Do those who oppose, approve improper conduct?:

They should take a closer look at the seriousness of charges:

Impeachment procedure, constitutional right of Legislature

by our Political Correspondent

International organisations, certain countries and their Colombo-based senior diplomats must take a closer look at the seriousness of the charges for which Dr. Mrs. Shirani Bandaranayake had been found guilty.

Instead of making their own statements based on misleading campaigns carried out by a handful of lawyers who thrive on INGO funding and bankrupt Opposition politicians who cannot win the confidence of the masses, the countries and international organisations which issue statements on the recent impeachment of Dr. Mrs. Bandaranayake must evaluate the circumstances that led to her removal and the Constitutional process that had been adopted.

Undesirable elements, both local and international, who day-dream of a regime change in Sri Lanka, are still trying to put their agendas in motion under the guise of the independence of the Judiciary. They are making a desperate attempt to project a gloomy picture by alleging that the independence of the country’s Judiciary is at stake.

The impeachment of Dr. Mrs. Bandaranayake was a constitutional move and moreover, a constitutional right of the Members of Parliament. It was not against the Judiciary and does not in any way challenge or disrespect other judges.

When a judge of the Supreme Court or Court of Appeal acts in a manner which is unbecoming of the highly respected Judiciary, bringing in an impeachment motion is the only constitutional way to deal with such a person. Hence, there is no doubt whatsoever that the PSC, which probed the charges against Dr. Mrs. Bandaranayake, was well within the constitutional right of the Legislature.

Certain bankrupt Opposition politicians and INGO goons who are funding them are still working round-the-clock to exploit the situation further and project a dismal picture before the international community.

In contrast, the Leader of the Opposition, Ranil Wickremesinghe has set an example by declaring that the impeachment motion hearing should be confined to Parliament. Organising protest campaigns against the impeachment motion in and around the Supreme Court complex set a bad precedent.

It is needless to state that an impeachment motion against a chief justice is a constitutional right of the members in the Legislature who are elected by the masses as their representatives.

Since Dr. Mrs. Bandaranayake had conducted herself in a manner which is not in keeping with the most respected position in the Judiciary, she was impeached. All those who issue statements in her defence must think twice whether they approve of her serious acts that are unbecoming for a person holding such a high profile position. Do they approve the improper conduct of Dr. Mrs. Bandaranayake?

The Parliamentary Select Committee (PSC), having examined the verbal and written evidence against the then Chief Justice, Dr. Mrs. Shirani Bandaranayake found her guilty of charges 1, 4 and 5 on December 8, 2012.

The PSC did not find her guilty of charges 2 and 3 due to lack of sufficient evidence.

The Committee had further decided that in view of the very grave nature of the charges 1, 4 and 5, it will be a futile exercise to seek evidence to convict her on charges 2 and 3.

The Committee concluded that charges 1, 4 and 5 have been proved and the serious nature of the charges warrant the dismissal of Dr. Mrs. Bandaranayake from the post of Chief Justice.

The charges levelled against Dr. Mrs. Bandaranayake include over 20 undeclared bank accounts in the assets and liabilities, taking over the Ceylinco case heard by another Bench, buying an apartment from the company on Ceylinco Attorney papers, undeclared foreign currency deposits to the tune of Rs. 34 million and Rs 19,362,500 in undisclosed funds.

Found guilty

Following are the charges for which Dr. Shirani Bandaranayake was found guilty:

“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;

4. Whereas, 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. Whereas, Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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; Whereas, the post of Chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the said Court which is due to hear the aforesaid bribery or corruption case is held by the said (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake as per Article 111D (2) of the Constitution;

Whereas, the powers to examine the judicial records, registers and other documents maintained by the aforesaid Court are vested with the said Hon. (Dr.)(Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake under Article 111H (3) by virtue of being the Chairperson of the Judicial Service Commission;

Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake in the aforesaid manner, and 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”.

Financial impropriety

In the face of denials by Dr. Mrs. Bandaranayake, with regard to allegations of financial impropriety in the impeachment motion, there were more accounts than the 19 undeclared financial accounts referred to in the impeachment motion.

Though it was too late to include the details of these additional accounts in the motion, the fresh revelations would be pertinent in any impeachment hearing and could give the lie to the former Chief Justice’s position that ‘there may have been some inoperative accounts.’

In a letter sent through her lawyers, they say in the defence of Dr. Mrs. Bandaranayake that, “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 sources say that it seems quite astounding that she did not know of accounts in various banks, of which now it appears, there are well more than the said 20 in the impeachment papers.

Have another microscopic look at the serious allegations that were against her!

Undeclared Rs. 34 million in foreign currency deposited at NDB Bank.

Twenty undeclared bank accounts maintained in various banks.

Questionable purchase of a house from Ceylinco Housing and Property which is a part of a case under her, with a cash discount of Rs. 1.6 million.

Questionable appointment of Judicial Service Commission Secretary ignoring seniors.

Meddling with the Bench in bribery and corruption case against husband. Improper financial transactions while holding office, withdrawing cash before the end of each financial year to evade taxation.

Unlawful accumulation of wealth (undeclared money in the bank accounts).

Other charges

The following are the other charges that were levelled against Dr. Mrs. Bandaranayake:

“2. Whereas, 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. Whereas, 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 Dharmapala Mawatha, Colombo 07 in accounts 106450013024, 101000046737, 100002001360 and 100001014772 during the period from 18 April 2011 to 27 March 2012;

6. Whereas, 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, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, with respect to the Supreme Court special ruling Nos. 2/2012 and 3/2012 the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake 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. Whereas, Article 121(1) of the Constitution has been violated by the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, 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 Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, 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 Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, 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 Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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 Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake owing to which the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake has harassed the said Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi;

12. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala 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;”

Unbecoming conduct

By acting in the aforesaid manner,-

(i) whereas it amounts to improper conduct or conduct unbecoming of a person holding the office of the Chief Justice;

(ii) whereas she had been involved in matters that could amount to causes of action or controversial matters,

(iii) whereas she had influenced the process of delivery of justice,

(iv) whereas there can be reasons for litigants to raise accusations of partiality/impartiality, she has plunged the entire Supreme Court and specially the office of the Chief Justice into disrepute.

Dr. Mrs. Bandaranayake was impeached according to the country’s Constitution and moreover, more than two-third majority in the Parliament was obtained though only a simple majority was needed for such action.

All those who talk big on the rule of law and social justice must talk to their conscience and take a decision on their conduct. Do the handful of ambassadors who had issued statements against the impeachment approve such corrupt judges in their countries?

What the impeachment had done was to eject a corrupt judge to protect the independence of the Judiciary. How could a judge hear a case against a company from which she had obtained a Rs. 1.6 million cash discount when purchasing a luxury apartment? Could victims of such a company, which had swallowed deposits to the tune of billions of rupees, expect a fair verdict from a judge who had taken personal favours from that company?