Columns

• Govt bid to remove Chief Justice Bandaranayake on course; debate to take place on Jan 10, 11, in spite of Supreme Court ruling
• Besieged regime emboldened by the impotence of the main opposition party; angry Ranil reprimands MPs for going to courts on Thursday
• In her petition, Chief Justice explains her side of the story in respect of the three charges, of which she was found guilty

By Our Political Editor

The cheers from the dawn of 2013 turned to fears just three days later as the nation’s judiciary and legislature edged closer to an open, no-holds-barred confrontation. The bad news for the Government came after the Supreme Court (SC) ruled that the Parliamentary Select Committee (PSC) that probed the impeachment motion against Chief Justice Shirani Bandaranayake had “no legal power or authority”. Thus, at least as determined by the country’s apex legal body, the voluminous 1,575-page report signed only by seven government members has become invalid.

Though the Supreme Court is acknowledged as the sole authority to interpret the Constitution, how the legislature will officially react to its determination will be known only on Tuesday. This is when Speaker Chamal Rajapaksa makes a formal statement to Parliament. There were indications yesterday he would reject the findings and point out what are being described as some “unacceptable errors” in the determination.

Behind the scenes, preparations by government leaders and remarks from some ministers also made clear the House would debate the impeachment resolution on January 10 and 11 and pass it. The Speaker would thereafter advise President Mahinda Rajapaksa of the wish of majority of members in the House to have Chief Justice Bandaranayake removed, should they vote in favour of the impeachment motion. Then, the President would proceed to issue a proclamation and later appoint a new Chief Justice. Already, the Government is frantically busy trying to identify a successor.

The President himself and some ministers have tried to persuade former Attorney General C.R. de Silva PC to take up the job. He has declined the offer. De Silva is a close friend of the President, but his role as Chairman of the LLRC (Lessons Learnt and reconciliation Commission) whose recommendations were acclaimed as an honest account on reconciliation and good governance won him accolades both internally and from the international community.

The government naturally felt he would be an acceptable choice to smoothen ruffled feathers at the Bar and would be acceptable to the opposition and the international community as well. He has informed the government suitors that he would like to remain at the unofficial Bar where he enjoys a lucrative practice. Moves by another section to have him contest the impending Bar Association elections have also been turned down by him. He has said he is not prepared to compromise his independence by canvassing support from various quarters.

In the face of de Silva turning down the offer of the Chief Justice’s post, the name of a serving judge of the Supreme Court has now been considered besides a senior officer at the Attorney General’s Department. A new appointment, though on the basis that Parliament has impeached the Chief Justice and the President has thus removed her, is still fraught with dangerous hurdles that could be damaging on all fronts.

Firstly, the incumbent Chief Justice would claim every right, unless she resigns, to remain in office. This is on the grounds that the Supreme Court has held that the Parliamentary Select Committee (PSC) is illegal, and consequently a parliamentary vote being void. At this eleventh hour, some government ‘intermediaries’ have successfully probed the possibility of a retirement for Chief Justice Bandaranayake in return for the withdrawal of the impeachment resolution and other matters. A frightening situation would thus arise, if the Government, using its steamroller majority in Parliament to oust her, for instance, resorts to removing her physically. Valid reasons for such action would be cited as the resolution and a consequent presidential proclamation.

A legal expert, who did not wish to be identified, warned it could trigger a chain reaction and lead to a dreadful hiatus. He said, “like other executive actions, the President’s appointment of a new Chief Justice could be challenged in courts. One could seek a declaration seeking the serving incumbent to remain citing the Supreme Court determination.” Needless to say that such a confrontation, which now seems inevitable, is not good for the judiciary, the government or the country. In their hurried and strong determination to remove the Chief Justice, senior UPFA leaders do not seem to be conscious of the inherent dangers of their actions or their far reaching repercussions. They see things only through their political prism.

The Supreme Court’s determination this week was the result of seven different writ applications filed in the Court of Appeal. The petitioners sought order prohibiting the eleven-member PSC from investigating into allegations of “misbehaviour or incapacity” against Chief Justice Bandaranayake. The Court of Appeal made the seven references to the Supreme Court. At their sittings on Thursday, the three-member Court of Appeal – Justices Sri Skandarajah, Anil Gooneratne and A.W.A. Salam – announced the unanimous Supreme Court determination. It was signed by Justices Gamini Ameratunga, K. Sripavan and Priyasath Dep.

The Court of Appeal first took up the seven cases. Thereafter, it heard the writ application filed by Chief Justice Bandaranayake challenging the findings of the now legally declared invalid Parliamentary Select Committee. The PSC had found her “guilty” on three different counts. The court asked D.P. Mendis PC and Nigel Hatch PC appearing for two intervenient petitioners to state why they should be allowed to intervene in the proceedings. One appeared on behalf of Chandrasena Weeerasekera of Kiribathgoda, a Sri Lanka Freedom Party (SLFP) trade unionist and another for Sumudu Kantha Hewage, an attorney at law. The latter sought the dismissal of the CJ’s petition on the grounds that the court had no jurisdiction.

After a brief adjournment, the Court decided not to allow the intervention. It held that the intervenient petitioners would not be affected directly or indirectly, and therefore had no status. However, the court said it would hear the Attorney General. President’s Counsel Romesh de Silva urged court to hear the case on that Thursday itself as a “matter of urgency.” He said the Parliament had already fixed the impeachment debate for January 10 and 11 and any delay would adversely affect the petitioner. Then the court put off hearing for tomorrow (Monday), January 7, at 9.30 am. The court also ordered to notice the Attorney General to assist them.

Meanwhile, the opposition United National Party (UNP) got into a tangle over the Court of Appeal hearing. Party MPs had received a letter signed by leader Ranil Wickremesinghe telling them that they should make no statement or take any action with regard to the impeachment motion without his or the General Secretary’s permission. Wickremesinghe had sent this letter prior to his vacation in Florence, Verona and eventually Rome (he met the Pope at the Vatican and asked for his blessings for peace, reconciliation, unity and justice in Sri Lanka).

When the Court of Appeal had issued notice on the PSC MPs, Lakshman Kiriella, one of the two UNP members in the PSC, had expressed an inclination to attend court. The other MP John Ameratunge was abroad. Similarly, several other MPs had also wanted to do so. Deputy leader Sajith Premadasa and Colombo MP Ravi Karunanayake had inquired from Tissa Attanayake, the General Secretary if they could go. Attanayake called his leader in Italy to find out. He was told that they should not go to court. Kiriella was also told not to go.

However, eight others went. They were Karu Jayasuriya, Dayasiri Jayasekera, Ajith Perera, Niroshan Perera, Ruwan Wijewardene, Harsha De Silva, Eran Wickremaratne and Range Bandara.

On his return this week, Wickremesinghe was furious. He is taking up the position that the party should fight for the independence of the judiciary within parliament. He has already given vent to his feelings about the judiciary giving order after order permitting cross-overs from the UNP to the Government, and taken up the position that the judiciary has no control over the legislature.

Five MPs who went to court that day, the two Pereras, Wijewardene, de Silva and Wickremaratne were hauled over the coals. They were told that they must observe party discipline and to look elsewhere if they could not. They were also asked to apologise to the General Secretary, which they had to do. Action against Jayasuriya and Jayasekera is pending while Bandara remains suspended and therefore might avoid reprimand.

The UNP’s stance on the entire issue has been questioned in all quarters with Wickremesinghe himself handling its strategy. Party members are blaming him for not making political capital out of the issue. Government politicians are gleefully saying that the opposition is also backing what they do, while cartoonists are lampooning the party for ‘playing ball’ with the government.

Responding to some of the criticism, Wickremesinghe while addressing the party’s lawyers union said yesterday that how to deal with the Court of Appeal notice was something they had discussed with other opposition parties and privately said that in the absence of Tamil National Alliance (TNA) leader R. Sampanthan who is abroad, lawyer MP M.A. Sumanthiran hijacked the party position and because of his connections with the Chief Justice’s lawyers reversed a decision taken by the UNP and the TNA. The matter is due to be taken up by the UNP with the TNA next week when Sampanthan returns.

The Supreme Court ruling, that jolted the UPFA Government on Thursday, noted that “A Parliamentary Select Committee appointed in terms of Standing Order 78A derives its power and authority solely from the said Standing Order which is not law. Therefore a Select Committee appointed under and in terms of Standing Order 78A has no legal power or authority to make a finding adversely affecting the legal rights of a Judge against whom the allegations made in the resolution moved under proviso to Article 107(2) (of the Constitution), is the subject matter of its investigation. The power to make a valid finding, after the investigation contemplated in Article 107 (3), can be conferred on a court, tribunal or a body, only by law and law alone.”

This is the reason why, the SC determination said, “the framers of the Constitution have advisedly used the word ‘law’ when they enacted Article 107 (3) which reads ‘Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address including the procedure for passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.’ (Emphasis added)”

The SC said, “There is a presumption that Parliament will not use words in vain or unnecessarily. The reason for the use of the word ‘law’ in Article 107(3) is clear from what we have stated above. Therefore, in our opinion it is mandatory for Parliament to provide by law the Body competent to conduct the investigation contemplated in Article 107(3) and give a legally valid and binding finding with regard to the allegations of misbehaviour or incapacity investigated by it.” However, the SC determination added, “Matters relating to the presentation of an address and the procedure for the passing of such resolution are matters which can be stipulated by Standing Orders but there is nothing to prevent Parliament from providing for such matters by law as well. The selection of the body to investigate the allegations of misbehaviour or incapacity and its composition and the manner in which the investigation is to be conducted (procedure) are all matters to be decided by Parliament in its wisdom keeping in mind the necessity to ensure ‘equal protection of the law’ enshrined in the Constitution..”

Yet, the government’s legal advisors were miffed that the determination had in quoting Article 107 (3) of the Constitution only referred to the words “.Parliament shall by law” and left out the reference to the words “or by Standing Orders.” They argue that the PSC had been appointed under Standing Orders and was hence constitutionally valid – a point which Speaker Rajapaksa is expected to elucidate on Tuesday. It is speculated to be the grounds on which he will reject the Supreme Court determination and rule that the House could go ahead with the impeachment process. Speaker Rajapaksa is also to brief party leaders during a meeting on Tuesday morning. At the same time that day, President Mahinda Rajapaksa is expected to address the government parliamentary group.

The Supreme Court determination has also drawn from a ruling by then Speaker Anura Bandaranaike, often quoted in the past several weeks by government ministers and parliamentarians to bolster their argument that “Parliament is supreme”. Anura Bandaranaike declared that the Supreme Court had no jurisdiction to issue interim orders restraining the Speaker in respect of steps he is empowered to take under Standing Order 78A. This ruling was prompted by the issue of a restraining order on Speaker Bandaranaike by then Chief Justice Sarath N. Silva because there were moves for an impeachment motion against him in Parliament.

Quoting from the same ruling, the Supreme Court determination said, “Before we conclude it is pertinent to invite attention of all concerned to the words of the late Hon. Anura Bandaranaike, M.P., the then Speaker of Parliament, contained in his ruling dated 20th June 2001, which is faithfully approved and followed by our Parliaments up to the present day. He said as follows:

“However Members of Parliament may give their mind to the need to introduce fresh legislation or amend the existing standing orders regarding Motions of Impeachment against Judges of the Superior Courts. I believe such provision has already been included in the Draft Constitution tabled in House in August 200.” (Hansard dated 20.6.2001 column 1039). The Draft constitution did not see the light of the day as a new Constitution.” The full text of the 27-page Supreme Court determination is found on the Times online website: www.sundaytimes.lk

The vast majority of ministers in the cabinet appear to have maintained a stoic silence over the SC determination. They have refrained from making statements. Earlier, former Prime Minister, Ratnasiri Wickremenayake, called for restraint when he addressed a public meeting in Horana. However, Economic Development Deputy Minister Lakshman Yapa Abeywardena told the Sunday Times “Though a Court interpretation on the Constitution has been given, the Standing Orders in Parliament is what governs the functions of the Parliament. After the Parliamentary Select Committee is appointed under these Standing Orders no other institution can summon members of the Committee or challenge the findings of the PSC or even make rulings against it.”

On Wednesday, a day before the SC determination, Minister Nimal Siripala de Silva, who was a member of the PSC told a news conference, “The Speaker of Parliament made it very clear that his ruling on December 7 that what he said will apply to not only to the notices issued by the Supreme Court but also to future such notices issued by them with regard to the Parliamentary Select Committee. That Committee has completed its work and handed over its report. We are not able to change the decision we have made. We have undertaken this task in keeping with the Constitutional requirement. This Committee has no powers now. Its work is complete. We had authority only till its work was completed. We are bound as MPs to uphold the supremacy of Parliament.” In the light of these reasons, he said, MPs need not heed notices from Courts and present themselves.

However, his views were challenged by Vijitha Herath, who served in the Committee on behalf of the Janatha Vimukthi Peramuna (JCP). He was one of four opposition MPs who walked out from Parliament on the grounds that the PSC probe against Chief Justice Bandaranayake was not free and fair. He told reporters present in Courts on Thursday: “This is a historically important day for the people. Parliament is the institution that consists of the representatives elected by the people. However, today the Government, with a so called two thirds majority, which is not a real mandate, is claiming Parliament is supreme.

“We cannot accept that Parliament is supreme. It is the people who are supreme. We are bound as MPs to safeguard the rights of the people. We have to follow the present Constitution. Today the decision given by the Court of Appeal clearly states that Standing Orders cannot operate in violation of the Constitution. The Court clearly stated that Standing Order 78A is in conflict with the constitution. Hence if a judge of the Supreme Court or the Court of Appeal is being removed, it cannot be done in a manner that is against the Constitution. This is a special decision. We see it as a decision that has been given in a manner to safeguard the rights of the people. This court ruling shows that no executive power or a two-thirds majority can tread on the rights of the people.”

Since the now legally invalidated PSC report became public, its most vociferous campaigners have been the ministers who served in the committee. They made statements in both print and electronic media on why they found Chief Justice Bandaranayake ‘guilty’ and delved at length on many other alleged accusations against her. This is notwithstanding the fact that such allegations were not among charges listed against her. Copies of the PSC report were this week released to the media. It was only last week they were issued to Colombo-based diplomatic missions.

Last week, some of the controversial provisions in the report were highlighted in these columns. They related to an earlier move by the Committee to allow only one counsel to represent the Chief Justice and not to grant her more time to answer charges. Official proceedings of December 5 relates to marking of documents and reveals, among other matters, the issues raised by opposition participants. It was later that they walked out. Here are excerpts of some of the proceedings:

The Chairman: (Minister Anura Priyadarshana Yapa) – “We are going till 12 December and on the 12th, we will decide about the next dates. Hon. Members, I am now handing over these documents to you. Document No 1 is the letter sent by Mr. Manjula Tillekeratne. We have asked for some documents and he has said, ‘I have to place the aforementioned letter before the Judicial Service Commission.’ That is why I always say the delay is from their side, not from our side.”
There were several remarks by government members. Then Lakshman Kiriella (UNP Member) said “Only thing, Mr. Chairman it is subject to proof.” This is how the proceedings were reported:

“The Chairman: Do not say like that, my good Friend. All these documents have been certified by the banks and adds in Sinhala Ewa Katha Karanna Giyoth Methana Pissuwak Ney. “Subject to Proof” kiyanney mokada? (If we go to talk about that here, there will be madness. What is “subject to proof”?

“The Hon (Dr.) Rajitha Senarathna: If these are not her bank statements and her declarations of assets, let them say that. Let her say, “This signature is not mine”.”The Hon. John Ameratunga: The thing is we cannot come to a conclusion. Let them come and assert that. At that stage, we will take a decision.

“The Chairman: It is very wrong for the Committee Members to say like that because these are all official documents and these are not (switches to Sinhala) Kela Paththara (or Jungle Newspapers).

“The Hon. John Ameratunga: Yes, but some of the Members are challenging it. Let us listen to them.
“The Hon. Lakshman Kiriella: How can you mark them? We have not even seen them. Eka Puduma Deyak Ney (That is a strange thing).

“The Hon. R. Sampanthan: We have not seen them.
“The Hon. Lakshman Kiriella: Meka puduma deyak ney. (This is a strange thing).
“The Chairman: Mey manthrilata ay okkoma denna. Mama mark kerannam. Ethakota evarai ney. (Give this to all the members. I will mark them. Everything will be alright then, isn’t it).

“The Hon. Lakshman Kiriella: Hon. Ameratunga, shall we go?
The Hon. Wimal Weerawansa: (in Sinhala). Ehema Keranna Epaa (Don’t do that).
The Hon. Lakshman Kiriella: There is no point in this. I do not want to be a part of this inquisition. Mey kuruse ana gahana ewata mama kemethi nehe (I don’t like nailing this cross).

“The Hon. Rajitha Senarathna: Kavuruvath Kemethi nehe kuruse ana gahana ewata (No one likes to nail the cross).
“The Hon. Lakshman Kiriella: Mr. Chairman, you are a lawyer. Documents have to be proved.
“The Hon. Dilan Perera: Documents are marked here.

“The Hon. Lakshman Kiriella: You cannot mark these documents without proving them.
“The Chairman: This is a Parliamentary Committee. This is not a court of law.
“The Hon. Lakshman Kiriella: We have not seen them. How can we agree?”

In another instance on record, Minister Wimal Weerawansa is quoted as saying “Ahinsaka Nona Methana Thiyagena Madawana Neh” (Innocent lady. They are keeping you here and intimidating you isn’t it). Minister Dilan Perera was to point out that the Assistant Secretary General K.A. Rohanadeera was also present and that she is also a “nona” or lady. Counsel for Chief Justice Bandaranayake, Romesh de Silva was to say these are not remarks to be made on the Hon. Chief Justice. He added, “I think there is no purpose our staying here. They must not insult the Chief Justice.”
The concluding remarks of senior counsel Romesh de Silva on December 6, before the legal team and Chief Justice Shirani Bandaranayake walked out, among other matters, noted: “We have repeatedly asked for procedure and we have not been told the procedure.

“The Chairman: I just told you the procedure.
“Romesh de Silva: That is what you told us, but according to our understanding that is not the procedure at all. I must make my submissions. “We have not been given adequate time to prepare our defence. The way in which some Members of the Select Committee have behaved leads us to the conclusion that they have completely made up their minds. Several remarks that were made do not befit Members of a Select Committee. In the circumstances, we are convinced that there has been no fair trial, that we will not get justice at this Committee. We have absolutely no faith. We have no faith in the continuation of this..”

Of the 14 charges made against Chief Justice Bandaranayake, nine charges were not ‘probed’ by the PSC despite being mandated to do so. The only reason they were unable to pursue was because of the hurried conclusion of their sittings notwithstanding earlier plans to continue. Of the balance five charges, Chief Justice Bandaranayake was cleared of two due to ‘insufficient evidence.’ It was of the remaining three charges (1, 4 and 5) that she was found ‘guilty.’
In her writ application to the Court of Appeal she has set out the following details in response to these charges. Her senior counsel has said they had no opportunity to place most of these matters before PSC since no time was given:

Charge No. 1
The housing unit bearing at Trillium Residencies was not purchased by her and the special power of attorney bearing No. 823 of Public Notary K.B. Aroshi Perera was therefore not used; the property was purchased by her sister (Renuka Niranjali Bandaranayake) and Brother in law (Kapila Ranjan Karunaratne) by the monies remitted by them from Australia. They are in senior positions in the mining sector in Australia. As far back as May 6, 2010, (i.e. nearly 16 months prior to her hearing fundamental rights cases involving the now financially bankrupt Ceylinco Group) the sale of housing units of the Trillium Residencies had been excluded from the Fundamental Rights Application relating to the Ceylinco Group.

Charge No 4:
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 in the National Development Bank.

Chief Justice Bandaranayake has stated that all assets have been declared by her including all monies in her bank accounts and also the monies invested by her which are declared under “Treasury Bills”.As at 31st March 2012 she had only four actively operative accounts. The NDB Bank had maintained two routine accounts as per standard internal banking practice in the name of Shirani Bandaaranayake.

Of the nine accounts referred to in this charge, Chief Justice Bandaranyake has said there is in truth and in fact only seven accounts. The other two accounts are old account numbers migrated due to an IT System change by NDB Bank. Of the seven accounts, two are special routine accounts (as opposed to regular current accounts) maintained by the NDB Bank for investment purposes in terms of standard internal banking practice at the NDB Bank and these are not regular current accounts, she has pointed out.

These routine accounts could be operated only by the NDB. The CJ does not operate these accounts which are opened by the NDB only for the purpose of channelling the investments made by her. When investments such as Treasury Bills mature, the funds are credited along with the interest. Thereafter the capital and the interest are re-invested by the bank as per the standing instructions of the customer based on the financial advice given by the NDB Bank. She has pointed out that during the maturity period of the investment these routine accounts carry zero balances. She has insisted that the investments that were routed through these Routine Accounts have been stated in her declarations of assets and liabilities under the title Treasury Bills. Hence, she has argued that the Parliamentary Select Committee has wrongfully concluded that she had “not disclosed the Routine Accounts maintained by the NDB Bank without properly understanding the nature of such accounts. The Chief Justice has also pointed out that she had not disclosed three other accounts mentioned in the PSC report since they were only opened after the relevant date of disclosure.

The lawyers for Chief Justice Bandaranaike argue that allegations that she amassed Rs 256 million, publicised in sections of the state media, were totally false. They said this was not a charge in the impeachment resolution. If it were true she would have been charged in the impeachment with unlawful accumulation of assets. This was not done because the allegation was false, one of them said.

He added: “An independent and impartial examination of her assets including bank accounts will clearly establish that this allegation is totally false. Every single asset has been declared in the annual declarations.” He said “there is no special or deliberate effort to zero account balances on the 31st March every year.”

Charge 5
Whereas, Chief Justice Bandaranayake becomes unsuitable to continue in the office of the Chief Justice due to the legal action relevant to the allegations of bribery and corruption levelled against Mr. Pradeep Gamini Suraj Kariyawasam, lawful husband of the said Chief Justice Shirani Bandaranayake. As a result of her continuance in the office of the Chief Justice, administration of justice is hindered and the fundamentals of administration of justice are thereby violated and whereas not only administration of justice but visible administration of justice should take place.

The allegations against a judge’s spouse cannot, Chief Justice Bandaranayake has said, in any event be a ground for “proved misbehaviour” on her part. This is particularly in the absence of any allegation that she has in fact conducted herself in a manner unbecoming of a Judge of the Superior Courts in relation to the said Charge.

The entire episode to oust Chief Justice Bandaranayake from her office has been accompanied by an indecent, mighty haste. Government sources admitted that they expected the Chief Justice to resign soon after her husband Pradeepa Kariyawasam was indicted for alleged bribery. “This did not happen. She stayed and is fighting back though at every stage we thought she would throw in the towel,” said the knowledgeable source. In such a scenario, the government’s strategy throughout has been to only name and shame all those who were opposed to the impeachment move. That included a sizeable segment in the legal fraternity; some of them staunch backers of the government, who form part of the country’s intelligentsia. Other than hurling harsh abuse and more harsh abuse, such campaigns only multiplied the support base for Chief Justice Bandaranayake and conversely made the Government that much unpopular.

It has perhaps been emboldened by the absence of vocal criticism albeit major protests by the main opposition. That is by no means, like switching on a light bulb, a shift in the public support pronto. With mounting living costs and rising corruption, there are many lessons to be learnt from the two-month long impeachment move. Main among them, for a government that rode the tidal wave of popular support just three years ago after defeating the Tiger guerrillas, is the immediate need to learn who their real friends are. From that, they will know their enemies. The sooner they do that, the earlier they save themselves all the embarrassment, the shame on their country and the people.

Otherwise those so called advisors, ‘barefoot judges’ with self-assumed brilliance in jurisprudence, a coterie of hangers on and hurrah boys or girls will continue with the game that might is right. Of course, those mighty also should lend neither ear nor give them loud voices. A learned approach would enlighten the people whilst ranting by rats who are first to desert a sinking ship would only lead to more and more political wrecks.

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