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Monday, 7 January 2013

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The defiant drama queen!

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.

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