By  C. A. Chandraprema –

C. A. Chandraprema

After the Chief Justice filed her response to the charges on the impeachment motion against her, a document purporting to be the CJ’s submissions to the Parliamentary Select Committee was published in full on various websites.  We are barred from commenting on the proceedings of the PSC. However, there is no bar on commenting on what appeared on a website operated from overseas.  If what was published on the Colombo Telegraph website and others as well, is the actual submission made by the CJ, then the match is over even before it has begun. There will hardly be any point in prolonging the hearings. The matter can be closed at the very next hearing because you don’t need to prove all allegations, just one of them would suffice and in such situations even the courts don’t unnecessarily labour the point but concludes the case on a few salient points.

Take for instance what was published in the Colombo Telegraph as the reply of the CJ to what the present writer considers the most serious allegation against her in the impeachment motion – Allegation No: 5 which was that the CJ’s husband Pradeep Kariyawasam is a suspect in relation to legal action initiated at the Magistrate’s Court of Colombo by the Commission to Investigate into Allegations of Bribery or Corruption. The CJ is the Chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the court which is due to hear the bribery or corruption case against her husband.  Besides, the CJ as the head of the Judicial Services Commission is empowered to examine the judicial records, registers and other documents maintained by the court hearing the case against her husband. The impeachment motion says that this is a conflict of interest and the fact that Shirani Bandaranayake continues to be the CJ and the head of the Judicial Services Commission while this case is proceeding against her husband is a hindrance to the proper administration of justice. The CJ’s reply to this allegation is as follows:

1. This is ex facie (on the face of it) not a charge in law.

2. There is not even an allegation that our client has done any wrong.

3. There is not even an allegation that our client has in any way or manner interfered in the proceedings in which plaint has been filed in the Magistrates against her husband.

4. Our client states that it is 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.

5. 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, or relative, or close friend.

Culture of judicial impunity

After six decades of independence, we have reached a situation where the Chief Justice of the country refuses to acknowledge that there is a conflict of interest in her continuing to remain the Chief Justice and the ex-officio Chairperson of the Judicial Services Commission while her husband remains a suspect in a case before a magistrate’s court. It should be noted that if she had been an ordinary member of the Supreme Court, she could perhaps have argued that she will keep away from the case. But in this case, the position of chief justice goes together with the position of JSC chairman and in the second role the CJ does have power over the magistrate hearing the case. There is no provision in the constitution allowing her to step down from the JSC chairmanship and appoint someone else for the duration of her husband’s case. Even that would be of little point because a magistrate who feels that the CJ will be back in the JSC saddle after the case against her husband will take care not to upset the CJ who wields complete unfettered control over his career. Even if she had been an ordinary member of the supreme court, perhaps she could have kept away from her husband’s case but even in such an event, the case will come before one of her colleagues on the supreme court. How likely is a supreme court judge to send the husband of another SC judge to jail?

Unfortunately, we do not have a code of ethics for judges in this country so we will have to seek inspiration from outside. A few weeks ago, we made reference to the Bangalore Code of Judicial Conduct. The USA also has a Code of Conduct for Judges which states very clearly that  “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. This can occur when the judge has “a personal bias or prejudice concerning a party”, or “personal knowledge of disputed facts concerning the proceeding” or if the judge’s spouse has any interest in the proceeding. According to the US code of conduct for judges even if anybody within the third degree of relationship to a judge is a party to a proceeding, or even acting as a lawyer or is a mere witness in the proceedings, that’s enough to disqualify them from hearing a case.

‘Third degree of relationship’ includes according to the US Code of Conduct for Judges, even great grandparents, or great grand children, and whole and half blood relatives and most step relatives. The impeachment motion was very clear that the rub was in the CJ being the head of the Judicial Services Commission. If like in England, a different person was heading the JSC, perhaps this conflict of interest may have been mitigated somewhat. But even in such circumstances, the mere fact that the suspect is the husband of the Chief Justice will skew the whole hearing. Even if the magistrate declares the suspect guilty, an appeal will finally end up in the SC and it is the CJ who decides on the bench that hears the case against her spouse.

As Minister Vasudeva Nanayakkara said in parliament, the person who appoints benches to hear petitions challenging the authority of parliament to inquire into the impeachment motion against the CJ is the CJ herself!  Within this culture of unrestrained and unquestioned power that the supreme court wields, being judge in your own cause seems to come naturally and they don’t see anything wrong with it either. What is worse is that there is a lobby saying that even the function of inquiring into the impeachment motion should be given to a “judicial body”  thus once again passing the ball right back to the judiciary and entrenching this practice of being a judge in your own cause. This attitude of complete indifference to the norms that bind the rest of society should never be countenanced. The constitution should be changed to curb the tyrannical power of the SC as we argued last week.

Who’s not on the take?

Another charge is that the CJ purchased, in the names of her sister and brother in law, a flat from Trillium Residencies using a special power of attorney after having removed another bench of the Supreme Court which was hearing three fundamental rights cases against the Ceylinco Group which owned Trillium Residencies.  The crux of the matter is that the CJ took over a case from a different bench and continued to hear it in a situation where she had acquired an interest in it. The fact that the property was bought in her sister’s and brother in law’s name and that she had only a special power of attorney does not mean that she had no interest in it. The Code of Conduct for US Judges quoted above makes it very clear that if anybody within the third degree of relationship has some interest in a case, that disqualifies a judge from hearing the case. In Shirani Bandaranayake’s case, the mere fact that her sister and brother in law had acquired an interest with regard to a property that featured in a case heard by her creates a conflict of interest even if she was not holding a power of attorney for them. This question as to why the CJ continued to hear a case in which her sister and brother in law had acquired an interest and in which she herself was involved as the holder of their power of attorney, has not been explained in the answer filed before the PSC.

There would have been nothing wrong in taking over and hearing a case if the CJ or her relatives had no interest in a property mentioned in the case.  The answer filed Before the PSC says scandalously in the answer to Charge No: 1 – “It may be relevant to note that after 6.5.2010 case No.262/2010 was taken up before the former Chief Justice Hon. Justice Asoka de Silva. The former Chief Justice Hon, Justice Asoka de Silva himself purchased a housing unit at trillium residencies demonstrating that there was no impediment to purchase such a housing unit.” If Asoka de Silva did indeed buy a flat at Trillium residencies, while he was hearing a case involving that very piece of property, that does not justify Shirani Bandaranayake doing the same. This goes to show the sorry state that our supreme court has fallen to and highlights the need to establish a Standing Committee on the Judiciary in parliament in order to look into allegations of malpractice in the Supreme Court. This country never had such an oversight mechanism with regard to the judiciary which is why this culture of impunity has come about.

In any event, the point that we were making is that there is no need for the PSC to labour the point. Clearly the CJ does not have convincing answers to some of the most crucial charges in the impeachment motion. The PSC might as well wrap things up expeditiously on one or two charges without trying to pursue every charge. The government is apparently getting ready to expose details of money movements from the CJ’s accounts prior to and after the annual declaration of assets. The question is, whether that is really necessary for the matter in hand. The CJ’s answers to the 1st and 5th allegations in the impeachment motion alone show that she does not have a leg to stand on. So why prolong this agony?

Going Back to April 1984

People have questioned the procedure by which the chief justice is being impeached. However, this procedure has been in place for nearly three decades and two previous chief justices were nearly impeached under the same procedures. To question it now and to say that it’s not up to international standards is absurd. What ‘international standard’ are we talking about? The Sri Lankan procedure as laid out in the standing orders of parliament is closely modelled on that of the US where a committee of the Senate hears impeachment trials. It may be pertinent at this stage to go back to that parliamentary debate in April 1984 when the present standing orders for the impeachment of judges and certain key state officials were first formulated.

The entire debate in parliament was dominated by the then opposition. That was in an era when there were only a handful of opposition members in parliament but they gave good account of themselves. The Committee on Standing Orders of parliament that formulated these standing orders in April 1984, comprised the Speaker, the Deputy Speaker, the Deputy Chairman of Committees and the Prime Minister in their official capacities and Lalith Athulathmudali, W.J.M.Lokubandara, Ananda Dassanayake, Anil Moonesinghe and Sarath Muttetuwegama.  After Prime Minister R.Premadasa introduced the motion to amend the standing orders,  Lakshman Jayakody, a member of the opposition reminded parliament that the Standing Orders of parliament have a relationship with the Constitution and that often both have to be referred together in debates in the House and therefore, everything has to be done very methodically leaving no room for error.  He raised two questions – whether the Speaker should accept a motion to impeach a judge before the members have had the chance to debate it and whether any select committee can complete its work within one month as is required of the select committee appointed to impeach a judge.

Another issue raised by Jayakody was with reference to Article 107(3) of the constitution which stated that “Parliament shall by law or by Standing Orders” provide for all matters relating to the impeachment of judges. Jayakody argued that they should have provided for this “by law” by bringing in an Act of Parliament as in India instead of dealing with it through Standing Orders. But he did concede in his speech that the government has decided on standing orders and that there was nothing that could be done about it. Anil Moonesinghe, who spoke after Jayakody expressed much the same concerns but like Jayakody he finally settled for standing orders and suggested that when such a select committee is appointed by the speaker of parliament, that it be done in consultation with the party leaders so that what is represented is not just the majority view “but a consensus view of the whole parliament in the matter of persons being appointed to the Select Committee.”

Then he proceeded to table some amendments to the Standing Orders sanctioned by the SLFP parliamentary group. These amendments proposed by the SLFP at that time make for very interesting reading because they prove beyond doubt that these Standing Orders promulgated for the impeachment of judges was by and large formulated with the cooperation of both sides in parliament (especially the UNP and the SLFP) in 1984. Prime Minister Premadasa in fact pointed out during the debate that the Committee on Standing Orders (on which the opposition was represented) “had agreed to the principles underlying the procedure” to impeach judges but that opposition member Sarath Muttetuwegama (Communist Party) had expressed his reservations. So it appears that Muttetuwegama alone was irreconcilably opposed to the new standing orders.

The then opposition’s suggestions

The gist of the amendments proposed by the SLFP parliamentary group was firstly that when the speaker receives notice of a resolution to impeach a judge or a key official of state, he will entertain it, but not place it on the order paper. The Speaker will then proceed to consult party leaders and then appoint a select committee to inquire into the allegations made in the impeachment motion. This select committee will within one month of commencing sittings, report back to parliament about its findings with the minutes of the evidence received. They can also recommend to parliament whether the motion should be placed on the order paper or not. So back in 1984, when the UNP government came up with these new Standing Orders for the impeachment of judges, the main concern of the then SLFP led opposition was that the allegations in the motion were being made public too early in the process and that it was better to make things public after the Select Committee completes its sittings.

Even though the then opposition was worried about things hitting the fan too early in the process, today the world has progressed and we have entered the information age when it’s impossible to keep anything under wraps. Today, nobody cares about such things any more. The Standing Orders then promulgated by the UNP government are now being implemented by an SLFP led government and the Chief Justice under investigation herself is gamely responding to the impeachment and leaking her own responses to the press. Hence the concerns about undue publicity expressed in 1984 are no longer valid today. The standing orders of parliament relating to the impeachment of judges has now finally come into its own belying the misgivings that the opposition had when they were first promulgated.

Even after this motion to amend the Standing orders were tabled on behalf of the SLFP parliamentary group, Sarath Muttetuwegama, the lone member of the Communist Party, kept harping on the need to adopt a different law after the Indian Judges Committee of Inquiry of Act. According to the Indian procedure, Muttetuwegama wanted the Speaker to have the discretion to decide whether to accept the motion or not as an additional safeguard.  He then proceeded to explain that in India, once an impeachment motion is received by the Speaker he proceeds to appoint three people from among a panel – one to represent the Chief Justice and the Supreme Court, one to represent the High Courts, and an eminent Jurist as the third individual to inquire into and report back on the merits of the impeachment motion. His argument was that such people were trained to evaluate evidence and qualified in the law whereas the parliamentarians who would sit on the Select Committee were laymen who could be swayed by gossip and hearsay.

Prime Minister Premadasa drubbed Muttetuwegama by reminding him that in terms of Article 122(2) of the 1972 constitution which his father in law Colvin R. de Silva authored, there was no inquiry at all and that judges could be sacked simply by an address of the National State Assembly which meant in effect that even the Chief Justice could be sacked by just over half the MPs present and voting. The quorum for a meeting of parliament was 25 at that time and therefore only 13 MPs were needed to sack the CJ under Colvin’s constitution! Premadasa’s contention was that the PSC procedure that the UNP was suggesting was a vast improvement over what existed earlier. Besides he pointed out that under the 1978 constitution it was not the majority of MPs present and voting that could remove a judge but one half of the total number of MPs in parliament including those not present.

No undeserved impeachment motions

Even the argument put forward by Muttetuwegama in 1984 to the effect that those trained to evaluate evidence and versed in the law should inquire into the merits of an impeachment motion against a judge on the grounds that laymen are not qualified  for a task like that does not hold water. Judges may be trained in the law, but they are on a daily basis called upon to pronounce judgements on things that they have no specialised training in and they too are ordinary laymen with regard to many matters that come before them. They accept what appears to them to be reasonable. The world is now even more complicated than it was in 1984 and with regard to many matters coming before them judges are now no more than laymen with legal training. They may know the law, but very little else and there is plenty of room to make mistakes. We pointed out in an earlier article how the supreme court had equated Clause 26(d) of the Divineguma Bill which is about the provision of credit to Divineguma beneficiaries with item 35 on the provincial councils list of powers in the 13th Amendment which is about the powers of the provincial council as an institution to borrow money. In perusing the table submitted by the Centre for Policy Alternatives, the judges would have seen the word ‘credit’ in the Divineguma Clause and the world ‘borrowing’ in the PC list and thought they both mean the same thing!

This is one good reason why the journalistic community should push for the introduction of a contempt of court law which will allow the press fair comment and analysis of judgements delivered by any court. The verdict of the courts should never act as a muzzle on further comment. The fact that the members of the Parliamentary Select Committee are not judges does not affect their capacity to arrive at a conclusion in any way. Like any other judge, they too will be making judgements according to what seems reasonable to them. Moreover, unlike professional judges, the matters before a parliamentary select committee will not involve complicated scientific evidence. All they will be looking into is whether particular acts of the CJ constitute misbehaviour. That is easy enough for any laymen to judge. Anybody who can read and understand the Bangalore Principles of Judicial Conduct or the US Code of Ethics for Judges which we have quoted this week, can determine whether or not a judge is guilty of misbehaviour.

There was never an undeserved impeachment motion against any judge in this country. While it’s true that the comments made by Neville Samarakoon at a gathering at the Sinnathurai Commercial Tutory in 1984 were relatively mild, still, a political party in power could never have ignored it. No CJ should make overtly political comments in public. Thus the impeachment against him was a regrettable necessity. The impeachment motion that was drafted against Sarath N.Silva was also fully justified by his behaviour. As for the present case, the reply filed by the CJ to the charges against her leave no doubt that the impeachment against her was also justified.