By Dharisha Bastians –

“The Chief Justice of the Democratic Socialist Republic of Sri Lanka is making a stand: which side you take will define who we are as Sri Lankans,” announced Shaveen Bandaranayake, son of Chief Justice Shirani Bandaranayake, on his Facebook page, the same day that an impeachment motion against her was handed over to the Speaker of Parliament at an auspiciously chosen time.
Since then, with the publicity his impassioned plea received, Shaveen’s social network page has turned activist, gathering opinion from across the spectrum about the manifest threats to Sri Lanka’s judicial system.

“I may come and I may go. Others will come and others will go. It is immaterial who comes and goes. All that matters is that the judiciary remains for many generations to come and that it remains independent,” Shaveen posted on 3 November, quoting his mother.

As a senior judicial officer, Shirani Bandaranayake has no public voice and sources close to the Chief Justice say all her personal calls are taken by her secretary, even as an avalanche of support from all quarters has begun to come her way.

As the head of the country’s court system, she has no legal redress or any mechanism through which she can answer her detractors or appeal her case if she is found guilty. Her only child is trying to fill that gap, by advocating on her behalf. Whether his actions will help or hinder her case, remains to be seen.

It is certainly a world of contradictions. On Tuesday, thousands of miles away American citizens went to the polls to elect the next leader of the free world in what is a traditionally stunning display of democracy at work. Here at home, on the same day, the Sri Lankan Government took the process to impeach the Head of the Judiciary, one step further by tabling the motion in the 225-member Parliament, a move which critics say strikes a death blow to judicial independence and democracy.

Fourteen charges of improper conduct have been framed against Chief Justice Shirani Bandaranayake, the first woman Chief Justice in the country’s 200-year judicial history. The charges were included in the Order Paper of Parliament on Tuesday together with the names of 117 signatories to the petition.

There was palpable excitement about the Government’s revelation of the charges, because unlike in other instances when impeachment charges have been framed against a chief justice, this time the charge sheet was kept a heavily-guarded secret. In fact, some MPs who signed the motion claimed they did not know the nature of the charges contained therein. Conversely, in the motions filed against both Neville Samarakoon and Sarath N. Silva, the charges were broadly discussed and very much in the public domain.

At first glance the charges, ranging from financial misconduct to abuse of power and prejudicial rulings, seem relatively serious. In fact water-fountain talk in the corridors of Parliament on Tuesday after the 14 charges were revealed revolved around the fact that the charges seem fairly serious ones, worthy of investigation. It will be interesting to see how the Chief Justice navigates charges 1-4 pertaining to financial misconduct. But some of the others seem less problematic.

The charges

A brief summary of the charges are as follows:
Charge #1 and #2 pertain to the Chief Justice having purchased an apartment at Trillium while hearing a Ceylinco case using her sister’s power of attorney and failing to disclose how she obtained Rs. 19.3 million to pay for the purchase.

Charge #3 deals with her non-disclosure of foreign remittances amounting to Rs. 34 million into an NDB account over the course of a year. Charge #4 also refers to non disclosure of 20 accounts she maintained at NDB bank.

Charge #5 deals with the case pertaining to Pradeep Kariyawasam filed in a Magistrate’s Court and the Chief Justice’s potential to abuse power as Chairperson of the Judicial Services Commission and how her position as Head of the Judiciary hearing the case could hinder or be perceived as hindering the administration of justice.
Charge #6 says the Chief Justice violated the Constitution by appointing Manjula Tilakeratne as JSC Secretary, even though he was not a senior judge and while there were others more eligible. Charges #7 and #8 deal with the Chief Justice’s violation of the Constitution and Supreme Court mandatory procedures by failing to hand over a Special determination to the Secretary General of Parliament and the Speaker at the same time.
Charge #9 pertains to a ruling by the Supreme Court given to a case filed challenging Shirani Bandaranayake’s appointment to the Supreme Court Bench. The case was filed in 1997, by Edward Francis William De Silva PC against Shirani Bandaranayake and three others.

Charge #10 refers to a conflict of interest in the Chief Justice’s hearing and ruling on a Centre for Policy Alternatives case when an article authored by her when she was a lecturer at the Law Faculty of the University of Colombo, had been published in a publication ‘Groundview’ owned by the CPA. Charges #11-#14 relate to harassment and abuse of power charges against the Chief Justice with regard to a female Magistrate whose brother was a petitioner in the 1997 challenge to Bandaranayake’s appointment.

Nitty-gritty

While the Parliamentary Select Committee currently being constituted by the Speaker will probe the charges in detail and Chief Justice Bandaranayake will be allowed to defend her position, it is necessary at least at the very outset to separate the wheat from the chaff in terms of the veracity of the charges framed against the highest judicial officer of the land.

Charges 1-4 pertain to financial issues that are at least as far as the Government is concerned the most tenable of the bunch. The onus will be on the Chief Justice to prove the transactions and asset declarations were above board, but even here one question resonates about the manner in which details about an individual’s personal bank accounts were subjected to state scrutiny.

Regular practice to obtain personal account information from a banking institution is to first obtain a court order or authorisation from the depositor. It a fundamental tenet of the law of evidence that in order to be legally admissible, evidence must be gathered through legal means.

As for Charge #5, the entire charge is based on the Chief Justice’s potential to abuse her authority as JSC Chairperson with the power to remove the magistrate hearing her husband’s corruption case and the potential to obstruct justice as the head of the judicial system.

It will be up to legal minds to determine whether a person can be charged for improper conduct based on the potential of the office they hold to abuse power. Some analysts quipped that it was akin to an attempt to prosecute persons for ‘thought-crime’ or prosecution on the basis of potential to commit an offence. Conflict of interest issues notwithstanding, it is not yet clear how the Government will make its case that this charge warrants impeachment.

JSC Secretary’s appointment

Charge #6 was highly anticipated after External Affairs Minister G.L. Peiris said the appointment of Manjula Tilakeratne to the post of JSC Secretary was unconstitutional since he was 29th in the seniority list of judges of the courts of first instance.

As was highlighted in this column last week, the reference to the appointment of JSC Secretary as stipulated in Article 111(G) – not 111 (H) as denoted in the impeachment motion – states as follows: “111G.  There shall be a Secretary to the commission who shall be appointed by the Commission from among senior judicial officers of the Courts of First Instance.”

In fact 111 (H) pertains to the powers vested in the JSC and not the appointment of the Commission Secretary. Furthermore, legal observers claim that Minister Peiris deliberately misled the House with his assertion, because Tilakaratne was in fact sixth in the seniority list.

Be that as it may, the constitution does not stipulate in the provision to appoint the JSC Secretary that the judicial officer appointed must be ‘senior-most’ in the list of judges of the first instance, thereby making it a difficult charge once more to prove against the Chief Justice.

With regard to Charges #7 and #8, it remains to be seen whether the Parliamentary Select Committee will find that the failure to deliver a document to the correct officer constitutes grounds for dismissal of a chief justice.

1997 SC ruling on Shirani

Charge #9 deals with a ruling granted by a seven member bench of the Supreme Court in 1997 in response to a Fundamental Rights petition filed against the appointment of Shirani Bandaranayake, then a University law lecturer, to the bench of the Supreme Court.

Among the charges, the petitioners claimed that Justice Bandaranayake had been a strong advocate of the devolution package of President Chandrika Kumaratunga and therefore had the open support of SLFP lawyers, thereby compromising her independence.

The Supreme Court bench headed by Justice Mark Fernando dismissed the petitions, ruling that “her views and conduct even if they related to political issues, were neither illegal nor improper and did not constitute a disqualification for office”. In their judgment, however, they agreed that “they may disqualify her from hearing particular cases.”

The Government has long believed that this ruling is a point in their favour and disqualifies Bandaranayake from hearing cases like Divi Neguma that relate to power devolution issues. But other legal minds disagree.
The contentious view is that while the Supreme Court ruling does use the language the Government is cherishing, there is nothing binding in Justice Fernando’s opinion contained in judgment regarding Bandaranayake’s suitability to judge certain cases. In fact, if the ruling was to be considered binding, the question must also be raised as to why the Government appointed Shirani Bandaranayake Chief Justice in the first place, given that she would be proscribed from hearing certain vital cases.

CPA muddle

Charge #10 refers to prejudice on the part of the Chief Justice and her unsuitability to hear and rule on a case filed by the CPA when her article had been published in the “Groundview (sic)” magazine published by the organisation during her tenure as a law lecturer. Upon investigation, this charge is one of the worst framed in the legal draft for impeachment. Firstly, the charge specifically mentions an article sent to the website at the time she was in Colombo University, prior to 1996 when she entered the Bench.

However, the website Groundviews (if it is the “publication” stipulated in charge 10) was only started in the year 2006, 10 years after Bandaranayake’s ascent to the bench. Since inception, the website has never received or published content authored by Shirani Bandaranayake. Additionally, highly placed sources indicate that there has allegedly been a mix up in the Supreme Court case noted in Charge #10, which refers to a case filed by the United National Party and not the CPA. The charge refers to a Supreme Court special ruling petition No. 02/2012.

Sketchy details of charges 11-14 have come to light in recent weeks, alleging sexual misconduct against JSC Secretary Manjula Tilakaratne, presumably the same lady magistrate referred to in the latter four charges. It is however new information that the brother of the magistrate in question was in fact a petitioner in the FR case against Bandaranayake in 1997.

Needless to say, the motion of impeachment against the Chief Justice was drafted in a tearing hurry. Highly placed sources said that a former attorney general was instrumental in drafting the motion. Supervising the process was Constitutional Law Professor, G.L. Peiris.

Given the legal minds behind the draft, the frivolity and lack of due diligence obvious in its framing is astounding, critics say. However one analyst quipped that Prof. Peiris was no great draftsman, although he was a brilliant lecturer of the law. It remains to be seen whether the charges will stand the test when they are probed at the select committee.

The successor?

Not lost in the noise of the impeachment is speculation about Bandaranayake’s successor, should the impeachment motion carry. The name currently being bandied about the most is that of former AG Mohan Peiris. Peiris is a close confidant of President Rajapaksa, serves as his legal advisor and is the face of Sri Lanka’s national legal team at international forums. His open relationship with the highest echelons of executive power in the country will effectively render the judicial independence and separation of powers concepts redundant.
But opposition to Peiris is also coming from an unexpected quarter. Hard-line nationalist Buddhist monks affiliated with the ruling regime are already registering their protest about attempts to appoint a staunch Catholic as the nation’s fourth citizen. President Mahinda Rajapaksa will be hard-pressed to ignore the priests’ protests, since it will be recalled that he too used his ties to Buddhist monks to pressure former President Chandrika Kumaratunga into giving the premiership to him over Minister Lakshman Kadirgamar, an ethnic Tamil.

Face off

With the Government geared up for battle, all that remains to be seen now is how Chief Justice Bandaranayake is going to counter the charges brought against her in the impeachment motion. If the Supreme Court rulings on Divi Neguma, the Appropriation Bill and the Criminal Procedure Code (Special Provisions) are anything to go by, the Judiciary is flatly refusing to back down. According to highly placed sources, the Chief Justice is to be represented by a team of six senior lawyers and is ready to call hundreds of witnesses in her defence.
The Government announced yesterday that it has decided to make amendments to the Divi Neguma Bill, which will mean it no longer needs a referendum to be passed, as it would in its present form. The Supreme Court ruling stipulated that only Clause 8 of the bill required both a referendum and a two-thirds majority of the House to be enacted. So technically, with the Government now able to enact the Divi Neguma legislation as long as they make the necessary amendments and pass it by a special two-thirds majority, which it comfortably commands, it does not need to pursue the impeachment path.
However, given the embarrassing fallout from the Executive-Judiciary clash and what it has cost the ruling regime, chances are keeping Chief Justice Bandaranayake at the helm of the judicial system is not a risk the Government would be willing to take.

Courtesy Daily FT