No one is above the law

Certain Opposition politicians and some local and foreign non-governmental organisations are making a subtle attempt to paint a different picture on the impeachment motion signed by 117 Parliamentarians to remove Chief Justice, Dr. (Mrs.) Shirani Bandaranayake from office.

The impeachment motion, the fourth in Sri Lanka’s history, was included in the Order Paper of Parliament on Wednesday. Although certain politicians in the United National Party (UNP) are trying insidiously to give a political twist and gain petty political mileage, it was the UNP which had brought all three impeachment motions against earlier Chief Justices - twice against CJ Bandaranayake’s predecessor Sarath Nanda Silva and one against Neville Samarakoon. Several Parliamentarians of the Janatha Vimukthi Peramuna (JVP) had been among the signatories to the last impeachment motion.

Some JVP and UNP politicians who shout from the rooftops ignore the fact that they too had been instrumental in two previous impeachment attempts against two Chief Justices. In so doing, they are attempting to send wrong signals to the international community to gain petty political advantage.

The impeachment motion is within the ambit of Sri Lanka’s Constitution and more importantly, 14 impeachable offences have been levelled against the Chief Justice. The allegations are of an extremely serious nature, including financial irregularities. Among them are maintaining over 20 bank accounts - not declared in the declaration of assets and liabilities, taking over the Ceylinco case heard by another Bench and buying a luxury apartment on power-of-attorney papers, undeclared foreign currency deposits to the tune of Rs. 34 million, Rs. 19,362,500 in undisclosed funds and conduct unbecoming of a Chief Justice.

To add insult to injury, certain political opportunists are trying to project a gloomy picture by linking a constitutional move to impeach the Chief Justice on the charges with the independence of the Judiciary.

Former Chief Justice Sarath Nanda Silva has said that official discussions between the Executive and Judiciary should not be linked to the independence of the Judiciary. It is a bold statement and an eye-opener to one and all from CJ Bandaranayake’s predecessor.

The former Chief Justice has said that the Judiciary should honour summons from the Executive and that he had always complied when he was called by the Executive for a discussion during his tenure in office. He said that problems pertaining to the Judiciary and its development should be discussed with the Executive. Such meetings are not tied with the independence of the Judiciary. Discussing these matters with the Executive for the betterment of the Judiciary and the independence of the Judiciary are different subjects altogether.

The resolution in accordance with Article 107 (2) of the Constitution was for a Motion of Parliament to be presented to the President to remove Dr Mrs Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Arishumala Bandaranayake from the office of the Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka.

Among the charges are the Chief Justice’s failure to declare in the annual declaration of assets and liabilities that should be submitted by a judicial officer and the details of approximately Rs. 34 million in foreign currency deposited at the NDB Bank.

The motion states that the Chief Justice had also failed to declare the details of over 20 bank accounts maintained in various banks including nine accounts at the NDB Bank in the annual declaration of assets and liabilities that should be submitted by a judicial officer.

The motion also states that the Chief Justice had violated Article 111H of the Constitution in disregarding the seniority of judicial officers in executing her duties as the Chairperson of the Judicial Services Commission (JSC) by appointing Manjula Thilakaratne, who is not a senior judicial officer of the courts in the first instance, while there were more eligible officers.

These allegations are of a serious nature and the impeachment motion has been submitted in accordance with the Constitution. No one is above the law and everyone is duty-bound to honour and respect the Constitution. They do not have any immunity whatsoever.

Despite the provisions in Article 111H of the Constitution that the Secretary of the JSC shall be appointed from among the senior judicial officers of the courts, Dr. Bandaranayake, as the JSC Chairperson by virtue of being the Chief Justice, had violated Article 111H of the Constitution by disregarding the seniority of judicial officers in executing her duties.

Moreover, Chief Justice Bandaranayake had 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 notwithstanding the fact 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.

In view of the extreme seriousness of these allegations, the members of the Legislature have every right to take action. Parliament is the supreme most body that reflects the people’s power. Whatever said and done, the Members of Parliament are elected representatives of the people.

The Executive Presidency is said to be the most powerful tool that was created during the J.R. Jayewardene regime under the 1978 Constitution. Former President Jayewardene had once boldly declared that the only thing that the Executive President cannot do is to make a man a woman and vice versa. This statement alone is adequate proof to perceive the wide range of powers centred on the country’s Executive, directly elected by the people once in six years.

Nevertheless, a person elected to such a powerful position could also be impeached through a motion in Parliament. This is ample testimony that the country’s Legislature is the supreme most body, which could constitutionally impeach even the Executive or members of the Judiciary. Sri Lanka has reposed implicit faith in parliamentary democracy for many decades and none could take away that supreme power enjoyed by the country’s Legislature and its democratically elected members. The Executive President is also accountable for his actions.

If a democratically elected President of the country could be impeached though a motion in Parliament, one could see no reason as to why a member of the higher Judiciary could not be impeached in a similar manner.

Opposition politicians who shout to the high heavens over parliamentary democracy, accountability and the power of the masses should be thrilled that the country’s Legislature enjoys such sweeping powers over the Executive and the Judiciary. NGO activists and Opposition politicians, who allege that they do not enjoy five-star democracy, should feel elated over the powers of the country’s Legislature to put the Judiciary and the Executive on the right track, when necessary. Isn’t this a vital ingredient for a true democracy?

An impeachment motion is the only mechanism to take action against errant members of the higher judiciary and making them accountable for their conduct. As far as the Judges of the Supreme Court and Court of Appeal are concerned, it is the only mechanism by which they are held answerable to their conduct in office. When it comes to the minor Judiciary, the JSC, which is headed by the Chief Justice, has its own accountability and disciplinary procedure.

Hence, political opportunists should desist from attempting to give a narrow political twist to the impeachment motion against Chief Justice Dr. Bandaranayake.