The defiant drama queen!
Hiran KULATILAKE
Is Parliamentary Select Committee a court? If it were so why on earth
did MPs, lawyers and the CJ herself valiantly opine on the proceedings
conducted by it and the possible outcome of the proceedings, before it
was concluded, knowing that it was ‘sub judice’? (Under judicial
consideration and therefore prohibited from public discussion elsewhere)
So they knew it was not a Court! We can remember not so long ago how
certain sections tried to move the hell, the earth, the heaven in their
pursuit to prove that the Court Marshal which convicted Sarath Fonseka
was a Kangaroo court! Any person with an iota of legal knowledge should
know the difference/ similarity between a court, a Court Martial and a
Select Committee. A Parliament Select Committee is definitely not a
court and most importantly the disciplinary inquiry against the CJ is
certainly not a trial! However much we try to explain this I’m afraid
people are still none the wiser.
Speaker Chamal Rajapaksa |
In line with the opposition’s motto, “Let’s hold the President
accountable for anything and everything”, the impeachment issue is the
most recent in a spate of conspiracies hatched by the sinister forces
against President Rajapaksa and the Sri Lankan government. The
distortion of facts related to the procedure adopted by the PSC is being
used as a cat’s paw to achieve their sinister aims and objectives.
UN’s ‘Rapporteur Special’
And now, as expected by these wheeler-dealers, the UN Special
Rapporteur on the independence of judges and lawyers, Gabriela Knaul,
has started jumping all over the impeachment proceedings and the alleged
attacks against certain lawyers. If Gabriela Knaul has ‘great’
experience as a judge (She was a judge in Brazil) and is an ‘expert’ in
criminal justice and the administration of judicial systems as they say,
she should refrain from hastily commenting on this issue totally relying
on hearsay.
Ms Knaul, my dear opportunistic learned friends, honourable
opposition in dire straits, get a grip! This is a disciplinary inquiry!
There is no presumption of innocence, nothing as such that the case
against CJ must be proven beyond reasonable doubt, balance of
probability of certain actions, circumstantial evidence etc. etc.,
applicable in this impeachment motion. The only thing seen right
throughout her matter was “system evidence”! Also it should be noted
that there was no one distinct charge of political nature brought about
by the PSC against the CJ.
Ms Knauls must be pleased to understand, if not injudiciously misled
or blinded by some unscrupulous NGO funded lawyers or by some opposition
MP, that issuing notice on the Speaker and members of the Parliament by
the Court of Appeal, itself is one classic example of the independence
and power exercised by the judiciary, as enshrined in the Constitution
of Sri Lanka. By this application CJ has sought a writ of certiorari to
quash the findings of the PSC report.
I wonder Ms Knauls has any work other than reading and interpreting
our constitution which may take years of intensive efforts to
accomplish.
Even great legal luminaries of the Sri Lankan legal fraternity
themselves are splitting hair in interpreting certain complex section of
it. She might be under the impression that the court had issued notice
on the PSC members as it found them somewhat predisposed. She should be
pleased to see that the Court had it categorically placed on record that
the order to issue notice on the Respondents of this application was
nothing but a legal obligation on the part of the court to afford the
Respondents an opportunity of being heard, thus adhering to the concept
of “audi alteram partem.” Also it is indeed comical to see how she tries
to connect the present situation with human rights!
Gross abuse of power
The Chief Justice Shirani Bandaranayake has been found guilty of her
conduct, caught red handed, by a duly appointed and constituted
Parliamentary Select Committee. Amongst other grounds, her husband has
been charged by the bribery commission on counts of fraud which were
taken up before the Magistrates Courts. Appointments, transfers,
promotions of Magistrates are made by the Judicial Service Commission (JSC).
The president of the JSC is the CJ herself. This clearly shows that
she could largely influence the criminal proceedings against her husband
let alone the tag of vicarious liability coming along with the aforesaid
charges of fraud. Thus her continuation as the CJ while actions were
pending before a Magistrates court against her husband amounts to gross
abuse of power and this is a serious cause of concern if not a cause of
action. Instead of defending the plethora of allegations leveled at her,
the CJ and her lawyers took a swipe at the MPs involved in the PSC,
challenging their credibility and questioning whether they have declared
their assets, thus wasting the time given for preparing her defense.
They deliberately tried to drag the matter until it was adequately
politicized.
Speaking of the restricted time given by the PSC, the team of lawyers
also took the position that the CJ did not have even the rights of a
blue-collar worker at the inquiry! This has been made clear much to the
embarrassment of the legal team of the CJ headed by Romesh De Silva. An
ordinary employee who is charged for having accepted a bribe of Rs. 50
would be immediately suspended pending investigations which would
sometimes take more than five years until the matter is finalized.
Nevertheless here we see a defiant defendant still presiding over the
Bench hearing cases and laying down the law as usual! Moreover her level
of concentration on her work pending the PSC findings is indeed
questionable.
The position of the Chief Justice of a country or a state is sacred
and is considered the utmost altar of Justice.
Its purity is guarded by the titanic pillars of holiness, fairness
and impartiality. No judge should, at the altar of justice, under any
circumstance compromise their conscience, compromise their
responsibility, compromise their righteousness. Yet for all, like devil
citing scriptures for his own purpose, CJ Bandaranayke mutters “Justice
should not only be done, it should manifestly and undoubtedly be seen to
be done” a careless whisper!
Articles 107(1), 107 (2) and 107 (3) of the constitution
“Every such judge shall hold office during good behaviour, 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 misbehaviour or
incapacity.” As article 107 (1) empowers the President to appoint such
judges, the constitution also gives the power to remove the judges to
the President. The Parliament on the other hand can address the
President only on the ground of proved misconduct or incapacity. Thus
the Parliament has to prove to itself the misconduct or incapacity of
the judge and the Article 107 (3) of the constitution provides for
procedure as well as the investigation and proof of the alleged
misconduct. “Parliament shall by law or by Standing Orders provide for
all matters relating to the presentation of such an address, including
the procedure for the passing of a such resolution, the investigation
and proof of the alleged misconduct or incapacity and the right of such
Judge to appear and to be heard in person or by representative.”
What beats me is why an eminent counsel like Romesh De Silva PC, a
distinguished legal luminary also is missing the point here. The amusing
if not hilarious bone of contention of Romesh de Silva is that the
impeachment motion brought against the CJ might set a bad example. He
states that this motion in particular may create a precedence so that
the future governments may simply remove a judge if it so desires by
instituting some criminal action against a spouse of a judge. Observing
her going ballistic (Just after tea break) and walking out of the PSC,
some may think, what if a smart defendant walks away from a court
stating that he or she has no faith in the judicial system? I am not so
irrational to say that her walking away would make any precedence
whatsoever since that was only a desperate, blatant act of despair of a
woman with her back against the wall, as a last resort!
Whistle blowers
If we carefully observe the allegations made against her husband, it
is obvious that this was not a premeditated attempt of the government to
discredit the CJ, whereas it has only been revealed by the opposition
especially by MPs Dr. Harsha de Silva and Anura Kumara Disanayake that
Pradeep Kariyawasam, the husband of the Chief Justice has bought shares
of ‘The Finance Company’ for Rs. 7.9 million for the National Savings
Bank which was well over 65 percent of the actual market value of them.
These MPs categorically stated that the government must take stern
action against him notwithstanding his wife’s position and the
government’s nature of cordial rapport with her.
Gabriela Knaul |
Justice Mark Fernando PC |
These MPs may have basked in their glory of the moment in Parliament
in fact by putting the government between a rock and a hard place. As a
matter of fact almost everybody including UPFA, UNP, DNA and JVP
supporters came to know about this drama only after the sweeping
disclosures made by these two MPs. So is it CJ Bandaranayake’s
contention that the government had deliberately investigated this in
order to take revenge on her? Given the seriousness of the allegations
leveled by the opposition members, even a child could understand that
this was not a mere unfounded allegation brought about by the opposition
which could be conveniently swept under the carpet by any incumbent
government.
Any interested party can study the Hansard records of the two MPs’
speeches especially that of Anura Kumara Disanayaka which has by now
boomeranged with further findings that JVP could have exploited the
situation for their own good. They might be now thinking only if Anura
Kumara Disanayaka’s antics on this could be submerged. Certain parts of
his spiteful speech have been expunged by order of the Speaker in good
faith since it had been so belittling the CJ, for mockery is rust that
erodes all it touches!
CJ the Drama Queen
Our Chief Justice, a lady full of herself, couldn’t digest the simple
logic in this whole episode. My heart goes out to all those appellants
and other parties whose matters were heard before her in the Supreme
Court during the past several years. It is questionable whether she
possesses a mature legal mind which can maintain unruffled composure in
the face of adversity at all times and also capable of understanding the
most intricate legal conundrums, since she presides the bench of the
Supreme Court which is no ordinary court but the highest court of the
country which intensively tests the accuracy of a judgement of a lower
court including the Court of Appeal.
In the case against the appointment of Dr. Shirani Bandaranayake to
the Bench by the former President Chandrika Bandaranaike, after
carefully studying the history and her curriculum vitae, defining her
judicial role in hearing or not hearing particular cases, quite
correctly Mark Fernando J stressed that she should not hear certain
cases.
These cases included matters related to the constitution, especially
related to important bills on devolution of powers. This is also a
characteristic exhibition of legal acumen of the late Justice Mark
Fernando PC. Ignoring the said observations of Fernando J, let alone
hearing such cases as a member of the bench, she presided over matters
such as ‘Divi Neguma’ which would invariably have a great impact on the
general public of our country!
The forces behind the anti-impeachment motion, especially those who
are stirred by the love for Dollars are in the practice of marketing Sri
Lanka adversely in the global bazaar. They know that the impeachment
could be a very profitable commodity. However it is a matter of making
hay while sun shines, a short lived moment of glory until the report of
the PSC is published. A person found guilty of charges of this nature,
or even faced charges of this nature would not be able to engage in any
kind of legal profession in a country where democracy, fairness,
impartiality of the judiciary, are protected and upheld!
Amidst all this, Dr. Shirani Bandaranayake’s unprecedented odyssey
seeking divine intervention by visiting Buddhist temples and clergy and
worshiping the Bodhi etc., which came only after the impeachment motion,
is also reasonably noteworthy. Until now we had hardly seen the CJ
participating in any religious or social event. Even the way she
worships Maha Bodhi has drawn criticism, since it showed how much the CJ
is at home with her own religious customs.
Collective misbehaviour and collective responsibility
The recent discordant events in and around Hulftsdorp in connection
with anti-impeachment movement were operated under the auspices of some
NGO puppets with the full knowledge of the Chief Justice. This was not a
baseless allegation as some might doubt.
Her choosing to use the main public entrance of the Supreme Court to
leave and enter during the PSC proceedings, convening a meeting of all
judges of lower courts in an indecent hurry, acknowledging the shouting
of catchphrases in unison by a mob of rowdy attorneys-at-law, saluting
all her supporters etc. were noted by many interested parties. Driven by
ulterior motives and hunger for Dollars, these lawyers and their juniors
‘trading as’ lawyers collective, Transparency International etc., took
the opportunity in maximum to fish in troubled waters and collectively
misbehaved right throughout the proceedings.
Regrettably it also seemed that there was no sense of collective
responsibility among the Cabinet Ministers of the government. Several
ministers freely expressed their individual views mostly contradictory
to the position of the government and also much to the delight of the
anti-government elements such as ‘lawyers collective’ ‘Transparency
International’ and the Bar Association.
These agencies with the blessing of the certain legal experts were,
and still are, on a fishing expedition to gather facts in order to wreak
havoc no matter how unreasonable it may seem in fulfilling the whims and
fancies of the opposition. Certain Officials of the Bar Association must
be held responsible in this matter since they also played a key role by
spreading false rumours about the way the members of the PSC addressed
the CJ, which hastily brought hot and heavy judges and lawyers to
Colombo especially to pass those infamous resolutions against the PSC.
In actual fact throughout the proceedings, CJ Bandaranayake was
represented by a team of lawyers who did all the talking thus the CJ had
no necessity to communicate with the members of the PSC during the
hearing.
All the matters discussed were recorded and reported and the CD of
the proceedings are available if somebody wants to clear any doubt.
Ironically nobody talks about the main subject matter in question here,
which was the professional (mis)conduct of the CJ which led to the
parliamentary inquiry.
This is not highlighted in the meetings, publications, resolutions
etc. of these lawyers and other supporters of the opposition. Everybody
is talking about the procedure and the time limit of the inquiry adopted
by the PSC. Every lawyer should know who has a fair knowledge of the
Constitution that there could be nothing but a PSC inquiry under the
provisions of the Constitution to address this issue.
The writer is a former Assistant Editor of the Newsletter of the Bar
Association of Sri Lanka. |