Justice Weeramantry's legal propositions condemn CJ Bandaranayake
H. L. D. Mahindapala
Judge C. G. Weeramantry, the senior most retired judge in the country
with 65 years of legal experience behind him, has come forward out of
the blue to address the current crisis facing the Sri Lankan judiciary
by issuing a general message on the subject. His message calling upon
"every citizen and institution in the country to be concerned" about the
legal propositions enunciated by him deserves serious consideration.
This, incidentally, is quite an unusual move for him because he has
studiously avoided getting involved in domestic politics. It is his
practice to keep a respectable distance from the maddening mob peddling
their political pork barrels. For him to come out in defence of the
Chief Justice, Dr. Shirani Bandaranayake, therefore, is somewhat unusual
and, I would venture to say, shocking.
Chief Justice, Dr. Shirani Bandaranayake |
Of course, he backs her in his quiet, inoffensive way by taking cover
under the legal principles which he has advocated systematically and
consistently in his voluminous writings and intermittent speeches.
Without mentioning her by name he invokes all the the hallowed legal
principles involved in her case, one of which is the security of tenure
of judges -- the critical issue faced by the CJ. Quite rightly, he has
also expressed the need to protect the independence of the judiciary for
the preservation of rule of law and democracy. No one can cavil with
that.
Political appointment
But the general thrust of his message is to join the rest of the
black-coated "coconut heads" -- thick skull on the outside and hollow
inside -- who are posing as latter day saints of the highest principles
of law enunciated ever since Moses came down from Mt. Sinai with his Ten
Commandments. With his inside knowledge of how the legal system
operates, both at home and abroad, it is somewhat disconcerting to find
him lending a hand to the "coconut heads" who have made a fool of
themselves with their coconut cracking antics at Hulftsdorp. Besides,
reiterating the known legal principles in his own phraseology does not
lift him above the fray. In fact, he parachutes right into their middle
with his unexpected foray into the current crisis.
Since his message is for "every citizen and institution:" it is open
for scrutiny, more so because the current crisis stands out partly as
the third known case of impeachment of a Chief Justice and partly
because of the political implications. There is an added significance in
that CJ Bandaranayake is the first woman Chief Justice and the gender
factor too has been dragged into politicize the case. The previous two
cases melted away without causing much political divisions. But the
current crisis has gathered some momentum with lawyers who first opposed
her appointment to the Supreme Court doing a somersault to back her. In
1996, when she was appointed they said that her political appointment
was a threat to the independence of the judiciary. Now when there is a
possibility of her being removed, after found guilty of some charges,
they say that it is a threat to the independence of the judiciary. This
is typical of the lawyers to have it both ways. They are like the
two-headed donkeys described by Dr. Colvin R. de Silva in a political
context where they could say "yes" and "no" at the same time.
Overall, it can be said that the current crisis has placed the
judiciary on trial. Judge Weeramantry begins his message by saying: "It
is a judiciary which has been a great pride to the country and has been
highly esteemed both domestically and internationally." He is absolutely
right. The history of the legal system in Sri Lanka demonstrates amply
that it has covered the full gamut from fiercely independent Judge T. S.
Fernando to Prabhakaran's kangaroo courts. Despite all infirmities it
has resisted all pressures and threats and revealed a remarkable
resilience and the potential to stay the course and to argue, against
this background, that the removal of one Chief Justice is going to end
the independence of the judiciary is a myth wrapped in fictitious fears
of politically deviant lawyers at Hulfstdorp, anti-national academics
and NGO wallahs. The judiciary is a sacrosanct body that must be
protected from threats and abuses from all quarters. It is the last
defence available to the average citizen. But when the threats and
abuses come from within, with the legal fraternity perverting the law
not only with corrupt practices but also with narrow legalistic
pettifogging, then the black-coated professionals stands out as
abominable showmen mouthing high principles not to uphold the scales
evenly but for petty political/personal gains.
The threat to the independence of the judiciary and the rule of law
comes more from within the corrupt practices prevailing in the judiciary
than from external sources. Judge Weeramantry's vast knowledge of the
Sri Lankan judiciary should have, therefore, prompted him, in the first
place, to ask how it had fallen into disrepute and eroded the confidence
in the judiciary and the integrity of the judges. He also, quite
correctly, highlights (1) the role of the judges and (2) the role of the
state in maintaining the independence of the judiciary which is the
guarantor of the rule of law for a functional democracy. (More of this
later). But he misses the most vital factor that is necessary for the
independence of the judiciary: the integrity of uncorrupted legal
practitioners from which the judiciary is generally drawn. If the bottom
of the tree is rotten then the branches at the top can't produce the
fruits without worms, can it?
Parliamentary Select Committee
For instance, he knows only too well how political patronage plucks
lawyers from the floor of courts and places them on the high branches of
the judiciary. Dr. Shirani Bandaranayake is classic example. She was not
even plucked from the floor of the courts which is a valuable
qualification no doubt to sit on the bench. She was picked from the Law
Faculty, without any knowledge of the court craft or court culture.
Leading lawyers of the bar protested when she was appointed in 1996
because President Chandrika Kumaratunga was packing the courts with her
ideological twins to push her divisive politics. This contradicts one of
the fundamental legal propositions enunciated by Judge Weeramantry which
states that "there cannot be a fair hearing unless the tribunal is
totally and patently impartial. It is essential that a tribunal deciding
on the rights of any citizen must consist of persons who are totally
uncommitted before the hearing to any conclusion on the matter."
Justice C. G. Weeramantry |
Dr. Colvin R. de Silva |
Besides, this proposition relates specifically to charge on which CJ
Bandaranayake was found guilty. She was presiding in court with her
sister's power of attorney in one hand and the sister's file dealing
with investments running into multi-millions on the other. This
knowledge was in the public domain. There is a palpable co-relation
between this fact and the legal proposition that demands "totally and
patently impartial" tribunal. Of course, Judge Weeramantry is directing
his fusillade against the Parliamentary Select Committee. But in his own
words, it should also apply to the tribunal of the CJ which should have
"consisted of persons who are totally uncommitted before the hearing to
any conclusion on the matter." The patent violation of this proposition
condemns CJ Bandaranyake and she has no alternative but to resign.
When the CJ grabbed her sister's file from another judge's court it
blatantly vitiates the legal proposition that the "tribunal deciding on
the rights of any citizen must consist of persons who are totally
uncommitted...." A principle/proposition which grossly violates/ignores
the basic facts on which it must stand doesn't go far to uphold or
enhance the value of the proclaimed principle.
In fact, there can be no escape for the CJ if the principles
proclaimed by Judge Weeramantry are applied to her case. Another
principle emphasized by him states: "In the fourth place if any members
of the tribunal have directly or indirectly indicated their views upon
the matter in advance of the hearing that tribunal ceases to be
impartial. It follows that such a tribunal is not functioning according
to the rule of law." So hasn't the CJ violated the rule of law when she
decided to hear the case of her sister knowing that she was the sole
custodian of the power of attorney dealing with the investments of her
sister who was in Australia? As he says quite correctly: "Where the
issues involved are as grave as misconduct of the Chief Justice of a
country these general principles of law need to be applied with the
greatest strictness." And if these principles of law are "applied with
the greatest strictness" for how long is she entitled to sit in the
chair of the Chief Justice?
Probe corruption
Based on the Judge Weeramantry's propositions questions can be raised
legitimately about the capacity of the CJ to be a defender, protector or
saviour of the rule of law. As he states quite accurately "all three
branches of government - Executive, Legislature and Judiciary - rest
upon the bedrock concept of the rule of law. If the rule of law is not
observed, the work of all three organs of government is impaired, with
resulting damage to equality and freedom." This makes it obligatory for
the CJ to apply the rule of law to "(E)very citizen from the lowest to
the highest....." which includes herself too. Her failure to apply this
basic proposition would condemn her even in the eyes of a gamsabha
tribunal.
Her case is symptomatic of the corruption that has corroded the
integrity of the Sri Lankan legal system from top to bottom. Hulftsdorp
is infested with the Biblical "snakes, vipers and hypocrites". In his
writings and speeches he has often referred to these "snakes, vipers and
hypocrites." It is time for a high-powered commission to probe the
corruption that is eroding the integrity of the legal system. Among the
subjects that needs studying are: 1. the failure of the legal system at
all levels to uphold the rule of law and serve equal justice to all
citizens; 2. the internal mechanisms needed to monitor the integrity and
quality of the legal practitioners to maintain a legal system which
cannot be corrupted easily; 3. the standards of the legal education
imparted to lawyers coming out of various institutions; (Remember
Prabhakaran too had law colleges to produce the kind of lawyers he
wanted!) 4. providing a quality legal mechanism which can be easily
accessed by the disadvantaged section of the community; 4) evaluating
the emoluments paid to judges to keep them away from predatory legal
brokers who approach them with offers they cannot refuse; 5. provision
of language facilities in all courts, particularly in the provinces; 6.
maintaining the dignity of courts by housing courts in refurbished
buildings and accommodation for judges and staff in remote corners.
Etc., etc.
Quality of justice
The idea of boycotting courts is typical of the arrogant,
short-sighted, narrow-minded thinking of a section of legal beagles
whose sole intent is to divert attention from internal corruption and
defects. Instead of looking inward into their own profession to improve
the quality of justice they can deliver to the public they are proposing
to deny justice to the long-suffering public who are way behind in
getting their cases heard. Besides, it is unworkable, will divide the
legal profession, deny the people justice, and make them look like prize
idiots when they return, after some time, back to the courts they
boycotted to earn a crust. Moreover if they immobilise the courts from
where are they going to get their next bottle of whiskey and gin? Courts
can go without the boycotters because there will always be another
section who will see great opportunities in keeping the courts running.
In any case, can you imagine the money-grabbing lawyers going on strike
until they find their ideal Chief Justice? After this CJ goes they will
be combing Hulfstsdorp looking for more coconuts to welcome the incoming
Chief Justice.
Lawyers must get real and clean up their pig sty before they try to
clean up the other parts of the state. If they can get their act
together it will be more effective than the coconuts they crack to
farewell or welcome Chief Justices.
(PS: I must confess that each word in this article weighed heavily on
my shoulders as I wrote it because it concerns a dear and close family
friend of many decades. If my wife knows this she will most probably
file a divorce suit. I will have to face the music sooner or later,
after it is published, of course. In the meantime, Judge Weeramantry
will, I hope, understand when I say that I was drawn irresistibly to
point out that the separation of principle from the known facts do not
substantiate the principles with the necessary quantum of moral and
legal power needed to back up the case of CJ Bandaranayake. As an
experienced judge of the highest court in the world he would probably
agree with me that the principles on which CJ attempts to stand will
hold her up only if the substratum of facts can carry her weight of
guilt.)
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