Colombo Telegraph

Aiyo! It Was Shirani That I Wanted To Appoint, My Good Friend

“Impeachment” Of the Chief Justice

By Elmore Perera –

Elmore Perera

“Sovereignty of the Sri Lankan People under the 1978 Constitution is one and indivisible. It remains with the People. It is only the exercise of certain Legislative, Executive and Judicial powers of the Sovereign People that are delegated to the Parliament, the Executive and the Judiciary under Article 4. Fundamental Rights and Franchise remain with the People and the Supreme Court has been constituted the guardian of such rights.” So stated Hon. Neville Samarakoon Q.C. arguably the most honourable, upright and independent Chief Justice that Sri Lanka has been fortunate to have. This was in October 1983 when a 9-judge  bench of the Supreme Court considered important questions that concerned the jurisdiction,  dignity and the independence of the Supreme Court.  Sharvananda J asserted that “Rule of Law is the foundation of the Constitution, and independence of the Judiciary and fundamental human rights are basic and essential features of the Constitution. There can be no free society without law administered through an independent Judiciary. The supremacy of the Constitution is protected by the authority of an independent judiciary to act as the interpreter of the Constitution.   Actions of the Executive are not above the law and can certainly be questioned in a Court of Law.   An intention to make acts of the President non-justiciable cannot be attributed to the  makers of the Constitution”. The 9-judge bench held that “The President cannot be summoned to Court to justify his actions. But that is a far cry from saying that the President’s acts cannot be examined by a Court of Law. A party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by Law. The seal of the President will not be sufficient to discharge that burden.”

The President expeditiously moved to impeach the Chief Justice with the aid of his steamroller 5/6th majority in Parliament. Article 107 of the 1978 Constitution,  stipulates that the Chief Justice shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of MPP has been presented to the President for such removal on the ground of proved misbehavior or incapacity, provided that the notice of such resolution for the presentation of such address was signed by not less than one-third of the total number of MPP and sets out full particulars of the alleged misbehavior or incapacity. Standing Order 78A relating to the presentation of such an address, sets out the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of the Chief Justice to appear and to be heard in person or by representative.

The Parliament appointed a select committee of 9 members (viz. R.Premadasa, Ranil Wickremasinghe, Nissanka Wijeratne, R.Pathamanathan, M.L.M.Aboosally, Wasantha Udayaratne, Dr. S.Y.S.B.Herath, Lakshman Jayakody and Anil Moonesinghe  to inquire into and report on  a speech alleged to have been made by the Chief Justice at an Award Ceremony of a Tutory on 14th March 1984. A majority of the members was of the view that all of the statements reported may not prove disrepute but they were not befitting an incumbent Chief Justice. Notwithstanding this finding a resolution signed by 57 MPP was placed on the Order Paper of September 5, 1984. A committee of 9 MPP viz. Lalith Athulathmudali, Dr. Ranjit Atapattu, Festus Perera, C.Rajadurai, M.A.Abdul Majeed, Paul Perera, Anura Bandaranayake, Dinesh Gunawardene and Sarath Muttettuwegama was appointed to inquire and report. A majority of the members stated that “The Standard of proof required is very high. In all the circumstances of this case we cannot come to the conclusion that the Chief Justice is guilty of proved misbehavior. No further action was taken in this connection until the Chief Justice reached the mandatory age of retirement (65 years) on 21.10.1984 and retired. However these terror-tactics of the President, apparently compelled Sharvananda J (who was appointed Chief Justice on 29.10.1984) to hurriedly reverse radically his aforementioned assertion that “an intention to make acts of the President non-justiciable cannot be attributed to the makers of the Constitution”, though it did not affect the 9-judge decision in any manner.

Predictably the consistent independence of Wanasundera J resulted in the Sovereign People being denied of his services as Chief Justice. All subsequent Chief Justices did not rock the Executive boat and therefore were never in fear of any threat of impeachment. The Sovereign People eagerly looked forward to the appointment of Mark Fernando J as Chief Justice in 1999 but regrettably, then Attorney General Sarath N. Silva was identified by a VVIP of the PA Government as being the only individual who  was capable of saving President Kumaratunga from the numerous  election petitions they were certain would be lodged against her, considering the manner in which they were conducting their campaign for her re-election in 1999, and was duly appointed as Chief Justice by President Kumaratunga. He administered the Oath of Office of President to his benefactor not only in 1999 but once again secretly in 2000, demonstrating his total allegiance and subservience to the Executive. The Independence and integrity of the Judiciary was severely compromised not only by satisfying every whim of the Executive, but also by unleashing an era of intolerable judicial harassment. Notice of a Resolution in 2001 for impeachment of the Chief Justice setting out full particulars of numerous instances of alleged misbehavior was entertained by the Speaker. An unlawful attempt by the Supreme Court to prevent the Speaker from proceeding with the inquiry was rejected by the Speaker. The President first prorogued and later dissolved Parliament and caused the motion to lapse, thus thwarting what appeared to be a certain impeachment. A second attempt to impeach this CJ in 2004 was not pursued to its logical conclusion.

This Chief Justice thereafter shifted his allegiance from President Kumaratunga to the Leader of the Opposition, Mahinda Rajapaksa. He now claims that it was  he “who was responsible to bring Rajapaksa into power, since Mahinda Rajapaksa  was freed to become President because of the decision of the Supreme Court Bench, headed by him, to clear him of allegations of misappropriation of Tsunami funds, expecting that Mahinda Rajapaksa  in turn would safeguard the rights of the other people”, and laments that “it is not happening to-day”. At a meeting of the Judicial Service Commission on 30th December 2004 this Chief Justice abused Shirani Bandaranayake J, in vile language and conducted the affairs of the JSC in a dictatorial manner with the active connivance of then Secretary of the JSC, Chandra Jayatilaka (who has recently been appointed by the President as a Judge of the Court of Appeal overlooking the most Senior High Court Judge Malani Gunaratne, who was duly recommended by the Chief Justice). Having put up with this for more than an year, in January 2006 Shirani Bandaranayake J and T.B.Weerasuriya J resigned from the 3 member Judicial Service Commission citing matters of conscience without publicising what the real cause was. In February 2006, President Rajapaksa,  who was a Senior Attorney-at-Law, disregarded the well-known reasons for these resignations, and committed the impeachable offence of intentionally violating the Constitution by appointing Nihal Jayasinghe J as Acting Chief Justice (overlooking Bandaranayake J and Weerasuriya J who were senior to him), and also Nihal Jayasinghe J and Udalagama J to the Judicial Service Commission to replace Bandaranayake J and Weerasuriya J, in patent violation of Art. 41C(1) of the Constitution. I petitioned the Supreme Court on 9th March 2006 challenging these unlawful appointments and seeking an inquiry by the President and Parliament into the matters of conscience that led to the resignation of Bandaranayake J and Weerasuriya J. This was summarily dismissed on 31st March 2006 by refusing leave to proceed. Several actions were instituted by me in respect of all appointments made thereafter in violation of the Constitution until, six months later, a Rule was issued on me for instituting and supporting the first application dated 9th March 2006. I was summarily suspended from practice as an Attorney-at-Law, in a clear demonstration of the Judiciary’s total commitment to support the Executive in all circumstances even including patent violation of explicit Constitutional provisions. Sometime thereafter Chief Justice Sarath N.Silva turned against President Rajapaksa and issued several people friendly, landmark judgments purportedly according to law. He even went to the extent of issuing notice on Mahinda Rajapaksa by name in an FR Application where he had been cited as a Respondent in violation of the Constitutional provision that prohibited his  being so cited, on the basis that in Sri Lanka “no one was above the law.”

Our Meeting with the President at Temple Trees

As President of the Organisation of Professional Associations, I urged my friend Hon. Chamal Rajapaksa, then a Cabinet Minister, to prevail on his younger sibling Mahinda Rajapaksa to exculpate himself from the “impeachable”   offence of intentionally violating the Constitution, by activating the Constitutional Council. I was invited to Temple Trees for a discussion of unspecified matters at 11.30 a.m. on 11th March 2008. Others present at this discussion included Lalith Weeratunga, Silva (then Attorney General), Ministers Mahinda Samarasinghe and D.E.W.Gunasekera, Ven. Maduluwawe Sobitha Thera, Victor Ivan, Kumar Rupasinghe, Col. Faiz-ur-Rahman, and  Mahen Dayananda. Hon. D.E.W.Gunasekera initiated a discussion on the 17th Amendment.

Aiyo! It was Shirani that I wanted to appoint. My good friend

When the President specifically sought my views, at the instance of  Victor Ivan, I read out Art 41C (1) which stated unequivocally  that “No person shall be appointed by the President as Chief Justice  or as a member of the Judicial Service Commission, unless such appointment had been approved by the Constitutional Council upon a recommendation made to the Council by the President”. I stated that, being a Senior Lawyer himself, he is deemed to have been aware of this and therefore had intentionally violated the Constitution in making these appointments, and that, the only remedy for such offence, provided in the Constitution itself  under Art 38(2)(a), was impeachment. I assured him that he would never be impeached because none of the 108 Ministers then in his Cabinet, were likely to risk losing their portfolios for matters that did not concern them. Quite unconcerned, he asked me what, if anything, I had done about this. I replied that the last thing I had done was to institute action challenging the validity of his appointment of Nihal Jayasinghe J as Acting Chief Justice overlooking Shirani Bandaranayake J. Promptly he responded emphatically (in Sinhalese) saying “Aiyo! It was Shirani that I wanted to appoint. My good friend. She hails from Anuradhapura and is doing very good work. But it was Ranil no! Don’t you know when  Ranil comes to the  Constitutional Council, he does this and that (gesturing with his hands) and said that to be appointed as Chief Justice she must necessarily have served in the Judiciary for 25 years”. Taken aback and disappointed at Ranil’s  hypocrisy, I responded that “if that was true” it should have been publicized and I would then have filed action not against him, but against the Constitutional Council. The President immediately directed Lalith Weeratnga to give me “that document”. Lalith vigorously checked the documents in his files for a full 2 to 3 minutes, but could not locate any such document. He abandoned the search for (what I am now convinced was) a non-existent document, when the President directed him to “send it to Mr. Perera, tomorrow”. That ‘tomorrow’ has not dawned as yet and my several letters requesting same were of no avail. On reaching retirement age in June 2009, S.N.Silva C.J. was duly retired. The 17th Amendment provisions were still operative. However, notwithstanding his emphatic assertion aforementioned made on 11th March 2008, once again the President intentionally  violated the Constitution by by-passing Bandaranayake J and appointing, as Chief Justice, Asoka Silva J, whose lily white reputation as an upright judge, had been tarnished by his acquiescence in an abuse of the process of Court whereby his daughter Kanishka (who later married the son of Balapatabendi J of the Supreme Court) was admitted to the Law Faculty. In June 2009, the President also appointed the spouse of Bandaranayake J. as Chairman, Sri Lanka Insurance Corporation, for reasons best known to the President.

Chief Justice Asoka Silva, his daughter and  brother

Unfortunately for Sri Lanka, Asoka Silva CJ (who even appointed his brother, who was the 19th in Seniority,  as Secretary of the Judicial Service Commission)  was unable to take the high ground necessary to even attempt to clear the Augean Stables left by his predecessor, even, though much was expected from him. Without reversing one word of the scathing Supreme Court judgment re P.B.Jayasundera or even permitting him to withdraw the affidavit allegedly extracted from him by Sarath N. Silva CJ by intimidation, he caved in and cleared the way for   Jayasundera’s reappointment to the Public Service, by the Executive.  He even ruled that  “the Court Martial was a Court” for the purpose of Art. 89(d) of the Constitution, thus depriving General Sarath Fonseka of his seat in Parliament.  Having consistently held the view that the 17th Amendment was better than the 18th amendment, he constituted a bench headed by Bandaranayake J, (who would undoubtedly have sought and been guided by the views  of the Chief Justice) in this matter of vital importance to the Sovereign People.

The requisite motions prescribed by the Constitution were hurriedly gone through and   Bandaranayake J expeditiously signed and delivered a determination that caved in to the President’s whim, but seriously undermined the inalienable Sovereignty of the people by declaring that no referendum was necessary to repeal the 17th Amendment. Bandaranayake J was appointed as Chief Justice to succeed Asoka Silva CJ in May 2010. On 15th May 2010 her spouse was appointed as Chairman, National Savings Bank by the President, for reasons best known to the President. Having assumed the office of Chief Justice, Bandaranayake CJ purposefully embarked on the long overdue cleansing of the Augean Stables, and slowly but surely asserted herself as Chief Justice. Manjula Thilakaratne, who was the 6th in Seniority of those eligible, was appointed as Secretary of the JSC. The Registrar of the Supreme Court and several other officers whose activities were suspect, were transferred out. Some kind of order was restored and the quality of judicial activity clearly improved. Interference with the Judiciary was resisted. The CJ and the JSC had decided that an independent Judiciary was imperative for Sri Lanka, and strenuously worked towards achieving it.

Minister Bathiudeen threatened the Judge at Mannar to render an order, in a case in that Court,  as desired by him. When this ‘unlawful direction’ was not complied with, the Court was stoned. Pressure was exerted on the Secretary of the Judicial Service Commission  to get the said Judge transferred. The Supreme Court’s Determination in the Divineguma Bill was interpreted by the Executive as a move to undermine the perceived supremacy of the Executive, and the state controlled media launched scathing attacks on the Judiciary. Judge Aravinda Perera (who is a close associate of the President’s son and whose father is a close associate of the President) was suspended by the JSC for unacceptable conduct. In these circumstances the JSC was requested to meet the President, for undisclosed reasons, but this request was politely declined.

On the 16th September 2012, as directed by the JSC the Secretary of the JSC issued an unprecedented statement to keep the majority of the public, (who value justice) informed about a conspiracy to destroy the credibility of the JSC and the Judiciary, emphasizing that the JSC is dedicated to carrying out its responsibility to protect the independence of the Judiciary and discharge its service without being intimidated by influences, threats or criticism.  On Sunday (7th October 2012) morning the Secretary of the JSC was attacked in Mount Lavinia and the attackers have still not been apprehended. On 8th October Speaker Chamal Rajapaksa, with the purported concurrence of the Party Leaders, took exception to the fact that the Supreme Court determination on the Divineguma Bill had been delivered to the Secretary General of Parliament and not to the Speaker, contending that this was  tantamount to the Secretary General being substituted for the Speaker. This, in his opinion, required a Constitutional amendment. The Speaker has apparently not stated that the Determination has been addressed to the Secretary General and not to the Speaker. He seems to have only stated that it was delivered to the Secretary General. He has however admitted specifically that the Supreme Court has been vested with the sole and exclusive jurisdiction to interpret any Constitutional Provisions.  He has, apparently, failed to realize that the normal practice, of delivery to the Secretary General of Parliament of a determination addressed to the Speaker, is certainly in accordance with the widely prevailing practice in Sri Lanka and, at any rate is, in the opinion of the Supreme Court, a sufficient compliance with the Provisions of Art. 121 (3) of the Constitution, and that, in all probability the President’s copy of the determination is always delivered to the President’s Secretary and not to the President. The Speaker’s salvo is therefore merely hot air. Even Homer nods! However the Speaker must not permit this slip to influence his future decisions in respect of the attempt to impeach the CJ.

From the moment that Minister Keheliya Rambukwella announced to the media that the CJ would not be impeached, it was rather obvious that that was precisely what the Government intended doing. He fooled nobody. 117 MPP have signed a notice of a resolution containing 7 charges including acts committed in her personal capacity for the presentation of an address,   and handed it over to the Speaker on 1st November, 2012.

The proviso to Art 107(2) makes it mandatory for the Speaker to satisfy himself that the said notice sets out full particulars of the alleged misbehavior of the Chief Justice before entertaining such resolution and placing it on the Order Paper of Parliament. If, as contended by the UNP, no Court has defined misbehavior, the Speaker is required to act quasi-judicially in arriving at his decision. He cannot, and indeed he dare not, claim to be acting judicially and will be well advised to bear in mind that his definition of  misbehaviour is subject to scrutiny by the Supreme Court for consistency with the Constitution. There certainly cannot be any automatic appointment of a Select Committee, as contended by the UNP. The Speaker will do well to bear in mind the view of the majority of the Committee comprising of Lalith Athulathmudali, Ranjit Atapattu, Festus Perera, C. Rajadurai, M.A. Abdul Majeed, Paul Perera, Anura Bandaranayake, Dinesh Gunawardena and Sarath Muttettuwegama, stated in respect of the charges against Chief Justice Neville Samarakoon, viz. “The standard of proof required is very high. In all the circumstances of this case, while this Committee cannot but condemn this speech, we cannot come to the conclusion that the Chief Justice is guilty of proved misbehavior”. Even though this opinion is not binding on him, he will be well advised to bear in mind that the said opinion was expressed in the face of a powerful President who commanded a 5/6th majority in Parliament.

It is reported that the Speaker will make the announcement to the House re this on November 6, 2012. It is also reported that he will take steps to appoint a Parliamentary Select Committee the same day, after a party leaders meeting, consisting of four members from the government and three from the opposition. This step could be taken only if the Speaker declares that he is satisfied that the notice does, in fact, set out full particulars of the alleged misbehaviour. The four from the government cannot obviously include any one of the 117 signatories to the notice of the resolution because they cannot be judges in their own cause. The Select Committee shall notify the Chief

Justice of the alleged misbehavior and that she may make a written statement in defence within a stipulated time and/or be heard by the Committee in person or by representation. The burden of establishing the charges, by placing evidence admissible under the Evidence Ordinance before the Committee, is on the 117 members who made the allegations.

From the time it appoints a Select Committee, the Parliament acts, at the most, in a quasi-judicial capacity and certainly not in a judicial capacity as contended by the UNP. Since no Court has defined misbehavior, the determination made by the Parliament according to its own definition, has necessarily to be subject to Judicial Review. Expecting MPP now in Parliament to act in a judicial capacity, bringing their minds to bear on the facts as Judges would do, and to refrain from acting politically in this matter, is wholly unrealistic and fanciful, in the present context.

The success or failure of any organization depends largely on the Head of that Organisation. The standards are set by the Head who puts in place the necessary measures to ensure compliance with those standards by adopting various strategies – the least sustainable method being through instilling fear into the minds of the rank and file. The Sovereign People of this country were blessed to have Chief Justice Neville Samarakoon, to set and maintain the standards of the Judiciary as high as they should be. His successors have not been able to arrest the steady erosion of those standards by interference by the powerful Executive using both carrot and stick as deemed necessary. For the first time after Samarakoon CJ  we are fortunate to have a Chief Justice who, like all human beings may not be perfect, but is prepared to stand up and defy the tyranny of the Executive. I well remember the hue and cry made by many lawyers when she was appointed to the Supreme Court, in 1997. By then I was already disillusioned  by the arrogant attitude displayed by some of the Judges when dealing with litigants and their counsel. I believed then, from reports of her conduct as a member of the Human Rights Task Force, that she would possibly be as good, if not better, than most other judges. She has since displayed an exemplary judicial temperament and I have never seen or even heard of reports of her being deliberately rude or unfair. She has now reached the pinnacle of the Judicial Branch of the State. Surmise, fuelled by the grapevine, gives us a fair idea of who is likely to be appointed as Chief Justice if this attempt at impeachment succeeds, and the out come of such appointment is certain. The State will ride rough shod over us, the Sovereign People, and wreak havoc throughout the country. Bandaranayake J is an individual and cannot, under any circumstances be held guilty for the conduct, of her spouse or any other individual, unless of course it is established by clear evidence that she was the one who caused such conduct. “He who avers must prove” and the charges that have been levelled, must be explicit and must be established by those who bring them, with evidence admissible according to the Evidence Ordinance. The accused must necessarily be deemed innocent until proved guilty, as clearly set out in Article 13(5) of our Constitution.

The Chief Justice has asserted clearly that she has always acted in keeping with the hallowed traditions of an Independent Judiciary and she is prepared to face any impeachment motion brought against her. We, the Sovereign People of this blessed Island cannot be passive onlookers. The possibility of a sham trial being conducted (as in the infamous case of the Samurdhi employee  who was tied to a tree), cannot be ruled out. Civil Society must gear itself to ensuring that justice is done to their Chief Justice. If justice is denied to her, Sri Lanka is in for turbulent times leading to certain anarchy. We can no longer go about our own business expecting that someone else will be the target.

The famous words of Pastor Niemoller who was arrested by the German Gestapo in 1938 ring loud and clear. “In Germany, the Nazis first came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews and I didn’t speak up because I wasn’t a Jew. Then they came for the Trade Unionists, and I didn’t speak up because I  wasn’t a Trade Unionist. Then they came for the Catholics and I didn’t speak up because I was a Protestant. Then they came for me and, by that time, there was no one left to speak for me.”

*Elmore Perera –Attorney-at-Law, Founder, Citizen’s Movement for Good Governance, Past President, Organisation of Professional Associations

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