By  C. A. Chandraprema –

Thursday November 1, 2012, was an eventful day if ever there was one. While Sri Lanka was defending itself in Geneva at the Universal Periodic Review of the Human Rights Council, an impeachment motion against Chief Justice Shirani Bandaranayake was handed over to the Speaker of Parliament in Colombo. Many people thought that the government would be diffident about impeaching the chief justice with the UPR session on Sri Lanka being held these days, and the theory was that even if they do impeach the chief justice, they would wait till the UPR process is over. But the fact that the impeachment motion was handed over to the speaker on the very day that Sri Lanka came up for discussion in Geneva shows that the government means business. Ironically, the US Representative to the Human Rights Council Eileen Donahoe in fact made reference to the impeachment motion in her speech on Sri Lanka and called upon the Sri Lankan government to uphold the independence of the judiciary. This was funny considering the fact that the world’s prime example for flogging the judiciary into submission is in fact the United States of America.

The American constitution is a very simple document which does not specifically say that the American Supreme Court has the power to decide on the constitutionality of laws made by Congress in quite the same words. Article 3 Section 2 which deals with the Judicial power simply says that “The judicial power shall extend to…” and among the things that the judicial power extends to, is mentioned the words  “…the Laws of the United States…”. As we pointed out a couple of weeks ago, it was through the 1803 supreme court ruling in Mabury v. Madison that the US supreme court specifically claimed that the constitution gives them the power to decide on the constitutionality of the laws made by Congress. We explained in this column how President Thomas Jefferson applied the jackboot to the Supreme Court from day one and made them bow to the will of the president and Congress. Yet, here was the American Representative on the UNHRC protesting that Sri Lanka was doing what the Americans had been doing for the past 200 years.

If one looks at things from a different angle, perhaps the US Representative on the UNHRC did have a point. The US has never impeached a chief justice. They never had to, because making an example of someone else was enough to make the US Supreme Court get the message and fall in line. But there is something in Sri Lanka which makes such half measures ineffective. Even our terrorists (both Rohana Wijeweera and Prabhakaran) were uncommonly stubborn and the security forces had to go the whole hog with them. With both the JVP and the LTTE there was never the possibility of a compromise as in Nepal when the Maoist terrorist leader Prachanda came into the mainstream. Perhaps this is so with our supreme court as well. Having been a political correspondent for many years, the present columnist has always been struck by what Karl Marx said of France in his work “The 18th Brumaire of Louis Bonaparte” where he said that France was the one place in Europe where class battles were fought to the finish. So it is in Sri Lanka – every battle, whether it be with terrorists, the Supreme Court or with foreign powers have to be fought to the finish.

Friday Forum’s Amnesia 

Some people however see this conflict between the judiciary and the executive only in terms of the executive trying to intimidate the judges. A case in point is the statement issued a couple of weeks ago by the Friday Forum signed by Jayantha Dhanapala, Professor Savitri Goonesekere, Rt. Rev. Duleep de Chickera, Professor Arjuna Aluwihare, Dr. Jayampathy Wickremaratne, Tissa Jayatillaka, Dr. Geedreck Usvatte-aratchi, Professor Ranjini Obeysekere, Sithie Tiruchelvam, Dr. A.C. Visvalingam, Suriya Wickremasinghe, Dr. Radhika Coomaraswamy, Professor Gananath Obeysekera, Manouri Muttetuwegama, Dr. Devanesan Nesiah, Ahilan Kadirgamar and Chandra Jayaratne among others. Even though the NSB scandal hit the headlines only months ago, its cause for concern that these intellectuals seem to be suffering from amnesia about how the split between the judiciary and the executive occurred.

They refer to the “The unprecedented public statement by the Judicial Service Commission of Sri Lanka (JSC) complaining of intrusions into its functioning” but say nothing specific about the even more genuinely unprecedented fact that the spouse of the chief justice accepted a political appointment from the government. No spouse of any chief justice has ever held political appointments in the government whereas even President Chandrika Klumaratunga was accused of interfering in the functioning of the judiciary – one such instance being when she appointed Shirani Bandaranayake to the supreme court without heeding the advice of the chief justice who had recommended two appeal court judges for the vacancy. The Friday Forum does refer obliquely to “attempts at compromising judicial integrity through political appointments and other benefits granted to immediate family members of judges…”, but they fail to say that the only chief justice who ever had any immediate family members holding political appointments is the present one.

The Friday Forum also commends the Chief Justice and the other two Supreme Court Judges on the Judicial service Commission for not going when they were summoned by what they refer to as ‘an unnamed political authority’ but they fail to condemn the CJ for having allowed her husband to accept a political appointment from the president. The Friday Forum even goes to the extent of berating the Bar and the bench for their silence on the matter little realizing that when Shirani Bandaranayake was first appointed, the Bar and the Bench protested vehemently and warnings issued more than 15 years ago by senior figures like R.K.W.Goonesekera and Shibley Aziz are now being proved right. So this impeachment is not a black and white case as some seem to be intent on making it out to be. Back in May this year, Uvindu Kurukulasuriya wrote a blistering article to the Sunday Leader about the chief justice which stressed the following points.

Kurukulasuriya’s prescience

*  When Justice Bandaranayake was appointed as the Chief Justice, there were serious conflict of interest issues relating to her. The Sixth Conference of Chief Justices of Asia and the Pacific held in Beijing in August 1995 adopted the Statement of Principles on the Independence of the Judiciary. Principle 39 of the Beijing Statement says, “Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.” The Chief Justice must explain how her husband was appointed Chairman of Sri Lanka Insurance Corporation, and a member of the Board of Directors of Lanka Hospitals Corporation PLC. How was he also appointed Chairman of the National Savings Bank? Had he applied for the job? Was he interviewed? Who were the other applicants? Weren’t there any other qualified applicants other than her husband?

*  While Justice Shirani Bandaranayake sat on the Bench of the Supreme Court court, 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 Finance, appointed Justice Shirani Bandaranayake’s husband Pradeep Kariyawasam to the new SLIC Board as its Chairman.

* Kariyawasam was also appointed to the Lanka Hospitals Corporation PLC as a member of its Board of Directors along with Defence Secretary and Presidential sibling Gotabhaya Rajapaksa who was appointed Chairman.

* But that is not all. On May 15, 2010 Pradeep Kariyawasam was also appointed Chairman of the National Savings Bank by President Rajapaksa. The NSB controls assets worth Sri Lankan Rupees 424,994,303,000/-.

* Under the chief justice’s husband’s chairmanship, the NSB has evolved a “sophisticated bank robbery”(Kurukulasuriya’s phrase) the questionable Rs. 390 million deal between the National Savings Bank and a group of investors of The Finance Company (TFC).

* During an interview with Mirror Business, The Finance Company PLC (TFC) Chairman Preethi Jayawardena and TFC Director/Chief Executive Officer Kamal Yatawara reiterated that the transaction in question was strictly a private one between the owners of the shares and the NSB, thereby having no material impact on TFC or its depositors. According to them, this corrupt transaction is not even a transaction between two state run organizations. It is a private deal between two cronies. Good Governance and Minority rights activist K. C. Vignarajah told The Island Financial Review: “The deal was suspicious from the very start …The management of the NSB should be held accountable to the public, no matter how small the transaction may seem to them. Some had argued that the President cannot prevent the payments from being made on technical grounds, but if the deal was suspect there is nothing wrong with preventing those responsible from getting away with the loot, especially when it is public money”.

* The Ceylon Chamber of Commerce issuing a statement called for an impartial inquiry and urged authorities to take action against any wrongdoers. “The Ceylon Chamber of Commerce (CCC) notes with concern the recent transaction of approximately 13 percent of The Finance Company PLC. The Chamber believes that ensuring integrity and transparency are vital to maintain investor confidence in the Colombo Stock Exchange (CSE) for the capital market to remain robust,” the Chamber observed.

* Opposition lawmaker and leading economist Dr. Harsha de Silva said, “This transaction exposed only the tip of the iceberg. There is a mafia in the country’s Stock Exchange and this deal has exposed a few of them and we are not going to let go. We hope the Regulators find the courage to carry out an investigation and give a fair judgment. If they do this, it will have a positive impact on the Colombo Stock Exchange, the inflow of foreign investments and the overall development of the country”.

* Alluding to the deal as a ‘sophisticated bank robbery, Dr. Harsha de Silva said the country needed sophisticated law enforcement officers and regulators to tackle such fraud. Dr. de Silva called for the resignation of NSB Chairman Pradeep Kariyawasam and said authorities should be allowed to carry out an impartial inquiry and punish any offenders without fear and favour.

* Kurukulasuriya also asserted in his Sunday Leader article that the resignation of NSB Chairman Pradeep Kariyawasam is not enough, his wife must also resign, rhetorically posing the question,  “How can any investigation be carried while his wife sits as the Chief Justice?” At the end of the day any findings will go to the Supreme Court for a decision.

* He also cited the example of Nelum Gamage where when she was the head of the Bribery Commission, her husband was allegedly involved in corruption, she resigned and he invited Chief Justice Dr. Shirani Bandaranayake to follow Nelum Gamage’s example.

* Kurukulasuriya also stressed the fact that none of the spouses of previous judges have accepted political appointments and further that the relationship between the Chief Justice of Sri Lanka and her spouse cannot be private. Not when that spouse holds key positions in government institutions – that is a conflict of interest. A conflict of interest is also corruption.

Undoubtedly, this impeachment motion represents the most sordid episode in the history of the Sri Lankan judiciary. Shirani Bandaranayake made history by being the first woman Supreme Court judge and the first woman chief justice. She is about to make history again and how! What this shows is that no one should be appointed to a body like the Supreme Court and hold that position for more than five years. Shirani Bandaranayake has already been on the Supreme Court bench for far too long. Furthermore a position on the SC should be offered only to those with long years of experience at the bar or the bench and should not remain either as a Supreme Court judge or the chief justice for anything more than five years.

The UPR nonsense

With the heat over the chief justice’s impeachment and the adverse weather, the UPR sessions in Geneva went almost unnoticed.  The Universal Periodic Review was a mechanism that was introduced along with the UN-Human Rights Council in 2006 and is therefore quite new to the world. Under the UPR mechanism, every country in the world presents its case at the UN-HRC on its adherence to human rights norms and conventions. By the logic of normal human beings, the UPR mechanism would look like a colossal waste of money and resources. For example at the sessions on Sri Lanka on Thursday, Minister Mahinda Samarasinghe held forth for one hour after which nearly a hundred other countries spoke on Sri Lanka either praising or finding fault and the contributions made by those countries lasted less than ninety seconds each. Some speakers seemed to get cut off in mid sentence.

They were all scripted speeches and none of them were based on what Minister Samarasinghe said. Before the session on a country begins, the country concerned submits a national Report well in advance and this is followed by reports provided by ‘stakeholders’. The speeches made by various countries on the day a country UPR is taken up, are based on the contents of the national report of the country concerned and these stakeholders reports. In the case of Sri Lanka, the stakeholders who submit reports to the UNHRC are almost exclusively foreign funded NGOs. The few stakeholders that are not foreign funded stakeholders are Tamil separatist organisations like the Global Tamil Forum, based overseas. The question of the utility of this process is highly questionable. When watching the proceedings, the question that immediately comes to mind is who pays the expenses of the delegation? If it has to be borne by the countries individually, that would be a criminal waste of money that could be better used in meeting more concrete goals like the eradication of certain diseases.

The national report submitted for the UPR is always a paen of self praise and the stakeholders reports are always a litany of complaints. The national reports are always full of trite banalities that everyone knows already. For example, When India faced its UPR among the things that the Indian national report said went as follows: “India is home to over one billion people. Indian society is the culmination of centuries of assimilation of diverse peoples and ethnic groups. India has an inclusive, open, multicultural, multi-ethnic, multi-lingual society marked by unparalleled pluralism. India is the seventh largest country in the world covering an area of 3.3 million sq. km. It is a subcontinent by itself extending from the snow-covered Himalayas to the tropical rain forests of the south. India accounts for 2.4 per cent of the world surface area but supports and sustains 16.7 per cent of the world population. India has 18 major languages. More than 1650 dialects are spoken across the country.”

India is justifiably proud of its programme to uplift the depressed caste communities in that country and unsurprisingly, they were touting “pluralism and respect for diversity” as one of their key achievements and claiming that they have embarked on a programme of affirmative action which is, perhaps, without parallel in scale and dimension in human history. Instead of unreservedly congratulating India, the compilation of NGO views prepared by the Office of the High Commissioner for Human Rights, highlighted the following.

*         The HR Committee expressed concern about the persistence of preferred treatment for males and deplored the fact that practices such as foeticide continue.

*         In 1997, the HR Committee noted with concern that members of scheduled castes and scheduled tribes as well as the so-called backward classes and ethnic and national minorities continue to endure severe social discrimination and to suffer disproportionately from violations of their rights, such as inter-caste violence, bonded labour and discrimination of all kinds.

*         The Committee also noted that de facto segregation of Dalits persists, in particular in rural areas, in access to places of worship, housing, hospitals, education, water sources, markets and other public places.

The question that has to be raised is, why are such issues being raised when India is well aware of these problems and have been making attempts to eliminate them? What advantage can be gained from such nit picking, stressing the obvious? This nit picking has already become a joke among participating nations. In fact when it came to Britain’s turn to be examined under the UPR, Russia jokingly pleaded that   since the adoption of the Magna Carta in 1215, it had taken 700 years for one of the most developed countries in the world to reach universal suffrage, in 1928, the United Kingdom should continue to show understanding about the human rights situation in other countries, particularly in those which have quite recently been freed from their colonial past! Basically, the UPR is another mechanism that the Western nations have devised to use as a foreign policy tool to harass countries that don’t bow down to their diktat. What appertains in the UPR process is the age old adage that might is right. When it came to the turn of the USA to face the UPR, they flatly refused even to consider some suggestions made by other countries.

The American middle finger  

*For example, Iran suggested among other things, that the USA should take effective measures to counter insults against Islam and Holy Quran, the USA countered this by saying that they cannot take legislative measures countering insults because insults are speech protected by the American constitution!

*To the Libyan suggestion that the USA should make those responsible for gross violations of human rights in American prisons and prisons under the jurisdiction of America outside its territory accountable and compensate victims and provide them with remedies, the USA said bluntly they are committed to holding accountable persons responsible for human rights violations and war crimes, but they cannot consider compensation and remedies, because those are not always applicable.

*Another suggestion made by Iran was that the USA should put on trial its gross violators of human rights and its war criminals and accede to the ICC (International Criminal Court). The USA flatly refused to accede to the Rome Statute (under which the International Criminal Court is constituted), although they are engaging with State Parties to the Rome Statute on issues of concern – which in effect means that the ICC is for other countries and not for the USA.

*Another suggestion to the USA made by several countries including Egypt, Ghana, Sudan, Russia, Qatar, South Korea and Ireland  and Venezuela was to establish a national human rights institution, The USA’s cryptic answer was “Although we are reviewing whether domestic institutions that monitor human rights need improvement, we cannot now commit to a particular plan.”

Obviously Sri Lanka though a sovereign nation does not have the same freedom. The USA responded to certain other suggestions made by certain countries at the first UPR in the following manner.

Venezuela – Repeal the norms that limit freedom of expression and require journalists to reveal their sources, under penalty of imprisonment. (Flat Refusal)

Ghana – The United Nations Declaration on the Rights of Indigenous People be used as a guide to interpret the State obligations under the Convention relating to indigenous peoples. (Flat Refusal)

Nicaragua – Halt immediately the unjustified arms race and bring to justice those responsible for all war crimes and massacres against unarmed civilians, women, children as well as acts of torture carried-out in prisons such as Abu Ghraib, Bagram and Guantanamo. (Flat Refusal)

Sudan – The closure of Guantanamo prison as the detention conditions violate the UDHR and ICCPR and the European Convention on Human Rights (ECHR) and all other related human rights instruments. (Flat Refusal)

Bangladesh – Raise the level of official development assistance to achieve the United Nations target of 0.7 percent of GDP and allow duty free-quota-free access to all products of all LDCs. (Flat Refusal)

Brazil – Withdraw reservations to the Convention against Torture. (Flat Refusal)

Iran – Abolish its extrajudicial and extraterritorial laws and refrain from the application of unilateral measures against other countries. (Flat Refusal)

North Korea – Take legislative and administrative measures to end defamation of religion. (Flat Refusal)

Courtesy Sunday Island November 3, 2012

Related posts;

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Chief Justice Or Her Husband Must Resign by Uvindu Kurukalsuriya 

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Wither Independence When Judges Host Parties For Politicians? by Uvindu Kurukalsuriya

Can We Expect Justice And Independence From Servants Of Military Dictators? by Uvindu Kurukalsuriya

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