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CJ decides to stay on and fight
= Blame game in Government circles as to who drafted the resolution
Arriving some 15 minutes late for Monday’s Supreme Court sittings, the usually punctual Chief Justice Shirani Bandaranayake declared from the bench “as you understand, I had to collect so many documents”. She did not elaborate. Nor did lawyers present to represent clients in cases listed for that day raise any query.
There was little doubt it was a reference to the impeachment resolution 117 government parliamentarians handed over to Speaker Chamal Rajapaksa, the previous Thursday (November 1). It lists 14 charges which are given in the box story on this page. Further confirmation came when Kanakanayakam Kanag-Ishvaran, President’s Counsel, marked his presence for a company of the Ceylinco Group in a case that was listed before her.
“I am not going to hear this case,” she said. Here again, though she did not explain, the first of 14 allegations against her related to a purported transaction involving that group. However, she will tomorrow hear a fundamental rights violation petition linked to Golden Key Finance Company (a member of the financially crippled Ceylinco Group). This is one among three cases, allegation number one claims, which were removed from another bench of the Supreme Court and taken up for hearing by Chief Justice Bandaranayake.
“Your Ladyship, we have just heard that a person holding high office has won a new tenure. Let us hope it would be the same with you,” replied Kanag-Ishvaran. As he stood in the SC that Tuesday, the results of the US presidential election had just been announced. President Barrack Obama had won a second four-year term defeating his Republican rival Mitt Romney.
Chief Justice Bandaranayake seemed unruffled over the charges against her in the impeachment resolution. “I know he is innocent. If he has done wrong, he has to face jail. That is all there is to it,” she told a confidante this week. She was referring to her husband, Pradeepa Kariyawasam, former Chairman of the National Savings Bank. He has been indicted before the Colombo Magistrate for “causing a loss of Rs 391,137,554.33 to the state” and for alleged corruption. The pending case and Bandaranayake’s continuance in the office of the Chief Justice, one of the allegations in the resolution argues, would result in the “administration of justice” being hindered.
Last Sunday, she was in Kandy meeting the Mahanayake Theras. She explained to the Most Ven. Thibbotuwawe Siddharata Sri Sumangala Thera, head of the Malwatte Chapter and the Most. Ven. Udugama Sri Buddharakkhitha Thera, head of the Asgiriya Chapter, that she had done no wrong and would, therefore, defend herself and prove her innocence. A few days earlier, the two leading prelates, together with heads of the Amarapura and Ramanna Nikayas, had written to President Mahinda Rajapaksa urging him “to reconsider analytically the need for an impeachment motion.”
Days ahead of her call on the two Mahanayakes, a three-judge Supreme Court bench chaired by Chief Justice Bandaranayake delivered two different determinations. The first was after four petitioners challenged the constitutionality of certain provisions of the Divineguma Bill after it was gazetted on July 27. The SC then ruled that before the Bill was placed on the Order Paper of Parliament, it should be passed by every Provincial Council.
This is on the basis that the draft legislation was in respect of matters set out in the Provincial Council List (under the 13th Amendment to the Constitution) and shall not become law unless it has been referred by the President to every Provincial Council for the expression of their views. Whilst all other PCs expressed approval, the absence of an elected PC in the North raised a legal issue. Such approval was given by Northern Province Governor G.A. Chandrasiri. It was contested in the courts.
With that determination over, when the Bill was placed in the Order Book of Parliament on October 9, eleven petitions were filed before the SC challenging its constitutionality. The determination of the SC on these petitions was read out in Parliament by Speaker Chamal Rajapaksa last Tuesday. As reported last week, the government, however, seemed aware well ahead that the finding was not favourable to it. Hence, a day ahead of the SC determination being made public, Speaker Chamal Rajapaksa on Monday (November 5) summoned a party leaders meeting. Contrary to speculation, it was not to discuss either the resolution to impeach the Chief Justice nor the appointment of a Parliamentary Select Committee to probe allegations against her.
The subject was the Government’s hurried efforts to persuade opposition leaders to agree to opening the debate on the Divineguma Bill the next day, Tuesday. It would appear that the Government did not wish to lose face on the matter. The main opposition United National Party (UNP) leader Ranil Wickremesinghe, who led his party delegation, was not in favour. He said that would not be possible until the Supreme Court determination was made public by the Speaker. Yet, the Government was determined to go ahead. It wanted to show that the Bill would not be withdrawn and the legislature was strong enough to go through with it. However, Economic Development Minister Basil Rajapaksa told the Sunday Times that changes recommended in the Supreme Court determination would be taken into consideration.
The second reading of the Bill came after Speaker Rajapaksa announced the SC determination. Minister Rajapaksa made a speech followed by Janatha Vimukthi Peramuna (JVP) parliamentarian Anura Kumara Dissanayake. The debate was thereafter adjourned indefinitely. The Government is keen to get parliamentary approval for the Bill as early as possible, even before the conclusion of the Budget debate next month. The Government will have to make some adjustments on the clauses the SC has held as unconstitutional. The schedule of sittings during the Budget debate is causing a delay. Moreover, the vote for the Bill will have to be scheduled on a date when all MPs are present to ensure there was a two thirds majority.
If the government’s resolve to go ahead with the Divineguma Bill was firm, the Supreme Court was unequivocal in its determination to point out that it has “the sole and exclusive jurisdiction to inquire into or pronounce upon, the constitutionality of a Bill and its procedural compliance, before such Bill is placed on the Order Book of Parliament”. This was re-iterated in last week’s determination. The court held that a number of clauses of the Divineguma Bill were inconsistent with the Constitution.
Hence, those clauses required a two thirds majority and a referendum, it said. On the reference of the Bill to Provincial Councils, the SC determination said “….obtaining the views of the Governor cannot be considered as the views of the Provincial Council of the Northern Province. The framers of the Constitution thought it fit to obtain the views of the elected Provincial Councils and not that of the Governor of that Province who is not elected, but only an appointee who holds office during the pleasure of His Excellency the President…..”
On Tuesday, Opposition Leader Wickremesinghe led another UNP delegation for a meeting with Speaker Rajapaksa. At the party’s parliamentary group meeting prior to the sittings of the House, he had been questioned why the UNP was not openly opposing the impeachment motion. Colombo District MP Sujeewa Senasinghe came down particular hard on his leader.
This nearly disrupted the meeting, with Wickremesinghe saying he was not interested in protecting individuals, but the judiciary as a whole. An irritated Wickremesinghe lashed out at sections of the media as well yesterday, when he told Parliament that the media were harassing him on the issue at hand and went to the extent of asking the Speaker to issue guidelines to the media on how to report on the impeachment motion.
When they met the Speaker, Wickremesinghe was to ask him to put together a panel of lawyers from the private bar so it could be the legal resource team for the Parliamentary Select Committee (PSC) probing the charges against the Chief Justice. He said it would not be proper for the Attorney General to advise such a Committee since he was party to one of the cases that the SC had determined, besides the fact that the AG’s Department now coming under the President’s office. He also asked the Speaker to explain the judicial procedure that would be adopted in trying the Chief Justice before the Select Committee, and for an equal number of opposition MPs on the Select Committee as the government would have if the scales of justice were to be held in the balance.
According to UPFA sources, it is unlikely that Wickremesinghe’s requests will be accepted. It is on the grounds that there were no precedents and selection criteria for such a panel were not easy. Speaker Rajapaksa was busy with his officials for the appointment of an eleven-member Select Committee, seven from the government and only four from the opposition.
It will be chaired by Minister Anura Priyadarshana Yapa, a lawyer. Other members representing the government are Ministers Nimal Siripala de Silva (a lawyer), Susil Premajayantha (a lawyer), Dilan Perera (a lawyer), Rajitha Senaratne, Wimal Weerawansa and Deputy Minister Neomal Perera. The UNP has nominated two of its senior lawyer-parliamentarians, John Ameratunga and Lakshman Kiriella. The Janatha Vimukthi Peramuna (JVP) is not likely to be represented in the PSC. Its parliamentarian Vijitha Herath told the Sunday Times, “We have not decided whether we would take part in the PSC proceedings. The composition of the PSC is questionable. It is loaded in favour of the Government as seven members will be from its side. It is not too difficult to gather what the outcome of the findings will be.”
Tamil National Alliance (TNA) President Rajavarothayam Sampanthan told the Sunday Times, the party would take part. “Most of our MPs are out of the country and over the weekend we will decide on our nominee,” he said.
Though the PSC is required to forward its findings to the House within one month after its first sitting, it could seek extension of terms through parliamentary approval. When the final report is ready, in terms of convention, a “cooling off” period of one month is allowed, before the House is called upon to act on the recommendations.
More details of the documents which Chief Justice was collecting emerged on Thursday. Early that day, she was in consultation with her legal counsel on matters relating to the charges in the resolution. Later in the evening, the law firm Neelakandan & Neelakandan sent out two-page letters to media outlets, both print and electronic, that have reported on the contents of the impeachment resolution. This is what it said:
“Dear Sir
“We are the lawyers for Dr. Shirani A. Bandaranayake.
“Publicity has been given (reference is made to print or electronic media) regarding allegations against our Client.
“At present, we bring the following facts regarding her bank accounts and remittances to your attention and through you, to the Public.
“Our Client has been banking exclusively with the National Development Bank (NDB) since 2010. Our Client has declared all operative accounts that have assets in her declaration of assets and liabilities. The Bank has informed our Client that there are a few non-operative accounts which contain zero balances. There may be non-operative accounts in other banks which our Client operated prior to 30th October 1996, which our Client believes have been closed.
“Our Client was appointed a Judge of the Supreme Court on 30th October 1996. Since then no money whatsoever has been remitted to our Client from abroad or from this country save and except from her immediate family (inclusive of her sister) and her official remuneration.
“Our Client’s sister and her husband, who are employed as professional engineers in Australia, reserved an apartment (for purchase by them) when they were in Sri Lanka. Thereafter from time to time, our Client’s sister (through her Australian bank) remitted sums of Australian dollars for the purchase of the Apartment. This was later converted to Sri Lankan Rupees by the NDB. In Sri Lankan rupees it was approximately Rs 27 million. Our Client, by cheques, directly remitted to the seller in instalments a sum of approximately Rs 27 million. The Bank has confirmed these transactions.
“The sum of Rs 34 million mentioned in your news item is not accurate. The sum of Rs 19 million approximately mentioned in your news item is a part of the aforementioned purchase consideration of approximately Rs27 million. There was never a remittance of Rs34 million into our Client’s account.
“In the circumstance, in summary:
(a) Our Client has declared all her operative bank accounts having assets in her declaration of assets and liabilities, and
(b) After her appointment as a judge of the Supreme Court our Client has not received any remittances from anyone in Sri Lanka or abroad save and except the remuneration as a judge and the remittances from her immediate family.
“Thus clearly there has been no financial impropriety on her part.
“Our client totally denies the other allegations and can easily refute them.
“Our Client instructs us to state that she will, as always, continue to duly and properly discharges her duties without fear or favour; she will do so, independently, impartially and fearlessly in accordance with the Law.”
The CJ’s strong assertions denying financial impropriety further confirm a strong fact. Contrary to expectations by some UPFA leaders, she will not give up the high office. Not when her husband has been indicted for alleged misappropriation of state funds and corruption or pressured by an impeachment resolution. Even if the final outcome of the PSC would be clear, she appears to be wanting to place her own position on record before facing the threat of being forced out of office. Towards that end, she has responded to four of the 14 allegations (from 1 to 4), ones that cover financial inappropriateness and moral turpitude, the ones that could be termed ‘the messy charges’.
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Yet by contrast, the response of the legal fraternity over this issue seemed muted, until as recently as yesterday when the Bar Association after some shouting and fisticuffs at a rare meeting of the general membership was summoned and passed several resolutions asking, inter alia, the Government to reconsider the impeachment of the Chief Justice (See news story on Page 1).
When Minister Rishard Bathiudeen was accused of threatening the Mannar Magistrate Anthonypillai Judeson and mobs attacked the courthouse, lawyers struck work. Courts were shut down with the exception of the Supreme Court and the Court of Appeal. A similar situation prevailed soon after the gang attack on the Secretary of the Judicial Service Commission (JSC) Manjula Tilakaratna. However, the impeachment resolution against the CJ has not drawn the same momentum, though it does not necessarily mean the legal fraternity is happy with the developments. The pro-ruling-party lawyers from the Kandy district were reportedly among the most vocal critics of the impeachment motion at the Bar Association General Meeting held yesterday.
Legal sources close to Chief Justice Bandaranayake revealed that she was considering not only more responses but also legal action. One such response under consideration, the Sunday Times was told is to state her position over references to her husband (Allegation 5). These sources said that this charge should not have been listed on grounds that the matter was sub judice. This is on the same basis that the Speaker had disallowed the issue relating to Pradeep Kariyawasam being raised in Parliament by UNP MP Harsha de Silva on the same grounds. These sources said the legal action contemplated was on a leading figure in an apex bank as well as others for allegedly violating banking secrecy. They had reportedly secured bank account details for the resolution in violation of laws governing banking secrecy.
On the other hand, apart from the fact that 117 UPFA parliamentarians have signed the resolution to impeach the CJ, the Government has also set in motion several measures.
In sections of the UPFA leadership, there was also some apprehension over what they called the “poor wording” of the resolution and erroneous references. One such is a reference to a New Law Report in 1992, which ceased to exist long before that. When one of the senior lawyers who is close to the President asked him, who had been responsible for the puerile drafting of the charge sheet, the President had mentioned the name of a newly appointed President’s Counsel. Various ‘suspects’ were denying they were involved. One said he received only President Premadasa’s impeachment motion and nothing followed. Another had an alibi of being in Geneva. The blame game went on. It is now established that the drafting was done in Sinhala and hurriedly translated into English. It was the English text that was released as the official impeachment motion.
State investigation arms are now going into different aspects of the 14 allegations. This is to help PSC members raise questions when sittings begin. The onus of proving the allegations falls on them. A dossier now being compiled lists a number of matters.
Another issue now under consideration is for a minister of a minority party in the UPFA to move a resolution in Parliament calling for the appointment of another Parliamentary Select Committee. This committee is to probe the conduct of (JSC) Secretary Manjula Tilakaratna. The minister has mooted the proposal on his own, according to UPFA sources. He is now canvassing support for the move.
Even if the proposed PSC concludes its findings in a month, it is unlikely any action against Chief Justice Bandaranaike will follow until early next year. By that time, the issue which is being closely followed by some western nations would have assumed greater importance. This is in the light of the 22nd sessions of the UN Human Rights Council in Geneva. Follow up action on the US resolution would form the subject of important discussion. As our front page news story reveals today, the government will formulate its own priority agenda for reconciliation. How these will play out in the coming months no doubt would point the direction in which Sri Lanka is headed.
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The 14 charges against the CJ An eleven member Parliamentary Select Committee (PSC) will probe allegations against Chief Justice Shirani Bandaranayake.  Chief Justice Shirani Bandaranayake Here is the text of the resolution. It has been edited for easy reading. Resolution as per Article 107(2) of the Constitution for a motion of Parliament to be presented to His Excellency the President for the removal of the Shirani Bandaranayake from the office of the Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka,- 1. Whereas by purchasing, in the names of two individuals, i.e. Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne using special power of attorney licence bearing No. 823 of Public Notary K.B. Aroshi Perera that was given by Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne residing at No. 127, Ejina Street, Mount Hawthorn, Western Australia, 6016, Australia, the house bearing No. 2C/F2/P4 and assessment No. 153/1-2/4 from the housing scheme located at No. 153, Elvitigala Mawatha, Colombo 08 belonging to the company that was known as Ceylinco Housing and Property Company and City Housing and Real Estate Company Limited and Ceylinco Condominium Limited and is currently known as Trillium Residencies which is referred in the list of property in the case of fundamental rights application No. 262/2009, having removed another bench of the Supreme Court which was hearing the fundamental rights application cases bearing Nos. 262/2009, 191/2009 and 317/2009 filed respectively in the Supreme Court against Ceylinco Sri Ram Capital Management, Golden Key Credit Card Company and Finance and Guarantee Company Limited belonging to the Ceylinco Group of Companies and taking up further hearing of the aforesaid cases under her court and serving as the presiding judge of the benches hearing the said cases; 2. In making the payment for the purchase of the above property, by paying a sum of Rs 19,362,500 in cash, the manner in which such sum of money was earned had not been disclosed, to the companies of City Housing and Real Estate Company Limited and Trillium Residencies prior to the purchase of the said property; 3. By not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer, the details of approximately Rs. 34 million in foreign currency deposited at the branch of NDB Bank located at Dharmalpala Mawatha, Colombo 07 in accounts 106450013024, 101000046737, 100002001360 and 100001014772 during the period from 18 April 2011 to 27 March 2012; 4. By not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer the details of more than twenty bank accounts maintained in various banks including nine accounts bearing numbers 106450013024, 101000046737, 100002001360, 100001014772, 100002001967, 100101001275, 100110000338, 100121001797 and 100124000238 in the aforesaid branch of NDB Bank; 5. Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Shirani Bandaranayake is a suspect in relation to legal action initiated at the Magistrate’s Court of Colombo in connection with the offences regarding acts of bribery and/or corruption under the Commission to Investigate into Allegations of Bribery or Corruption Act, No 19 of 1994; 6. Despite the provisions made by Article 111H of the Constitution that the Secretary of the Judicial Service Commission shall be appointed from among the senior judicial officers of the courts of first instance, Shirani Bandaranayake acting as the Chairperson of the Judicial Service Commission by virtue of being the Chief Justice, has violated Article 111H of the Constitution by disregarding the seniority of judicial officers in executing her duties as the Chairperson of the Judicial Service Commission through the appointment of Mr. Manjula Thilakaratne who is not a senior judicial officer of the courts of first instance, while there were such eligible officers; 7. With respect to the Supreme Court special ruling Nos. 2/2012 and 3/2012 the said Shirani Bndaranayake has disregarded and /or violated Article 121 (1) of the Constitution by making a special ruling of the Supreme Court to the effect that the provisions set out in the Constitution are met by the handing over of a copy of the petition filed at the court to the Secretary General of Parliament despite the fact that it has been mentioned that a copy of a petition filed under Article 121 (1) of the Constitution shall at the same time be delivered to the Speaker of Parliament; 8. Article 121(1) of the Constitution has been violated by the said Shirani Bandaranayake despite the fact that it had been decided that the mandatory procedure set out in the said Article of the Constitution must be followed in accordance of the interpretation given by the Supreme Court in the special decisions of the Supreme Court bearing Nos. 5/91, 6/91, 7/91 and 13/91; 9. Irrespective of the absolute ruling stated by the Supreme Court in the fundamental rights violation case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka 92) challenging the appointment of the Shirani Bandaranayake, when she was appointed as a Supreme Court judge, she has acted in contradiction to the said ruling subsequent to being appointed to the office of the Supreme Court judge; 10. The Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section ‘Groundview’ that had published an article of the Shirani Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given; 11. In the case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka 92) that challenged the suitability of the appointment of the Shirani Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of the Judicial Service Commission in terms of the Constitution, Attorney-at-Law L.C.M. Swarnadhipathi, the brother of the Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi filed a petition against the appointment of the said Shirani Bandaranayake owing to which she has harassed the said Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi; 12. Shirani Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of the Judicial Service Commission in terms of Article 111D (2) of the Constitution has, by acting ultra vires the powers vested in her by the Article 111H of the Constitution ordered the Magistrate (Mrs.) Rangani Gamage’s right to obtain legal protection for lodging a complaint in police against the harassment meted out to her by Mr. Manjula Thilakaratne, the Secretary of the Judicial Service Commission; 13. Shirani Bandaranayake being the Chief Justice and thereby being the Chairperson of the Judicial Service Commission, in terms of Article 111D (2) of the Constitution, has abused her powers by ordering the Magistrate (Mrs.) Rangani Gamage to obtain permission of the Judicial Service Commission prior to seeking police protection thereby preventing her from exercising her legal right to obtain legal protection; 14. Shirani Bandaranayake by performing her duties as the Chairperson of the Judicial Service Commission has referred a letter through the Secretary of the Judicial Service Commission to the Magistrate (Mrs.) Rangani Gamage, calling for explanation from her as to why a disciplinary inquiry should not be conducted against her for seeking protection from the Inspector General of Police by exercising her legal right; |
Basil claims Divineguma Bill not linked to impeachment
Economic Development Minister Basil Rajapaksa insists that the Divineguma Bill is in no way associated with the impeachment resolution on Chief Justice Shirani Bandaranaike.
“We respect the Supreme Court ruling. We will amend the Bill wherever the SC has said changes are necessary and obtain a two-thirds vote.” he told the Sunday Times. He said a referendum would not become necessary since the Government would follow the alternative mode suggested by the SC, he said.
Last week, Arundhika Fernando, UPFA’s Puttalam District MP and a prime mover of the impeachment resolution told a seminar of Samurdhi beneficiaries that the move against the Chief Justice was because she had blocked the Divineguma Bill.
Minister Rajapaksa said one of the SC recommendations to obviate a referendum was to make provision for the Cabinet to appoint Zonal Heads of Department of Divineguma. The original provision was for the Minister to make such appointments.
Minister Rajapaksa accused both the Janatha Vimukthi Peramuna (JVP) and the Tamil National Alliance (TNA) of trying to drum up opposition for the Divineguma Bill. “The JVP did not want it in all parts of the country and the TNA in the North,” he said.
Rajapaksa argued that the “Supreme Court determination helped us” and added that “we will accommodate most of the clauses where it has pointed out anomalies.” He said some of the shortcomings had been caused during the drafting of the Divineguma Bill.
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