By Elmore Perera –

Elmore Perera

Much prominence has been given in the Island Newspaper of 2^nd February 2013 to a statement issued by Dr. A.C. Aggarwala as Chairman, All India Bar Association (purportedly as an ICJ Statement), under the title “Int’l Council of Jurists backs new CJ”

In regard to the purported impeachment of Chief Justice Ms. Shirani Bandaranayake by the Sri Lankan Government, the statement says, “The questions are (i) whether the Constitutional requirements of impeachment have been followed by Sri Lankan Government, and (ii) whether the Sri Lankan Constitutional requirements of impeachment are appropriate when comparing with other important countries.”

With due respect for the reputation for objectivity of the ICJ, and indeed of the All India Bar Association, the one and only relevant question is “whether the purported impeachment is a culmination of due process prescribed explicitly or implicitly, at that point in time, in the Sri Lankan Constitution”. The question whether the Sri Lankan Constitutional requirements of impeachment are appropriate or not when compared with other important countries would certainly have been relevant at the time the  relevant requirements were provided for in the Sri Lankan Constitution. However, at this juncture that question is nothing more than merely a ‘red herring’.

The relevant ICJ statement refers only to Article 107(2) of the Constitution which has been quoted in full. Not even an oblique reference has been made to any other provision in the Constitution, in any law, or even in any Standing Order. In particular, no reference whatsoever has been made to Art. 107(3) which states “Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity, and the right of such judge to appear and to be heard in person or by representative”.

Relying exclusively on unspecified “news reports” Dr. Aggarwala affirms that “the Chief Justice faced an 11-member Parliamentary Committee in November 2012 which investigated 14 charges of financial and official misconduct against her. She was found guilty of professional Misconduct the following month. Charges against the Chief Justice include improper conduct, amassing wealth and property, and non-declaration of assets. As the Constitution puts it, Misconduct is a ground for impeachment. The requirement under the Sri Lankan Constitution has been fulfilled and supplemented by a report of the Parliamentary Committee. Thus it is clear that the Constitutional process of impeachment has been followed in Sri Lanka”.

Several other paragraphs are devoted to generalised references to the procedure for removal of Judges in Australia, Kenya, Singapore and Bangladesh. As stated above, these are entirely irrelevant to the one question at issue now.

Having made the seemingly authoritative assertions aforementioned, the statement concludes with a clear assertion exonerating the government of any wrong doing whatsoever in the matter of the impeachment of the Chief Justice by saying “In this situation, we take this opportunity to assure   that the Sri Lankan Government has not committed wrong in removing Chief Justice Ms. Shirani Bandaranayake as the removal proceedings were absolutely in accordance with the prevalent Sri Lankan laws. We are sorry to observe that some organisations are decrying the removal as they are, in fact, not aware of Sri Lankan laws. It is always better to know law first and then comment”. Sadly however, he himself does not seem in fact to know the relevant law, in making the said comments.

Article 125(1) states, “The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution”. and accordingly, whenever any question arises  such question shall forthwith be referred to the Supreme Court for determination.

Several Writ applications came up before the Court of Appeal  on 20^th November 2012 seeking to prohibit the 11-member Parliamentary Committee from continuing the purported investigation into the allegations of misbehaviour, on the  basis that doing so was a violation of Article 4(c).

The Court of Appeal in terms of Article 125(1) referred to the Supreme Court for interpretation, the following question. “Is it mandatory under Article 107(3) of the Constitution for the Parliament to provide for matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof, standard of proof, etc. of any alleged misbehaviour or incapacity, in addition to matters relating to the investigation of the alleged misbehaviour or incapacity”.

On 22^nd November the Supreme Court recommended to the Parliamentary Committee of 11, that “out of mutual respect and trust between the Parliament and the Judiciary”, they defer the inquiry until the Supreme Court determined the question of law interpreting Art. 107(3) of the Constitution referred to it by the Court of Appeal. This request was summarily rejected by the Parliamentary Committee and proceedings of the Committee commenced because the Chief Justice had, in good faith, appeared before the Committee on 23^rd November.

On 29^th  November, the Speaker ‘ruled’ that “he deems Court  notices irrelevant and that notices served on him and members of the Parliamentary Committee appointed by him have no effect whatever and are not recognised in any manner”.  Notwithstanding the shabby treatment she was subjected to on 23^rd November, the Chief Justice, in good faith appeared before the Committee briefly on 4^th December and on 6^th December at 2.30 p.m. She was neither provided with authenticated documents relating to the charges nor a list of witnesses, but she was continuously subjected to verbal abuse by several government members of the Committee. Her request to summon those who had submitted purported information re her bank accounts and asset declarations was overruled. A request that she be notified of the procedure to be followed at the investigation was denied. The Chairman stated unambiguously that no oral evidence would be led in support of the allegations and therefore she would not be permitted to cross-examine the witnesses making /supporting the allegations. It was clear that the Chief Justice was required to refute allegations that had not been supported by any evidence – a wholly unacceptable procedure. At about 4.30 p.m. a bundle of about 100 documents consisting of more than 1000 pages, was delivered to her and she was informed that the inquiry would commence on the 7^th December afternoon. All the submissions made on her behalf, including a request for adequate time to peruse the voluminous documentation just received, were summarily rejected by the Chairman. Stating that it was obvious that she would not get a fair trial by this Committee, the Chief Justice withdrew from the inquiry with her lawyers at about 5.30 p.m. on 6^th December 2012, reiterating her willingness to appear before any impartial and lawful tribunal to vindicate herself, and that she would continue her efforts to safeguard the independence of the Judiciary – the heritage of the Sovereign people.

At about 5.30 p.m. on 7^th December the four Opposition members of the Committee withdrew from the proceedings of the Committee having  addressed a letter to the Speaker stating inter alia that whereas it was the duty of the Committee to maintain the highest standards of fairness in conducting this inquiry, it was regrettable that  the Committee was ignoring salient provisions of the law and requirements of natural justice, the treatment meted out to the Chief Justice was insulting and intimidatory, the remarks made were clearly indicative of preconceived findings of guilt, the inquiry was not fair, a letter  submitted by them to the Chairman was rejected summarily, and therefore they were compelled to withdraw from the Committee.

Thereafter, the 7 Government Members of the Committee summoned 18 witnesses, recorded the exparte evidence of 16 witnesses who responded to the summons, analysed the evidence and wrote a 35 – page judgment quoting relevant case law therein, holding her to be guilty of 3 of the 14 charges, and compiled a comprehensive Report of more than 1500 pages. All this was done within the space of 14 hours between 5.30 p.m. on 7^th December, 2012 and 7.30 a.m  on 8^th December, 2012. Later on 8^th December, 2012, the Speaker  announced in Parliament that the Chief Justice had been found guilty of 3 charges.

On 11^th December, 2012 Judge Weeramantry, former Senior Vice-President of the International Court of Justice, resident in Sri Lanka and presumably well aware of the events taking place, commented on the principles of separation of Powers which rested upon the bedrock concept of the rule of law and stated that where the issues involved are as grave as the misconduct of the Chief Justice, such principles need to be applied with the greatest strictness possible, ensuring basic safeguards.  He concluded that unless all those principles were observed in the inquiry, there would be profound damage to the independence of the judiciary with a resulting undermining of the Rule of Law and Democracy itself.

On 1^st January 2013,the Supreme Court answered the aforementioned question referred to them as follows: “It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by law the matters relating to the forum before which the allegations are to be  proved, the mode of proof, burden of proof,  and the standard of proof of 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”.

Notwithstanding death threats received by the Judges, the Court of Appeal quashed the findings of guilt of the CJ, arrived at by the Parliamentary Committee.

However, the Chief Justice was unlawfully ousted from her residence and office and the legal adviser to the Cabinet was installed in her rightful place.

Former Chief Justice of India J.S.Verma was due to arrive in Sri Lanka on 1^st February 2013 as Head of the International Bar Association delegation consisting of distinguished Jurists including House of Lords member Baroness Usha Prashar. As reported in the Sunday Island of 3^rd February, this visit has been cancelled as Chief Justice Verma has been refused a visa.

Whereas the reasons for Dr. Aggarwala’s statement are rather obvious, the irrefutable fact is that the far reaching conclusions arrived at by him are obviously based on grossly erroneous reports of what has, in fact transpired here in Sri Lanka. It is near impossible to believe that the International Commission of Jurists would have issued such a statement without some kind of fact finding mission which would have become known to us, the Sovereign People. It is significant that Dr. A has not divulged his status, if any, in the ICJ, which entitled him to publicise this statement or at the very least revealed the date on which the ICJ had issued such statement.

We Sri Lankans are reputed to be a gullible lot – but hopefully we are all not so gullible as to fall hook, line and sinker for Dr. A’s preposterous conclusions!

 *Elmore Perera, Attorney-at-Law, Founder CIMOGG, Past President OPA