4 December, 2020

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“I’ll Be The Judge, I’ll Be The Jury….”

By Ravi Perera

Ravi Perera

“There is a higher court than courts of justice and that is the court of conscience. It supersedes   all other courts.” Mahatma Gandhi

Most Sri Lankans would have been hit with a sense of disbelief on learning that their Chief Justice had been found guilty of “misbehavior” by a Parliamentary Select Committee. It is not that Justice Shirani Bandaranayke is beyond reproach. Even when in 1996, at the young age of 38, she was appointed to the Supreme Court   many well informed persons including the legal fraternity were concerned that the appointment was   ill-considered. Their objections were brushed aside with the argument that the President knows best. In Shirani Bandaranayke’s subsequent   career in the Supreme Court ,it will not be wrong to say, her judicial pronouncements have been quite unremarkable , the recent judgment on the 18th Amendment being a case in point. This was an opportunity to rein in the unbridled ambitions of the political leaders of this country.

A good number of her  years in the Supreme court were  under the stewardship of Sarah Silva that most controversial of Chief Justices  , a period  when everything that touched the courts  ,the law, legal reasoning , applicable  ethics and standards seem to have been twisted and warped . But nary a judge, including Shirani Bandaranayke objected to his domineering regime then. Even when delivering judgments there were hardly any dissenting judgments, a mediocre court compromised its conscience for baubles of office, foreign assignments and obligatory religious/cultural rituals .It was even said that in that era when the court wanted to send a “message”, a convenient petitioner was found at its behest. The judgment was a foregone conclusion.

Justice Bandaranayke, like many other judges of that court,   did not apparently shy away from obtaining benefits and advantages on account of her position. In a country with a per capita income of less than US $ 3000, none of the judges raised objection when an administration which had vulgarized  the concept of public service, offered the judges the plushest of cars, foreign assignments and armed bodyguards.  When the Supreme Court could have set an example of a selfless service, it chose to be a mirror image of a fundamentally corrupt culture. The judges became yet another set of “elite” to whom the traffic laws do not apply, whizzing past the overloaded buses and harassed pedestrians in their limousines, with a pilot car clearing the way. They could   not resist the invidious   influences and inducements of an administration hell bent on subverting and diminishing every institution in the country. Where the road forked, the judges took the lower road.

People’s sense of disbelief at the impeachment motion is not on account of the allegations against the Chief Justice. They know there is very little “good” in the system, particularly at the top. It is the commonplaceness   of the alleged offences that affronts their intelligence. Today unless he is deaf, dumb as well as   blind, no Sri Lankan will believe that a conflict of interest situation    or the failure to fill a prescribed form in a particular manner or undeclared bank accounts is ‘misbehaviour” on the part of a public officer. From the President downwards they have sent their children for foreign education. Their life styles are far in excess of the reach of their meager salaries. Public assets are used like private property. It is evident that practically everything they do places them in conflict of interest situations. And almost every appointment they make is of a family member, a political stooge or a financier. But they are all above the law. Only the Chief Justice must be punished. As a result a middle aged woman, a citizen of this country, with no organization behind her, no media under her control, with no power to reward her supporters   stands against a howling mob demanding her blood.

We are not told how and why the Chief Justice was investigated and so speedily brought before a Parliamentary Select Committee. Just a few weeks before that, she headed a judicial bench that delivered a judgment which was frowned upon by the government (The Divi Naguma Bill). A few days later the Secretary of the Judicial Services Commission was assaulted on a public road, with the assailants still to be found. Then, out of the blues, a large number of PA members (government party) signed an impeachment motion against the Chief Justice which led to the sittings of the Parliamentary Select Committee.

By any measure it was a hastily conducted inquiry. Pleas by her lawyers for adequate time to prepare their case were disregarded by an intransigent Committee. Requests by Justice Shirani Bandaranayke for the list of witnesses testifying against her and the evidence proposed to be given by them, except for a huge bundle of documents, were unavailing.  Although the members of the Parliamentary Select Committee could be considered to be performing a quasi-judicial function , and one concerning the highest judicial officer in the land at that , it is reported   that they  heckled and  slighted  the Chief Justice. Unable to bear the indignities   she walked out of the proceedings. Her legal team also walked out in protest. Finally, all the other members of the Select Committee save for the government Members, walked out denouncing its patent   bias.

Evidently, all the witnesses summoned before the Parliamentary Select Committee gave their evidence in one evening. We are not certain whether they were under oath but in the absence of the defense team, for sure not subject to a cross examination. These hearing were not open to the public.

It is said that when a court is trying an accused, the court itself is on trial by the public it is supposed to serve.  Some of the questions that legitimately arise in the public mind would be, was that court representative of a more civilized culture? Was it a fair trial? Were the basic tenets of a due process complied with?  And, what manner of judges were they?

One requisite ingredient of any judge/inquirer is an open mind. If the verdict is pre-determined or if it is obvious that the judge cannot act independently, there is little purpose in going through the motions of a trial. If in this case, the general view is that there was no open mind, what we had was a mockery of a judicial process. Equally, it is a fundamental tenet of justice that one cannot be both the accuser and the judge. In the impeachment proceedings, members of the same political party were both the accuser and the judge.

Undeniably, there is much which is blameworthy in Justice Shirani Bandaranayake, particularly in relation to the appointment of her husband to head a government bank. It has hugely compromised her role as a judge of the Supreme Court.  But since the beginning of the impeachment proceedings, Justice Shirani Bandaranayke   has remained steadfast.  Where many have succumbed to the pressures and inducements, she stood as a symbol of defiance against a   howling oppression orchestrated by those with a stranglehold on the levers of power. These are a dangerous lot, with control over the armed forces, connections with underworld figures and no scruples whatsoever. And in challenging such an establishment   she seems to have crossed a Rubicon.

Obviously, this crisis has brought the legal profession of this country to a cross road. Unlike most other professions, the practice of the law can never be separated from the hallowed concepts of justice which every civilization has searched for. Time after time, judicial systems may fall short of the ideals of justice. But if lawyers understand the deeper dictates of their profession, they can never abandon the   search for that elusive concept which forms the bedrock of their calling. That is what so ennobles the practice of the law.

If the legal profession of this country cannot ensure a fair trial for their Chief Justice, how can they assure the public of a just legal system?

Put in another way, until Justice Shirani Bandaranayke is accorded her inherent right to a fair trial, can there be a legal practice in this country?

“Nobody can give you freedom. Nobody can give you equality or justice or anything. If you’re a man you take it”   Malcolm X

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Latest comments

  • 0
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    A well balanced thought provoking article. You have taken the bull by its horns by stating that the members of the judiciary are not paragons of virtue. In your article you should have educated the public on the legality of the decisions reached by the PSC after 4 of its members walked out from its proceedings.Shouldn’t the Speaker fill these 4 vacancies before the PSC proceed any further? You have obviously writeen this article before the President declared his intention to “review” the decisions taken by this infamous PSC.Constitutionally, Is there any provision for such a “review” ?
    What are the consequences of ignoring the Commonwealth principles on the impeachment of judges?

    As a leading luminary, I hope you will educate the public on these issues in your next communication.

    Meanwhile, I hope you will keep up your good work.

    • 0
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      Good piece!
      The people must join the protesting lawyers and must stop and BOYCOTT NAMAL RAJAPASSAS COLOMBO NIGHT RACES IN HIS LAMBURGHINI!
      The LAMBURGINI races SHOULD BE STONED. Enough of this facade of development – the conspicuous consumption by the scum of the earth Rajapakse family who are ruining the judiciary and all institutions while running a family mafia.
      It is Mahinda Rajapassa and his brothers must be IMPEACHED and held accountable for insulting the people, the CJ and the judiciary of Lanka and for gross corruption. Their immunity and impunity must end. Mahinda Rajapassa and Basil the vermin’s greed for Divineguma and their malicious actions and lies have brought great disrepute on the sovereign people of Sri Lanka- running a Kangaroo court and insulting the CJ, the judiciary and the people of Lanka. TIME HAS COME TO HOLD THE POLITICIANS WHO ARE RUNNING AMOK AND RUINING THE COUNTRY ACCOUNTABLE.
      Thanks to the BASL standing firm on the principles of NATURAL JUSTICE AND DUE PROCESS, Mahinda Rajapassa who set up and REMOTE CONTROLLED THE KANGAROO COURT run by a bunch of uneducated and MORONIC POLITICIANS in the Diyawenna Parliament is now feeling the heat and has tried to distance himself from the PSC panel of clowns and thugs who performed Chamal Rajapassas dirty work.
      MR now wants to set up another commission – having exposed his own clownish Ministers who operated the Kangaroo Court called the PSC on his instructions as a bunch of morons – the likes of Weerawansa, Dilan Perera, the Adam with many Eves, Senaratne, Yapa etc.
      These politicians need to be held accountable for insulting the people and fattening themselves on tax payers monies. The UFPA political goons – Chamal Rajapassa, Yapa, Dilan, Weerawansa should be forced to resign and 116 politicians who signed the impeachment motion must also be forced explain their actions. The CJ should sue the UPFA Kangaroo Court members for malicious lies, denying the CJ natural justice and due process in the PSC Kangaroo Court.

  • 0
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    Those seven judges of PSC will go to history.

  • 0
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    You have analyzed this current situation well without taking sides. Yes, as mentioned by Nihal R, we would like to know whether the PSC determination is valid considering that the Chairman of the PSC failed to fill the vacancies when the 4 Opposition members walked out.

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    Had the CJ volunteered to stand down with full pay until all allegations were investigated, there wouldn’t have been the need for a speedy trial.

    Issuing media releases rubbishing all allegations ,organising public protests lead by well known anti Govt and anti Rajajapaksa Hulsdorph mob ,and calling all judges of the nation to a war council meeting is not the way for the CJ to prove her innosence..

    With all this ,she still wanted to call the shots as the CJ , when some of her supporters and even family members are involved in court cases .

    Under these circumstances whould these litigants recieve fair trials or served proper justice?.

    • 0
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      Had you committed suicide we wouldn’t have to read this drivel

    • 0
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      You think the CJ is a goat waiting to be slaughtered?

  • 0
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    Dear Ravi,

    117 MPs towed the UPFA party line blindly without knowing the content of the impeachment motion. 7 sat in the Jury and on the bench. Now the Executive, who is also the party leader, has decided to get the decision of the 7, who sat in the jury and then on the bench to pass the judgement, reviewed by another “Committee” who are supposed to be “Independent”. Now this is to take place before the parliament begins the debate on the motion in January 2013. All 124 involved in towing the party line have now been relegated to the level of robots programmed to think and act like the leader, whose conscience is changing according to the circumstances.

    Now the question arises. What will be the status of the sovereignty of people upon which the supremacy of legislature is built as ruled by the Speaker and boasted by the 7 who sat in the jury and then on the bench to pass the judgement?

    To me it appears that both the judiciary and the legislature are now controlled by the Executioner.

  • 0
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    Ravi. You are simply outstanding. I had begun to think we will never produce writers of fearless integrity. I am not sure whether you are a lawyer but the way you have explained the sorry history of our courts is so intelligent. How can this parliament full of corrupt people try a judge? When people like Wimal Weerawansa and Dilan Perera sit in judgment we can think that the Mayan prediction about the end of the world is correct !
    Sarath silva was a rascal hiding in the robes of a judge. I hope he won’t become a priest and ruin the Buddhist clergy too. I must say this to the lawyers. The whole world is watching you. Do not let us down.MR can fool all the people for some time. But not all the people all the time

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    Does anyone know who the MPs were who signed the original motion? I hope someone somewhere is trying to compile the list. It is our right to know though, of course, the President himself gave a reason why we didnt need a Freedom of information Act. Just ask me, he said. well, let’s ask him this one! Isn’t it the rule here (as elsewhere) that a record is available for the public to know how their representatives vote in parliament on any issue?

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    The judgement of the public is before the court. The PSC was an out and out fraud. The accusations fraudulent, the accusers irresponsible, the proceedings disgraceful, the judgement preconcieved, outsourced (written by others) and unjust. A total disaster.

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    The list of those who signed appeared in the Daily papers shortly after it was accepted by the Speaker. Speaker’s appointment of the PSC is questionable and faulty. Be that as it may with the appointment of the PSC Speaker should have asked the gang who signed the impeachment to name their team of prosecutors or in the alternative a team of lawyers. The PSC was the prosecutor the Jury and the Judge. This may go into the Guiness Book of World Records
    Ram

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      Ram Perera:
      This is a government that has a sterling record insofar as the Guinness Book of Records is concerned, doesn’t it?
      Beginning with the size of the cabinet and extending through the percentage of the national budget controlled by three siblings, it really has an outstanding record, if one can be proud of records of that kind.
      I don’t know whether it has submitted its “White Van” records for verification yet, though. Sometime soon I expect. After all, their record for violent stupidity also seems to know no limits.

  • 0
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    Now that the President says that he is getting an independent committee to further study the report as he has to answer to his conscience. This clearly shows that he has some doubt that the report is flawed. Otherwise there is no need to get it reviewed. Then it implies that the President doubts the judgement of the seven who sat on behalf the government (They were the only signatories to the report.) He got them appointed because he had faith in them. Now why is this sudden doubt and mistrust for the President to take a step back. Is this a ruse to silence the International Community or to show them “what a democrat he is.” Any guesses on this INDEPENDENT COMMITTEE.
    My money is for Asoka de Silva, Sarath N. Silva and Mohan Peiris? Don’t be surprised if it’s them.

    • 0
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      Pandith, for this Bugger MR to say that the Report should appeal to his conscience, has the Bugger a Conscience? He is even trying to cheat his own conscience. What do you imply when you say, ‘This clearly shows that he has some doubt that the report is flawed’. What doubt? It is this Bugger who was responsible for that Report as it was prepared according to his wishes. Now that RW has led this Mother F……r up the Garden path and have sounded the warning that we will be expelled from the Common Wealth, he has gone bersek fearing the cancellation of the Summit in 2013 and losing financially, if kicked out of the Common Welath. He has become paranoid now. The sychophants you have mentioned, Asoka De Silva, Sarath N Silva nor Moron Pieris are not suitable even to be employed as Janitors in a Court House. You can be assured they will not be even considered. The real fun is when the Judiciary starts to function next year and a whole lot of cases filed for Redress for grievences commence, this Bugger MR will have no place to hide.

  • 0
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    Justice, rule of law is vital for a democratice country. Sri Lanka is not democratic it demoncratic [ruled by demons]

  • 0
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    117 parliamentarians impeached the CJ,
    Uneducated Wimal and name sake Attorney-at-Law
    Dilan impeached the panel of Select committee,
    The Select committee impeached the CJ,
    The President impeached the select committee.
    Ultimately, the opposition is impeached by the President.
    Finally, the general mass is impeached by the the whole lot.

    Kautilya.

  • 0
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    I call upon the SL parliamentains com forward to cast the first stone at Lady Bandaranayake. One must be clean as a wistle to sit in the commite to investigate into corruption. When Yapa the chairman of the panel was involved in a massive fraud in purchasing a mansion owened by the Seylan Bank Chief Kothalawa for free without the knowledge of MR. The deal that was brokered by Kurunegala Mayor Silva. Kothalawela summoned his 4000 employees of Seylan Bank to Colombo and instructed them to campaign against Mahinda Rajapakse. After the election when Kotalawela was remanded, he bagan to dispose of his personal assets. That is when Yapa approached Kothalawela to transfer the mansion into Yapa’s name. So his credibilty and the integrity and the honesty has been shattered. Is this not a corruption of a massive scale. Was he wearing any clothes when he sat on the PSC? So is this not the “Kekille King’s Court?” Does his report worth the paper that is written on?

  • 0
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    I am really really surprised at how far the Lake House has fallen. Its Chairman is a news reader for a TV Channel , getting a salary from a rival news organization ( Conflict of interest !) While at the lake House he is passing information to certain top UNP guys.The Daily News editor is Rajpal Abeynayake, a lawyer, who when he was working at the Sunday Times Predicted that Ranil Wickramasinghe would win the presidential elections of 2005 , after having a drink with the Rest House keeper in Tangalle . Years later after a few more drinks he got involved in a public brawl at a lawyers dinner.About 4 years ago Rajpal was the editor of the Sunday Observer and was sacked because he had criticized a speech made by President Mahinda Rajapakse at the Foreign Ministry. After that he was very critical of the President.
    But obviously Rajpal has forgotten all that when he was offered the editorship of the Daily News.Now he is trying to show he is more blue than Mahinda Rajapakse himself and win the favour of the government. His appearnces on TV are most repulsive to watch.

    To add to that the Observer Editor Dinesh Weerawansa is also a journalist ( actually he was only a sports journalist who wrote extensivly on school Rugby when the Rajapakse kids were playing, which is the true story of his career success )who was once sacked by President Rajapakse for writing an unfavourable article on General Sarath Fonseka who was Army Commander. I think this was when General Sarath Fonseka called the Indian Politicians buffoons but later denied saying it.Sarath Fonseka complained to the president and Weerawansa was sacked immediately. Both these guys once sacked by President Rajapakse are now his biggest mouth piece.Can these so called editors tell us how much self respect(leave alon integrity) they have ?

  • 0
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    First they went for the Tamils, later for the journalists and then for the judges. I did not react because I wasn’t one of them. Now they are after me, but there is no one left to protect or speak for me. Once one says nothing when injustice is done, it will turn around and bite me one day. Now is the time to unite and fight for justice and freedom for all including the Sinhalese, Tamils and Muslims.

  • 0
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    Brilliant article! I doff ‘me’ cap to you. Unfortunately, the solution to Sri Lanka’s woes will be the bullet, not intellectualism !!!

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