Black-coats can’t make Chief Justice lily white
H. L. D. Mahindapala
 The raging public discourse on the charges levelled against the Chief
Justice, Dr. Shirani Bandaranayake is wrapped mostly in legal,
constitutional, political and moral principles. The legal luminaries who
have defended her have studiously skipped the charges and focused
essentially on issues like the legality of the Parliamentary Select
Committee to hear her case, or on the rights and wrongs of procedures
adopted by the PSC, or whether it is the Parliament or the Courts that
would have the final say, or on the issues of separation of power
arising from the conflict between the Legislature and the Judiciary, or
what would happen if the two Titans stick to their guns, each issuing
diktats to the other etc.
In short, all relevant issues have been discussed except the most
critical issue: is the Chief Justice guilty of the charges levelled
against her or not? Oddly enough, not even the Chief Justice has spoken
in her defence. Nor her legal team.
This is seen as a deliberate and tactical move to divert public
attention to avoid the harsh reality facing the Chief Justice. The last
defence when faced with a critical/indefensible situation is to blame
everybody and everything else. It is becoming increasingly clear that
she has no leg to stand on, which will be shown later. So she and her
defenders have been proclaiming the ideal principles of justice and all
that paraphernalia that helps to divert attention. Even the speech of
Dr. Bandaranayake to the Magistrates and District judges at Annual
General Meeting of the Judicial Services Association held on December
22, 2012 was about ideal principles. As she said in her speech there is
nothing new in what she said.
Devolution of power
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Wijedasa Rajapakshe, PC |
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Justice Shirani Thilakawardena |
The only new thing would have been to listen to her side of the story
defending her innocence. But she has not said one word in her defence.
Members of the PSC too were surprised to find her behaving like a monk
who had taken the vow of silence. It is always easy to float in the
ideal world of noble principles. For instance, as Buddhists we recite
the five precepts but how many of us observe even one or two? What
matters is not invoking abstract principles to cover-up sins but to
apply them rigorously and meticulously to prove and maintain
credibility, acceptability and integrity.
So it is time to leave the airy-fairy world of principles and bring
down the public discourse to the nitty-gritty of facts and relate them
to the principles pronounced by defenders of the Chief Justice. No doubt
one part of the whole process consists of principles. But these
principles cannot stand without legs and the legs are in the facts. What
then are the known facts and how do they relate to the principles
invoked in her defence?
Fact 1: Justice Mark Fernando in his judgment made an order
forbidding then Justice Bandaranayake to sit in cases related to matters
involving devolution of power. This was because she was accused in the
very first case brought against her that she was ideologically
committed, like her patron President Chandrika Bandaranaike who
appointed her, to the politics of devolution. Despite this she presided
over the Divineguma Bill and predictably ruled that it was
unconstitutional as it infringed on principles of devolution of power to
the provinces.
Fact 2: Before he retired Chief Justice Sarath N. Silva gave a ruling
to the effect that the Senior Judge Shirani Thilakawardena, who had sat
with him and followed the lengthy trial of Lalith Kotelawela Golden Key
trial, should handle the case. What does Chief Justice Dr. Bandaranayake
do? She walks in and takes over the case with two other judges on a
single petition sent to the courts. Worst is, she excludes Justice
Thilakawardena? Why? Why should a senior judge who had sat through the
case be excluded from the Golden Key Trial and only two new judges
hand-picked by the Chief Justice be included?
Fact 3: Justice Thilakawardena had reported the Chairman of Trillium
Residences, Janaka Ratnayake, to the CID to investigate the discount of
Rs. 1.6 million given to Chief Justice Bandaranayake, when she purchased
a residence at Trillium Residences belonging to the Golden Key
enterprises owned by Kotelawela. Ratnayake later admitted that it was a
bribe. After she took over the case from Justice Thilakawardena the
Chief Justice had made no further inquiries into the bribery charge. So
was the removal of Justice Thilakawardena from the case because there
was no room on the bench or because she knew too much of the case?
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Fact 4: Dr. Bandaranayake's moves are quite clear : a) she discards
the ruling of the former Chief Justice that Justice Thilakwardena should
hear the case and (b) stops inquiring into the bribery charges
investigated by the CID. These two facts are co-related. It is obvious
that (b) had to follow (a) -- and both point a finger at the Chief
Justice. Besides, Justice Thilakawardena had reported to the CID to
investigate the Rs. 1.6 million given by Chairman of "Trillium
Residences" to the Chief Justice. So the exclusion of Justice
Thilakawardena from the case is self-explanatory.
Fact 5: Dr. Bandaranayake operates 15 to 20 bank accounts
simultaneously in several banks. Nothing wrong with that. But then
suddenly, come March 31, -- the time to declare income tax -- the
accounts drop to zero. This happens each year. How? Why? What does she
gain by this manipulation of accounts in banks?
Fact 6: Her husband too is facing bribery charges. The case is in the
lower courts. Well, if she took over the case of Trillium Residences,
excluding Judge Thilakawardena who sat on the case from the beginning,
who are the likely judges to be appointed to hear her husband's case?
Mark you, the spoon is in her hand to ladle the gravy.
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Supreme Court Complex |
Fact 7: Her legal team was demanding documents and the list of
witnesses. On the day the documents they wanted were handed over to them
and on the day the list of witnesses were given -- including the name of
Justice Thilakawardena -- she and her legal team withdrew. The timing
was impeccable. It was time to face the witnesses -- including Justice
Thilakawardena -- and the evidence in the documents. So they cut and
ran.
Fact 8: It is the normal practice for the proceedings of the PSC to
be kept secret till the findings are presented to Parliament. But the
legal team insisted that the proceedings be made public and even invite
foreign observers. Now that the information leaking out about her
dealings is exposing the Chief Justice the legal same team is pressing
hard to stop the publication of news critical of their client. They are
complaining that the state media is sullying the image of the Chief
Justice. Well, there is only one way to counter it: i.e., by telling
their side of the story instead of running away.
Fact 9: Not surprisingly, on the day when their version of the story
was to be scrutinised they retreated without presenting their case. The
tactic was simple. They counter-attacked saying that the PSC was abusive
to the Chief Justice and not enough time was given for them to peruse
the documents.
It can be argued that on technical grounds that they had a point. But
they were faced with bigger issues than these technicalities. Why did
they decide to withdraw on technicalities leaving the serious charges
facing the Chief Justice wide open for interpretation? What should have
been their priorities? Instead of fighting to save the Chief Justice by
taking their stand in the PSC they decided to counter-attack on
technicalities and run, leaving them open to the charge that they don't
have a case to defend. No legal team which is sure of winning on hard
evidence would cut and run like the way the CJ's team did. Their task
was not just to save the job of the Chief Justice but, more importantly,
to save her reputation. That could have been done only by sitting down
with the PSC and fighting every inch of the way.
Their next move is go to the other channel in courts, which is also
based on legal technicalities. They are hoping that the application by
the Chief Justice for a writ of certiorari to quash the "decision" of
the Select Committee will be upheld by the Appeal Court. They also know
that the Parliament will reject it out of hand. Where does all this
leave the Chief Justice? They are hoping that chaos will ensue with
courts and lawyers going on strike. They are even hoping for a Sri
Lankan version of an "Arab spring". Their ultimate aim is to get Dr.
Shirani Bandaranayake into the seat of the Chief Justice. But her fate
is sealed.
The Appeal Court can't save her because she has to face the ultimate
court of the public. Can a Chief Justice found guilty on three charges
go back to occupy the highest seat of justice in the land? Can the legal
technicalities of the Appeal Court clear the corruption charges?
Bar Association
For the moment, leave aside all the other charges. Take only the
unimpeachable evidence of a senior judge, Justice Shirani Thilakawardena.
She has stated categorically that the Chief Justice, acting against the
minute of the former Chief Justice took over the Golden Key case,
excluding her, and suppressed the CID investigation into the Chairman of
the company that gave her a bribe. How can the Chief Justice go to court
and win the confidence of the public with a charge like that hanging
over her head? More importantly, the charge against her is "misbehaviour".
She is not charged with committing a criminal act where the strict court
rules apply. The PSC has only to determine whether she misbehaved or
not. Justice Thilakawardena's evidence nails the "misbehaviour" of the
Chief Justice without any shred of doubt. She is guilty. And she must
go.
The Bar Association is threatening to boycott any other chief justice
appointed in her place if she is removed from the bench. But before
doing that can they prove that their favourite Chief Justice did not
"misbehave"? It was when she was faced with Justice Thilakwardena that
she decided to cut and run. So how can the boycotters in the Bar
Association appear before Dr. Bandaranayake when her name is sinking in
the mud? Which citizen can appear before her with confidence knowing
that she is not clean to sit on the bench? Can the Bar Association, if
it is genuinely committed to preserve the credibility, purity and the
integrity of the judiciary, ever allow a judge with a damaged reputation
to sit on the summit of the Hulfstdorp Hill?
The tut-tutters commenting on this crisis are predicting chaos if the
Bar Association boycotts the judiciary in the event of a new chief
justice taking over. The black-coats know only too well that their
boycotts will not last longer than the next to case they lose to the
their rivals at the bar. If the black-coats don't appear before the next
chief justice, or his/her appointees in the superior courts -- and that
is where the big money and big names are made -- they will be the
losers.
Since Wijedasa Rajapakshe does not lead a monolith, the dissident
lawyers will be laughing all the way to the bank, not to mention the
summit of the Hulfstdorp Hill. If they decide to boycott they will be
only cutting their noses to spite their faces.
They must face reality. They must ask a simple question: they have no
power to appoint judges and they have no alternative but to work with
the judges on the bench. Besides, if they can work with a Chief Justice
whose name is sullied, and who is yet to answer at least the Facts
stated above, why can't they work with a new judge who has no charges to
answer?
Corrupt legal system
The upshot of all this is the polarisation of the judiciary into two
camps: 1. pro-politicized camp of Dr. Bandaranayake fighting with the
opposition, who initially wanted her removed from the bench when she was
appointed and 2. the neutral camp willing to work in the judiciary as
officers serving the public, hopefully according to the law.
The coming scenario is clear: the proverbial dirt will hit the
ceiling once the issue comes up for debate in Parliament. This will
damage the image of the Chief Justice some more.
The MPs will vote according to party lines. Even Lakshman Kiriella,
Opposition MP appointed to the PSC, who told Rajitha Senaratne that
Chief Justice is guilty after seeing the documents shown to him by
Senaratne (see Sunday Leader - 30/12) will vote against the PSC report
on party lines. After that the newspapers will have their pages cut out
by the strident voices of the pro-Bandaranayake camp, including NGOs,
the black-coated Hulfts-dwarfs of the Bar Association looking around for
more coconuts in Mariakaday, and the Opposition which is dreaming of
turning the Chief Justice into a "Sri Lankan monsoon" (not "Arab spring"
which has already turned into dry, dusty Arab simoom). But at the end of
the day Dr. Bandaranayake will not find a place to sit on any bench in
highest courts. Nor will she find her black-coated coconut crackers
following her.
She leaves behind a corrupt legal system. She presided over it
without any qualms or shame. She has no one to blame except herself. She
has, unfortunately, no other option but to go -- and she must do it
gracefully without dragging the nation deeper into her mess. |
