By Chandra Kumarage –

Chandra Kumarage

Ministers Rajitha Senaratne and Wimal Weerawansa who were members of the PSC have taken unto themselves the campaign against the Chief Justice Shiranee Bandaranayake  whom they found guilty of three charges contained in the impeachment motion. The readers will remember that the CJ at the outset of the inquiry took up the objection inter alia that the two members of the Committee Rajitha Senaratne and Wimal Weerawansa are biased against her in that she was one of the members of two panels of the Supreme Court which dismissed two cases filed by the wife of the former and the latter himself respectively.

The objection had been overruled by the chairman of the PSC reportedly without consulting other members of the Committee and also without giving any reason for his decision which in itself is a violation principle of procedure established by law. The bias averred by the C.J. has now become highly manifest and visible considering the way how the two members themselves have taken upon the vehement attack on the integrity and the character of the CJ by their disparaging and derogatory remarks  using the state media at will with impunity. Out of nearly 230 MPS on the government side only these two members have been resorting to this illegal, unethical and unprecedented campaign. The way how the two carry it out unceasingly and vigorously proves the high degree of manifest bias harbours by them against the CJ which is tantamount to malice coupled with personal vengeance, solely  due to the decisions made by the CJ who was only one of the judges out of three of the Panel of judges of the Supreme Court who dispensed justice according to law.

One may not find it difficult to infer the kind of language that they might have used against and the attitude shown towards the CJ  who was arraigned before their domain of power, the PSC in parliament which manifestly had not, followed any rules of procedure or conduct, or afforded the equality of arms rights of fair trial to her. The derogatory and disparaging remarks and behaviour of these two ministers in their post inquiry scenario is similar to that of two judges in a case who found and accused guilty on the charges going out of the court house and starting an incessant campaign of vilifying and insulting the accused whom they found guilty. It is submitted that this illegal, unethical and immoral behaviour of these two Mnister members of the PSC are unacceptably in any civilised polity and violate all tenets and norms of  the law, justice, fair play and decency. This practice should be condemned and denounced by all reasonable and law abiding citizens. They must call upon the President of Sri Lanka who is the President of all people in Sri Lanka to prevent these vilification of  Shiranee Banadaranayake who is still the Chief Justice of Sri Lanka.

It is common knowledge that a person who has even the slightest personal bias against an individual should not sit in judgment over a dispute, case, a complaint or a matter in which such person is a respondent. Rules of natural justice require that the decision maker approaches the decision making with ‘fairness’. What is fair in relation to a particular case may differ. As pointed by Lord Steyn in Loyd v. McMohan [(1987) Ac 625], “ the rules of natural justice are not engraved in tablets of stone.” The first rule is that nobody may be a judge in his own case. Any person who makes a judicial decision that includes,  e,g, a decision of a public authority … must not have any personal interest in the outcome of the decision. If such interest is present, the decision maker must be disqualified, even if no actual bias can be shown, i,e, it is not demonstrated that the interest has influenced the decision.”

The rules of natural justice also may require that they are given an oral hearing and that their request should not be rejected without giving reasons. We may be able to examine and object to the evidence when the decision is judicial in nature, like the dismissal of an official or punishment for improper conduct the rules of natural justice require a hearing and the person questioned must know the case against him.

It was reported in the print media the Chairman of the PSC Minister Anura Priyadarshana Yapa as saying that in the Impeachment inquiry of Neville Samarakoon CJ only one lawyer was allowed to represent him. One may find it difficult to believe as to whether the Minister who headed the Committee read the Report on the Impeachment of Neville Smarakoon C.J. or is  deliberately making statement which are not true to the public to justify their findings. It must be stated for the information of the general public that Mr. S..Nadesan Q.C. appeared with three more lawyers namely, N.S.A.Gunathillake, S.S.Ratnayake. and Mervyn Canage Ratne on behalf of  Neville Samarakoon C.J.

Minister Rajitha Senaratne has reportedly stated both in parliament and outside that no initiative had been taken by anyone who claim that the procedure adopted to impeach the CJ was wrong  to get the same rectified by  initiating necessary procedures or actions. It is evident again that the minister had not either read the Report of the Neville Samarkoon C.J. or is suppressing to the truth. The writer wishes to state that three members of the opposition representing the Committee, Sarath Muththetuwegama, Anura Bandaranaike and Dinesh Gunawardena, in the Neville Samarakoon Impeachment submitting a separate report unanimously requested the President of the country as follows, “The signatories to this statement while conceding that Mr. Nadesan’s argument have considerable cogency –are not in a position to come to a definite conclusion on this matter. We would urge the H.E., the President could refer this matter to the S.C. for an authoritative opinion thereon-under Article 129(1) of the Constitution.” (See Parliamentary Publications Series No.71 dated 13-12-1984, p.185)

The three members also made reference to the submissions made by Mr. Nadasen Q.C. on behalf of Neville Samarakoon C.J. with agreement, in their separate report as follows,  “The point made by Mr. Nadesan, was that in the context of a Constitution as that of our country, in which the separation of powers was jealously protected, the committee is seeking to go on with the inquiry as to whether or not Mr. Samarakoon was guity of “proved misbehaviour”, was violating the provisions of Article 4(c) of the Constitution which stipulates that except in matters concerning parliamentary privilege-the judicial powers of the people shall be exercised exclusively through courts.”(ibid)

Those three MPs stated therein further that “The signatories to this statement however feel strongly that the procedure that parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by judges chosen by the Speaker from a panel appointed for the purpose. We the therefore urge the House to amend Standing order 78A accordingly.(ibid). Minister Rajitha Senaratne as well as other proponents of the correctness of the procedure adopted in impeaching incumbent Chief Justice might be well advised to consult Minister Dinesh Gunawardane, the present chief Government Whip cum Cabinet Minister of their government, the only surviving member of the three MPs who submitted that separate report  to the Speaker at the conclusion of the Neville Samarakoon impeachment inquiry, for his advice and guidance on this matter, provided  Minister Gunawardane has not forgotten the past.

It is also reported in the media that Minister Wimal Weerawansa as stating that the Chief Justice has shown bias by appointing judges to hear her own case. Any reasonable person other than an ignoramus is aware that a chief appoints a panel of judges to hear cases cannot influence them in their judgment. It must be stated in the same breadth that anyone and everyone with a modicum of knowledge were aware of the verdict of that seven members appointed to represent the governing coalition in the PSC inquiring the impeachment inquiry of the incumbent Chief Justice.

It must be reiterated that what should be done in the interest of justice is not to vilify the goodwill of the incumbent Chief Justice by making unwarranted, disparaging and derogatory statements with impunity using state power but to answer the only relevant question as to whether she was given a fair trial under the principles of natural law and justice, accepted principles of law and procedure to which other persons in the country are entitled to in their fullness  and totality.

Reference should be made in fairness to the beleaguered Chief Justice using this space to draw the attention of the general public of Sri Lanka to a feature written by a  gentleman who claims to be a f‘riend’ of the chief Justice.  He is none other than Professor Carlo Fonseka ‘an acclaimed member of the intelligentsia’ of the country. Having consumed about four fifth of his article on the ‘Techniques of Avoiding bias & the law using a technique called “Randomised Placebo-controlled double blind clinical trial on the use of drugs, by which process he says that even in the entirely material business of judging the efficacy of drugs it is necessary to avoid rigorously the inevitable bias and prejudice in eliminating the bias of doctors and patients on the efficacy of drugs. Having said that he jumps into a highly anticlimactic conclusion that “ the equivalent to of this procedure in judging a case would be for the judge not to know whose case he is judging and the client not knowing by whom he is being judged.” As this procedure is not practicable in cases he states that he advised his friend the Chief Justice to apply for leave of absence from the exalted office during the period that spouse’s case being investigated. He further opine that in his judgment her continuing in power at a time in such a situation would in his judgment constitutes a serious case of conflict of interest.

Firstly responding to his example of the it must be stated that cases have and never will be placebos. Every judge knows the cases that he will have to have to hear and every client knows the judge who will hear his case in advance. If a judge does not like to hear a given case he can give reasons and withdraw from same. Similarly if a client does not like a particular judge hearing his case he can give reasons for same and get his case transferred to be heard before another judge by making an application to the Court of Appeal under section 46(1) of the Judicature Act. The writer wishes to state that the learned professor had acted as the devil’s advocate of his friend by giving this advice if that advice was actually given by him. The country begs an answer from the erudite professor had he not been biased twice in writing this article, firstly, against the CJ, and secondly, in favour of the government which has sought to impeach the CJ because he is enjoying perks and favours from this government? The people of this may also wish to pose the question to the erudite professor as to what steps did he take as a member of the intelligentsia to prevent the former Chief Justice brazenly and shamelessly subverting the cause of justice and bringing the whole judicial system of Sri Lanka in to shame and disrepute by handpicking a judge to hear and conclude the divorce case in which he was a defendant in his favour in the absence of the plaintiff,  harbouring and protecting criminals. I am sure he was either silent or on the side of that delinquent Chief Justice who had the blessing and protection of then president who was his nephew’s wife.

It is also pertinent to ascertain from the professor who is so much concerned about bias and prejudice of judges against litigants as to why he did not use his influence and stature in society to request the government to give a fair trial under accepted laws and norms of fair trial and rules of  evidenece and procdure devoid of bias and prejudice. Dear professor may I say that, “ Your slip is showing.”

The answer given in unison inter alia by the esteemed and reverend Mahanayaka Theros of all Nikayas of Buddhism, His Highness the Cardinal of the Raman Catholic Church, most reverend, pontiffs of the other Christian Churches in Sri Lanka, high priests of the Hindu religion and the Islam faith in Sri Lanka including the Bar Association of Sri Lanka, all political parties the opposition, multitude of trade unions and civil society organisations in Sri Lanka and the governments inter alia of the USA, UK and the European Union, the United Nations Special Rapporteur on the Independence of the judiciary, the Secretariat of the Commonwealth  of Nations (of which Sri Lanka is a member), International Commission of Jurists (ICJ), International Bar Association(IBA) and Justice C.G. Weeramantry the doyen of Sri Lankan Judges(who was also the Vice President and Acting Chief Justice of the most  prestigious and august judicial tribunal in the world the International Court of Justice (ICJ) is that the Chief Justice Shiranee Bandaranayake has not been given a fair trial.  Their unanimous ‘request and plea’ to the authors of the impeachment motion are to withdraw IT and to give her a fair trial/inquiry under universally and nationally guaranteed laws, norms, and rules of evidence and procedure.

Nahi Verena Verani

K.D.C.Kumarage, Attorney at Law, Co-Convenor, Lawyers for Democracy