By  C. A. Chandraprema –

As one newspaper editor said, we get budgets once every year, but an impeachment (especially one that goes the whole hog) will be seen only once in a lifetime. Throughout the past week, the media has been on a feeding frenzy over the impeachment motion against the chief justice. The budget has been all but forgotten in the excitement. What enhances the heat and controversy is the fact that the same individual may be in two minds about the judiciary and its decisions. There is no doubt about the fact that former Chief Justice Sarath Nanda Silva was a tyrant whose attitude towards power was in many respects similar to that of R.Premadasa and Chandrika Kumaratunga. We journalists were more scared of him than we were of Chandrika Kumaratunga. If you got jailed by president, at least you could raise a hue and cry about it. But if you got jailed by the CJ, even that would not be possible. Yet, the same S.N. Silva is also a hero to many including the present writer. The entire history of this country would have been different if not for S.N. Silva.

If not for his decision in the fundamental rights application made by Ven Omalpe Sobitha Thero against the Elections Commissioner (S.C.(FR)278/2005) a presidential election would not have been held in 2005, Mahinda may not have been elected to power and the war would never have ended. This was clearly an instance where tyrannical power and diabolical brilliance has been used for the ultimate benefit of the nation. Chief Justice Silva made use of a comma in Article 31 (3A) d (i) and the definition of the word ‘date’ to include not just the day and month but the year as well, to send Chandrika home in 2005 instead of 2006. Though we may like that decision, certain other rulings given by S.N. Silva like the prohibition on permanent checkpoints issued in 2007 may seem daft.  This brings us to the question whether everything is subjective and whether there are no objective criteria by which judges could be judged?

Last Thursday, Batty Weerakoon the former LSSP heavyweight gave an interview to the Lakbima where he had argued that nobody has said anything about the chief justice and that anything that has been said, has been about her husband and that one cannot blame the wife for something that the husband has done. He further said that if the husband has done something wrong, action should be taken against him, not the wife. What Weerakoon said as a former Minister of Justice and as a former political party leader, carries weight.  Weerakoon has in  fact focussed on what the present writer also considers to be the most damning charge in the impeachment motion – Charge No: 5 which says that Pradeep Kariyawasam, the husband of the CJ is a suspect in a case filed at the Magistrate’s Court of Colombo by the Commission to Investigate into Allegations of Bribery or Corruption, and that as the ex-officio chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the said court which is due to hear this case, and also to examine the judicial records, registers and other documents maintained by the magistrate’s  court and therefore there is  a conflict of interest.

It should be noted in this regard that the Sri Lanka Establishments Code lays down very stringent standards of conduct even for ordinary public servants. According to Appendix I of Volume II of the Establishments Code which provides a ‘Definition of Offences Caused or Committed by Public Officers’ an ordinary policeman or government clerk  “who fraternises with a law breaker or reputed law breaker would be guilty of improper conduct”. The CJ’s husband, by Batty Weerakoon’s reckoning, is a ‘reputed law breaker’. So what happens if ‘a reputed law breaker’ is living in the same house as the chief justice of the country? If the wrong precedent is created in this case, no action can be taken against police officers and judges who keep company with criminals.

Y. K. Sabharwal, a former chief justice of India said that while every public servant is governed by a certain basic code of conduct which includes the expectation that he shall maintain absolute integrity, the office of a Judge requires much more. The code of ethics expected of those in the judiciary goes beyond the call of duty of an ordinary public servant. He said that there are three cardinal principles of judicial ethics that apply to any person holding a judicial office: 1) concerning the acts attributable to his official functions as a Judge; 2) concerning his conduct while in public glare; 3) the expectations of him in his private life.

The Bangalore Principles 

After a long drawn out process, The Banglore Principles (of Judicial integrity) were formulated in 2007 by a UN sponsored body called the Judicial Integrity Group chaired by our very own legal luminary C.G. Weeramantry. These principles have been adopted by the UN Social and Economic Council. Other Sri Lankan legal luminaries like Nihal Jayawickrema and Sarath N.Silva were involved at various stages in preparing the Bangalore Principles or its commentary.

One of the key questions discussed in the formulation of the Bangalore Principles was why judges should be under a general duty to keep themselves informed of the financial interests of their family, (unrelated to any possible risk to their actual or apparent impartiality). The Commentary on the Bangalore Principles observes: “Any mention of judicial independence must eventually prompt the question: independent of what? The most obvious answer is, of course, independent of government”. It should be noted that journalists like Uvindu Kurukulasuriya have raised the question as to how the chief justice’s husband became the Chairman of the Sri Lanka Insurance Corporation, a Director of Lanka Hospitals and later the Chairman of the NSB.

The Bangalore Principles and its commentary also stressed the following points:

Bangalore Principle (BP): The Court’s authority ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements…

BP: Even one instance of judicial misconduct may irreparably damage the moral authority of the court. These standards apply to matters great and small. In some respects, the management of petty cash or the acquittal of expenditure can be a matter of great moment.

BP: A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

BP: A judge should discourage members of the judge’s family from engaging in dealings that would reasonably appear to exploit the judge’s judicial position.

BP: The public demands from the judge conduct which is far above what is demanded of their fellow citizens, standards of conduct much higher than those of society as a whole; in fact, virtually irreproachable conduct. Because appearance is as important as reality in the performance of judicial functions, a judge must be beyond suspicion. The judge must not only be honest, but also appear to be so. What matters more is not what a judge does or does not do, but what others think the judge has done or might do. When in doubt about attending an event or receiving a gift, however small, ask the question, ‘How might this look in the eyes of the public?’

BP: A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate. When adjudicating between any parties, a judge must be free from any connection, inclination or bias which affects – or may be seen as affecting – his or her ability to adjudicate independently. In this regard, judicial independence is an elaboration of the fundamental principle that ‘no man may be judge in his own cause’. This principle may be applied literally: if a judge is in fact a party to the litigation or has an economic interest in its outcome then he or she is indeed sitting as a judge in his or her own cause. The second application of the principle is where a judge is not a party to the suit but in some other way the judge’s conduct or behaviour may give rise to a suspicion that he or she is not impartial; for example, because of friendship with a party.

(It should be noted that the Bangalore Principles were drafted for ordinary judges, not chief justices whose spouses are suspects in bribery cases. The legal luminaries who drafted this code probably never envisaged that such a situation can arise anywhere in the world. The peculiarity of the Sri Lankan constitution where the CJ is the ex-officio chairman of the Judicial Services Commission which controls the lower judiciary also has to be taken into account here.) The Bangalore Principles said further:

The Judge’s family 

BP: A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. A judge should not violate universally accepted community standards or engage in activities that clearly bring disrepute to the courts or the legal system. The judge must consider whether in the eyes of a reasonable, fair-minded and informed member of the community, the proposed conduct is likely to call his or her integrity into question or to diminish respect for him or her as a judge. If so, the proposed course of conduct should be avoided.

BP: A gift, bequest, loan or favour to a member of the judge’s family or other persons residing in the judge’s household might be, or appear to be, intended to influence the judge. Accordingly, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage the family members from violating them.

BP: A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else. A judge is generally regarded by members of the public as a very special person, and treated in court, and probably outside too, with a measure of subservience and flattery. It is improper for a judge to use or attempt to use his or her position to gain personal advantage or preferential treatment of any kind.

(Any reasonable, fair-minded and informed member of the Sri Lankan community will know that the Chairmanship of a government owned corporation or of a state owned bank is given to political cronies as rewards for services rendered or services to be rendered and that such posts are never given out on the basis of merit. If the chief justice’s spouse has accepted such a post, how does that look to the public? Pradeep Kariyawasam was not a prominent activist of the UPFA or a close buddy of anyone in the government and nor was he a top notch professional who would warrant such a posting entirely on merit. Then how does one explain how he got such posts?)

India’s former chief justice Shabharwal quoting Krishna Iyer said that ‘the independence of the judiciary is being undermined by such devices as making judges after retirement or on the eve of retirement, governors, ambassadors, vice chancellors etc. These plums have a seductive influence on superannuating gentlemen and should be avoided…’ What would Justice Shabarwal have said about an incumbent chief justice’s spouse holding a political appointment usually given only to cronies of the government? On the question of a judge continuing to serve in situations where a member of that judge’s family is involved in litigation, the Bangalore Principles lay down the following guidelines.

BP: The judge must be sensitive to avoid contacts that may give rise to speculation that there is a special relationship with someone upon whom the judge may be tempted to confer an advantage.

BP: A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case. A judge is ordinarily required to exclude himself MANDATORILY from a case in which any member of the judge’s family has participated.

BP: A judge shall make reasonable efforts to be informed about the financial interests of members of his or her family. If consequent to his or her decision in a proceeding before the court, it appears that the judge, or a member of the judge’s family, or other person in respect of whom the judge is in a fiduciary relationship, is likely to benefit financially, the judge has no alternative but to stand down.

Another serious charge in the impeachment motion is the Charge No: 1 – that the CJ bought in the names of her sister and brother in law a flat at Trillium Residencies on a power of attorney and subsequently having removed a supreme court bench hearing several fundamental rights cases pertaining to Trillium Residencies and taking up further hearing of these cases under her court and serving as the presiding judge of the benches hearing the said cases.  The formulators of the Bangalore Principles thought that taking over a case in mid-stream from another judge would lead to malpractices and they have laid down the following rule:

BP: A case should not be withdrawn from a particular judge without valid reasons, such as serious illness or conflict of interest. (The question is when the cases mentioned in Charge No: 1 were taken under the CJ’s personal authority, was this because of some serious illness or conflict of interest with regard to the earlier bench?)

The Establishments Code 

The problem in Sri Lanka is that there isn’t the equivalent of the Bangalore Principles or even the Sri Lankan Establishments Code to guide the functioning of the judiciary. A detailed examination of the Sri Lankan Establishments Code will show what a stringent regime the ordinary humble public servant is subject to. Chapter XLVII of the Establishments Code lays down the following rules for public servants:

3.1 An officer or a member of his family shall not accept any presents, gifts, or other benefits other than the ordinary gifts of relatives and personal friends, whether in a direct or indirect form and whether in the shape of money, goods, free passages, services, unusual discounts on the cost of goods supplied or services rendered, etc.

3.2 The officer will be held responsible for the observance of the rule in the preceding section by the members of his family. (This rule is especially relevant to the particular impeachment under consideration.)

1.5 An officer shall not do anything which will bring his private interest into conflict with his public duty or which compromises his office. He should so conduct himself at all times as to avoid giving rise to any appearance of such conflict or of being so compromised.  (Note that how things appear to the public is considered as important as what happened in reality.)

2.1 Upon first appointment, every officer should furnish to the head of his department, …. particulars of all assets owned and liabilities incurred by him or his spouse in her own right, or transferred or assigned to her in consideration of her marriage.

2.2  If the officer is unmarried at the time of his first appointment, he should immediately after marriage furnish the particulars required by the preceding subsection.

2.3 Every officer should, whenever he or his spouse acquires subsequently any new interests or assets,… furnish in writing to the head of his department for inclusion in his personal record, file or personal file full particulars of the assets or interests so acquired. Any failure to do so promptly will be regarded as a breach of discipline. (Note how they go after the spouse’s assets as well to make sure that the public officer is honest!)

3.1 Acquisition of land or share in land by purchase, lease, gift, inheritance dowry or device does not require the prior approval of the government agent of the district, but it must be reported within three months through the head of the department to the government agent of the district in which the land is situated who will, if the acquisition appears improper or if he otherwise considers it undesirable, refer the matter to the secretary to the ministry in which the officer is serving for such action as may be necessary.

3.1.1 An acquisition must be completed before marriage or within such period as the government agent or secretary as the case may be prescribe if it is to be accepted as an acquisition by dowry.

3.2  Every report regarding an acquisition by a head of department, or by a member of the Sri Lanka administrative service should be referred to the secretary to the ministry in which he serves for orders.

3.3 If in the opinion of the secretary, any acquisition or holding by or on behalf of any officer improper be may order that the officer to divest himself of it to such extent as the secretary thinks fit.

An acquisition or holding is improper if it might bring an officer’s private interests into real or apparent conflict with his public duties or in any way influence him in the discharge of his duties.

3.4 The preceding subsections will apply to an acquisition whether in the officer’s own name or that of any member of his family, and also to acquisition made by or on behalf of a spouse as his or her own separate property. (This shows what a vice-like grip is being maintained on the humble government servant – he can’t buy property even in the names of his kith and kin without the risk of being investigated and his spouse’s wealth too is under scrutiny because he holds a government job.) The question is, what happens if the Establishments Code is applied to the judiciary as well in the present circumstances?

Last week, in the TV talk shows about the impeachment motion, lawyers like Upul Jayasuriya were making technical arguments against the impeachment by pointing out that the very MPs who signed the impeachment motion, will be voting against the Chief Justice after the hearings of the parliamentary select committee is over. He even referred to the PSC as a kind of Kangaroo court. Obviously, a group of parliamentarians hearing a case is not the same as expert judges hearing a case. But then an impeachment motion is an extraordinary measure taken to meet an extraordinary situation. This is proved by the fact that in the 35 years of the 1978 constitution, we have never had an impeachment. There have been feints and threats of impeachment but never anything that went all the way. That is how unusual this procedure is. Besides, it is the parliamentarians who make the laws that the courts implement. So the same judgement that is applied in determining the merits or otherwise of a law will be applied in this case to judge the merits or demerits of the charges against the CJ.

Some have been trying to score points by saying that the impeachment motion gives the date of the case Edward Francis William Silva and three others versus Shirani Bandaranayake as 1992 whereas it was actually in 1997. Such technical points are not going to sway parliamentarians. They’ll take note of the correct year and continue. It is doubtful whether the usual court room strategy of scoring points on technicalities will serve any purpose when politicians sit as judges. Opposition lawyers should be careful, typical ‘criminal case’ style technical arguments will not produce the desired result in cases with political connotations. This is why Gen. Sarath Fonseka did not get even a reference number from the Inter-Parliamentary Union during all the many months that he was incarcerated. The observer sent by the IPU went to courts, listened to the arguments being proffered in Fonseka’s favour, girded his loins, and fled. Back in Geneva, he put in a report unfavourable to SF. Technical points rarely go down well with political audiences.

Courtesy  Sunday Island – November 11th 2012