By Rajiva Wijesinha –
Of the charges against the Chief Justice, that relating to her husband, seems particularly serious. Given that, during the inquiry into the National Savings Bank conducted by the Parliamentary Committee on Public Enterprises, it transpired that Mr Kariyawasam had acted most irregularly, and might have to face serious charges in Court, it could be argued that his wife should not continue as the head of the Judiciary.
Morally that might be desirable, but unfortunately, as Alfred Doolittle might have said, morality has nothing to do with it. Indeed, in the modern world, it seems old-fashioned to treat members of the same family as responsible for each other’s conduct. Such niceties can only be enforced by rigid rules of conduct. If such rules are not in place, then we cannot expect people in public life to create and live up to their own code of conduct.
I think we are entitled to expect those in authority not to interfere with due process when their kin are under investigation, and were the Chief Justice to pick and choose magistrates to judge her husband, that would I think be misconduct. But I see no evidence of such attempts at manipulation, and I don’t think we can expect her to resign to avoid such an eventuality. Simply recusing herself from decision making in such a situation would be all we could expect – though again, were he to be found guilty, morally it might be desirable for her to resign. To resign beforehand would seem admission of his guilt, and that is something that could not in all fairness be expected of her.
Given however the distaste the situation has roused, it would make sense for the Judiciary itself, or failing that Parliament, to develop a code of conduct for the Judiciary which would prevent not only actual conflicts of interest but also potential conflicts. This would mean precluding judges and their spouses from accepting any office of profit from government.
In short, not only should Mrs Bandaranayake not have anything to do with any case involving her husband, but her husband should have been prevented from accepting any government position. Similarly, she should not be eligible for any further government position after she has served on the bench.
I should note though that she cannot be blamed for what has happened previously. Similarly, though I do not think government should have appointed Mr Kariyawasam to any of the official positions he held, it would not be fair to blame government for having appointed him, given the precedents that had been created. In short, when niceties have not been observed, it is difficult for government to introduce what seem novel notions of propriety.
That can only be done by regulation now. In my view, the best result for the country of the controversy that has arisen, at least with regard to this particular charge, is universal recognition of the need for a code of conduct that cannot be violated without loss of office. The case against Mr Kariyawasam should proceed, with no involvement of his wife, but she should not be punished for having been indulged in a manner that was enjoyed by others in similar positions.
In the same way, if it were proved that she had indeed suppressed the existence of salient bank accounts, she would seem guilty of impropriety, but whether that amounts to misconduct is another question. Many people, and in particular lawyers who know loopholes when they see them, avoid financial obligations through conduct that is not illegal though it might seem immoral. Establishing that she has failed to declare her assets properly, and that this was with intention to defraud, requires a judicial process, and without that it would be improper to find her guilty of misconduct warranting impeachment.
But, again, it would be useful to tighten the requirements for those who make or interpret laws. Thus, while the Assets Declarations of most public servants are never looked at, it would be useful to subject those of parliamentarians and the higher judiciary to scrutiny each year, with a Commission against Corruption, on the lines of what Hong Kong has, mandated to investigate irregularities. The understanding that those in exalted positions must adhere to the highest standards should be established, so that citizens could have confidence in the integrity of those in authority over them. The introduction of some such measures would be a fitting outcome of the present imbroglio, which would save and enhance honour on all sides.