By Dharisha Bastians –

Dharisha Bastians

Floored by the almost unanimously negative reaction to the lack of due process and the haste with which the report on impeachment was drafted and submitted to Parliament, the ruling UPFA coalition is suddenly mulling its options. The rulers would like nothing more than to forge ahead with the removal of Chief Justice Shirani Bandaranayake. But with the legal fraternity mobilizing at warp speed in solidarity with the CJ and opposition to the move building both at home and abroad, the political cost of the fallout may just prove a little too high

“This is the chairman we appointed. This is the Chief Justice we appointed. When the papers started screaming about the NSB share deal, I summoned people, invalidated the purchase and returned the money. We quietly hushed it up. That’s how it must be done after all, he is our man. So we shaped it up.”

– President Mahinda Rajapaksa at the inauguration of Chartered Accountants of Sri Lanka building on Tuesday

During the inauguration of a four storey building for the Institute of Charted Accountants of Sri Lanka at Malalasekera Mawatha in Colombo, President Mahinda Rajapaksa blithely asserted that he would appoint an independent committee to review the report by the Parliamentary Select Committee submitted to parliament on Saturday (8). For a nation that has been bristling over the process undertaken to remove the Head of Sri Lanka’s Judiciary the statement came as resounding shock. In his speech to the Chartered Accountants gathered there, who he acknowledged as being largely supporters of the opposition UNP, the President said that he had not been in favour of the impeachment motion from the beginnings, but a group of MPs had ‘gathered the evidence’ and put the resolution forward in parliament. “As a lawyer and a member of the legal profession, this whole situation is saddening me. After all, I do not wish to undermine the judiciary,” President Rajapaksa explained, saying that in accordance with his conscience, although not mandated to do so by law, he would be appointing an independent body to study the report on the impeachment submitted by the seven remaining members on the PSC, all of them ministers or deputy ministers in the Government.

PSC – setback after setback

The President’s conscience-stricken assertion about not wanting to play a part in the undermining of the judiciary at the public event, puts the seven Government members of the PSC and the 117 members who signed the impeachment motion – many of them telling the media later that they signed the motion without seeing the contents or the charges – in a sticky situation.

The legal fraternity reacted instantaneously, claiming that it was an admission by the President no less, that the process was unlawful and the report of the Committee flawed. Mobilizing at break neck pace, the Lawyers Collective demanded the immediate withdrawal of the PSC report and an independent and fair trial for the Chief Justice.

SLFP seniors annoyed

The President’s statements have irked Government representatives on the PSC who hastily pronounced on the Chief Justice’s guilt only three days ago. SLFP seniors are reportedly angered by attempts by senior members of the ruling regime to absolve themselves of the fallout from the impeachment drama. Some SLFP seniors who wished to remain unnamed, said that the entire impeachment process was set in motion by a senior presidential aide in charge of parliamentary affairs, who was irked by the Judicial Services Commission decision to take disciplinary action against a magistrate friend. The issue intensified following the Supreme Court position on the Divi Neguma legislation.

I Was Not In favour Of Impeachment

The PSC has suffered setbacks from the get-go. Litigation has piled up against it at the Court of Appeal and the Supreme Court, and notice has been served on the 11 members of the PSC who are cited as respondents in almost all the petitions. Legal challenges to the PSC spring from an interpretation of Article 4 (c) of the constitution which vests judicial power of the people in the courts of law. Then the committee attempted to conduct its deliberations behind the cloak of parliamentary privilege, exercised through the controversial Standing Order 78A which pertains to the removal of judges of the Superior Courts. The Standing Order stipulates that unless the judge in question is pronounced guilty on any of the charges in the motion, proceedings of the PSC may not be made public. The closed proceedings were an attempt to safeguard the reputation of a judge under investigation, until such time his or her ‘misbehaviour’ or ‘incapacity’ was proven. Chief Justice Shirani Bandaranayake’s lawyers in the interest of transparency, during her second audience before the Committee, waived her right to privacy and asked for an open trial. Government members of the PSC refused the request. The Chief Justice then requested observers from the Commonwealth or even the Bar Association of Sri Lanka. Once again, the Government majority in the Committee refused.

Public proceedings

In the end it did not matter in the least. Proceedings were made public from the moment they concluded for the day, splashed all over the websites that are immune from the confines of parliamentary privilege that govern the mainstream media. Along with the revelation that Government members on the probing committee were vetoing every request of the Chief Justice’s lawyers, including that for additional time to prepare her defence, were other exposes that put the PSC in an awkward position, especially following Chief Justice Bandaranayake’s final audience before the Committee on 6 December. The Lawyers Collective, an umbrella organization for several legal associations and senior lawyers, provided excruciating detail about the proceedings at the PSC on the afternoon of 6 December that prompted the walkout by the Chief Justice and her lawyers. The details included certain derogatory remarks cast at Bandaranayake and even the head of her legal team, President’s Counsel, Romesh De Silva by two Government members of the PSC. At a media briefing this week, the Lawyers Collective said that the Chief Justice was compelled to quit the PSC proceedings in order to maintain the dignity of her office and her dignity as a woman, because the slurs cast upon her proved beyond endurance. Officially, representative of Bandaranayake’s legal team, Attorney at Law Saliya Pieris said that submissions by the Chief Justice’s senior lawyer, De Silva PC, had been repeatedly disturbed by Government members on the panel and that some members of the ruling party had got abusive with the Chief Justice. Citing a lack of faith in the proceedings and the belief on the part of his client that she would not receive a fair trial at the hands of the PSC, the Chief Justice walked out of proceedings and informed the Committee through her lawyers that she would not return, Pieris said.

PSC Chairman Anura Priyadarshana Yapa flatly denied the allegations of abuse being hurled at the Chief Justice

PSC Chairman Anura Priyadarshana Yapa flatly denied the allegations of abuse being hurled at the Chief Justice but DNA MP Vijitha Herath, who walked out of the Committee with his three other opposition colleagues on Friday (7) said the official transcripts of the proceedings would soon be made public. “Repeatedly, the PSC Chairman told the Chief Justice’s lawyers to speak to him. He told them not to listen to the remarks being made from his colleagues, so there is no way he can say those things were never said,” Herath said.

Less than 24 hours after the Chief Justice and her lawyers walked out of the PSC, the four opposition members on the committee – John Amaratunga (UNP), Lakshman Kiriella (UNP), R. Sampanthan (TNA) and Vijitha Herath (DNA), quit the committee protesting the unfairness of proceedings and the undignified way in which the Chief Justice had been treated. In order to remain in the Committee, the Opposition committee members demanded that due procedure for the investigation by the Committee be laid out, that the Chief Justice’s legal team (and the four opposition members) be allowed time to peruse the evidentiary documents presented to them on 6 December and that she be invited back into participate in the proceedings on the guarantee that she would be treated with the respect due to the office she holds. All the demands were rejected by PSC Chairman Yapa, culminating in all four members from the opposition quitting the Committee. Not only were the proceedings from then on effectively ex-parte, but with the opposition boycott, the PSC’s legitimacy was further eroded since any ‘verdict’ by the committee now would be seen as entirely one sided, senior lawyers warned. The gravity of this situation was not lost on President Rajapaksa, prompting him to call UNP Senior Vice President and Committee member, Lakshman Kiriella on Thursday (6) night and urging the opposition to stay on and fight for a fair trial for the Chief Justice.

The witnesses

Be that as it may, the sequential walkouts firstly by Chief Justice and subsequently by the Opposition did nothing to stem the enthusiasm of the seven remaining Government members on the PSC. With renewed vigour, the PSC deliberated late into the night on Friday (7) in Committee Room 1 of the parliamentary complex. Following the opposition walkout earlier that day, the PSC hastily summoned 16 witnesses, including Supreme Court Justice Shiranee Tilakawardane, a several representatives from Trillium Residencies, Immigration Controller, Chulananda Perera, Judicial Services Commission Secretary, Manjula Tillekaratne, Central Bank Governor Ajith Nivaard Cabraal and even Presidential Secretary, Lalith Weeratunga. Also on the witness list presented in the 29 page report to Parliament by the PSC were several officials from state banks, including the NSB, Bank of Ceylon and Peoples’ Bank. The editor of a Sinhala newspaper that publishes both daily and weekly was also summoned to give evidence. The witnesses were issued last minute summons yet all of them managed to appear before the Committee which conducted proceedings well into the night on Friday.

According to the PSC report, now in the public domain thanks to the state media, Justice Tilakawardane gave evidence primarily about the Golden Key case that was first pending before a three judge bench headed by her and subsequently transferred to a bench headed by Chief Justice Bandaranayake. The Committee report hails the Supreme Court Justice’s testimony as being ‘greatly useful’ to reaching a correct conclusion. The report says Justice Tilakawardane swore an oath before the Committee and gave evidence that former Chief Justice Sarath N. Silva had urged her to remain on the bench hearing the Golden Key case before he retired, in order to ensure justice is done by some 9000 depositors in the case. According to the Report, Justice Tilakawardane testified that while she was hearing the case, a motion had been filed requesting for a fuller bench of the Supreme Court to hear the case. However the report quotes the response submitted by Bandaranayake’s lawyers which says that the Chief Justice ordered that the case be continued to be taken up before the bench comprising Justices Tilakawardane, Chandra Ekanayake and Priyasath Dep. The report then concludes the following:

“This Committee concludes that the Chief Justice’s conduct in having maintained close ties to and obtained a Rs. 1.6 million discount on the Trillium apartment from Executive Director Janaka Ratnayake who was found by Justice Tilakawardane during her investigation into Trillium to be suspect in major fraud, having refused to make an order appointing a five judge bench to hear the Golden Key case as per the constitution and subsequently removing Shirani Tilakawardane who had worked with dedication for 3 ½ years from the bench hearing the case and appointing herself and two other justices to the relevant bench was systematic and for some purpose. She (Justice Tilakawardane) stated that she did not remove herself from hearing the case voluntarily and she was surprised to hear she had been removed from the bench.”

To support this charge, the PSC report also quotes transcripts of the proceedings, specifically with regard to questions posed by Committee members to Trillium’s executive director. The line of questioning when perused, legal experts opine, indicates that the prosecution and the jurists in the PSC were one and the same.

Guilty on three counts

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.

After hearing from these witnesses, the PSC members stayed back very late to conclude their findings and draft the report with the assistance of several clerical officers in the complex, all of whom were sequestered for the purpose. The report investigated the first five charges in the impeachment motion, and found the Chief Justice to be guilty on three charges: 1, 4 and 5. It has exonerated her on charges 2 and 3 in the impeachment motion which deals with money the Chief Justice said in her response to the charges were transferred from her sister for the purpose of purchasing an apartment in Colombo and an alleged transfer of Rs. 34 million into her bank account, which the Committee has been unable to prove. The PSC said it had not gone into the other nine charges in the motion. Charge 1 pertains to the Chief Justice having purchased an apartment at Trillium while hearing a Ceylinco case using her sister’s power of attorney, Charge 4 deals with non disclosure of some 20 bank 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.

The report was handed over to Parliament on 8 December, in keeping with a trend by the ruling powers to pick dates that add up to the number 8 for elections and other significant political events. By any standards, with the PSC having commenced deliberations on 23 November, the report has been handed over with undue haste, despite the fact that Standing Order 78A makes allowance for an extension of the Committee’s tenure if it required more time to probe the charges. Government Members on the PSC said they could not tarry because the Speaker had mandated that the Committee must deliberate and submit a report within a period of a month. Had the Committee taken its time, studied the evidence and make provision for a fair trial, its legitimacy would not be in such furious question today.

Ex-parte evidence led

The announcement that several witnesses had appeared before the PSC on Friday evening drew a furious reaction from the Chief Justice’s lawyers and across the board. Issuing a statement on behalf of Bandaranayake, Attorney at Law Saliya Pieris said that the Committee had consistently maintained since 23 November that no oral evidence would be led during the proceedings and the Chief Justice’s legal team would not be permitted an opportunity to cross examine witnesses and those submitting documentary evidence to the PSC. “Despite our demands to cross examine the witnesses we were not given the list of witnesses or documents and were told that there will be no witnesses called. This same observation has been made by the Opposition Members of the Select Committee today at 2.30 pm. We now find that after the Chief Justice and her lawyers walked out of the Select Committee, the Committee has called for witnesses and led their evidence. We understand that all those witnesses were summoned today (the 7th) after the lawyers walked out. It appears to us that as long as the Chief Justice and her lawyers were present witnesses would not have been called,” he said.

Even UNP Leader Ranil Wickremesignhe came out strongly against haste with which the report was submitted and the treatment meted out to the country’s most senior judge at the hands of the Government members on the committee.

The calling of witnesses after the Chief Justice had quit the proceedings exacerbated problems for the PSC, which was already burdened by allegations about a lack of due process and fair trial. Attorney at Law Srinath Perera told a media briefing on Tuesday that no matter how high profile a witness, a defendant in a case had the right to cross examine a witness testifying against them to ascertain the truth or otherwise of the testimony. “It is a well recognized principle, that a witness no matter how high profile has to be tested in cross examination by counsel for the defendant. This is a weapon given to a person against whom charges are brought. The Chief Justice was denied this right and the PSC led ex-parte evidence against her,” Perera charged.

The Government faced a hailstorm of criticism from all quarters after the report from the PSC was submitted to Parliament. The Opposition has condemned the lack of due process and transparency and the PSC’s inability to guarantee a free trial. Even UNP Leader Ranil Wickremesignhe came out strongly against haste with which the report was submitted and the treatment meted out to the country’s most senior judge at the hands of the Government members on the committee. Wickremesinghe who told Parliament on 29 November that there was no way the PSC could submit a report on 8 December because procedures had to be followed, during the infamous privilege debate regarding notice served on the PSC by the Supreme Court, charged this week that Sri Lanka was at risk of losing Commonwealth membership by failing to follow due process in the removal of a judge. The main opposition also mobilized a small protest at Lipton Circus on Monday (10) to protest against the impeachment process.

Over to the black coats

But the major mobilization is occurring in the legal fraternity, where zonal bar associations and legal societies are striking work in solidarity with the Chief Justice. Constitutional Lawyer and Activist, J.C. Weliamuna said that for the legal fraternity, this was not about protecting an individual. “This is about protecting the office of the Chief Justice, the judicial system and the people from undue interference by the executive that is deeply damaging to democracy and the rule of law,” he said. On Saturday, lawyers are engaged in massive efforts to ensure a large turnout at the Bar Association General Meeting, which Weliamuna says will make major, drastic decisions on the way forward. Some lawyers, he said were preparing a resolution to be moved that would refuse to recognize the appointment of a new chief justice. The Lawyers Collective and Lawyers for Democracy are mobilizing the black coats to boycott ceremonial sittings by a new Chief Justice and file contempt charges if demonstrators are mobilized to insult the judiciary at Hulftsdorp again. The solidarity of the Tribe of Black coats in this instance has proved unshakable for a Government that is accustomed to being able to win over influential members of any fraternity over to its way of thinking. Instead, even Government proponents such as S.L. Gunesekera, Attorney at Law, are coming out strongly against the impeachment process, saying it was a pseudo trial by a kangaroo court and posed a threat to the judiciary at large. Lawyers are also working on mobilizing judges and retired judges to agitate against the proposed impeachment and the lack of fair trial afforded to Bandaranayake.

Instead, even Government proponents such as S.L. Gunesekera, Attorney at Law, are coming out strongly against the impeachment process

On Tuesday, Sri Lanka’s senior most judge, and former vice President of the International Court of Justice, Christopher Gregory Weeramantry set out in a measured statement the pre-requisites for fair trial. According to the eminent Justice, who has remained silent on the impeachment process thus far, “The Rule of law demands that every person being investigated by a tribunal has the right “to be informed of the charges, to know the evidence against him or her, to have a full and fair opportunity to scrutinize that evidence and to respond to it” and a denial of any of the factors “vitiates the inquiry and its findings.” Justice Weeramantry observed that unless these principles are involved in an inquiry, where the security of judicial tenure is involved, there is profound damage to the independence of the judiciary. In his statement, Justice Weeramantry notes that he felt compelled to make observations on the current crisis facing the judiciary in Sri Lanka.

Pressure abroad

Internationally too, the pressure is mounting, with observers saying it is likely that the repucussions of the trial held with undue haste to remove the country’s most senior judge, would certainly be felt when Sri Lanka’s case is re-examined at the UN Human Rights Council sessions in March next year. The undermining of an independent judiciary is particularly pertinent in terms of the challenges Sri Lanka is facing internationally, especially with regard to its alleged lack of commitment to going into accountability issues in the final phase of the war with the LTTE in 2009. With the world crying out for a war crimes inquiry against the Sri Lankan state, the Government has maintained that it has both the will and the capacity through its judicial system to investigate any alleged excesses. Analysts point to the fact that not only has one year gone by with Sri Lanka refusing to show any true commitment to going into accountability issues, but the impeachment motion and resultant fallout, including the compromised independence of the judicial arm which will from here on out fear political reprisals, will also demonstrate that Sri Lanka’s judicial system no longer has the capacity to go into an accountability investigation – that is patently an investigation of alleged state excesses. For the setting up of an international independent war crimes tribunal, two conditions must be fulfilled – the state must show unwillingness to investigate and its own judicial system must be proved incapable of independent decisions. Last week, the US State Department followed up a statement from the US Embassy in Colombo expressing grave concern about the rule of law and challenges to judicial independence in the country.

All this posturing is not lost on the Sri Lankan Government. Hemmed in from all sides, the independent panel to review the PSC report is a face-saving mechanism. It remains to be seen who will comprise the ‘independent’ panel and whether it will necessarily invalidate the findings of the PSC and demand a new trial for the Chief Justice. If so, all the hard work of the Government members of the PSC would have been for nought, with the President Rajapaksa and his family effectively disassociating themselves from both the impeachment motion and the PSC report that pronounced on the guilt of Chief Justice Bandaranayake. If the impeachment saga is folding like a pack of cards, the joke is on the seven UPFA members of the Parliamentary Select Committee, those tried and tested political acolytes that will be the first victims of a hasty Government retreat.

Courtesy Daily FT