damage that was and is being done by bombing, drones and other violent activities of the US, EU and UN. I also acknowledge that there are areas in which US and UN have done much good, outside of and apart from human rights. Human rights without religious values of loving kindness, toleration and human duties in a population, lead to human wrongs.
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Sri Lankans must not forget the immense debt they owe to Mahinda Rajapaksa. Give honour where honour is due. I am interested in politics, but not in joining political parties. They also owe a minor debt to Prabhakaran, who directed the Tamils not to vote in a Presidential election, and thereby enabled Mahinda Rajapakse to become President. Mahinda Rajapaksa is not perfect. Who is perfect? But there is no leader on the horizon, or even beyond the horizon, to replace him.

A party or persons who desire to reform (i) must have better policies and (ii) observe higher standards of conduct, than those whom they seek to replace. I do not believe that any party of the present opposition satisfies these two critical conditions. Many opposition leaders and front benchers are driven primarily by hate. Hate does not lead to beneficial reform. CONCLUSIONS AND THE DEBATE ON THE IMPEACHMENT

The debate surrounding the proposed impeachment of the Chief Justice failed to focus on the difference between the ethical and the legal and also the difference between what is illegal and unconstitutional and what is not legal and not constitutional. Public debate has completely ignored the need to separate the legal from the ethical. There has been too much focus on the sovereignty and supremacy of Parliament. Each organ of government, the Legislature (Parliament) the Executive (President and public service) and Judiciary (courts) are each important
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and have a defined area of power. The importance of each must not be denied. The issue discussed in this writing is about the principle of parliamentary supremacy in the area of regulation of its internal procedure and the concept of non-justiciabily and justiciability. Legally and constitutionally the Government is on firm ground. The opposing forces on all sides must put forward cogent arguements, expressed in an atmosphere of rational debate, with respect for opposing view points. Do we want an Asian Arab Spring in Sri Lanka? A better world requires better human beings. A better world requires more of true religion with loving kindness between human beings, loving family life for nurture of children, true human values, just exercise of authority and observation of human duties and less of ideology (particularly human rights). Ideology looks at the end result, and education to get to that result, often with strong underlying assumptions of superiority seeing those to be educated as ignorant. The Doughnamore Commission, 1931, recommending for Ceylon (as it then was) universal adult suffrage compared the horse sense of ordinary people and the mediocrity of city intellectuals. Religious values influencing people (governed) and governments (governors) will change a nation. But a word of caution. If religion is mixed with ideology, to influence government policy, dilution of true human values common to the religion are the inevitable consequence.
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The French novelist and philosopher, Albert Camus referred to violence generated by ideology as crimes de logique' (Crimes based argued assumptions: namely terrorism). He argued that though ideology purports to reduce suffering, it does as a matter of fact increase human suffering. Political agitation, cannot be grounded on the foundation that the end justifies the means. The only acceptable foundation, was a solid ethical basis. Karl Popper argued that ideology was based on a grave logical error; that the course of history could be manipulated to be made amenable to the scientific method. The Utopian method that chooses an ideal state of society as the aim, which all our potential actions should serve, is likely to produce violence Reformers of every description, including the political opposition, must first and foremost demonstrate higher standards of conduct. A better future, requires better human beings.

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ABOUT MARK COORAY L J M Cooray LLB(Hons) (Ceylon), Phd (Cambridge), Phd (Colombo) studied and worked in Universities in Sri Lanka, England and Australia for 38 years. He resigned from Macquarie University (Sydney, Australia) in 1995. He was born in Sri Lanka. He is now an Australian citizen. He lived and worked in Australia for 27 years.

APPENDIX

Dr Cooray resigned from employment in 1995. His time since then has been devoted entirely to understanding and writing a number of books which examine public issues.

Dr Cooray, during 38 years in Universities, through the grace of God authored 14 books, 65 articles in learned academic journals and over 500 articles in popular journals and newspapers. These articles and books have been published and he has lectured and delivered learned papers in every continent. Dr Cooray is now working on a 14 volume series on human values, human duties and spirituality and life, including one book on what shapes and affects the growth and development of character, on the inside and the outside. Therefore with renewed vigour (youth renewed like the eagles), during the years ahead, through the grace of God, 14 books are being written. L J M Cooray had an outstanding career in School. His form master, Mr E F C Pereira in his last years at Royal College, the leading school in Sri Lanka, said he was the best student he came across in thirty years as a teacher.
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Dr Cooray spent 38 years studying and working in Universities in many parts of the world. He obtained a first class honours degree from the University of Ceylon in 1961. Only eight students (1948 present have ever obtained a first class degree) He was offered in 1963 prestigious and well endowed maintenance and tuition scholarships to study at the University of Cambridge in the UK and Harvard University in the US. He was also nominated for a Rhodes Scholarship to the University of Oxford. He chose the University of Cambridge where he obtained a degree of doctor of Philosophy in 1968. He later obtained a second doctors degree from the University of Colombo. Dr Cooray is an author of 14 books, 65 articles in learned academic journals and over 500 articles in popular journals and newspapers. His articles and books have been published and he has lectured and delivered learned papers in every continent. His writings have been quoted by the House of Lords, by the Indian Supreme Court, by the Sri Lankan High Court, Court of Appeal and Supreme Court and in the Parliament of Australia. Former Chief Justices of Australia, Sir Garfield Barwick and Sir Harry Gibbs and Justice C G Weeramantry of the International Court of Justice in Hague are among those who have highly commended his writings. He delivered a paper at Windsor Castle at a meeting of the Commonwealth Legal Education Association in 1975, of which Association the Queen Mother is Patron. At that Conference, Professor William Twining, the President of the Society of Public Teachers of Law in the British
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Commonwealth, who was also the Chairman of the British Commonwealth Legal Education Association, commenting on Dr Cooray's paper said that it was an outstanding work and no one anywhere had done any research in this area before. The paper was about the relationship between language and law.

The Conference was attended by leading judges, practising lawyers, lawyers in governments and private sector and academics from all over the British Commonwealth.

The Conference was held at Windsor Castle. The Queen Mother as Patron made available her mansion at Windsor Castle for the residence of the participants. Dr Cooray as the key note speaker was given the Queen Mothers suite and slept in the Queen Mothers bed.

He has studied and worked for 38 years in universities. He has lectured on all five continents. He worked in different universities as an university lecturer, professor and administrator. While employed in a University he has worked part time or in consultancy as: a quasi judicial officer, political analyst, editor of and consulting editor to learned journals, director of a company, broadcaster running a radio program for a short time, manager and researcher and writer of 14 books and numerous articles in learned journals and newspapers. He has dabbled in politics. He has studied closely the functioning of law, government, politics and society and the inter relationship between them. His books and learned articles focus on these areas. He left Sri Lanka in 1974. He was a founding member and activist in the Civil Rights Movement which was critical of the then government. He found his position threatened
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and emigrated. In 1976 he came to Australia to take up an appointment at Macquarie University, teaching Australian government and politics. He has been active in public life In Sri Lanka (196374) and Australia (1976-1994) making the case for: the importance of ethical values, individual responsibility, freedom and common sense. He is a believer in civil liberties, but is sharply critical of much that goes under the euphemism of human rights. He has expressed concerns about individual irresponsibility, the drift away from ethical values and repressive restrictions on human action. The Australian Freedom Coalition, a branch of the World Freedom Coalition, presented him with the Australian Valiant for Freedom Award in 1987 with citation: "...with a rare determination, in the face of all kinds of difficulties, he has promoted the cause of freedom in his adopted country Australia - especially with his writing he has confounded radicals among academics, educationalists and the media as well as ordinary Australians, with commonsense views and challenges for all to treasure our freedom and to use it with responsibility". He resigned from academic life in 1995 to devote his time to understanding and speaking, writing and teaching about his experiences in a very successful, fruitful and fulfilling life, for knowing the truth about and understanding every aspect of human existence, the environment and the world.
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The ethical values of all religions are similar. The differences between belief systems (religions) rest on the source of and what gives authority to ethical values. In the last 20 years Dr Cooray was healed miraculously (no medicines or treatment) from many sicknesses and weaknesses which he has carried from early childhood. A short testimony is available: cooray.mark@gmail.com The views of L J MARK COORAY on the "underlying dynamics" of the democratic tradition are stated in three books and many articles. His major works include: * THE AUSTRALIAN ACHIEVEMENT: FROM BONDAGE TO FREEDOM * CONVENTIONS THE AUSTRALIAN CONSTITUTION AND THE FUTURE * THE DEMOCRATIC TRADITION * HUMAN RIGHTS IN AUSTRALIA * SOCIALISM IN AUSTRALIA * THE LIFE AND TIMES OF SIR JAMES PEIRIS * THE RECEPTION IN CEYLON OF THE ENGLISH TRUST * AN INTRODUCTION TO THE LEGAL SYSTEM OF SRI LANKA * REFLECTIONS ON THE CONSTITUENT ASSEMBLY AND THE CONSTITUTION
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* THE CONSTITUTIONAL HISTORY OF SRI LANKA 1796-1972 There are 5 other books which have been published. THE AUTHOR HAS OVER THE YEARS CHANGED HIS UNDERSTANDINGS AND BELIEFS IN SOME AREAS AND DOES NOT STAND BY EVERYTHING WRITTEN IN THE PAST. * LANGUAGE AND LAW.

The first four BOOKS are out of print. The first four books and the Life and Times of James Peiris, are available on the internet. http://www.ourcivilisation.com/cooray.

EXTRACT FROM SEMINAR ON AUSTRALIAN CONSTITUTIONAL THEORY AND PRACTICE, AT FACULTY OF LAW, UNIVERSITY OF SYDNEY Mr. Edward St. John QCs comments on paper by LJM Cooray on Liberal Democracy: Problems and Challenges. 1985 Chairman: Many thanks to Mark Cooray, and it is now my pleasure to call upon Mr. Edward St. John Qc to comment on Mark Coorays paper.

Mr. Edward St. John, QC: Mr. Chairman, Dr. Cooray, Ladies and Gentlemen: I have read the paper carefully and I commend it to everyone present. I certainly read it with very deep interest and I believe that is a very great contribution towards and understanding of the free society and the problems it faces, the way in which our basic freedoms may be maintained in a democratic society. It is the work I believe of a man who has thought very deeply and has learnt some sad, hard truths
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Id like to comment first of all on what I see as the important characteristics of the man and the paper, understanding the man through the paper as I do although I had met him briefly something like a few months ago.

I would say the most outstanding characteristic of the man and his paper is his balance, his extremely well balanced view of the many interrelated elements which go to the proper functioning of a free society and its maintenance. There are no absolute rights, he says, something of which we must remind ourselves. A balance must be struck between competing groups. The judicial process is itself very largely a matter of striking that kind of balance between the competing rights, and competing groups.

Next I should like to comment on his obvious humanity, his understanding and his sensitivity. There is also realism which is learnt by close observation of what actually occurs in human society. He has faced up to the realities of human nature without losing faith in it, without losing faith in his own ideals of justice and freedom.

He is a man who looks widely over the world, obviously reads and draws the lessons that are to be drawn from the study of world events. And what comes through so clearly I believe is something which no doubt has dawned on most of us that democracy is really extremely fragile and at risk, its a tender plant, it can disappear almost overnight. I remember how struck I was with the history of recent (spoken in 1983) events in Burma when I visited there some years ago and the forms of democracy, perhaps the reality of democracy had literally disappeared overnight. One night there was a military coup and the next day there was a
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military dictatorship. Perhaps it wouldnt happen so quickly in Australia but democracy is not nearly so durable of invulnerable as most of us in Australia, in the lucky country, would assume. It was struck by Mark Coorys commonsense. I dont believe that he would rejoice if I were to say that his paper was brilliant, because I think its something far better than that; brilliance he may have, but what I found so important was his simplicity and clarity of thought and the maturity of the wisdom, derived from experience and deep thought over a period of what, I presume a lifetime, but certainly 20 years or so since he achieved manhood. He sees clearly also the interrelationship between the political factors, the economic, the legal and the social. Those are what I see as the outstanding characteristics of this most illuminating paper, at least I found it so. Present Work What Dr Cooray is now working on is a book which looks at origins of the Western Democratic Tradition and interrelationship between the political factors, the economic, the legal and the social and also the relevance of the spiritual, the moral, the religious and human nature. The last 4 factors are ignored in academic writings and public discourse. He also analyses the problems and near impossibility of imposing or transplanting the western democratic tradition in countries that emerged in the past from western colonialism, Islamic countries, which have an unique religion and culture and countries emerging from totalitarianism in its various manifestation..
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RECEPTION IN CEYLON OF THE TRUST Extracts from review by M.C SANSONI, Former Chief Justice and then Chairman, Ceylon Law Commission in Ceylon Daily News

COMMENTS ON THE

This excellent book is the result of long and detailed study. Anyone who reads the first few pages, or for that matter any page in any part of the book, will realize the depth of the authors knowledge of this branch of the law. It is the first and only comprehensive study of the law of trusts as it exists in Ceylon. No lawyer, therefore, should fail to keep a copy of it in his study Much of the book is, therefore a, candid criticism of the body of case law which has been built on bad foundations. It is all to the good that even at this late stage a thorough examination and appraisal of the local judgments should have been made. Nobody wants bad law to be perpetuated. It is tempting for lawyers and judges to follow the trend of decided cases, and when two or three judgments have decided a particular point in the same way the judges powers of innovation or reformation tend to get cramped and confined. Fresh thinking is always necessary to divert the stream of authority into a more correct and convincing direction. How necessary then is a text book such as this which points out where we have erred and strayed, and which in closely reasoned arguments suggests a different line of thinking in reasoned line of thinking in respect of many problems connected with trusts
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Dr. Cooray must be praised for his valuable critical analyses of most of the reported decisions of our courts. They disclose his thorough grasp of the subject

Any lawyer who is called upon to argue a case which turns on a question of trust will find here an abundance of material to present a new approach to a question which might have been thought to be settled. It is time that there was spread abroad more knowledge of the usefulness of the trust and this book will certainly spread that knowledge. It also narrow the gap between the practitioners and the academic lawyers. It should bring about, in the words of Erwin Grinswold, a synthesis of theory and of learning for learnings sake on the one hand, and of professional activity and responsibility on the other, which has long served to elude the grasp of thoughtful people. Dr. Cooray has, by publishing this book, fulfilled three functions of an academic research, teaching and writing. He will, I am sure, exert an entirely wholesome and beneficial influence on the development of the law of trust, and we shall all be much wiser after reading it Extracts from Foreword to the reception in ceylon of the trust S.J.Bailey, LL.B.,LL.M.,LL.D. (Cantab.), formerly Rouse Ball Professor of English Law at the University of Cambridge.

One..feels a special sense of gratitude for Dr. Coorays clarity of exposition and the manner in which he handles the complications which beset the subject. the Reception in Ceylon of the Trust is sure to be welcomed warmly by the lawyers in Ceylon and abroad
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as it is a very complete study of the subject of Trusts, and there, and there has not been anything like it attempted in this island. M.C Sansoni, B.A. (Lond.), Chairman of the law Commission of Ceylon and a former Chief Justice of the Supreme Court of Ceylon. The marks of scholarship and original thinking which characterize this work leave it in no doubt that it will receive a warm welcome in both professional and academic circles. I would like to congratulate you on your achievement which marks a significant advance in our study and understanding of the Law of Trusts in this country. Dr. C.G. Weeramantry, LL.B. LL.D.(Lond.), Puisne Justice, Supreme Court of Ceylon. A REVIEW OF AN ARTICLE IN MODERN CEYLON STUDIES VOL 1, No 1, (1972)

These are just a few of the intriguing constitutional problems dealt with by L. J. M. Cooray in his article on Conventions in the Constitutional History of Ceylon in Vol 1, Number 1, of Modern Ceylon Studies, A journal of the Social Sciences which has just come off the press. The long awaited Journal, will, I am sure, exceed most peoples expectations. In the past University publications were written by dons for dons. This charge cannot be leveled against the Journal of Social Sciences. Some of the titles of the articles may appear forbidding, or highly academic, but, in fact all are written in a manner that can be easily comprehended by anyone. Dr. Coorays article which is given pride of place in the journal is a treat. In a 42 page article Dr. Cooray analyses
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all the tricky constitutional problems that have arisen in the formation of Governments in the post independence period. The other articles in the first issue of the journal, are by Gananath Obeysekere, P.T.M. Fernando, L. A. Wickramaratne, S. U. Kodikara, Michael Roberts, ?, W. S. De Silva. Modern Ceylon Studies is the best journal produced so far by the University of Ceylon at Peradeniya. COMMENTS ON CONVENTIONS, THE AUSTRALIAN CONSTITUTION, AND THE FUTURE BY MARKCOORAY

Extracts from Foreword to Conventions, the Australian Constitution, and the Future by Mark Cooray, written by Professor, G.S. Reid, Deputy ViceChancellor, University of Western Australia, November, 1978. Professor GS Reid was professor of politics) at the University of Western Australia and then Governor of Western Australia. It is intellectually stimulating when a fresh and enquiring mind takes a new look at the established interpretations of a nations government.

THE COMMENTS ARE MADE BY PROFESSORS OF POLITICS AT THE TIME OF WRITING

Dr. Coorays purpose in the following pages is to question the well established concepts long used in explaining government in Australia. These are the concepts which have been seen to comprise the Westminster mode of government, and which, by inheritance, have become accepted as the means by which the government is practiced, observed
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and judged. As important as these concepts are, they are not specified, or even mentioned, in the written Constitution: and ironically, in our litigious society, this has added to their influence. The concepts in question- Convention of the Constitution Responsible Government, Reserve Powers of the Crown are subjected here to a penetrating critique.

One effect Dr. Coorays book, if not its primary contribution, is its provision of new and useful insights into the constitutional significance of the dramatic events in Australian Government of 11th November, 1975. For this and for other reasons the book will be listed for reading in university schools of law and politics for many years to come. Students will find it provocative and will applaud its contribution, even if they disagree with it. However, he has broken much new ground in Australian constitutional studies. For that reason the book is both important and refreshing. We are indebted to Dr. Cooray for it. Extracts from review by Professor Henry Mayer, Professor of Politics, University of Sydney of Cooray, L.J.M.: Conventions, the Australian Constitution, and the Future in Politics xiv (2) November 1979. We shall hear much more of Dr. Cooray who is Associate Professor of Law at Macquarie University.

It is of real importance, since he has only recently come here from Sri Lanka and is not yet well known, to stress that this is so far very easily the best book on the constitutional and legal background of the events of 1975 and implications these have for the analysis and reform of the Constitution.
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It is also a lucidly written discussion of topics. With incredibly, some new ideas or at least marginal comments and points.

Chapters 1-2 are a thorough going critique of literalism in constitutional interpretation and an exposition of the reserve powers. These are well done with a skilful use of quotations. This leaves four chapters on responsible government, conventions, the constitution and 1975, the future of the constitution and constitutionalism which are a real tour de force. They are the least partisan accounts this scribe has seen; they show a fine mind operating lucidly and with an ability to make distinctions which for the most part seem of substance. Thus there is little or no legal hairsplitting here. Many of the differentiations are quite simple, yet very effective - as between political and constitutional conventions.

The analysis of conventions is the highlight of the book and is partly original. It is misleading to summarise the authors conclusions - one will please Labor, the other Liberal supporters - one should rather stress the rational yet down to earth process by which he reaches them. Comments by Professor Don Aitken, Professor of Politics, Australian National University and Macquarie University in the National Times week ending February 24th 1979.

For your bookshelf: A colleague waved his copy of Mark Coorays Conventions, the Australian Constitution and the Future (Legal Books, Sydney) over his head and cried This is what Ive been waiting for! Cooray is an academic lawyer who writes clean spare English. His subject is the part that
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conventions play in our constitutional system. And of course he takes us through the events of 1975 (the title of his fourth chapter). It is the clearest exposition yet of law underlying the constitutional crisis, and repays reading. Sydney Morning Herald 28/7/79. Conventions, the Australian Constitution and the Future, by L. J. M. Cooray (Legal books, $18.50, paper $13.50). Extracts from review by GRAEME STARR It was obviously written with the hope that it might be a standard text on an important subject- and there is every reason to think that it will be. Professor Cooray takes the Commonwealth Constitution and most of the fundamental conventions that have developed with it and subjects them to penetrating examination Its focus is the events of 1975, and his main theme is essentially the prospects of constitutionalism in the future. No book with such a focus or theme can please everyone, but the important questions that are raised by these problems are discussed here with an impartiality and with a sort of balance that we have in recent times been conditioned not to expect. The book is noteworthy for its many strengths. Its greatest value is its realistic and commonsense approach to such a comprehensive range of complex questions. After more than three years of cavalier misuse of such concepts as constitutionalism and convention it is refreshing to see them defined and discussed with this balance and precision.. The book will probably draw criticism from all political persuasions, but these days that is the mark of a pretty fair effort
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A Review of FROM BONDAGE TO FREEDOM: THE AUSTRALIAN ACHIEVEMENT. BY LJM COORAY. Published by the Australian Achievement Project 1988 Extracts from review by Nadia Wiener The Optimist Nov/Dec 1988, The scope of this book is ambitious and its brilliance makes it worthwhile coping with the less than easy to read type face.

In just 172 pages Professor Cooray sets forth an explanation of why Australia has become, in just 200 years, the free, modem nation it is: Australia did not rise spontaneously from the dust Nor was it the creation of idle, empty men without purpose or hope or subtlety of thought. He discusses the institutions and values that contributed to the building of the nation and which are considered important in the evolution of Western and Australian civilization, e.g. free elections, free speech, economic freedom, equality of opportunity (which he contrasts with equal opportunity), the rule of law, etc. Drawing on Milton Friedman, de Tocqueville, Hume, Madison, and other greats, he quite breathtakingly sweeps the fields of political science, law, economics, ethics, to give a laymans view of western civilisation and the achievements of the Australian nation. Extracts from Review by James White in THE AGE Monthly Review , NOVEMBER 1988 by James White of THE AUSTRALIAN ACHIEVE MENT: FROM BONDAGE TO FREEDOM, by L.J.M. Cooray, the Australian Achievement Project, Sydney, 1988 . This book is part of the Australian Achievement Project,
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organized by Mark Cooray under the sponsorship of the late Ben Lexcen who was patron of the project in 1988 on the values and institutions which have enabled us to settle an inhospitable continent and create a new nation. These include the family, religious beliefs, private enterprise, hard work, freedom of speech, the legal system and the Constitution

The message is that we must learn from our achievements and the mistakes of our past so that we can creatively adapt to the challenges of the future. From this perspective he surveys, with some distaste, recent trends in education and family life, the declining, role of the churches in social life, the expanding role of central government, and shifting interpretations of the Constitution. He also examines issues such as the rule of law, freedom of speech, human rights and equal opportunity. He offers a refreshing variation on the usual conservative or rightwing themes. Where Santamaria mixes religious conservatism with dubious economics and the economic rationalists pay no attention to cultural or religious matters, Cooray attempts to do justice to both the spiritual and economic dimensions of our societies problems. He has also adopted Donald Hornes dictum that thorough social commentators should find something to say about everything from high culture to the soapies and football finals.

People who are weary of cant and slogans from both sides of the political fence will find much to interest them in this book. COMMENTS ON A LETTER ABANDONED OUR MORAL DUTIES WRITTEN TO THE AUSTRALIAN NEWSPAPER

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CONGRATULATIONS to L.J.M. Cooray and the Australian in publishing arguably the finest letter ever printed, Abandoned Our Moral Duties (14/3) CHARLES LAWSON, Burra- doo, NSW. Well expressed, L.J.M. Cooray (letters 14/3) Abandoned Our Moral Duties. Morality and genuine liberty. Resulting there from, have sunk into the mire of economics.- LILLIAN KINSKY, St Huberts island, NSW.

L.J.M COORAY has put his finger on the basic cause of our societys ills. For those who through the timing of their birth know only our materialistic me-first society. It really once-over wasnt different.- JOHN A. BAKER, Davidson, NSW.

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REFERENCES Order of Court of Appeal in (Writ) Application No: 411/2012 21st December 2012 Constitution of Sri Lanka Parliament Powers and Privileges Act No: 21 of 1953

House of Lords/House of Commons: Parliamentary Privilege First Report (Ordered to be Printed 30 March 1999) See Chapter 5: Control by Parliament Over its Affairs

Madzimbamuto v Lardner Burke & Another Privy Council Appeal No. 13 of 1968. Stella Madzimbamuto Appellant v. D. W. Lardner - Burke and Another Respondent. From the High Court of Rhodesia, Judgment of the Lords of the Judicial Committee of the Privy Council delivered on the 23rd July 1968

Parliamentary Supremacy and Judicial Independence: Latimer House Guidelines for the Commonwealth 19 June 1998 - Published by the Commonwealth Secretariat April 2004.

Constitutional Reform Act of 2005 Printed in the UK by The Stationery Office Limited under the authority and superintendence of Carol Tullo, Controller of Her Majestys Stationery Office and Queens Printer of Acts of Parliament Constitution of Ceylon 1947 (CONSTITUTION) ORDER IN COUNCIL) Constitution of Sri Lanka 1972
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(CEYLON

Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act No; 188 of 2012 (Australia)

Commonwealth of Australia Constitution Act

Impeachment of Judge Ritter Congress Records, United States Government Printing Office L J M Cooray, Constitutional Government in Sri Lanka 1796-1977, Colombo: Lake House Publishers (1984)

L J M Cooray Essays on the Constitution and the Constituent Assembly, Colombo: 1971, Hansa Publishers, 1971.

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