By C. A. Chandraprema –
As the impeachment drama grinds to a close, we see that the chief justice of this country is to be impeached largely on conflict of interest related issues. Of the three charges that the CJ has been found guilty of by the Parliamentary Select Committeee, two pertain to a conflict of interest. The conflict of interest has never been an issue that has been widely discussed in this country. As such there are virtually no local precedents that we can draw on. The first charge against the CJ was that using a special power of attorney, she purchased in the names of her sister and brother in law, a flat at Trillium Residencies and then took over a case involving Trillium Residencies that was being heard by a different bench and proceeded to hear the case. Another charge (No:5) on which the CJ has been found guilty is that she has continued to remain CJ and Chairperson of the Judicial Services Commission in a situation where her husband Pradeep Kariyawasam is a suspect in a case before a magistrate. In her official capacity, the CJ has the power to get down all the documents of the magistrate’s court trying her husband and she also wields powers of transfer, promotion, dismissal and disciplinary control over the magistrate trying her husband.
What is noteworthy is that there was no charge in the impeachment that the CJ has done anything at all to bring about an actual conflict of interest. There is no accusation that she has tried to influence in any way the magistrate who was handling her husband’s case. Even with regard to the first charge, despite anything that may have emerged during the PSC investigation into the matter, the charge per se did not include the accusation that the CJ had derived any benefit by taking over and hearing the Trillium Residencies case. As such both the first and fifth charges referred not to an actual conflict of interest but the appearance or a potential for a conflict of interest. That was deemed to be sufficient to impeach the chief justice. If there was no actual bias to be seen at the time the charges were framed, how justified were the charges? Can an impeachment be set in motion because of a mere potential for bias?
It should be noted that when the CJ made written submissions to the PSC, she did not make even an attempt to deny that there was a potential conflict of interest. With regard to the first charge concerning Trillium Residencies, she has not answered to the point, choosing to answer allegations that were never made in the charge saying for example that “The crux of the charge is that our client wrongfully took over the hearing of a case so that she could purchase using a power of attorney a housing unit in the Trillium Residencies in the name of her sister and her sister’s husband”. The first charge did not say that she had taken over the Trillium Residencies case in order to purchase a house in it. The answer she has filed to the first charge is completely off the point with her claiming that she bought the flat for her sister and brother in law for them, with their money and that she did not put up any of the money and furthermore that her sister or brother in law received no benefit whatever by the case being called or heard before her. What she has not answered is the most crucial aspect of the whole matter – whether there was a conflict of interest in her hearing a case which included a property in which she had bought on a special power of attorney, a flat for her sister and her husband?
Even with regard to the fifth charge that there was a conflict of interest in her continuing to hold her positions while her husband was an accused in a court over which she has supervision, she has started by saying that this charge is not a charge in law – meaning that there is no law against her continuing to hold her positions while her husband is tried in a court of law under her supervision! She also contended that there is no allegation that she has done anything wrong and has in any way interfered in the proceedings against her husband – which is true. She has referred to the potential conflict of interest by saying that the practice amongst members of the JSC that a member declines to participate in the proceedings of the JSC if there is a conflict of interest, stating further that if this sort of charge can be maintained, any Judge, any member of the JSC can by removed by merely instituting proceedings against such Judge’s spouse, or children.
This latter point is certainly true. There is the danger that in the future, any member of the Judicial Service Commission can be removed from office if any member of that judge’s family comes before any court for any reason civil or criminal on the excuse that there is a conflict of interest. However that is no reason to ignore the potential for a conflict of interest in the CJ’s case. At least in the CJ’s case, we can rest assured that the case is not a frivolous one designed just to get rid of her. The case against Pradeep Kariwasam is a high profile matter that was extensively discussed in parliament and in the press with both opposition parliamentarians like Dr Harsha de Silva and journalists like Uvindu Kurukulasuriya calling for the resignation of the CJ as well over the NSB scandal.
Be that as it may, the most disturbing aspect of the answers filed by the CJ in response to charges one and five is the refusal to even acknowledge the potential for a conflict of interest. If there is anything that cannot be allowed in any legal system, is for judges to take over and hear property cases in which they or their relatives have acquired an interest and for judges to continue in office while cases against their kith and kin are being heard in courts completely under their control and supervision. Even though issues relating to the conflict of interest is new to Sri Lanka, there are well established international guidelines on this matter which we should be familiar with.
The Pinochet Case
The Organisation for Economic Co-operation and Development which is the apex body of the developed world, has defined ‘conflict of interest’ as follows:
1. A conflict of interest involves a conflict between the public duty and the private interest of a public official, where private interests could improperly influence the performance of his official duties.
2. A conflict of interest arises not only in situations where in fact there is an unacceptable conflict between private interests and official duties, but also where there is an apparent conflict of interest or a potential conflict of interest.
3. An apparent conflict of interest refers to a situation where there is a personal interest that might reasonably be considered by others to influence the public official’s duties. The potential for doubt as to the official’s integrity makes an apparent conflict of interest a situation that should be avoided.
4. A potential conflict of interest may exist where an official has private interests that could cause a conflict of interest to arise at some time in the future.
One of the most important international cases with regard to the conflict of interest is the 1999 House of Lords Pinochet case. In October 1998, when the former Chilean dictator Pinochet was in Britain receiving medical treatment, a court in Spain issued international warrants for his arrest for crimes against humanity. He was arrested by the British authorities whereupon he appealed to the British courts to quash the arrest warrants. One court petitioned the House of Lords asking for an interpretation regarding the immunity enjoyed by a former Head of State from arrest in the United Kingdom for acts committed while he was Head of State. The petition was heard by a five member bench of the House of Lords. Amnesty International joined the case as an intervener. At the hearings, Amnesty International made written submissions and was represented by four lawyers. The House of Lords decided on a division of three to two, to approve the arrest and extradition of Pinochet.
Thereupon, Pinochet appealed to the House of Lords again saying that the links between one of the Law Lords who decided against him – Lord Hoffmann – and Amnesty International were such as to give the appearance of possible bias. Lord Hoffmann’s wife had been an employee of Amnesty International for more than a decade. AI argued that Lady Hoffmann had always been employed in administrative positions, and that she has not been consulted or otherwise involved in any substantive discussions or decisions in relation to the Pinochet case. Subsequently, it soon came to light that Lord Hoffmann himself was the Chairman of a charity belonging to Amnesty International. The argument made by AI with regard to this revelation was that Lord Hoffmann is not an employee of AI and is not remunerated and that he is also not a member of AI even though he chairs a subsidiary body of AI. They further argued that Lord Hoffmann has not been consulted with regard to the Pinochet case and that he has not had any other role in AI’s intervention in this case.
In his appeal to the House of Lords, Pinochet did not make an allegation of actual bias against Lord Hoffmann; his claim was based on the requirement that justice should be seen to be done as well as actually being done. His argument was that the links between Lord Hoffmann and AI were such that it gives rise to a reasonable apprehension on the part of a fair minded and informed member of the public that Lord Hoffmann might have been biased.
Lord Browne-Wilkinson, a member of the five member bench that heard Pinochet’s second appeal said in delivering his judgement that Pinochet does not allege that Lord Hoffmann was in fact biased. The allegation is that there is an appearance of bias not actual bias. He held that the principle that a man may not be a judge in his own cause can be applied in two scenarios – if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. This is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial. In this second type of case, the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.
Lord Browne- Wilkinson held that although the precedents have all dealt with automatic disqualification on the grounds of pecuniary interest, there is no good reason in principle for limiting automatic disqualification in that manner. The rationale of the whole rule is that a man cannot be a judge in his own cause. Even if the matter at issue does not relate to money or economic advantage but is concerned with the promotion of a cause, the judge will be disqualified if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties. If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, in promoting the same causes as is a party to the suit. On these grounds, Lord Browne-Wilkinson ruled that Lord Hoffmann was automatically disqualified from hearing the Pinochet case because of his association with Amnesty International.
Lord Hope of Craighead, another member of the five member bench that heard Pinochet’s second appeal explained the decision of the court to annul the arrest of Pinochet by saying that one of the cornerstones of the British legal system is the impartiality of the tribunals by which justice is administered. If the nature of the judge’s interest in the case being heard by him is such that public confidence in the administration of justice may be shaken, that judge must withdraw from the case. If he fails to disclose his interest in a case and sits in judgment upon it, the decision of that court is invalid. It is no answer for the judge to say that he is in fact impartial and that he will abide by his judicial oath. The purpose of the disqualification is to preserve the administration of justice from any suspicion of impartiality. In practice judges are well aware that they should not sit in a case where they have even the slightest personal interest in it either as defendant or as prosecutor. Agreeing with other judges of the bench, Lord Hutton also stated that public confidence in the integrity of the administration of justice would be shaken if Lord Hofmann’s decision in the Pinochet case were allowed to stand.
European Court of HR
There are other international cases which have dealt with this important topic of the conflict of interest in the administration of justice. In July 2004, an advisory opinion was sought from the International Court of Justice by the UN General Assembly on the legal consequences of the construction of a wall in the occupied Palestinian territory. Israel protested saying that a member of the ICJ bench hearing the case was biased because of his previous history of opposing Israel. One of the members of the ICJ, Judge Buergenthal made an important point with regard to the conflict of interest which Sri Lankans should take note of. He said that Judicial ethics are not matters strictly of hard and fast rules…they are matters of perception and of sensibility to appearances that courts must continuously keep in mind to preserve their legitimacy.
The International Criminal Tribunal for Yugoslavia – a special international court convened under the authority of the UN Security Council, has standard rules of procedure which says that a judge may not sit on a trial in which the Judge has a personal interest or any association. In one of the cases that came up before this special tribunal, (Prosecutor v. Anto Furundzija) the appellant who was accused of rape among other crimes, appealed against a judgment on the grounds that the presiding judge should have been disqualified because of his former involvement with the United Nations Commission on the Status of Women. The contention being that someone who has been involved in a commission on the status of women would naturally be prejudiced against a person accused of rape.
It was found in this case that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. There is an unacceptable appearance of bias if the circumstances would lead a reasonable observer to apprehend bias. The reasonable person must be an informed person with knowledge of all relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.
Similarly, the rules of procedure of the International Criminal Court lays down the rule that a judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. Doubts of impartiality can arise if the judge has with any of the parties to the case, ‘a spousal, parental or other close family, personal or professional relationship’. The ICC holds that the perception of bias can occur due to the Judge’s performance of certain functions, prior to taking office as a judge, during which he or she could be expected to have formed an opinion on the case in question, that could adversely affect the required impartiality. With regard to this latter point, there is a case of the Inter-American Court of Human Rights (Palamara-Iribarne v Chile) where it was held that, The impartiality of a court implies that its members should not have (among other things) a pre-established viewpoint on the controversy. For the sake of safeguarding the administration of justice, it must be ensured that the judge is free from any prejudices and that no doubts whatsoever may be cast on the exercise of jurisdictional functions.
The forgotten charge
This point that a judge should not have a pre-established viewpoint and that they should not be involved in the controversy has a direct bearing on Charge No: 9 in the impeachment against the chief justice. Even though Charge No: 9 was never taken up for examination by the PSC because the earlier findings sufficed to present their case to parliament, we mention Charge No: 9 here because it goes to show how deep the CJ is in conflict of interest issues. Charge No: 9 alleged that the CJ acted in contravention of the ruling given by four judges in a bench of seven Supreme Court judges in E.F.W. Silva et al, versus Shirani Bandaranayake in 1997. This was a case filed by four top lawyers including the late Kumar Ponnambalam opposing the appointment of Shirani Bandaranayake to the Supreme Court on the grounds that she was unsuitable to hold such a post. The lawyers who appeared against her at that time included Upul Jayasuriya and J.C.Weliamuna who are now among her principal backers.
In the written submissions made by the CJ to the PSC, there is the pretense that they are unaware what the ruling was. The CJ’s written response stated with regard to Charge No: 9 – “No particulars have been given as to how our client acted in contradiction to the ruling in the case of Edward Francis William Silva v Shirani Bandaranayake. Thus this purported charge cannot be answered”. However this ruling was widely publicized by the press including the present columnist. One of the main allegations made in E.F.W. Silva et al, versus Shirani Bandaranayake to show that she was unsuited to sit on the supreme court was that prior to appointment, she had been an ardent proponent of the devolution of power and that this smacks of political bias. Four judges of the Supreme Court at that time ruled that while these political ideas may not be disqualification to hold office, that she ‘may be disqualified from hearing certain cases’. Despite four judges of the SC having ruled in 1997 that she would be disqualified from sitting on cases relating to the devolution of power, she continued to sit on such cases. (The latest example being of course the Divineguma Bill. It is pertinent to recall at this stage, the ruling in the Pinochet case where it was said that ‘the judge will be disqualified if the judge’s decision will lead to the promotion of a cause in which the judge is involved’.)
The CJ is in fact neck deep in conflict of interest issues. In one case, (Piersack v. Belgium) the European Court of Human Rights decided that even appearances may be of a certain importance and that any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. The European Court of Human Rights says that what is at stake here is the confidence which the courts must inspire in the public in a democratic society. Yet the CJ took over and heard the Trillium Residencies cases after her sister and brother in law had acquired an interest in the property under litigation through her. She continued as CJ and Chairperson of the JSC even after her husband became a suspect in a high profile case in a court under her supervision and she ignored the earlier decision of the Supreme Court in E.F.W. Silva et al, versus Shirani Bandaranayake that she is disqualified from sitting on devolution of power cases.
Courtesy Sunday Island
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