By 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