22 October, 2021

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Judging The Chief Of The Judiciary

By  C. A. Chandraprema –

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

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Latest comments

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    Pra…Pra..Pra… Papara.. Praaaaaaaa

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    This writer considers Sarath Silva – in his words a ‘tyrant’- as his hero, because his judgement in Omalpe Sobitha Thero’s case paved the way for the current President. “This was clearly an instance where tyrannical power and diabolical brilliance has been used for the ultimate benefit of the nation.”I take the view that Mr Sarath Silva’s judgement is wrong and have said so elsewhere.

    How can anyone take such a person seriously when he embarks on a desanawa on Bangalore principles and the failings of the judiciary or those of the current CJ?

    The Bangalore Principles are there to guide not only judges but also those who have anything to do with judicial appointments. If the President or any of his advisers knew anything about those principles then they should have drawn his attention to those principles and explained to him why it was not such a good idea to appoint t the CJ’s husband to an important post. It was unwise of the husband to have accepted the appointment but it was equally unwise of the President to have made the appointment. So, it is rather disingenious to argue that the CJ should not have allowed her husband to accept the appointment, and she should resign because she failed to do so.

    Evidently, the writer seems excited about that impeachment which -like the Haley’s comet-comes only once in a lifetime – unlike the budget which comes once every year.

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    The writer has not answered to this statement of his – ‘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.’ Will he not accept that there was a ‘sinister motive’ behind the action of the Executive that removed the husband from his position in the Insurance Corporation on alleged misbehaviour appointing him, the husband, to a similar position in the National Savings Bank. Was it not the intention of the Executive to keep an axe hanging above the head of the CJ to be used when she differs with the Executive knowing that it intended to introduce Bills that violate the Constitution.

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    Chandraprema is a Government stooge, who recently regaled in the limelight by authoring a book of praise of the incumbent political heirachy. Obviously he is out to crucify the CJ even before the impeachment proper has began. Cheap theatrics for a mendicant boot licker.

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      Just a few months back, Dayasiri Jaysekara UNP-MP said in parliament that being the chairman of NSB, CJ’s husband is the main culprit for purchasing shares of ‘The Finance Co’ for his bank at twice the market value. For that reason Jayasekara MP said he demand not just chairman husband but CJ also resign forthwith pending a full inquiry in to the crooked share deal that used public money.

      Today, Chritha Ratwatte writes to tell us that Chairman husband was non executive chairman, hence not responsible. But nowhere Jayasekara MP referred to CJ’s husband in the said speech as the non-executive chairman. Hypocrites!

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    It is completely dishonest for CA Chandraprema to raise the moral high ground against the Chief Justice, Shirani Bandaranayake, on the basis of Bangalore Principles when he unashamedly admits that Sarath N Silva is his hero who was tyrannical and diabolical.

    He may say that apart from his subjective preferences he was merely tracing the objective facts. But the Impeachment is not going to be determined on the basis of Bangalore Principles or the Establishment Code. Those are mere propaganda. The basis is the Constitution.

    He hides behind the name of Batty Weerakoon to say Pradeep Kariyawasam is a ‘reputed law breaker.’ This is defamatory.

    He focuses only on one charge, no 5. The connection between the Magistrate inquiry and the Chief Justice is only an institutional one which can be easily resolved, if not already. No need for impeachment. There is no moral or legal connection between the two until he is proven guilty, if at all.

    In respect of the appointments, who is on the dock is not the victim, Pradeep Kariyawasam, but the perpetrator, the President himself. As Kamal Nissanka has said, President should be brought before the PSC to answer.

    Chandraprema’s pontification is not necessary for the PSC or the opposition members in it. It is not merely the dates which are incorrect in the case of charge no. 10 but the whole substance as the CPA has already pointed out. I suggest that all charges are fabricated for political reasons which are well known to Chandraprema.

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      Laksiri Fernando:
      I really must take issue with you in the matter of calling Chandraprema dishonest only for ‘raising the moral high ground” in the matter of the CJ’s attempted removal.
      Chandraprema is TOTALLY DISHONEST AND A BOOT-LICKER SUPREME to the Rajapaksa Regime and to suggest that his capacity for dishonesty is restricted to one issue is just not fair to sri Lanka’s reading public!

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    Author quotes heavily from BP to justify the impeachment of our CJ. However these principles have yet to be adopted or implemented even in India itself.

    According to the Judicial Integrity Group

    ‘The need for procedures for the effective implementation of the Bangalore Principles of Judicial Conduct was emphasized at several legal and judicial conferences. Indeed, it was pointed out that without such procedures, the Bangalore Principles would remain mere aspirations and public expectations would remain unfulfilled. Accordingly, at its 5th Meeting in Vienna in February 2007, the Group agreed to undertake the preparation of a statement of procedures for the effective implementation of the Bangalore Principles of Judicial Conduct, and requested the Co-ordinator of the Group to prepare a comprehensive draft statement for discussion. The Group adopted the draft Measures for the Effective Implementation of the Bangalore Principles at its 6th Meeting in Lusaka in 2010.’

    So it is strange that he is labouring to implement these in Sri Lanka. No doubt he could write a book ‘Mahindas War on the Judiciary’.

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    This man is a Rajapakse stooge. earlier he was with PRAA. Similar to Former CJ(Cheap Justice) sarath Silva he uses facts and nuances to suit him. May have got a collosal sum from the regime. This is the type of intellectuals MR has. My foot. Debacle of Asia

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    Once I saw Laksiri Fernando White Wash Rajpakasa Falimy of made a speech of D.A.Rajpasasa at TEMPLE Trees.
    Now same Fernado-esq, going safeguard CJ and Family on corrupation charges.
    Where is this type of so-called Educate person STAND.Thess people are double deales hunting for position and power, what ever they can enjoy in life-time.

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    The charge where the Ceylinco case being taken out of another judge hearing it and being brought under the CJ when her sister has purchased a property using the CJ’s power of attorney,is the one that is troubling me.The other charges are all frivolous and vindictive and Mr.Batty Weerakoon a former Justice Minister and a very good one too is quite right when he say she can’t take responsibility for what the husband does.If that is so nobody will be safe if they are held responsible for other people’s actions however close they may be.

    As for the Ceylinco case I feel very sorry for the small depositers who must have gone through terrible anguish,and if the CJ did anything or was trying to do something against their interests then I feel she has let down small people badly and should be punished for that.However must wait and see what her defence is without passing Judgement prematurely just based on what a boot licker like Chandraprema says.

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