Despite similar action against two former Chief Justices:

Why the exception for Dr Mrs Bandaranayake?

by Our Political Correspondent

Do the senior most judges in the country, who do not come under the purview of the Judicial Services Commission (JSC), have immunity over any improper conduct that is unbecoming of such a highly respected position?

It is not wrong if one could get such an impression after last week’s Court of Appeal ruling on Chief Justice Dr. Mrs. Shirani Bandaranayake.

All judges other than those who serve in the Supreme Court and the Court of Appeal come under the purview of the JSC, which is empowered to take disciplinary action on all matters pertaining to their conduct. However, the JSC does not have any power to take similar action against the Chief Justice, Chairman of the Court of Appeal and the judges of the Supreme Court and the Court of Appeal.

Action against these senior most and highly respected persons in the Judiciary could only be taken through an impeachment motion in the country’s legislature - the Parliament. There is no other provision whatsoever in the Constitution to remove a judge of the Supreme Court and the Court of Appeal even if they conduct themselves in a manner that is unbecoming for a person holding such a high profile position.

Moreover, impeachments against senior-most judges in Sri Lanka and the world over are nothing new and there have been such several instances here.

There had been three impeachment motions against two previous Chief Justices and nobody made any hue and cry as those were action taken by the country’s supreme most Parliament, in keeping with the country’s Constitution. Neither the Supreme Court nor the Court of Appeal had given any ruling against those previous moves and declared that those moves were unconstitutional.

Then, how come a different interpretation was dished out when it came to Dr. Mrs. Bandaranayake, who happens to be the incumbent Chief Justice? Her predecessor, Sarath N. Silva has said that bringing an impeachment motion against a judge in the Supreme Court or the Court of Appeal is a provision granted to the Legislature by the Constitution. Can there be any exception for Dr. Mrs. Bandaranayake under the same Constitution, under which there had been three impeachment motions against two previous Chief Justices - CJ Neville Samarakoon and Sarath N. Silva?

While paying our highest respect to the Judiciary and all judges, including those who serve in the Supreme Court and the Court of Appeal, we wish to know whether there could be an exception for an individual.

It is a public secret that there are enough and more reasons to bring an impeachment motion against Dr. Mrs. Bandaranayake and that she should not be allowed to go scot free, unless she had proved her innocence before a Parliamentary Select Committee (PSC). How ethical is it for her to seek other means to get out of the situation rather than proving her innocence before the PSC? Stating that she does not have faith in the PSC and evading the proceedings is definitely a bad precedent. What if an accused in a case before her acts in a similar manner?

Last week’s Supreme Court order to the effect that a Parliament-appointed PSC cannot investigate the impeachment charges against Dr. Mrs. Bandaranayake, on page 26 states that ‘the Constitution shall provide by law’ (the method of investigation of the impeachment motion). But the Constitution in fact says ‘by law or Standing Order.’

The Supreme Court may have falsified/omitted the relevant part of the Constitutional Clause in giving this judgment - and left out the relevant vital part of the constitutional document, which says ‘by law OR Standing Order.’

The entire gist of the Supreme Court judgment is that the Parliamentary Select Committee cannot investigate impeachment charges against Dr. Mrs. Bandaranayake, as it has been created by Standing Order.

However, the Constitution does say clearly – ‘by law or Standing Order’, whereas quoting the same constitutional article, the Supreme Court judgment says ‘by law’ omitting the part ‘or Standing Order.’

Mode of proof

The SC order states: “It is mandatory under Article 107 (3) of the Constitution for Parliament to provide by law, the matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof and the standard of proof on any alleged misbehaviour or incapacity and the judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity.’

However, the same cited Constitutional article 107 (3) in fact states “Parliament by law or Standing Orders provides for all matters relating to the forum before which the allegations are to be proved, the mode of proof, the burden of proof and the standard of proof an any alleged misbehaviour or incapacity and the judge’s right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity.”

It is clear therefore that the Supreme Court order has been made, omitting the key part of the Constitution that states that Standing Orders is one way of creating a body to investigate impeachment charges against the Chief Justice. In fact, the entire order therefore is in gross error, and has falsified/omitted the relevant Constitutional clause. The order acknowledges that the removal of judges is a power vested with the President.

We continue to repose faith in the Judiciary with the utmost respect to all judges, but at the same time, every citizen has a right to question unconstitutional moves. Let’s have a closer look at the case of Dr. Mrs. Bandaranayake.

Her husband, Pradeep Kariyawasam was allegedly in the habit of withdrawing money worth Rs 25 million from the National Savings Bank of which he was the Chairman. He used to invest these State funds in the share market and the profit derived from the investment was credited to his personal bank accounts for sometime, according to Public Relations and Public Affairs Minister Mervyn Silva.

Shouldn’t any action be taken against Dr. Bandaranayake for transferring the magistrate who was to hear the bribery and corruption case against her husband? The Minister said she cannot hold the post of the Judicial Services Commission Chairman when charges were framed against her husband under the Bribery and Corruption Act.

“Chief Justice Shirani Bandaranayake tried to cover up her misdeeds, initially by appearing before the Parliamentary Select Committee (PSC) for three days, and she walked out of the PSC abruptly as she was convinced that the charges against her are on the verge of being proved by the Committee,” he said.

Addressing a press conference at his office last week, Minister Silva said the lawyers who appeared on behalf of her in the PSC should have advised her that she should not appear before the PSC at the very outset.

When she realised that the serious charges against her are on the verge of being proven by the Committee with a number of persons including her colleagues giving evidence over her misconduct, her lawyers advised her not to appear before it, the Minister said. Minister Silva asked as to why they did not face the PSC investigation.

“She failed to file objections over the first, second and third charges of the impeachment motion.”

Minister Silva said there was no clash between the Judiciary, Legislature or the Executive and the appointment of the PSC was purely under the 1978 Constitution. He was of the view that the lawyers and the justices know what the truth is. Minister Silva said they were ready to take a decision over the post of Chief Justice by January 8. The Minister said she should step down from her post with dignity or should be removed soon.

“Nobody should be allowed to play truant in the country which was freed from the clutches of terrorists.” He said the country which was saved by the Security Forces with the blessings of the Maha Sangha cannot be allowed to be reigned by extortionists or corrupt individuals. “None can be allowed to snatch the democratic rights of the people,” the Minister said.

Magistrate’s Court

“She has been empowered to inspect the dossier with regard to the case which was being heard against her husband in the Magistrate’s Court while holding the post of Judicial Services Commission Chairman,” he said.

The Minister queried as to how justice can be expected from her under such a situation. He said none of the Justices in the Bench has written the judgment. “The Chief Justice must have given advice to write this judgment,” he said. Minister Silva said she played a political drama in the Supreme Court premises with the support of lawyers who stood against the country when the Security Forces were fighting one of the most ruthless terrorist outfits in the world.

He said the LTTE diaspora is providing funds to these lawyers for raising their voice for the embattled Chief Justice. The Minister said the Chief Justice has a separate gate to come and leave the Supreme Court premises and she has to use her official vehicle.

Minister Silva said she left for Parliament to give evidence before the PSC with much fanfare. “It was a political drama. It was like a candidate leaving his residence to hand over nomination papers for an election with the rousing support of party members,” he said. The Minister said she left the Supreme Court complex from the back door and used the vehicle offered by Neelakandan and Neelakandan Law Firm .

Minister Silva said the Chief Justice is not in a position to forget the lawyers and colleagues who dashed coconuts and shouted slogans on her behalf. “It was the first time in the history of the Judiciary that the post of Chief Justice was auctioned,” he said.

Vicious elements

Sabaragamuwa University Chancellor Ven. Prof. Kamburugamuwe Vajira Thera said the Chief Justice should be ashamed of her conduct while holding the top most post in the Judiciary. The Thera said the case filed by her was by a Bench appointed by her and the judgement was also issued with her approval.

He said she should step down from the post without falling prey to vicious elements who are conspiring against the country, until the investigation against her is complete. “She should have informed Parliament that the appointment of the Parliamentary Select Committee (PSC) to conduct investigations over the charges in the impeachment is illegal at the very outset,” he said.

The Thera said the Chief Justice instead of informing Parliament that the appointment of the PSC was illegal, appeared before it for three days with her lawyers. He said the Chief Justice has understood that the charges against her are on the verge of being proven by the PSC and therefore walked out of it abruptly. The Thera said she had more room to prove her innocence.

He said only one lawyer is allowed to represent her before the PSC, but three lawyers had accompanied her.

As Cabinet Spokesman and Mass Media and Information Minister Keheliya Rambukwella has explained, no legislator will comment on the Court of Appeal’s verdict on the Parliamentary Select Committee whereas Speaker Chamal Rajapaksa will announce the Parliament’s stand on the matter on January 8 when the House resumes for the New Year.

The Speaker himself is a judge in Parliament and he is the only individual who is empowered and capable of commenting on the legality of this verdict. Members of the Parliament still stand by the Speaker’s recent announcement which challenged the Supreme Court’s order, stating that Parliament was bestowed supremacy over the Judiciary.

“There were occasions where Parliament did not accept the verdicts of the courts as outlined in the former Speaker Anura Bandaranaike’s ruling as much as Speaker Chamal Rajapaksa’s recent ruling”, he said. Both Speakers set aside some court orders which challenged the supremacy of Parliament, he said. “We should take into consideration that the Speaker himself has enormous powers as per the Constitution over internal matters and all proceedings of Parliament.

“As the impeachment case is being probed and the motion is still in Parliament, the final decision will be declared by the Speaker on January 8. Nobody would like to comment on this verdict without studying it. We should study the verdict first before commenting on this. We received the verdict today and we should have time to study this before commenting”, he said. Responding to the media, he pointed out that nobody can engage in active politics while holding judicial office. “We believe that every citizen in the country has the right to engage in politics, but not when they wear cloaks of unbiased innocence”.

When a question was raised about the ethical side of the process, the Minister said around 9,000 Golden Key depositors have come forward without any provocation, seeking justice and pointing fingers at the culprits in the Judiciary. “That explains the ethical side of this case, “he said.

As Deputy Speaker Chandima Weerakkody has quite rightly stated, no third party can question the affairs of Parliament. No institution, other than the Legislature, has been vested power in relation to the removal of Supreme Court Justices including the Chief Justice under the Constitution.

Weerakkody said former Speaker Anura Bandaranaike ruled that the Legislature is supreme and incumbent Speaker Chamal Rajapaksa gave a ruling on the same lines when notices were issued by the Supreme Court. He insisted that the same ruling will be applicable to the Court of Appeal Order too, the Deputy Speaker said.

Conducted investigations

“Speaker Chamal Rajapaksa’s ruling is applicable in all affairs in Parliament in the future too,” he said. He said the Parliamentary Select Committee (PSC) conducted investigations into the charges by a group of Parliamentarians against the incumbent Chief Justice under Section 107 of the Constitution.

Weerakkody said the PSC has not taken any decision over the removal of the Chief Justice nor has she been convicted of the impeachment charges. He said Parliament will have to take a decision over this report. “The final decision regarding the PSC report is taken by Parliament,” Weerakkody said.

He said party leaders can decide the dates of debate over the PSC report after January 8. Weerakkody said Parliamentarians can debate the PSC report. “If a majority of legislators decide that the incumbent Chief Justice has to be removed, the Speaker will refer the view of the majority to the President for action.”

He said the Judiciary has not been involved in any matter coming under the purview of the legislature in England and the United Nations is also following the same procedure. The Deputy Speaker said Parliamentarians and Parliamentary staff should take prior approval from the Speaker to appear before Court or any institution over the affairs of the Parliament.

He said if any Member of Parliament had given evidence before the Court of Appeal last week, Parliament could have taken action against them. Weerakkody was of the view that their conduct can be called into question in Parliament. He said Parliament can also take action against them over contempt of Parliament.

Parliament has exercised the people’s power vested in it by the Constitution in entertaining the impeachment motion against Dr. Mrs. Bandaranayake, according to Justice Minister Dilan Perera. He said impeachment is the only means of acting against the misconduct of a Chief Justice. That power is vested in Parliament under Section 107 of the Constitution.

Time frame

Minister Pavithra Wanniarachchi said the impeachment was taken up by Parliament no sooner Parliament was made aware that the Chief Justice was liable for various acts of misconduct that were not in keeping with the high office she held at the apex of the Judiciary.

Minister Perera refuted allegations by various segments including the Opposition that the CJ was not given enough time to prepare her defence before the Parliamentary Select Committee. The Minister mentioned that the time frame has been clearly mentioned in the Standing Orders and they as members, cannot violate these guidelines.

The Standing Orders related to the impeachment were drafted during the UNP government under the direction of the then Prime Minister R. Premadasa. In terms of the Standing Orders, the PSC is given only one month to inquire into the allegations contained in an impeachment.

In accordance with the Constitution and the Standing Orders, an impeachment has to be inquired into within a given time frame and cannot be dragged on. However, the CJ was given 22 days out of 30 days to respond to the charges before the PSC. The CJ, although maintaining there was insufficient time, made representations twice before walking out of the proceedings. On the first occasion, she addressed the media through her lawyers before she faced the PSC, but she requested more time to answer the charges. Minister Perera observed that 22 days was a reasonable time for the CJ to respond. He said no one who signed the impeachment motion was a member of the PSC. He flatly rejected allegations of the Opposition that the persons who tabled the impeachment were inquiring into the charges.

As a member of the PSC, he would categorically state that no member acted in any way disrespectful of the Chief Justice. “All the time, everyone acted in a respectful manner considering the high office she held”.

The Minister further added that Dr. Mrs. Bandaranayake was treated as a VVIP when she arrived in Parliament. She entered Parliament through an entrance reserved only for VVIPs such as the President and foreign leaders.

Minister Wanniarachchi said the impeachment procedure was conducted and carried out 100 percent constitutionally. The Government is duty bound to protect and safeguard the constitutional rights of the Legislature.

Be it the Executive, Legislature or the Judiciary, all of them should keep one thing in mind while respecting the Constitution - that the people’s power is supreme and is the ultimate decider. The Judiciary does not have super powers to undermine the power of the people who elect the Members of the Legislature! Even if the Executive President, directly elected by the people, could be impeached through a motion in Parliament, we see no reason as to why an exception should be given to Judiciary-appointed positions.