By Ashan Nanayakkara –
A Review to “Hold Me in Contempt” written by 43rd Chief Justice of Sri Lanka – Dr. Shirani A. Bandaranayake: What is Written and What is Not written,
There is a German Proverb, i.e., “Where might is master; justice is Servant”. That was the order of the day during when the 43rd Chief Justice was sacked from her august seat.
Whereas, after 2015, despite bond scam, backwards Economic Growth, unsuccessful lawsuit against those who plundered public money in Rajapakse regime, controlling Public Officers to hunt down the foes of UNP, rise of Islamic Terrorism inward the country for the first time in history, tug-a-war between the Executive and the Legislature coupled with blame game; one organ of the Government boomed positively breaking by leaps and bounds. That is the Judiciary!
Having enjoyed the aforesaid luxury of Judicial Independence for nearly about 5-years, the writer encounters with the book named, උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය written by 43rd Chief Justice of Sri Lanka – Dr. Shirani A. Bandaranayake in his annual stopover to Book Fair opened at BMICH in last September. In a nutshell, this book is the emotional over flow controlled for prolong by Dr. Shirani A. Bandaranayake who was fired from the upper most post of the Judiciary in Sri Lanka during Mahinda Rajapaksa era, in most chastening manner.
At a glance, this book is absolutely finest of writing by one of the greatest of academician who received her scholastic eminence from University of Colombo and groomed at mecca of legal practitioners – the Supreme Court at Hulftsdorp. But, it is not inevitably mean that the Author of උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය has divulged all bits and pieces of her story. Some she had deliberately kept under the carpet; some, still, she is not heroic to pen down; some, she should have mentioned by the names of the perpetrators which she has dodged expecting them be again may come to power and she might again be harassed; some, she may indeed the bad boy. Hence, here an extensive analysis of loathsome impeachment saga which made against Dr. Shirani A. Bandaranayake, the first female Chief Justice of Sri Lanka, and writers add-on on what is not told by her in her book.
“MAY I CRITICISE? Some lawyers assert that no case in an appellate court can be said to be “wrongly decided.” It is the law, until reversed or departed from. This is a mere matter of words. Obviously, one can say that the case was badly decided, or poorly reasoned, or unfortunate in its outcome or inconsistent with other cases…” p 95 of Learning the Law (11th ed. 2011) This was the words of Sir Glanville Williams – the Professor of Jurisprudence of University of London who praised the right to academic criticism over the Appellate Court Judgments, sans any mala fide. Such erudite approach to law shall always enhance the legal spectrum and open new vistas in the subject area. Albeit, in the book, namely, උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය written by 43rd Chief Justice of Sri Lanka – Dr. Shirani A. Bandaranayake (hereinafter sometimes referred to as ‘the Author’) has no points of law; but Politics, or rather a personal misogyny that later had to face with during later part [emphasis added] of Mahinda Rajapaksa era (2012-2013). Thus, in the first place, it must be stated that there is nothing about law as it was said by Sir Glanville Williams to criticize in Shirani A. Bandaranayake’s book, but POLITICS, and POLITICS alone! Therefore, she shall not be held for CONTEMT despite the name of the English version of this book is “Hold me in Contempt”.
Former Chief Justice starts her writing with, to wit, “ජනාධිපතිතුමා මාගෙන් ඇහුවේ එකම එක ප්රශ්නයයි. අධිකරණ සේවා කොමිසමේ ලේකම් විදියට පත් කරන්නේ කවුද?… …මේ හැම දෙයක් ගැනම හිතලා මම ජනාධිපතිතුමාට කිව්වා, කොමිසමේ අනික් සාමාජිකයින් දෙන්නත් එක්ක සාකච්ඡා කරලා මුලින්ම වැඩ බලන පත්වීමක් කරන්ඩ අදහස් කරනවා කියලා. ඒ වගේම සාමාන්ය ක්රම වේදයේ විදියට, මට කලින් හිටපු අග විනිසුරුතුමා පත් කරපු, දැනට නියෝජ්ය ලේකම් විදියට වැඩ කරන මංජුල තිලකරත්නව බොහෝ දුරට වැඩ බලන ලේකම් විියට පත් කරන්ඩ සිදුවෙයි කියලත් මම කීවා. ජනාධිපතිතුමා පුපුරා හැලුණා…” (පිටු අංක 28-29)
The aforesaid discussion between the Author of උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය and the then President of Sri Lanka, abbreviates how much Hon. Mahinda Rajapakse was concerned about the appointments, removals, terminations etc. of the lower courts judges of Sri Lanka, during his spell. Author passes the innuendo that former President’s concern was not about the welfare of those judges; but to check what extent he can ranges his control over them.
Writer grasped following para in Her Ladyship’s book at page nos 69 and 70, viz,…”17 වෙනිදා උදේ මහේස්ත්රාත්වරයා සුපුරුදු විදියට උදේ උසාවියට එනකොට, මහේස්ත්රාත් වරයාට විරුද්ධව, මන්නාරම් උසාවි භූමිය ඇතුලේ සීයක විතර කණ්ඩායමක් පෝස්ටර් අල්ලාගෙන ඉඳලා. මහේස්ත්රාත්වරයා නිල මැදිරියට ගිය හැටියේම වාගේ දුරකථන ඇමතුමක් ලැබිලා. අනික් පැත්තෙන් කතා කරපු කෙනා තමන්ව අඳුන්වලා දීලා තියෙන්නේ ඇමති රිෂාඞ් බදියුදීන් විදියට. සැකකරුවන් අත් අඩංගුවට ගන්ඩ දීපු නියෝගය අවලංගු කරන්ඩ කියාල ඒ පුද්ගලයා මහේස්ත්රාත්ට කියලා… …උසාවියට ගල් පහර වදින අතර වාරේ, මහේස්ත්රාත් වරයාට දුරකථන ඇමතුවක් ඇවිත්. කතා කරුපු කෙනා අයෙත් පාරක් කියලා තියෙන්නේ කතා කරන්නේ ඇමති රිෂාඞ් බදියුදීන් කියලා. මීට කලින් දවසේ දීපු පණිවුඩය අයෙත් පාරක් මතක් කරලා තමන් දීපු උපදෙස් උඩ, ජූඞ්සන් කලින් දීපු නියෝගය ඉවත් කරන්න කියලා…” This incident was infamous during Rajapaksa date due to certain reasons. Firstly, after JR Jayewardene’s time, there was no incident of pelting stones at Judges. Secondly, this shows how much of a wrath a Minister of that Cabinet can unleash towards a judge of a first instance court unless they dance according to their tune. Besides, this was not the only case this Minster misused his powers. The aforesaid Minister – Rishad Bathiudeen, being the Minister of Resettlement was unkind to deforest one of the lavishly green area in Northwest coast lowland dry zone of Sri Lanka, the Wilpattu National Park under the blessings of another Rajapakse and the powers gained from the head of the country. The same Minister, now in Sajith Premadasa’s camp was very familiar in giving phone calls for the interests of criminals even in recent past when the Easter Bomb suspects were arrested the latter was alleged to have given a phone call to ex-Army Commander Mahesh Senanayake for Spice Mudlali – Mr. Ibrahim’s behalf.
Further, Author invites us to see the hypocrisy of the current Rajapaksas who are slinging mud towards whomever sail with the aforesaid Rishad Bathiudeen, whilst the latter was one time given permit to stone the house of justice and fall all the trees which were the heart of Wilpattu during their time.
In the page no. 80 of උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය, Author writes as follows: “..2012 අවුරුද්ද පටන් ගත්ත දවස්වල ඉඳලා, විශේෂයෙන්ම 2012 මාර්තු මාසෙන් පස්සේ, අධිකරණයට විවිධාකාර අපහාස එල්ල වෙමින් තිබුණේ. කිහිප වතාවක්ම, අධිකරණයේ ක්රියා පටිපාටිය ගැන විවේචනාත්මක විදියට පහර දෙමින් හිටිය, ආණ්ඩුවේ නාලිකාවක උදෑසන වැඩ සටහනක් ගැන පැමිණිලි අධිකරණ සේවා කොමිසමට ලැබෙමින් තිබුනා. ඒ ගුවන් විදුලි නාලිකාවෙන් විවේචනාත්මකව ඉදිරිපත් කරපු කරුණු සත්යයෙන් තොරයි. අධිකරණයට පහර දෙන්ඩ තෝරගෙන තිබුනේ ඉතාමත් පිළිකුල් සහගත ජුගුප්සා දනවන විදිහේ වචන මාලාවක්. හැමදාම උදේට මේ නිවේදකයා උත්සාහ කලේ අධිකරණය සම්ච්චල් සහගත තැනක් කියලා පෙන්නුම් කරන්ඩ..” If my memory serves me correct, the aforesaid Radio station was SLBC and the Presenter was one time R. Premadasa’s stooge – Hudson Smarasinghe. It is indeed a rag Radio Program. Sometimes, the Presenter talked violating all civilized norms for the sole purpose of pleasing the head of state. However, I am surprised that if the said words were so much libelous, why on earth, the then CJ – the Author did not take an action ex moro motu against that Radio Station nor the Radio Presenter himself. Author had no guts even to mention the name of the said Radio Station or the Radio Presenter in her book, is also eerie.
Author further tries to establish the overwhelming influence to the Judiciary by Rajapaksas in several other instances as well. One instance was where Head of the State wanted to meet the Chief Justice who was the head of Judicial Service Commission (JSC), alone; according to the Author, for the sole purpose of frightening her and take control of the Judiciary to the hands of then President. The Author had copied verbatim of 2-letters sent by the JSC to the Secretary to the President – Lalith Weeratunge rejecting the said meetings with the President as follows: “..උක්ත කරුණු සියල්ල කෙරෙහිම අවධානය යොමු කිරීමෙන් පසුව, 2012-09-17 දිනට යොදා ගෙන ඇති රැස්වීමට අධිකරණ සේවා කොමිසම සහභාගී වීම සුදුසු නොවන බව දන්වනු කැමැත්තෙමි…v පිටු අංක 80ී…ඉහත දක්වන ලද සියලුම කරුණු මත පදනම්ව, මෙම අවස්ථාවේදී, අති ගරු ජනාධිපතිතුමා සමඟ රැස්වීමකට සහභාගී වුවහොත්, අධිකරණයේ ස්වාධීනත්වයට හානිකර වන අයුරින් මහජන විශ්වාසය පන්දාදු වන ආකාරයේ අනවශ්ය තත්වයක් උද්ගත විය හැකි නිසා, එය සුදුසු නොවන බව ඔබට දැන්වීමට කැමැත්තෙමි…” පිටු අංක 89. Notwithstanding whatever the reason that the Author flatly rejected the aforesaid invitations, at least, the bravery shown by the Her Ladyship the Chief Justice is highly commendable. Let me narrate one incident which I elected from late Mr. S. L. Gunasekera’s Book – Lore of the Law and Other Memories, in which it was evident even during yester years how judges bowed down to some external pressure, that is to say, “…This is not something that occurred just the other day. I can recall how in, I believe, the mid-late 70s ‘Bunty’ De Zoyza was defending a lady Stenographer of the Attorney General’s Department on a charge of bribery where the case having been obviously ‘cooked up’ ‘Bunty’ ‘made hey’ with the witness. the Trial judge Vial Wickramsuriya had, according to ‘Bunty’, clearly indicated his mind that the accused should be acquitted, and ‘Bunty’ expected such an acquittal to come at the close for the case of the prosecution. When the prosecution was nearing its end, however, the then Briabary Commissioner Ian [Yakada Wiki] Wickramanayake is said to have been seen waliking out of the Judge’s Chambers, and shortly thereafter, the Judge had called ‘Bunty’ into Chambers and said ‘Bunty my heart bleeds; I must convict’. So taken aback was ‘Bunty’ by those words that he had been, perhaps for the first and last time in his life, at a loss for words, and walked out of Chambers in a fury. Legend has it that he never appeared or even spoke to that Judge again though he had been his close friend… p 189” In contrast, the courage shown by Shirani Bandaranayake should be highly admired. But, who knows whether she had mustered this platinum guts before 2012.
However, being failed to have a meeting and bring the Chief Justice in to Rajapaksa’s feet, then Head of the State went into a rage. Author had provided some further instances in her book how the then government tried to implement jungle law over the officers of courts including Chief Justice herself, as a result.
One time when Author flatly rejected to meet the President, and informed it via a letter which was signed by the Secretary to JSC, couple of days letter, the said Secretary of JSC was assaulted by some thugs (vide: page 89-91). Another instance was as the Author alleges, there was an attempt murder of the entire family members of the Shirani A. Bandaranayake, her husband and her only son at Kadugannawa on their way back to Colombo from Kandy by some unknown vehicle driver. These incidents were not random incidents during this time.
By analyzing the aforesaid instances, and as a person who passed through that time, it is not hard to conclude that during the tenure of Hon. Mahinda Rajapaksa, it was not a honeyed time to the Author herself and for the judiciary in Sri Lanka. There was a brazen intimidation towards the Judiciary reminding the times of President JR Jayewardena, himself an Advocate of the Supreme Court, and the son of a highly respected Judge of the Supreme Court, Justice EW Jayewardene, QC., one time justified stoning to judges as ‘the thugs who surrounded houses of those Judges and sought to intimidate them, that they were merely exercising their right to freedom of speech and expression’!
The aforesaid interferences to the judiciary came to its culmination in the impeachment saga, which is articulated from page no. 101 – Chapter 4 (ආරම්භය), from page no. 149 – Chapter 5 (විමර්ශනය), page no. 199 – Chapter 6 (ආනිසංසය), from page no. 217 – Chapter 7 (කූටප්රාප්තිය) in the book of උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය.
Impeaching a Chief Justice from his post is a constitutional and democratic process which has nothing wrong per se. It was the manner in which that the Author was axed out from the highest post of the judiciary made the Rajapakse regime notorious. By doing so, the entire Executive and more than 2/3 majority of members of the Legislature toiled hard night and day. That was the ugliest political exercise one can ever see. Compared to the torment given to Shirani A. Bandaranayake, there is nothing wrong, even if the Author curses on seven generations of Rajapakse and his collies due to the sadistic approach that they resorted to kick out the apex member of the Judiciary in Sri Lanka. The horrendous behavior of Rajapaksas and his goons who were the members of the Parliament select committee (of which Anura Priyadharshana Yapa, Nimal Siripala de Silva, Rajitha Senaratne, Wimal Weerawansa, Susil Premjayanth, Dilan Perera represented the Government) formed to give a trial at Hell for charges leveled against the Author.
There was no doodley-squat of fairness in the entire process of inquiry. Therefore, the opposition members called that “this was not an inquiry; it was an inquisition”. Those terrific instances have been demonstrated in her book as follows,…එදා උදේ මම පුංචි බොරැල්ල පහු කරලා, මරදාන පැත්තට එනකොට වචන දෙකක් ලියපු ලොකු බෝඞ් එකක් වහලේ ගහ ගත්තු ත්රී විල් පේළියක් මට මුණ ගැහුනා. ඒ අයත් මම යන පැත්තටමයි. ලියලා තිබුනේ ‘ලැජ්ජයි මැතිනියණි!’ කියලා. හරියටම හිටපු ගාන ගණන් කරන්ඩ බැරි වුනත් 150 කට වඩා වැඩි ත්රී විල් ප්රමාණයක් තියෙන්ඩ ඇත…
…අග විනිසුරුව අපහාසයට ලක් කෙරුණි. අදහස් පළ කිරීමේදී අංග චලනය සහ කථා විලාශය කිසිසේත්ම පිළිගත නොහැකිය. පාව්ච්චි කළ සමහර වචන පහත සඳහන් වේ. පිස්සු ගෑණී, අපි මේ නෝනව මෙතන තියාගෙන මඩවනවා, බබා – නෑ බබා හකුන්, උසාවයේ නාඩගම් නටනවා, මෙයාට ඇඩම්ලා ගොඩක් ඉන්නවා, බබා වගේ හිටියට බබා වගේ වැඩ නෑ…
…විමල් වීරවංශ: දැන් මේක ශිරාටියොරාරි ආඥාව, ශිරාටියොරාරි ආඥාව පිළිගන්න අපි බැඳිලා නැහැ. මේ පාර්ලිමේන්තුව ශිරාටියොරාරි ආඥාව පිළිගන්න බැඳිලා නැහැ. මේක තමයි අනාගත නීති ශිෂ්යටන්ට අලුත්ම ආඥාව. ශිරාටියොරාරි ආඥාව. ඒ කියන්නේ තමන්ගේ නඩුව තමන්ම අහලා තමන්ම අර්ථ නිරූපණ දීලා…
…පාර්ලිමේන්තුව ඇතුලේ මම අවුරුදු 35කට වඩා වැඩි කාලයක් දැන ගෙන හිටිය එකම එක පුද්ගලයෙක් හිටියා. මහාචාර්ය ජී. එල්. පීරිස්. 1977 ඉඳලා 1994 වකවානුව ඇතුලේ ඔහු, මගේ ගුරුවරයෙක්, අංශ ප්රධානියා, පීඨාධිපති, වගේම කොළඹ විශ්ව විද්යාලයේ උප කුලපති වශයෙනුත් කටයුතු කළා. අපි දීර්ඝ කාලයක් තිස්සේ එකට රාජකාරි කටයුතු කළා වගේම ඔහු ගැන මගේ හිතේ ලොකු ගෞරවයක් තිබුනා. මුන්දා දෝෂාභියෝග කාල වකවානුව පුරාම, ඔහු මම ගැන පත්තරවලට දීපු සම්මුඛ සාකච්ඡා, පුවත් පත් වාර්තා වගේම පාර්ලිමේන්තුවේ කරපු ප්රකාශ හැම එකක්ම මම කියෙවිවා. අහගෙන හිටියා. ඒ හැම වචනයක්ම මාව පුදුමයෙන් පුදුමටය පත් කළා. හැම දෙයක්ම අහගෙන ඉඳලා කියවලා බලපු මට, ඔහු 2013 ජනවාරි 10 වෙනිදා පාර්ලිමේන්තුවේදී කරපු කතාවත් එකකම තදබල කණගාටුවක්, දැඩි කලකිරීමකුත් එක්ක එකතු වෙලා ඒ දෙකම මාව වෙලා ගත්තා…
…ඒ අතරතුර අග විනිසුරු නිල නිවස ගාව රතිඤ්ඤා වැල් පුපරන්ඩ පටන් ගත්තා. බෞද්ධාලෝක මාවතේ මාර්කී එක යට හිටපු කට්ටිය සතුට ඉහ වහා ගිහින් ජයග්රහණය සමරන්ඩ නැටුම්, ගැයුම්, වැයුම් වල එතී වෙලී හිටපු විදිය අග විනිසුරු නිල නිවසේ උඩ තට්ටුවේ ජනෙල් අතරින් අපි තුන්දෙනා ට පෙනුණා. ටික වෙලාවකින් එතනට ආපු පාර්ලිමේන්තු නියෝජිතයින් මල් මාලා දාලා පිලි අරගෙන, ඒ ගොල්ලොම සංවිධානය කරලා ගෙනත් තිබුන කිරිබත්, කැවුම්, කොකිස් වලින් හැමෝම සප්පායම් වුනා. හරියට යුද ජයග්රහණයක් වගේ. කෙනෙකුගේ රස්සාවක් නැති කරලා නෙරපා දාන එක, අලුත් තාලේ විදියට සුභ දෙයක් වෙන්ඩ ඇති කියලා මට හිතුනා…
…ආණ්ඩුක්රම ව්යවස්ථාවේ 107(2) ව්යවස්ථාව ප්රකාරව උපතිස්ස අතපත්තු බණ්ඩාරනායක වාසල මුදියන්සේ රාළහාමිල්ලගේ ෂිරාණි අංශුමාලා බණ්ඩාරණායක වන ඔබ, අග විනිසුරු තනතුරෙන්, වහාම ක්රියාත්මක වන පරිදි ඉවත් කරන ලෙසට මම මෙයින් නියෝග කරමි. – මහින්ද රාජපක්ෂ
“Justice is always violent to the party offending, for every man is innocent in his own eyes” – Daniel Defoe (The Shortest Way with the Dissenters). More than the party offending, the entire country agreed that removal of Chief Justice from her designation was nothing but injustice and vicious. During this period of time, every village, every boutique, every bus-stop or at every Sunday fair had constitutional law experts, who were giving interpretations to the Constitution how much legally sound and correct the removal process of the incumbent Chief Justice, if that person is a Rajapakse supporter. It is not wrong as Author states that the Mr. Mahinda Rajapakse took mockery of legal system by unleashing unprecedented and intolerable supremacy over entire Judicial System. It was a time, a regional Magistrate, for a moment, must have thought, if that is the fate of the CJ, who are we.
Having reminisced the gloomy days of Rajapaksa time, I have my reservations, whether impeached Shirani Bandaranayake was as holier-than-thou. Most of the years of Shirani Bandaranayake’s career she was bowed to all those bewigged wags, even though she may not have scraped their back. “…Speaking of the prejudices to which a judge or juryman may, albeit unconsciously be subject, Frank wrote: Those prejudices, when they are racial religious, political or economic may sometimes by others. But there are some hidden unconscious biases of trial judges or jurors – such as, for example, plus minus reactions to women, or unmarried women, or red-haired women, or brunettes, or men with deep voices or high-pitched voices, or fidgety men, or men who wear thick eye glasses or those who pronounced gestures or nervous tics…” – p 230 of Jurisprudence (2nd edition) by JG Riddal. Was not there any prejudices made towards the Rajapakse government by the Author, as Riddal said above, before 2012-2013? Was the Author kept her integrity intact throughout her career as a Supreme Court Judge? Was she righteous in all time? If so, why was not there any such pressure before 2012?
To those questions, I have my doubt. It is very bizarre, how all of a sudden the main protagonist of this book named, උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය fell apart with Mahinda Rajapaksa. According to her own words, the Author had been appointed as the Acting Chief Justice for more than 11 occasions since 2004 to 2011. During the said time period it was Mr. Mahinda Rajapaksa who is said to be the villain of this Book, held the Executive Presidency of Sri Lanka and none of those instances but until 2012-2013 this alleged interferences to the judiciary were brought to light.
In addition, the Author had failed to justify, (except ‘Divineguma’ Bill, Town and Country Planning Bill and Z-score Case) what other reasons made the Judiciary had to divorce from the Executive. To me, the Author abruptly, jumped on to 2012-2013 leaving the reader unattended what happened in the past.
Looking at the other side (Rajapaksas’s side) of the story, it was a fact that the same Author was the senior most Supreme Court Justice when the most undemocratic Bill of 18th Amendment to the Constitution brought under the patronage of former President Mahinda Rajapakse for the mere purpose of remove the barrier of becoming the Executive President for more than 2-occations. Passing of the aforesaid Amendment to the Constitution was as cardinal sin as impeaching the Author from her seat.
The highlights of the changes brought about by 18th Amendment were, inter alia, that, the President can seek re-election any number of times (which turns the President to a monarch), the ten-member Constitutional Council has been replaced with a five-member Parliamentary Council (they can be appointed by the Executive on his whim and fancy), independent Commissions are brought under the authority of the President (most undemocratic feature out of all, even the Judicial Service Commission the most sacrosanct institute according to Dr. Shirani A. Bandaranayake, was abdicated to the hands of President), and, enables the President to attend Parliament once in three months and entitles him to all the privileges, immunities and powers of a Member of Parliament other than the entitlement to vote. In short, it is all about arming the President with absolute sovereignty crowning him as the mightiest person earth.
The Author sat in the Supreme Court Bench when the legality of the aforesaid Amendment was challenged under the case no S.C. (Special Determination) No. 01/2010. In the said matter, contention of the learned Counsel for the petitioners was that the Constitutional Council was established with the intention of safeguarding the independence of the judiciary and the purpose and the objective of the said introduction was to place a restriction on the discretion of the President in appointing judges. When this matter came up before the Supreme Court, the Bench sat by Her Ladyship, Dr. Shirani A. Bandaranayake determined that, “…On a consideration of the totality of the provision dealing with the establishment of the Parliamentary Council, it is abundantly clear for the reasons aforesaid that the proposed amendment is only a process of redefining the restrictions that was placed on the President by the Constitutional Council under the 17th Amendment in the exercise of the executive power vested in the President, which is inalienable. Accordingly, these Clauses have no inconsistency either with Articles 3 and/or 4 of the Constitution…” And concluding the determination, the Bench, the Author was also a Judge, had this to say: “…Accordingly this Court determines that the Bill entitled “the Eighteenth Amendment to the Constitution”1) complies with the provisions of Article 82(1) of the Constitution;2) requires to be passed by a special majority specified in Article 82(5) of the Constitution;3) that there is no provision in the Bill which requires approval of the People at a Referendum in terms of the provision of Article 83 of the Constitution…” This determination was delivered on or about 31-08-2010.
For some, the aforesaid justification given under the backing of the Author could have been the most dishonest academic interpretation given for a constitutional Amendment in memorable history. This further shows that how much and to what extent the Author was ready to justify the evil deed of Rajapakse regime until the pendulum swifts the other way.
Being a part of the aforesaid WORK, on or about 10-01-2011 (within 4-months-time gap) the Author of උත්තරීතර දෝෂාභියෝගයේ ඇතුළාන්තය became a partner to another witch hunt instrumental during Mahinda Rajapaksa’s era, that is to say, incarcerating the War Winning General – Sarath Fonseka. The Author’s involvement to the aforesaid turpitude action was the latter was one of the judges of the Supreme Court Bench who heard the matter.
When the said matter filed by the Petitioner Gen. Sarath Fonseka, the Court of Appeal referred the following question to the Supreme Court: “Whether the words ‘any court’ referred to in Article 89(d) of the Constitution refer to the Supreme Court, Court of Appeal and the other Courts of First Instance, to the exclusion of tribunals and Institutions or whether the words ‘any court’ include a Court Martial”.
The Petitioner – Sarath Fonseka who was in the Jail during this period of time, took up following points of law:
‘Any court’ referred to in Article 89(d) does not include Courts Martial, as per Article 105 of the Constitution; Judicial power of the People is exercised through courts, tribunals and institutions created and established, or recognised, by the Constitution vide Article 4(c)of the Constitution and as such, not through Courts Martial that are convened by, consisting of, and confirmed by, the Executive; Article 24 of the Constitution which deals with the language of the Courts, has in an inclusive application, included tribunals and other institutions within its limited purview, and, as such tribunals and other institutions are not “courts” with reference to the rest of the Constitution; Courts Martial are ad hoc appointments and lack the permanency and other features of regular Courts; Courts Martial are not bound by the Evidence Ordinance nor the Code of Criminal Procedure, and members of a Court Martial are not members of the Judiciary but are part of the Executive; Courts Martial are limited to military matters; Courts Martial do not observe principles of fair trial; Article 13(4) does not confer to a Court Martial the ‘dignity of a competent Court’. Courts Martial survive solely due to Article 16(1) which permitted their continuity under the new Constitution; A Court Martial does not comprise judicial officers as in the interpretation clause of the Constitution with reference to Article 170; and Equating a military tribunal to a High Court would harm the Courts and the judicial power of the people.
Against the aforesaid cogent points of law, it is respectfully submitted that, the Supreme Court of Sri Lanka, inter alia, held as follows: “…The only quarrel here is whether the Court Martial is “any Court” in terms of Article 89 of the Constitution. The validity of the concept of Court Martial in itself and its power to determine cases and impose sentences of imprisonment and/or death not being contested, and, the only contest being its status in the hierarchy of institutions dispensing justice, Article 13(4) of the Constitution brings it within the description of not only a “court” but a “competent court”, since, in terms of Article 13(4), only a “competent Court” can impose sentences of death or imprisonment. Accordingly, having regard to the manifest intention of Article 91(a) read with 89(d) to safeguard the integrity of Parliament, the recognition of Courts Martial in Article 4(c) of the Constitution as well as in the direct reference to Courts Martial in Article 142, the recognition of legislation inclusive of the Army Act and Courts Martial therein existing at the time of coming into force of the Constitution in terms of Article 16(2) and 105(2), the power of Courts Martial to impose sentences of death and imprisonment in terms of Section 133 of the Army Act read with Article 13(4) of the Constitution wherein it provides that such sentences may be imposed only by competent courts, I hold that the Court Martial in terms of the Army Act is a “court” in terms of Article 89(d) of the Constitution…” The direct result of the aforesaid Judgment was the former Army Commander – General Sarath Fonseka lost his Parliamentary seat and got affirmed the 30-months imprisonment order given by a Court Martial established under Army Act.
Sending Sarath Fonseka behind bars was one of the other mayhems twisted by former regime and it was a very famous secret that Sarath Fonseka had to face such dreadful time period as he took former president Mahinda Rajapakse in the Presidential Election 2010.
The Author perfectly knew all these. Discriminations and the injustices faced by the former Army Commander was shown in broad day light and the temple of justice was only the Supreme Court the latter had to turn as the final place to seek for justice. Albeit, those who protect that temple, the Author herself turned deaf ear to that man when there was no one for help. It is irony of fate, that having ridiculed those who sought the justice like Sarath Fonseka, in the hay days of the Author, subsequently, who also had to beg for the same within less than 2-years. “What goes around; what comes around” or in Sinhalese “Karma” effect.
In addition to the aforesaid, writer recollects an Article published by Uvindu Kurukulasuriya under the topic of “Chief Justice Or Her Husband Must Resign” dated 04-07-2011 to the Colombo Telegraph. In which it was enunciated, viz, “In June 2009 following a Supreme Court order to the Treasury Secretary to appoint a board of directors to the Sri Lanka Insurance Corporation (SLIC) after the government took it over, President Rajapaksa who is also the Minister of the Finance, was to appoint to this new SLIC Board none other than Shirani Bandaranayake’s husband Pradeep Kariyawasam. Not only that he also made Kariyawasam the chairman. And here in lies the rub.
The names proposed by President Rajapaksa for the new board of directors for the Sri Lanka Insurance Corporation was to receive Supreme Court approval after the list was presented to court by Deputy Solicitor General Sanjaya Rajaratnam on 26 June 2009 on behalf of the Treasury Secretary. But Kariyawasam’s good fortune didn’t end there. He was again appointed to the Lanka Hospitals Corporation PLC as a member of its Board of Directors along with Defence Secretary and Presidential sibling Gotabaya Rajapaksa who was Board Chairman.
But that’s not all. On 15 May 2010 Pradeep Kariyawasam was also appointed the new Chairman of National Savings Bank by President Rajapaksa which controls assets worth Sri Lankan Rupees 424,994,303,000/-…”
When we tally the time frame, 4-months after the aforesaid job of Chairman post of NSB was given to the spouse of Her Ladyship – Shirani A. Bandaranayake, the 18th Amendment matter came before the Supreme Court and NO WONDER the Author’s allegiance towards the former President.
Showing further respect to the former President – Mahinda Rajapaksa, the Author was happy to determine that the Court Martial is come under the definition of ‘any Court’ as referred in Article 89(d) of the Constitution. The Author give rat shit about, as a result ultimately Fonseka’s 30-months imprisonment will be affirmed and such a kangaroo court like Court Marital which has even the power of giving death penalty will have the status of a ‘Proper Court’.
It may be true that Rajapaksa epoch was very infiltratory towards the independence of the judiciary. Yet, could the Author wash her hands off just saying, “But in these nice sharp quillets of the law, Good faith, I am no wiser than a daw. – King Henry the Sixth – Act II. Scene IV”?. It must be stated that it was the Author who posed with Namal Rajapaksa, the young Attorney-at-Law to a picture after the latter took oaths which is unfamiliar to other young Lawyers took oaths during that era. (read here) Thus, Author has no right to blame Hon. Mahinda Rajapaksa; it is just a bad investment where one party repudiates from the business at half way.
Thus, whether was it framed by Rajapaksa or not, the allegations leveled somewhere in June 2012 against the spouse of the Author involved in a business deal which had incurred a huge loss to the National Savings Bank (NSB) has to be digested by former Chief Justice. It was alleged that controversial purchase was made close to Eight Million shares of The Finance Company by the NSB at 65 per cent above the market price in late April 2012. As a result of the said sordid NSB-TFC transaction it was not all that suppressing that Author’s husband – Mr. Pradeep Kariyawasam is about to be arrested over financial embezzlement (whether Pradeep Kariyawasam is guilt or innocent will be decided by Court of law).
Nevertheless, the image that the Author wants to depict in the mind of the reader is that suing against the husband of the Author is solely based on political motive. In proof that following excerpts are quoted from her book: “ඔක්තෝම්බර් මාසේ 24 වෙනිදා, අල්ලස් පනතේ 70 වෙනි වගන්තිය යටතේ, කොළඹ මහෙස්ත්රාත් උසාවියේ බී වාර්තාවක් ගොනු කරලා තිබුණා. ඒ වාර්තාවේ ප්රදීප්ට විරුද්ධව චෝදනා තුනකුත්… …ප්රදීප්ට විරුද්ධව චෝදනා ගොනු කරපු වේගය අදහා ගන්න අමාරුයි… …මොනයම් හරි හේතුවක් උඩ හැම කෙනාම නීතී අංශය මඟ ඇරලා. අල්ලස් කොමිසම 2012 ඔක්තෝම්බර් 19 වෙනිදා ප්රදීප්ට විරුද්ධව නඩු පැවරුවා… …ප්රදීප්ට විරුද්ධව මේ නඩුව පැවරුවේ විශේෂ අරමුණක් මත කියන කාරණය ඉතාම පැහැදිලිව තිබුනා. විධායකය සැරෙන් සැරේ මට එල්ල කරමින් තිබුන පීඩනයට මාව ග්රහණය කර ගන්ඩ ගත්ත අන්තිම උත්සහය තමයි මේ නඩුව පැවරීම… ” (පිටු අංක 91-93)
Be that as it may, after reading the above pages, the question one can ask from Shirani Bandaranayake is was NOT there any oppression as such by the President earlier? How come all of sudden Hon. Mahinda Rajapaksa became her enemy? How Hon. Mahinda Rajapaksa is unfair, whilst he was fair during the days of ‘I scratch your back; you scratch my back’? How come Rajapaksas are unfair, whilst they were fair before 2012? Is that the reason that the Author had not written about pre-2012 Rajapaksa era? If the Author tries to circumvent the aforesaid questions by merely saying that the power of Rajapakses were so much that no mortal could stand against, let the writer to remind how fearlessly the Honourable judge acted post 2015-era.
When the current president, Maithripala Sirisena appointed Mr. Mahinda Rajapaksa as the Prime Minster in October 2018, following a quo warranto writ petition filed by 122 MPs against the appointment of Mahinda Rajapaksa as Prime Minister and other Ministers, the Court of Appeal had the courage to issue an interim order restraining the functioning of the respondents Mahinda Rajapaksa as Prime Minister as well as other cabinet ministers. And also, in the same instance, the Supreme Court ruled that President Sirisena’s decision to dissolve the Parliament 20 months before the end of its term was unconstitutional. In 2-days ago, the Court of Appeal dismissed the Petition filed by Chandraguptha Thenuwara and Gamini Viyangoda preventing presidential election candidate – Gotabaya Rajapaksa to contest for the Presidential Election 2019, in limine. These valiant decisions show how the sanctum of the judiciary can be safe guarded from political influences.
Thus, a bouquet of flowers and a garland be dedicated to those judges who fearlessly upheld the justice despite succumb to the power of the Executive or the Legislature, or impermanent personal mileages.