CJ must follow her own advice
Although widely expected, Dr Shirani Bandaranayake did not use the
Forum of the Annual General Meeting of the Judicial Services Association
to provide a response to the charges against her and plead her
innocence. Normally, if any person believed that he had been charged
wrongfully by any tribunal, he would have used a forum where his peers
were present, to offer a response to the charges, and allay any doubts
that his peers may have entertained in their minds about his conduct in
the relevant matter. But, strangely, Dr Bandaranayake did not make use
of the opportunity of addressing the judicial officers, to plead her
innocence among her peers, which perhaps confirms the suspicion that she
has no defence in the face of the charges, and that she is trying to
deflect the charges, by focusing on alleged procedural imperfections.
It must however be admitted that Dr Bandaranayake's speech contained
many important messages which are relevant to the impeachment motion and
the independence of the judiciary. In particular, her thoughts in
relation to the independence of the judiciary are relevant and vital,
and therefore it may be useful to discuss the applicability of her
statements, in the context of the current impeachment issue and process.
In her speech, Dr Bandaranayake said, "Judicial independence could be
given different definitions and could take a variety of forms, but the
underlying theme would be that the judges would act independently. Such
independence is assessed for a variety of reasons, which includes public
confidence, which is essential for the effectiveness of the Court
system."
In this context, it is clearly seen that, after the 14 serious
charges against Dr Bandaranayake were made public and after the
Parliament Select Committee had found her guilty as charged on three
counts, public confidence in Dr Bandaranayake has reduced to zero.
The wags would probably say that her public confidence level is at
same value that her many bank accounts reflected on March 31 of each
year. It is also no secret that, in recent times, thousands of people
have gone on protest marches, climbed trees, picketed in front of the
Courts and distributed leaflets and posters proclaiming that they have
lost confidence in the Chief Justice.
Upon silent reflection of these facts, Dr Bandaranayake will probably
realise that by her actions, she has probably been instrumental in
irretrievably eroding public confidence in the judiciary. Dr
Bandaranayake in her speech rightly states that "courts are regarded as
temples of justice". It then follows that, if those who worship at the
temple have lost confidence and faith in the Chief Priest of the temple,
it is very unlikely that the temple could be considered an effective
refuge for people who are seeking succour at that temple.
Worse still, if the worshippers believe that the Chief Priest of the
temple is corrupt and is trying to get favours of the deities for
herself, her spouse, and her siblings, the worshippers will surely not
want to have anything to do with that temple.
Dr Bandaranayake further asserts that, "No person's rights will be
infringed without a fair trial before an impartial and independent
tribunal operating according to fair procedure". In that context, it is
a established principle that a person who has an interest in a
particular matter, cannot be impartial or independent.
However, in both, the Golden Key and the Pradeep Kariyawasam cases,
Dr Bandaranayake has been an interested party. In fact, immediately
after the Impeachment motion was filed, Dr Bandaranayake withdrew from
the Golden Key cases, thereby confirming her obvious conflict of
interest in those cases. Here again, upon sober consideration, Dr
Bandaranayake would have realised that, in the interest of justice and
fairness, (which Dr Bandaranayake describes as the "cornerstone of our
Constitution"), she should have never arrogated to herself, the Golden
Key cases.
It is also likely that she will now appreciate that she should have
never attempted to interfere in her spouse's case by communicating with
the Magistrate who was sitting in judgement in her spouse's bribery
case.
Such a course of action reeks of conflict of interest, and even an
uneducated person would have known that with the CJ's interventions, a
highly partial trial would have been accorded to her spouse, and that
there was almost no possibility of the Magistrate being able to take an
independent and impartial position in the case.
Dr Bandaranayake goes on to say, "In order to uphold independence, a
judge must be willing and able to make many sacrifices. A judge must be
willing and able to sacrifice what others are capable of enjoying in
order to uphold independence". Here again, she has made an extremely
timely and wise statement. In hindsight, she would now agree that, had
she applied this advice to herself, she would not have greedily enjoyed
and availed herself of the lavish discount of Rs.1.6 million that was
granted to her when she purchased an apartment at the Trillium
Residencies.
By accepting this favour while hearing the case, it is clear that she
has comprised herself fully and that in her own wise words, she had not
been able to uphold the independence of the judiciary as was required.
Therefore, it is highly unfortunate that Dr. Bandaranayake has not
practised what she is now preaching, and as a result, she stands
discredited and is no longer able to command the required degree of
confidence in her ability to serve as the Chief Justice.
In the face of the charges that have been levelled against her and
the misconduct that has been proved, it is pathetic to see her still
clutching on to office, like a drowning man clutching a straw. Her
selfish behaviour is hurting the country, both socially and
economically.
If she had any respect for her motherland, she would have, by now,
resigned without causing further pain to the country. However, her
current reckless conduct, which is obviously driven by political
considerations, confirms her unpatriotic attitude, and on that basis,
when she is unceremonially relegated to the dust-bin of history, she
will only have herself to blame. |