Colombo Telegraph

The Battle For Hulftsdorp Hill

By Dharisha Bastians

Dharisha Bastians

Hulftsdorp or the village of Hulft, named for Dutch Governor Gerard Pietersz Hulft, became synonymous with the law only after the Supreme Courts of Ceylon were moved there by British Governor Sir Fredric North.

At the time, North faced massive resistance from members of the Judiciary about the move from Colombo Fort, where the British garrison were also stationed. Today the hilly area in Maradana is the beating heart of Sri Lanka’s legal system.

At the epicentre of this ‘village,’ the iconic red curved Chinese-styled roofs of the Superior Courts Complex stand out prominently, housing 11 justices of the apex court of the land – the final redress of the citizen against State oppression and the guardians of the country’s Constitution.

As the Government prepares to wage war against the Head of the Judiciary, this third attempt to impeach a Chief Justice may well prove the toughest challenge to the institutions of justice yet.

CJ strikes back

Last Thursday (8), Chief Justice Shirani Bandaranayake struck back with a letter from her lawyers refuting the charges of financial misconduct framed in the impeachment motion against her, issued to each of the media organisations that made the 14 allegations contained in the motion public.

The firm hired to represent the country’s top judge is Neelakandan and Neelakandan, an established legal firm founded in 1962. In a letter to several newspapers and television channels, Neelakandan and Neelakandan on behalf of their client, Shirani Bandaranayake, refuted the Charges 1-4 in the impeachment motion as published in the media.

The first four charges were considered by many legal experts to be the most serious of the 14, even though questions abounded about how the banking information was subject to State scrutiny without a court order.

The charges refer to the purchase of a Trillium apartment for her sister while hearing Ceylinco cases, the foreign remittance of Rs. 34 million into an NDB account, the non declaration of those monies and some 20 accounts in her name at NDB Bank. Lawyers for the Chief Justice reiterated that the Chief Justice’s sister and husband, both engineers in Australia had reserved an apartment for purchase when they were in Sri Lanka.

“Thereafter from time to time, our client’s sister (through her Australian bank) remitted sums of Australian dollars for the purchase of the Apartment. This was later converted to Sri Lankan Rupees by NDB. The letter said that in Sri Lankan Rupees, it was approximately Rs. 27 million. Our client, by cheques, directly remitted to the seller in instalments a sum of approximately Rs 27 million. The bank has confirmed these transactions,” the Lawyers said.

“The sum of Rs. 19 million approximately mentioned in your news item is a part of the aforementioned purchase consideration of approximately Rs. 27 million,” the letter explained. The lawyers also said that the bank had informed their client that there were several non-operational accounts in her name at NDB with zero balances.

It is now coming to light that the information about the Chief Justice’s bank accounts was released to the Government by a senior manager at NDB Bank.

Chief Justice Bandaranayake earlier this week also informed the court that she would recuse herself from hearing Ceylinco and Golden Key cases, given the charges in the motion of impeachment against her.

According to insiders, Presidents Counsels Romesh de Silva and K. Kanageswaran will be among the senior lawyers to represent the Chief Justice when the impeachment is being probed.

First sitting

Yesterday, Speaker of Parliament Chamal Rajapaksa announced to the House that the Parliamentary Select Committee (PSC) to probe the motion of impeachment against the Chief Justice had been constituted. The composition of the PSC, a bone of contention as far as opposition parties are concerned,will be 11 members in total, with seven from the Government and four members to represent the Opposition.

Minister Anura Priyadarshana Yapa will head the committee, while other Government members include Nimal Siripala De Silva, Rajitha Senaratne, Dilan Perera, Wimal Weerawansa Neomal Perera, and Susil Premajayantha. The Committee also held its first sitting at 5 p.m. in the Parliamentary Complex.

Several of charges against the Chief Justice contained in the motion of impeachment relate to perception of bias and conflict of interest, with one matter specifically referring to a corruption case filed against her spouse, Pradeep Kariyawasam. By the same logic then, those legislators that sit on the committee probing the impeachment must essentially have no opinion nor appear to be prejudiced regarding the issue.

Conflicts of interest in PSC

In light of this, questions are being raised about Minister Rajitha Senaratne’s suitability to sit in the committee to probe allegations of improper conduct against Chief Justice Bandaranayake, when the Chief Justice had headed a bench that ruled against his wife, Dr. Sujatha Senaratne’s fundamental rights application saying she had been deprived from applying for the post of Director of the National Hospital in March this year. The Minister’s spouse was later hurriedly awarded a senior position at the Health Ministry in an attempt to pacify her for the loss.

If it is truly the Government’s contention that the Chief Justice’s hearing a case about Ceylinco after purchasing an apartment on behalf of her sister from the same company constitutes a conflict of interest, how the decision against Senaratne’s wife does not disqualify him from hearing charges against the Chief Justice who gave the ruling is a mystery.

Perception of bias

Furthermore, according to Opposition Leader Ranil Wickremesinghe who purports to have in-depth knowledge about Parliamentary procedure, Parliament takes on the nature of a court of law once a resolution of impeachment has been filed. Wickremesinghe claims that in order to prevent them being disbarred from deliberating and debating on the impeachment, Members of Parliament must refrain from expressing opinions regarding the merits of the case in public.

It would seem that to express an opinion for or against the Chief Justice or the strength of the charges would instil a perception of bias, making that MP unsuitable to decide on whether the charges warrant the Judge’s removal. In which case critics of National Freedom Front Leader Wimal Weerawansa say he may also have disqualified himself with statements about how the next battle against separatism will have to be renewed at Hulftsdorp courts.

Weerawansa, a virulent nationalist, has made the abolishment of the 13th Amendment his new project. The renewed position stems from the Government’s overall indignation about the Supreme Court ruling on the Divi Neguma Bill, which insisted that in order to be enacted it had to be endorsed by the nine provincial councils. If Weerawansa believes that the highest court of the land is encouraging separatism by upholding the 13th Amendment to the Constitution pertaining to the establishment of provincial councils, then because Shirani Bandaranayake headed the bench that dispensed the Divi Neguma ruling, he has already shown bias.

Perhaps it was this realisation and the need to retract from certain anti-Supreme Court positions he has adopted lately that resulted in Weerawansa’s decision to put off petitioning the court to strike down the 13th Amendment, since these positions and a case pending before a court led by the Chief Justice would naturally disbar him from sitting on the committee.

Ranil’s machinations

Despite these obvious perceptions of bias however, the Opposition has raised nary a whimper regarding the Government’s choices to deliberate on the impeachment. Speculation abounded when the PSC composition was announced that Wickremesinghe was putting up stiff resistance to the 11-4 majority for the Government in the Committee. However, in the end, the UNP nominated its members before either of the other Opposition parties with Chief Opposition Whip John Amaratunge telling the Daily FT that the Opposition’s protest regarding the numbers would be noted as a comment in its letter to the Speaker, informing him about the Opposition nominees for the PSC.

In fact, after Wickremesinghe’s statement about the impeachment procedure, released through Party General Secretary Tissa Attanayake, Opposition activists waited with bated breath for the UNP Leader’s move when the establishment of the PSC was announced. Many believed that given his knowledge about the procedure, Wickremesinghe would himself sit on the committee together with a capable lieutenant. Instead, the UNP decided its nominees almost instantaneously: John Amaratunge and Senior Vice President of the UNP Lakshman Kiriella.

The nominees raised renewed questions about Wickremesinghe’s ‘game plan’ and once more had his critics wondering aloud about his true intentions with regard to the impeachment motion at a time when speculation about the UNP Leader’s dalliance with the ruling party is rampant.

Critics say John Amaratunge’s appointment was particularly worrisome for two reasons. Firstly, Amaratunge is a senior politician without much of a reputation for putting up a great fight. Secondly, he is also a politician who has gone on record with a Sinhala weekend newspaper to say that a majority of his electorate want him to join the Government of President Mahinda Rajapaksa.

Despite Wickremesinghe’s unshakable confidence in Amaratunga, many UNP stalwarts question his loyalty to the party. In such a situation, Amaratunge’s nomination raises many eyebrows and, at first sight at least, seems to be yet another blow to robustness of the PSC process.

It is not as if the UNP had no other choice. If he wanted to pick firebrands who could counter Government influence within the Committee, Wickremesinghe could have opted for Mangala Samaraweera or General Secretary Attanayake or any of the other vocal critics within his fold. If the UNP Leader wanted to ensure that his nominees to the Committee have a legal background, his choices included Dayasiri Jayasekera, Ajith Perera or even Bar Association President Wijedasa Rajapakse himself. Instead his choices have cast doubts over his motives once again.

What hope of resistance can Amaratunge possibly offer against wolfish approach that MPs like Weerawansa and Senaratne will likely bring to the committee? Opposition hopes must now rest with TNA Leader R. Sampanthan and DNA MP and JVP member Vijitha Herath to ensure that justice is done by Chief Justice Bandaranayake in a system which ensures that Government members are both accuser and adjudicator.

SLFP disillusionment

Strangely enough, Wickremesinghe’s latest manoeuvres have irked not merely UNP members restraining themselves from reacting to the Impeachment moves on the instructions of the leadership, but also sections of the Government.

It is no longer a secret that there is dissent in Government ranks with regard to the decision of the Rajapaksa administration to have the Chief Justice removed. Simmering resentment within the SLFP about the prominence afforded to members of the ruling family is rising to the surface now with several Government MPs expressing disgust about the behaviour of senior administration officials.

In a strange twist, none of the signatories to the impeachment motion included members of the ruling family – several of them being precluded by virtue of the positions they hold within the Government. Speaker Chamal Rajapaksa cannot sign the motion since he must oversee proceedings; Minister Basil Rajapaksa cannot sign because the Divi Neguma legislation was proposed by his Ministry. It is obvious that President Rajapaksa cannot sign the motion and not being a Parliamentarian, Defence Secretary Gotabaya Rajapaksa cannot sign the motion.

However, according to one SLFP source who did not want to be named, the fact that even Hambantota District MP Namal Rajapaksa did not sign the motion indicates that the ruling family does not want to be directly associated with the move. None of them will sit on the Committee probing the charges either. Instead, to sign, hand over, and probe, the Government has handpicked MPs who have openly expressed their opposition to the impeachment move. Interestingly, eight out of nine UNP MPs who crossed over to the Government following the 2010 Parliamentary election – including Upeksha Swarnamali, Mohanlal Grero, and Lakshman Seneviratne – have signed the impeachment motion.

On 1 November, MPs Pavithra Wanniaarachchi, Arundika Fernando, Sudharshani Fernandopulle, Shantha Bandara and Lasantha Alagiyawanna were summoned for a meeting with Minister Basil Rajapaksa. Handing over a document to Minister Wanniarachchi and without preamble, Minister Basil told the group to hand it over to the Speaker. None of the MPs were given prior warning about the handover although all five were signatories to the motion.

Fernandopulle and Wanniarachchi in particular are reportedly irked at the high-handed way in which Government members were treated, with several signatories not even being privy to the charges contained in the motion before they placed their signatures on it. Leader of the House Nimal Siripala De Silva and other SLFP stalwarts in the Committee are reportedly irate about being used to push the motion through Parliament despite disagreeing with the move in principle.

According to De Silva and other SLFP strongmen, the President’s family was making sure that they themselves will not be associated with this highly unethical process to impeach the Chief Justice allowing other members to do the work on their behalf. All these SLFP members pinned their hopes on the opposition to raise objections and delay the process but as usual, the hope appears to have been somewhat misplaced.

Sarath Silva’s two cents

Former Chief Justice Sarath N. Silva meanwhile has become the go-to sound byte regarding the impeachment motion against Chief Justice Bandaranayake.

At the beginning Silva came out strongly against the Government move, saying it was politically-motivated by her ruling on Divi Neguma and she had no voice and no redress, although she headed the court that was the final redress of the rest of the population. Lately, the tune has changed, prompting some observers to speculate that the volte face occurred after Silva met President Mahinda Rajapaksa at the funeral of former Supreme Court Justice Raja Wanasundera recently.

At the funeral, President Rajapaksa greeted the former Chief Justice like an old friend, and playfully berated him for not answering his calls. Now, Silva is posturing on the impeachment motion, claiming that the charges contained therein were serious and even going so far as to say in an interview with a journalist from this newspaper that “Chief Justice or not, no one could get away with misconduct”.

Now the former Chief Justice has suggested the appointment of an acting CJ until the impeachment motion is deliberated and is even advocating that Bandaranayake pursue a more conciliatory path, by stepping down until the case against her husband is concluded. This from the same Chief Justice against whom the charges for impeachment were stronger than any contained in the motion against Bandaranayake.

Political observers claim yet it never occurred to Silva that he ought to have stepped down himself in light of the gravity of the charges. The former Chief Justice is in fact getting bolder in his pronouncements, only highlighting the blatantly political positions he took while holding office. He has already claimed that he dismissed the Helping Hambantota case hoping that Mahinda Rajapaksa would ‘do good deeds for the people’ once he got elected.

The charges of impeachment against him are littered with cases in which he has shown blatant political bias and a few nights ago, on a popular talk show, Sarath N. Silva proclaimed that he backed off from a fight with the ruling regime during the oil hedging deal because he realised there was no way the Judiciary could battle the power of the Executive.

“Mahinda Rajapaksa designs and creates conflict. That is his governance style. Nobody can counter his shrewdness,” Silva said, urging Bandaranayake to back down the same way, even though he warned that it was probably too late now.

Acting CJ?

Whatever Silva’s machinations and motivations were while he was on the bench, it is becoming increasingly clear that Chief Justice Bandaranayake is not going to cave so easily. By hiring two of the most brilliant lawyers practicing in Sri Lanka at the moment, and being unafraid to fire back against what she perceives as being particularly damaging allegations against her, Bandaranayake is showing signs of being ready for the battle for the time being.

But Silva’s remarks have not escaped the notice of the Government, which is now moving to find a way to appoint an acting Chief Justice. Article 109 of the Constitution provides for an acting Chief Justice appointment in the case of illness, absence from Sri Lanka or ‘other cause’ subject to provisions of Article 41C.

However Constitutional law experts have opined that an acting appointment during an impeachment is not possible since Article 109 provides for a time when the Chief Justice is physically absent from the bench. In the case of an impeachment, with Bandaranayake still on the bench, the appointment of an acting Chief Justice would plunge the Supreme Court into crisis.

The Government is also mulling another route. It is now seeking a decision by the Judges of Supreme Court that will say the Court cannot function under the shadow of impeachment action against the Chief Justice. According to highly-placed sources, seven out of 11 judges have agreed in principle to the move, but execution has so far proved difficult for the Government. If the decision is given in writing, and it finds a loophole to do so, the Government is preparing to appoint Justice P.A. Ratnayake as Acting Chief Justice until such time deliberations on the impeachment motion against Bandaranayake are over.

As far as the ruling administration is concerned, it does not want Shirani Bandaranayake on the bench for one minute longer than absolutely necessary. An irate President is also apparently looking into ways in which the legal draft of the impeachment motion can be amended since it is full of factual errors, even with regard to the specific Articles of the Constitution contained therein. However, legal experts are telling the Government that the only way to change the motion now is to present a second motion (which will then have to be probed separately) or by proroguing Parliament and allowing the items on the order paper to lapse. This second option is seriously being contemplated but will only take place, if at all, after the Budget vote. However, insiders claim that the new draft will contain fewer charges than the currently-tabled resolution.

Murky procedures

Even as it is all systems go as far as the Select Committee process is concerned, serious questions remain about the validity and constitutionality of the process. In the absence of specific procedure outlined in the Constitution regarding impeachment of a Chief Justice, an ad hoc procedure was created in 1984, during the impeachment against Chief Justice Neville Samarakoon.

Standing Order 78A was then drafted, empowering the Speaker to appoint a select committee to probe charges of misbehaviour against a Judge. However, former Attorney General and Permanent Secretary to the Ministry of Justice Nihal Jayawickrema recently opined that Standing Order 78A was a blatant violation of Article 4 of the Constitution which vests the judicial power of the people in the courts of law.

According to Jayawickrema, “A bill that sought to achieve what the standing order provided for would have required not only a two-third majority in Parliament, but also approval by a majority at a referendum.” The argument is that the select committee process is a violation of the principle enshrined in the Constitution that the people’s judicial powers rests with the courts and in order for Parliament to usurp that power, it would have to go before the people first.

In fact, Article 4 specifically stipulates that judicial power may be exercised through Parliament only in cases relating to privileges and immunities of parliamentarians. Judicial action against a Chief Justice cannot be categorised as such. In fact, according to Jayawickrema, at the first meeting of the select committee in 1984, “three of its members, Sarath Muttetuwegama, Anura Bandaranaike, and Dinesh Gunawardena, raised a preliminary objection that the committee could not conclude that there was ‘proved misbehaviour’ unless it had previously been judicially determined.” In fact practice at the time in other countries including India.

About the impeachment process undertaken by the select committee in 1984, Jayawickrema states the following: “The determination of the question whether or not a judge is guilty of ‘misbehaviour’ is neither legislative nor executive in nature, but involves the exercise of the judicial power of the people. Much water had flowed under the bridge since 1984. In India, the Judicial Standards and Accountability Act 2012 now enables Parliament to proceed with a resolution for the removal of a Judge only after the President has forwarded to it the report of the National Judicial Oversight Committee which consists of a retired Chief Justice, a Judge of the Supreme Court, the Chief Justice of a High Court, the Attorney General, and an ‘eminent member’ nominated by the President. In Europe and in many countries on other continents, judges are disciplined by independent Judicial Councils, and not by the legislature.”

International standards

Even as Sri Lanka’s Parliament treads these murky waters of impeachment, it must be understood that the country is also signatory to certain international covenants that uphold the independence of the Judiciary and the rule of law. As such, it cannot be lost on the political leadership that there are certain accepted international standards that govern the removal of a country’s top judges.

The Judicial Integrity Group, headed by eminent Sri Lankan Justice C.G. Weeramantry, is a representative group of Chief Justices and Senior Justices from both common law and civil law systems, and has been mandated by the United Nations to develop a concept of judicial accountability. According to Jayawickrema, who is coordinator of the Group, the Judicial Integrity Group has recommended the following, as part of ‘Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct’:

(a) The power to discipline a judge should be vested in an authority or tribunal which is independent of the legislature and executive, and which is composed of serving or retired judges

(b) A judge may be removed from office only for proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.

(c) Where the legislature is vested with the power of removal of a judge, such power should be exercised only after a recommendation to that effect of the independent authority vested with power to discipline judges.

Sri Lanka, Jayawickrema notes, has decided to go a different way.

Under this system, with a magical two-thirds majority with which the Government is all powerful and unstoppable, it is almost a foregone conclusion how this drama will end. The Government has the numbers. Where it needed only 75 Members to table the impeachment motion, it has presented the motion with 117 signatures, four more than necessary to actually carry the impeachment at a vote in the Legislature. In effect, the message contained in the motion was crystal clear – there is no getting around the numbers the Government commands.

While the procedure for impeachment might contravene all laws of natural justice, there appears to be some fight left in the custodians of the people’s judicial power yet. Chief Justice Bandaranayake is no doubt aware that the chips are stacked against her. But if she is able to clear her name and a dissenting report of the PSC reflects that, her impeachment will go down in history as lacking legitimacy and nothing more than a political witch-hunt. It may even prove the catalyst Hulftsdorp needs to band together more united than ever against political interference. For if the impeachment carries and the Government wins this battle – and that seems ever more likely – Hulftsdorp hill and judicial independence will be the prize the ruling party will claim.

Courtesy Daily FT

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