By Dharisha Bastians –

Dharisha Bastians

On 18 May 2011, then 53-year-old Supreme Court Justice Shirani Bandaranayake clad in a maroon Kandyan saree and wearing a simple adornment of black pearls, took oaths as Sri Lanka’s first female Chief Justice before President Mahinda Rajapaksa. Her appointment came 15 years after she was appointed to the Supreme Court, blazing a trail then too, as the first female Justice of the country’s highest Court.

She is the senior most Judge of the Supreme Court of Sri Lanka and should serve as Chief Justice for 11 more years, potentially making her the longest serving CJ in the country’s history. But as the Judiciary goes to battle against the ruling administration, it is beginning to look as if Chief Justice Bandaranayake’s tenure may come to an abrupt and historic end.

In fact, while the island’s north east may have escaped cyclonic devastation, a political storm of epic proportions has been gathering steam since mid September and finally appears to be coming to a head.
On 4 October, about two weeks after the Judicial Services Commission through its Secretary Manjula Tillekaratne alleged interference with the Judiciary, and followed up with the warning that the lives of senior judicial officers were under threat, President Mahinda Rajapaksa hosted newspaper publishers and electronic media heads to breakfast at Temple Trees. A genial President told his guests that the Government had absolutely no problem with the Judiciary, but claimed his administration was investigating a sexual harassment charge against the JSC Secretary. Three days later, the JSC Secretary was pistol whipped in Mount Lavinia by a group of unidentified assailants operating in broad daylight.

Since then, tensions between the two arms of the state have grown steadily more intense and culminated in a Deputy Minister charging in a late night debate on television on Tuesday that the impeachment motion against Chief Justice Shirani Bandaranayake was ready to be handed over to the speaker. On Swarnavahini’s Rathu Ira programme, Deputy Minister of Education Vijithamuni Zoysa said he had been among the signatories to the motion.

According to the Government, it had a motion signed by 118 members of the 225-member legislature. For the Speaker of Parliament to entertain a motion of impeachment against a sitting Chief Justice, the motion must be signed by one third of the members of the House, as per the constitution. A motion of impeachment against the Chief Justice only needs to be passed by a simple majority in the House.

GL’s dilemma

Rajapaksa Administration officials involved in the drafting process included Presidential Advisor and former Attorney General Mohan Peiris and Bandaranayake’s immediate predecessor, Asoka De Silva who also serves as an advisor to President Rajapaksa. According to Government insiders, the motion was drafted under the supervision of Minister G.L. Peiris, who is a professor of constitutional law.

Ironically, Minister Peiris was also responsible for recommending Justice Bandaranayake’s appointment to the Supreme Court during the tenure of former President Chandrika Kumaratunga. Peiris is believed to have been one of Bandaranayake’s teachers at the University of Colombo’s Law Faculty, where she obtained her Bachelors’ Degree. Bandaranayake entered the University of Colombo after completing her Advanced Level examinations at Anuradhapura Central College. Her father’s career as a Government school principal resulted in an academic career that was scattered throughout many parts of the island, finally culminating in the North Central Province before she undertook legal studies in university in the capital.

It was a public secret that Peiris’ hand in Shirani Bandaranayake’s ascent to the position of Chief Justice, has resulted in some of the regime’s ire about her actions and judgments being directed towards the External Affairs Minister. At one point efforts were being made to use Minister Peiris’ good offices with the Chief Justice to bring her around to the administration’s way of thinking at the early stages of the conflict with the Judiciary.
Presidential Secretary Lalith Weeratunga is in constant touch with Minister Peiris regarding the draft impeachment motion, it is learnt. Sources close to Peiris say the senior Minister is perturbed about his role in the impeachment affair and as her former teacher and an admirer of her legal skill, does not agree on principle with the Government’s move to impeach Chief Justice Bandaranayake. However, Minister Peiris like many other members of the ruling regime, often feel compelled to sacrifice their principles in order to ensure they are not unceremoniously stripped of the titles they hold within the administration.

The climax

Pressure on the Chief Justice has been reaching a crescendo over the last few days as the Government gears up to face the Supreme Court ruling on whether the Northern Governor can endorse the Divi Neguma Bill on behalf of the un-constituted Northern Provincial Council. The case challenging the Northern Governor’s endorsement of this piece of proposed legislation much desired by the regime, was filed by the TNA in the Court of Appeal and referred for interpretation to the Supreme Court.

The Supreme Court was scheduled to deliver its ruling on the issue to the Speaker of Parliament yesterday (31). The Supreme Court, by a bench headed by the Chief Justice, scuttled Government plans to enact the Divi Neguma legislation once already, by demanding that the bill could be passed only if approval is obtained by all provincial councils. A furious Government in an unprecedented move, took to the streets over the SC ruling, with Senior Ministers including Basil Rajapaksa under whose Ministry the controversial Divi Neguma Department would function, joining in the protests outside parliament.

In case the Supreme Court’s ruling on the Governor also goes against the regime, President Rajapaksa and his Government were keen to have the impeachment motion against the Chief Justice all set and ready to go. In fact, analysts say the announcement of the motion on the eve of when the ruling on the Northern Governor was due, may have been an intimidation tactic on the part of the regime. The Government is fully expecting the Supreme Court ruling to go against them, with several Government sources almost certain the court would make it even more difficult to enact the Divi Neguma legislation.

The timing was telling therefore when last week, former NSB Chairman and husband of Chief Justice Bandaranayake, Pradeep Kariyawasam was indicted by the Colombo Fort Magistrate’s Court on corruption charges. The Bribery Commission moved with uncharacteristic speed on the controversial share purchase involving Kariyawasam, even as tensions grew between the Government of President Rajapaksa and the Judiciary headed by Kariyawasam’s spouse. With the impeachment motion now set to exert even more pressure on the Chief Justice, the Government could be hoping that the two issues combined would serve to temper the Supreme Court’s tough position on the Divi Neguma bill and the Northern Governor issue.

The Charges

The charges against the Chief Justice as laid out in the draft impeachment motion are based on Article 107 of the constitution pertaining to the removal of judges. The motion is to be moved on the basis of the “Chief Justice’s improper conduct”.

According to Article 107 (2 and 3) judges can be removed only on the grounds of “proved misbehaviour” or incapacity to perform their functions. The Article explicitly states that there must be proof and investigation of alleged misbehaviour and the judge in question has the right to appear and be heard. It is not yet clear what exact charges of the Chief Justice’s improper conduct have been cited in the draft impeachment motion, in fact Deputy Minister Zoysa claimed on television that he had simply signed the document but was not aware of the charges contained therein. However, analysts venture several guesses that the charges could pertain to (a) perceived bias if the case against Kariyawasam gathers momentum with his spouse heading the Judiciary and (b) the “unconstitutional” appointment of the JSC Secretary who is 30th in the seniority list of lower court judges.

On the other hand, the charges could have nothing to do with any of these issues and may be entirely based on the Government’s own investigations into her conduct, not revealed to the public thus far. However, according to senior lawyers, if the charges are those being speculated on, the Chief Justice stands on a relatively firm wicket. Minister G.L. Peiris charged last week that the JSC Secretary’s appointment was unconstitutional because he was not the most senior judge of the lower courts.

However, as per the appointment of the JSC Secretary, the constitution states as follows: “111G. There shall be a Secretary to the commission who shall be appointed by the Commission from among senior judicial officers of the Courts of First Instance”.

Appointment of the JSC secretary is the prerogative of the Chief Justice, who is ex-officio chairperson of the Commission. Legal experts contend that the constitution clearly says the secretary must be appointed from among ‘senior judicial officers of the courts of First Instance’ and does not stipulate that the ‘senior-most’ judicial officer of the courts of First Instance must be appointed JSC Secretary.

On the issue of Kariyawasam’s indictment, the question is whether Chief Justice Bandaranayake as the spouse of an offender can be held responsible and accused of ‘improper conduct’ on that front. Had she sought to influence or suspend legal proceedings initiated against her husband, the charge may have had more merit.

The Pakistani parallel

An interesting parallel in this regard is the case against Arsalan Iftikhar, son of Pakistan’s crusading Chief Justice Iftikhar Muhammad Chaudhry, in which notice has been issued by the CJ on his son and others involved in a controversial business deal before recusing himself from the case on the request of the attorney-general. Earlier, Chaudhry said that if the charges against his son were true, he would be penalised in accordance with the law. As long as the judicial process is not impeded by a sitting officer of the court whose kin is being prosecuted, legal experts say, a judge cannot be penalised for the actions of a third party.
If this impeachment motion is just another attempt by the Government to showcase its strength, the Judiciary is not biting. Yesterday Mount Lavinia Chief Magistrate Nirosha Fernando admonished the police over its failure to apprehend Manjula Tillekaratne’s assailants even three weeks after the attack took place. In a strong statement from the bench, the Magistrate urged the police to refrain from being intimidated and influenced on the issue and produce the attackers before the court without delay. Lawyers for Tillekaratne charged that the police were busy investigating the JSC Secretary’s personal life instead of working to arrest his assailants. Tillekaratne meanwhile is said to be somewhat subdued following the attack, telling reporters and friends that he did not wish to speak publicly about what happened to him on 7 October.

Backing by UPFA allies

The ruling administration has as usual, been able to command the complete acquiescence of its constituent allies, including the stalwarts of the old Left, Vasudeva Nanayakkara and others. The 118 signatories also include Sri Lanka Muslim Congress Leader Rauff Hakeem who opposed the proposed impeachment of former Chief Justice Sarath N. Silva during the UNF Government’s tenure in 2001-2004.

Like the enactment of the 18th Amendment to the constitution which fortified the dictatorial scope of the executive presidency and set the stage for innumerable undemocratic acts on the part of the incumbent regime, the impeachment motion against the Chief Justice also promises to be a harbinger of autocracy and further suppression of dissent. In Pakistan, the tussle between President Pervez Musharaff and the Chief Justice resulted in the removal of the executive, owing in large part to the popular support enjoyed by the Judiciary in that country. But in this case, with the Opposition still licking its wounds over certain judgments both during and before Shirani Bandaranayake’s time, the Judiciary cannot be assured of popular support.
As it stands now, the Rajapaksa Government is all set to impeach Sri Lanka’s first woman Chief Justice. The motion is to be handed over to Speaker Chamal Rajapaksa and tabled in parlaiement tomorrow (2). By this time, the Government would have had a chance to peruse the Supreme Court ruling on the Northern Governor that was scheduled to be delivered to the Speaker yesterday. Once ruling reaches the Office of the Speaker, he will decide when to make the ruling public by presenting it in parliament. The date 6 November is currently being bandied about within the administration but for the moment it is not clear when the SC’s determination on the issue will enter the public domain. If the ruling has gone against the Government and further thwarted its attempts to enact Divi Neguma, by the time the ruling is made public, chances are that impeachment proceedings would already have been constituted against Chief Justice Bandaranayake.

Unlikely rebel

The fact of the matter is that Shirani Bandaranayake did not start out as a rebel. Like Sarath N. Silva who altered Sri Lankan party democracy for all time with his ruling on political crossovers, Chief Justice Bandaranayake was at the helm of several highly controversial decisions, including the ruling on the constitutionality of the Expropriation Bill and the recognition of military tribunals as part of the country’s judicial system. Under her watch, the blatantly authoritarian 18th Amendment removing presidential term limits was enacted into law. When she decided to assert her independence more strongly remains a mystery, but some observers point to a certain meeting she had with senior lawyers last year, who appealed to her to save the judicial system from influence and ruin.

Others speculate that former President Kumaratunga may have had a hand in the strange turn of events, having appointed her to the Supreme Court bench. Either way, every person has a breaking point, and the Chief Justice reached hers some months ago, swiftly making an enemy of the administration that has grown accustomed to and thrived on a broken legal system. Things have come full circle and Bandaranayake earns the dubious title of being the first Chief Justice to be threatened with impeachment by the same administration that appointed her to that office. Chief Justice Neville Samarakoon fell out of favour with the Jayewardene administration in the 1980s, but the dispute was resolved before a motion was moved.

Chief Justice Shirani Bandaranayake has already created judicial history in Sri Lanka and she will always be remembered for her extraordinary achievement. All that remains to be seen now is whether her legacy will be one of eventual capitulation before the executive or if forced out office, she will exit unbowed and in a blaze of glory.

Courtesy Daily FT