Moves to create rift between Legislature and Judiciary:

Foreign powers behind destabilisation attempts

by our Political Correspondent

What does the independence of the Judiciary mean? Does it mean that judges are super humans and could get away with anything they wish? Do they have immunity over the law of the land and go scot-free even if they conduct themselves in a manner that is unbecoming for those highly respected positions?

It won’t be a surprise if somebody gets such an impression, going by the way a few individuals in the Judiciary and legal profession have conducted themselves in recent times. While all of us continue to repose faith in the Judiciary and maintain our highest respect for judges, the conduct of a few individuals appear to have damaged the reputation of the Judiciary.

It is unfortunate that a few individuals in the Judiciary and the legal profession appear to have become agents of a well-knit international network which day-dreams of a regime change in Sri Lanka. Those who unsuccessfully tried their dirty tricks during the 2006-2009 battle against terrorism later rallied round these disgruntled elements at the 2010 Presidential election.

However, they failed in every attempt as the masses continued to repose faith on President Mahinda Rajapaksa and the UPFA Government. Hence, these local and international elements have been waiting for whatever that comes their way to get rid of a regime which does not dance to their whims and fancies. Hence, they tried to use the impeachment motion against Dr. Mrs. Shirani Bandaranayaka to try their dirty tricks once more. The slogan of the independence of the Judiciary gave them an attractive banner that could mislead some in the legal profession and the international community.

The recent wave of acts to destabilise the Courts system in the country and the move to create a rift between the Judiciary and the Legislature, appear to have been masterminded by a couple of foreign powers through their missions in Colombo. It is no secret that these foreign powers have been in direct liaison with local NGO operatives and so-called civil society activists, funding and otherwise assisting their destabilisation campaign.

A notorious local NGO agent, a lawyer at the forefront of the campaign to promote the current destabilisation effort through Hulftsdorp, at one time had booked scores of rooms in city hotels, to accommodate those participating in the sinister campaign.

Activists of some NGOs, who thrive on lavish foreign funding, and pro-LTTE Tamil Diaspora fronts have formed an alliance to unleash a sinister program to cause all-out civil unrest in the country, as the impeachment debate on Dr Mrs. Bandaranayaka took place in Parliament on Thursday and Friday.

Public agitation

It has now been discovered that these groups have reportedly unleashed their operations through local link-persons, to fan the flames of public agitation to achieve their objective. They are engaged in an exercise to destabilise the country by creating a rift between the Judiciary and the Legislature over the situation surrounding the impeachment of Dr, Mrs. Bandaranayaka.

These elements have launched many disinformation campaigns against the Government across the world, especially in the West. over the issue of impeachment. They have also been using their friendly media networks for this purpose. Two countries have been playing a keyrole behind the scenes and are using their NGOs to paint a dismal picture of Sri Lanka.

As Speaker Chamal Rajapaksa told Parliament last week, we don’t see any reason to postpone the debate on the Parliamentary Select Committee (PSC) report on the charges in the impeachment motion against Dr. Mrs. Bandaranayaka.

If the members of the PSC did not have adequate time to scrutinise the report, they could have raised it at the party leaders’ meeting, but none of them have done so.

The people are committed to protect Government representatives when they discharge their duties and responsibilities by the people properly. Hence, no force can deprive the people of their sovereign rights, nor can it be taken from them.

Various insidious forces have been trying anything and everything that comes their way in a determined effort to overthrow the Government. But the masses have been strongly backing the Government which has always given priority to the development of villages where more than 85 percent of the country’s population lives.

Regime change

Many local NGOs, operating under their international funding agent INGOs and LTTE proxies are involved in this mission for a regime change. At the same time, they are acutely aware that this Government could never be overthrown as far as the masses continue to support it. Hence, they are trying not only to change world opinion, but also the thinking of the masses.

The Government, led by President Rajapaksa, has taken many bold steps in bringing the dividends of development to the rural areas of the country. The Colombo centred development is now being experienced by those who live in remote villages as well. Hence, the masses continue to support the Government. That is where these international elements fear that they will have to wait for many many moons to change the regime which does not dance to the tune of the West.

As the Minister of Mass Media and Information Keheliya Rambukwella had pointed out, Dr. Mrs. Bandaranayaka should be held responsible for the loss of prestige and confidence in the Judiciary. Those who served the Judiciary for a long period, never did anything to tarnish the prestige and good name of the Judiciary. Even at the time the impeachment motion was brought against the then Chief Justice Neville Samarakoon, he resigned from his post, preserving the prestige of the post he held, and the Judiciary. In contrast, Dr. Mrs. Bandaranayaka made desperate attempts to hang on to the position without making any attempt to prove her innocence at the PSC.

As pointed out by Minister Rambukwella, the impeachment motion against Dr. Mrs. Bandaranayaka was seen as a problem of law and order from the beginning. Then the interested parties tried to turn it in to a conflict between the Judiciary and the Legislature. Finally, it turned out to be a totally political issue. No individual or group should be allowed to interfere with the current issue with political motives. Sarath Fonseka’s invitation to Dr. Mrs. Bandaranayaka to join him in active politics looks fishy.

Interested parties try to project a gloomy picture and show that the country’s legal system is at risk. That is far from the truth as this is just one case against an individual and the person accused happens to be the Chief Justice. She should never be allowed to go scot-free in the name of the independence of the Judiciary. This is something to do with the personal conduct of Dr. Mrs. Bandaranayaka which has nothing to do with the independence of the Judiciary.

A majority of Appeal Court judges too have written to the President of the Appeal Court, Justice S. Sri Skandarajah, squarely finding him to be at fault over the writ that was issued in quashing the PSC findings in application number 358/2012, made by the Chief Justice.

These judges had stated explicitly in the letter among other things, that the Judiciary cannot issue a writ on Parliament or other committee of Parliament. After making a lengthy critique of the judgment, these judges went to the extent of asking the Appeal Court President: “Don’t you think that the other judges of the Court of Appeal are of the view that you have brought disrepute to the Court of Appeal?”

It is a very strong indictment on the Court of Appeal President, and of course his ill-advised writ, purporting to quash PSC findings on the impeachment of the Chief Justice. In this context, the judges have said that court can ‘request’ Parliament to take some course of action, but cannot issue a writ - which is in the manner of an ‘order’.

They have explicitly stated in the letter that the head of the Appeal Court has erred, and the situation between the Judiciary and the Legislature now prevailing ‘could have been avoided’ had they been consulted.

They have also said that the usual Bench has been altered in the relevant court, and Justice Jayatilleke who normally sits on the Bench has surprisingly been dropped, and a vacation court date picked to make a hurried judgment.

Draft of judgment

They also say that the case was argued and decided on the same day, and though the normal practice is to give a draft of the judgment for other judges to consider, obviously this kind of discussion would not have been possible as the judgment was issued on the same day.

Though a reference to the Supreme Court (SC) on another case filed by a petitioner had been read out in court, no determination was made in this case, and the writers of the letter state that this was probably to preclude an appeal, so that the SC reference could be made use of as a precedent in the stated case where the writ was issued. Is this the independence of the Judiciary that the INGO and NGO agents talk about?

There had been impeachment motions even in the past and even against Sarath N. Silva. But those did not receive public interest. Those were solved at that level. The extraordinary fact that there had been a judicial procedure parallel to the Parliamentary procedure led to some confusion.

As former Chief Justice Sarath N. Silva has quite rightly pointed out, such confusion is not good for the country, the Judiciary and Parliament. Therefore, the public must be educated on the reality as NGO goons try to cover things up in their lust for foreign funding.

Under the 1948 Constitution, the Governor or the President had power to remove a Superior Court Judge once a resolution was passed. One more fact was added to this procedure under the 1978 Constitution - Article 107 of the Constitution. There are regulations as to how to conduct a parliamentary investigation on the charges.

According to Article 107 (3) of the 1978 Constitution, Parliament should compile a procedure to investigate on an impeachment. It can be done under a Law or Standing Orders. Parliament has a choice either to compile a Law or Standing Orders with regard to an impeachment procedure.

Standing Orders

When the impeachment motion against Neville Samarakoon was presented, it was understood that a Law or Standing Orders with regard to impeachment procedures were lacking. Then Parliament compiled Standing Orders in this regard in April 1984. This Standing Order has been operational for 30 years now since 1978.

The impeachment motions against Neville Samarakoon and three more Superior Court Judges were investigated under these Standing Orders. This is the present context.

The method to present an impeachment motion is set out in the Standing Orders. According to the Constitution, the impeachment motion should be signed by at least one third of the Members of Parliament. The charges should also be mentioned in it. This is a procedure basically to educate Parliament rather than making a complaint. They educate Parliament about the charges. Thereafter, the Speaker should direct the investigation to a Parliamentary Select Committee (PSC) according to the Standing Orders. Hence, there can’t be any exception for Dr. Mrs. Bandaranayaka.

There is no room for any interference by the Supreme Court in keeping with the Constitution. The interference of the Supreme Court was witnessed when the case was being heard before the Court of Appeal. No provisions have been given to the Court of Appeal in this regard. Under such circumstances, the Court of Appeal has to function in line with Article 140 of the Constitution. It has been vested with the powers to issue a Writ of Certiorari in such situations.

It is only the Legislature - the Parliament, that holds power to take disciplinary action against a judge in either the Supreme Court or the Court of Appeal - to either create a Law or form Standing Orders at this juncture as per Article 107/3. In 1984, Parliament worked with this discrepancy. For almost three decades, it was mentioned that only Standing Orders would be relevant to this. These Standing Orders were effective from then onwards.

During the PSC investigations, Dr. Mrs. Bandaranayaka was found guilty of charges one, four and five.

According to the Soulbery Constitution, the Superior Court Judges could have been removed even without an investigation. According to the 1972 and 1978 Constitutions, the judges of Superior Courts can only be removed by the order of the President after a motion was passed in Parliament. The Standing Order 78 was formulated when the impeachment motion against former Chief Justice Neville Samarakoon was presented.

The Constitution states in 107(3) “Parliament shall by Law or Standing Orders” proceed on such matter. The Supreme Court determination is not an interpretation, but a deletion of a phrase. Nobody, accept Parliament has the power to remove phrases of a special article. Can the representatives elected by the people in the Legislature let the Supreme Court execute their powers? Minister Nimal Siripala de Silva told Parliament on Thursday that the Supreme Court has been misguided.

18th Amendment

Dr. Shirani Bandaranayaka was a member of the panel of judges who gave assent to the 18th Amendment to the Constitution. According to the 18th Amendment, when there is no provision in the Constitution, the President can remove a Superior Court Judge. So the people who argue that Standing Order 78 is not law, must remember that the President alone can remove the Chief Justice under the powers of the 18th Amendment. However, President Rajapaksa went a step ahead to make the impeachment procedure more transparent and was not ready for such a move.

The Parliament is bound by the order of former Speaker Anura Bandaranaike. After analysing Court Orders of the UK, he decided that notices or Stay Orders cannot be issued against the proceedings of Parliament.

In the USA, an inquiry is held by the Senate and then a person is removed from the post. In the UK, just a motion is required, no inquiry or witnesses. If this system is fair to be followed in powerful Western countries, how does it become unfair for Sri Lanka? It is all concocted stories dished out by INGO agents and the LTTE rump that are doing the rounds to create a different theory for Sri Lanka.

There is no doubt whatsoever that the PSC worked clearly under the Standing Orders. There were many charges. One is the Trillium deal. Justice Shirani Thilakawardena gave a statement to the PSC on the conduct of Dr. Mrs. Bandaranayaka during this matter. For three years, the case against Ceylinco Group subsidiary Trillium Residences had been proceeded under Justice Thilakwardena and they formulated a creative legal procedure in this regard.

But Dr. Mrs. Bandaranayaka, who had been given a discount of Rs. 1.6 million when purchasing a luxury apartment from Trillium Residences, took over its hearing. Isn’t that a conflict of interest and improper conduct by Dr. Mrs. Bandaranayaka at a time Justice Thilakawardena had given an order that any asset belonging to Trillium cannot be sold without the permission of the Court?

However, being acutely aware of that Court decision, Dr. Mrs. Bandaranayaka had purchased an apartment for her sister under her power-of-attorney after negotiating with Janaka Ratnayake for a discount of Rs. 1.6 million. Why had Dr. Mrs. Bandaranayaka taken over a case with regard to a matter she had an interest in?

She had not sent the annual declaration of assets and liabilities for several years. She should have behaved more responsibly. Moreover, her husband is a suspect in relating to legal action and the Commission to Investigate into Allegations of Bribery and Corruption has inquired into this matter. The law should be applied properly. It is not ethical for her to hold the position anymore, considering the charges of misbehaviour of her husband.

Relevant documents

The relevant documents pertaining to all 14 charges were received by the PSC. After considering them, the PSC has announced its opinion on the charges 1-5 as well as 6-14. She could have faced even greater problems had the PSC investigated all charges. Many more facts would have come to light then.

Who has the power to remove judges of the Superior Courts? The constant practice all over the world is to rest this power to the Legislature. In the USA, the Senate has the power to do so and in the UK, the House of Lords has the power. The practice in this regard is to vest this power to the legislative organ of the country. However, Sri Lanka, violating the accepted norms, issued a Writ of Certiorari.

One has to consider how flawed this controversial judgment was. The Constitution states “Parliament shall by Law or Standing Orders”. There is a clear option for Parliament. Twenty nine years ago, in 1984, the Parliament of Sri Lanka in its wisdom decided ‘not Legislation but Standing Orders.’ In the Supreme Court determination, it stated “Parliament should act only by law and by law alone”. How can this be clarified according to 107(3) of the Constitution?

There is clear difference between interpretation and legislation. An interpretation does not go as far as to delete or expunge a word used in the Constitution or any statute. The Court has to recognise that there are two options. The Court cannot exclude one option. The Court cannot rewrite the law. The law-making function cannot be executed by the Judiciary. It is the power given to Parliament.

Now that the impeachment motion against Chief Justice Dr. Mrs. Bandaranayaka has been passed in Parliament with a two-third majority, with 155 MPs voting for the motion and 49 against, she will soon be removed. Her conduct not only added a black mark to Sri Lanka’s Judiciary. She should, at least, at this very late stage, realise that her imminent impeachment from the post of Chief Justice was taken merely because of her conduct that is unbecoming for a person holding such a highly respected position.