Suicidal politics of the Judiciary

H. L. D. Mahindapala

When a senior judge of a superior court puts words into the mouth of an innocent man and sentences him to a maximum period with the entire legal system looking the other way without raising a finger to save the innocent man, then it is time to ask whether the sovereign people can expect justice from the “Temple of Justice” (CJ Shirani Bandaranayake)? When at the annual general meeting of magistrates and judges evidence is produced by fellow-judges that the judiciary is riddled with issues of integrity and corruption, with the Bar Association and the big-wigs of the judiciary, including the Chief Justice, doing nothing about it, it is time ask what chances are there for the sovereign people to expect justice from the high priests of law presiding over “the Temple of Justice”?

When two judges of the supreme court refuses to sit with another senior lady judge of the same court for giving evidence before a legally constituted investigation, doing her duty, it is time to ask whether the boycotting judges were upholding the law, which they are sworn to do, or playing politics with the judiciary, undermining the basic principles of delivering justice to the sovereign people? When the Chief Justice standing at the entrance of the highest courts in Hulftsdorp accepts with a smug smile of a Cheshire cat, like Alice in Wonderland, her black-coated coconut-dashers declaring their political support for her at the Parliamentary Select Committee it is time to ask whether she was depending on the legal process or street politics to meet the charges facing her?

When the Chief Justice and her legal team decided to cut and run instead of facing the charges at the PSC -- mark you, just at the time the evidence required by the legal team was handed to her -- it is time to ask whether she and her team ran away because they knew that they had either lost their case, or lost their mind, or both? When three judges sit in judgment over a Constitutional issue and read, with three pairs of eyes, ONLY one part of one sentence in one para, written on one page of the Constitution, ignoring the other critical part of the same sentence that does not fit into their legal agenda, it is time to ask whether it is the fault of the ophthalmologists who prescribed their spectacles or whether the Constitution was read with the spectacles sitting on their foreheads?

Political agenda

These -- and more -- are not peccadilloes of irresponsible louts who are ignorant of the law. These are acts of learned judges and lawyers who are wont to quote the highest ideals in legal and political theories. There are equally glorified political pundits with, of course, Ph.Ds attached to the tail of their names, mouthing only the first part of morality that suits them and conveniently ignoring the second part that is critical for balancing their argument. Of course, it is quite expedient -- and even fashionable -- to indulge in this game of moral hypocrisy of picking only the bit that suits their political agenda and omitting the inconvenient truths. Their favourite industry is to float in abstract theories without relating them to the ground realities. It makes them feel holy and superior even though their feet are stuck in the stuff that normally hits the fan.

Take the case of the black-coats and other pundits who are backing the Chief Justice --they have a right to do so -- with selected quotes from everything within the range of their sight and memory. That’s fine. But how many of them have related their principles to the basic charges confronting the Chief Justice. For instance, she has deliberately chosen to go against the three fellow-judges provoking serious suspicions about her motives and conduct: 1. Despite Justice Mark Fernando warning her to keep away from cases involved in devolution because the first case against her expressed fears of her siding with devolutionists, the Chief Justice decides to sit on the Divi Neguma Bill and predictably declares it unconstitutional; 2. Despite Chief Justice Sarath N Silva who made a note instructing that Justice Shirani Thilakawardena -- she had sat with him in Golden Key case from the beginning -- should continue to hear the case, Dr. Shirani Bandaranayake walks in with two new judges and takes over,removing Justice Thilakawardena from the case; 3. Despite Justice Thilakawardena ordering an investigation into the bribery charges levelled against CJ’s husband it was brought to a complete full stop without any explanation by the Chief Justice. Why has the Chief Justice made it a habit to disregard her own principle enunciated at the Annual General Meeting of the Magistrates and Judges where she said: “Justice must not only be done but seen to be done”? Can the high priests of law, political theorists (with Ph.Ds) and Friday Forum Freaks inform the sovereign people whether the Chief Justice has special powers to be above the rest and violate her own principles?

Parliamentary Select Committee

From the word go the Chief Justice Bandaranayake has proved to be a fiery political animal. Each calculated move she made clearly pointed to the fact that she has decided to fight her case in the political arena than in the competent legal courts. Every action of hers was designed to mobilize the cadres in Bar Association or in the Buddhist temples dragging the monks to pull her chestnuts out of the fire. Her decision to cut and run from the hearing at the Parliamentary Select Committee (PSC) was to create a political drama, not a legal defence of her position. At no time has she -- or her legal team -- countered the allegations against her by dealing with each one of them with a substantial defence. The superficial statements made earlier have been countered/negated by the evidence presented to her and by the witnesses (including a senior Judge of the Supreme Court) that appeared before the PSC. She was seen more politicking and praying (sign of guilt?) rather than defending. Politicizing her case has pushed her into a corner from which she cannot escape now. She and her team blundered all the way. Both were depending on procedural and legal technicalities to defend them and not confronting the serious allegations threatening the image and the job of the Chief Justice. Avoiding the allegations and relying on technicalities can only go thus far and no further. Ultimately, Parliament like all legislatures (examples: US or UK) can impeach judges on two simple issues: 1. misbehaviour and/or 2. incapacity. Legislatures are not bodies with powers to put judges on trial for any crimes committed by them. That is left to courts. Parliamentary investigations (not trials) are merely to determine whether the judges had misbehaved and report it to the Speaker. The fact that the PSC is a body set up to only to investigate is proven by the lack of powers to pass sentence on judges, if found guilty like the courts. Parliament is tasked to decide only whether the judges have misbehaved or not which is less of a complicated process than in a trial in courts.

For instance, if Parliament decides that Justice Bandaranayake had misbehaved in removing Justice Thilakawardena from hearing the case and suppressed the investigation ordered by the latter into the charges of bribery PSC can come to the conclusion that the Chief Justice has misbehaved. If Parliament accepts this report of the PSC and the Speaker sends it to the President the decision to pass sentence is left with the President alone.

Demanding resignation

Even her political allies are caught in a bind. The first to make accusations against her was the UNP when her husband was appointed as Chairman of National Development Bank. Quite rightly, the UNP and the media, by and large, were baying at the time demanding her resignation as there was an apparent conflict of interest. To quote the Chief Justice: “Justice must not only be done but seen to be done.” It is also reported that Lakshman Kiriella, trying to recover from his kata kadiccha idiocy in which he declared that any cow can wage wars and challenged the Security Forces to go to Killinochchi, had admitted, after seeing the documents, that the CJ is guilty. But he pontificates as if he is the guardian all moral principles known to man, woman and hermaphrodites. (No offence to hermaphrodites in the UNP).

But CJ decided to ride it over. By then she had caught the common disease that deadens the moral sensitivities of the black-coats of Hulftsdorp in general: developing a coconut head with a thick skull which covers the moral vacuum inside. Her career was mired in politics from the time she was catapulted from the Law Faculty at Colombo University and flew over the heads of other senior judges and landed on a bench in the Supreme Court. Besides, her political allies do not add much credit to her image or cause either. The other day Vijitha Herath was posing in front of cameras, like an over-stuffed sausage waddling across the Supreme Court premises, as if he is the hero who brought the victory to his heroine, Dr. Bandaranayake. In this act he looked exactly like the JVP -- Jilmart Vihulu-kara Parripu-vaas. These JVPers are now desperately hanging on to the sari-pota of the Chief Justice to win back the voters they have lost right round the country. Their aim is to save themselves by making use of the Chief Justice and then drop her like the way they misled and dropped Gen. Sarath Fonseka.

By now she should realise that when you lie down with dogs you get up with fleas. She has lost her credibility by giving a nudge-and-a-wink to these Jilmart Vihulu-kara Parripu-vaas. Neither the Babu English of her lawyer, K. Kanag-easvaran, coloured with barbaric clichés borrowed from Prabhakaran’s Law College, nor the Jilmart Vihulu-kara Parippu-vaas can save her from the kind of politics into which she has fallen. She has dragged herself to a position where she is unable to go back to her seat in the judiciary, if she has any sense of dignity at all. She has been exposed in the public eye as a political prawn carrying all the muck on her head and yet crying: “I am clean”. (A Sinhalese idiom). Her camp-followers in the judiciary too have shown their political hand by boycotting a fellow-judge who had offended them by not toeing their line of going all out to support the Chief Justice. In short, she had not only politicized the judiciary as never before and divided it into two camps. Can a judiciary divided into camps function as a credible institution delivering justice to the people? How clean, principled and just will the judiciary be if the President lets her get way with her politics?

A provisional judgment of a partisan judiciary, batting for their side without any compunction, and declaring not out when the video replay announces that she is OUT, need not prevent the Umpire from ordering her out. Either she must go back to the pavilion, or retire hurt. If not she must await what is coming for her from the Umpire.

Editor’s note: The article was sent before the press conference of Chief Justice’s lawyers.

However, the writer emphasizes that the explanation of the lawyers does not alter the argument in this text.