9 December, 2019

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‘What Happens To The People Happens Also To Judges, Lawyers & Others’

By Basil Fernando

Basil Fernando

A comment on the memoir of Former Chief Justice Dr Shiranee Bandaranayake entitled “Hold Me in Contempt”

This memoir by former Chief Justice Dr. Shirani Bandaranayake on the (now nullified) impeachment is a significant contribution to the cause of promoting the independence of judiciary in Sri Lanka. Its significance lies in the fact it exposes the truth about what really has happened to the judiciary as an institution within the context of changes brought about by way of the constitutions of 1972 and 1978, and the practices that have developed as a result of these constitutional changes. The memoir makes it starkly clear that the separation of powers, independence of the judiciary and respect for rules of natural justice are no longer a part of the Sri Lankan legal system, although many who are involved in the administration of justice may proclaim these as part of their credo. The contrast between truth and illusion is very clear when looking at the actual narrative of what took place by way of pressures exerted on the Chief Justice, and the ‘so-called-impeachment’ story. 

She speaks touchingly about the relationship she had with her parents, who created a deep impression on her on the need to be faithful ones conscience and be truthful. Judging from her account of her resistance to having anything other than a strictly professional relationship with the executive, and the resistance to various pressures that came about related to the conduct of Judicial Services Commission, and, perhaps above all, in the  manner in which she resisted all attempts to pressurize her to voluntarily quit her job to save the embarrassment of the executive for dismissing her, clearly demonstrates that she was faithful to her belief in acting on the basis of her conscience.

Personal Conscience and Social Conscience

The fundamental issue that arises here is as to whether, particularly in moments of national and a social crisis, is it enough for a judge (or, indeed, for anyone engaged in public life) to merely do their particular job within the framework of faithfulness to one’s conscience, while not addressing the structural framework within which they conduct their affairs, when that framework opposes the very principles that they are trying to defend. For example, the issues related to the separation of powers and the independence of judiciary, the need to follow the principles of natural justice in giving a proper hearing to person whose conduct is being examined, and even the very notion of a fair trial, need to be addressed. When these necessities are structurally removed, is it possible for one to carry out one’s duties on the basis of one’s personal conscience? Are not the issues of the absence of the structural recognition of the very notions on which one is trying to conduct one’s affairs a relevant factor in assessing how to function under these circumstances, and important to being faithful to one’s conscience?

1972 and 1978 Constitutions

The structural removal of the idea of separation of powers took place when the 1972 constitution was adopted. At the debate, all the prominent spokesmen for the government of the time quite categorically stated that the separation of powers principle had been displaced the removal of the possibility of the judiciary to challenge any of the decisions by the legislature. This they called the supremacy of the parliament. It removed the basic structural framework of the Soulbury Constitution, which was made on the basis of the general principles of liberal democracy. 

The following two quotations are illustrative:

“In our view, the doctrine of Separation of Powers has no place in our Constitution. The National State Assembly is the supreme instrument of State Power and exercises the legislative power of the people, the executive power of the people, and also the judicial power of the people.”

[The Associated Newspapers of Ceylon Ltd., (Special Provisions) Bill Decision (Decisions of the Constitutional Court of Sri Lanka, Vol. 1 (1973), at p. 53; affirmed in the Administration of Justice Bill Decision (Decisions of the Constitutional Court of Sri Lanka, Vol. 1 (1973), at p. 67))];

and

“We are trying to reject the theory of Separation of Powers. We are trying to say that nobody should be higher than the elected representatives of the people, nor should any person not elected by the people have the right to throw out the decisions of the people elected by the people. Why are you saying that a judge once appointed should have the right to declare that Parliament is wrong? That you must have judges do the job of judging is true. We do not want to be judges.” 

[Mr. Felix R.D. Bandaranaike, the Minister of Public Administration and Local Government, as quoted in MRA Cooray, Judicial Role under the Constitution of Sri Lanka An Historical and Comparative Study (Lake House Investments Ltd. 1982) p. 224]

In 1978, the Executive President’s position was created and their role was meant to be higher than that of the legislature. This enormously significant transformation was created after government MP’s had been made to give undated resignation letters. This created a rather ridiculous situation in the country regarding the operation of constitutional law. Within that transformation, the Supreme Court lost the position it had under the Soulbury Constitution. When studying for postgraduate degrees abroad, and also when teaching law, Dr Bandaranayake may have acted on the belief that all the principles of liberal democracy were also part of the legal tradition in Sri Lanka. She may have also attempted to practice such beliefs in her time as a Supreme Court judge and a Chief Justice. But doing that was to ignore the actual transformation of the legal framework in the country, which had been brought about not only through constitutional changes, but also by widespread and deliberate practices. 

Neville Samarakoon, Sarath Nanda Silva and Mohan Peiris

The struggle between JR Jayewardene as president and Neville Samarakoon as the Chief Justice was basically on that issue. Neville Samarakoon, who had been a Senior Counsel for many years within the framework of law introduced by the British, seemed to have thought that he could function within that same framework after the adoption of the 1978 Constitution too. He had to pay a heavy price for believing that illusion 

The Chief Justice that was appointed under Chandrika Kumarathunge’s government had no such illusions. He went all the way, not only adapting to the new situation but also doing everything possible to protect the executive president and the presidential system. It was for that reason that he virtually undermined all the procedural laws and also undermined the legal profession. Thus, there was no conflict between the Executive President and Chief Justice Sarath Nanda Silva, as they both knew that they were dealing with a completely new set of ‘principles’ and not on the basis of the basic norms of a liberal democratic system. 

Judicial Power- Judicial Role and Killings of Persons after Arrest

Besides those changes happening within the judiciary itself, there were other changes of even greater importance. They clearly showed that the judicial function had been removed even in decisions involving the life and death of citizens. The killing of arrested persons in their tens of thousands happened under emergency laws. 

The greatest privilege of the judiciary is that it alone can decide on the life and the liberty of the individual. This is particularly so when the issue is one of life and death. What came to be known as enforced disappearances is the usurpation of judicial power by the executive, which then hands that power to anybody it wishes, including the lowest ranking officers of the police or the military. All applicable legal requirements, including the need to hold postmortems for suspicious deaths, were removed and certain ranks of police officers were given the power to order burials, and they had no obligation to keep any record of what they did.

Leaving other matters aside, this issue alone is sufficient to prove that Sri Lanka lost the ability to claim the existence of an independent judiciary, by allowing arrested persons to be killed and disposed of by the executive, with no access to judicial protection via fair trials, due process or rights. Judicial power was thus challenged in a far more fundamental way than by arbitrary impeachment through that practice of the authorized killings of persons who had been arrested and were in custody. 

These are just a few things that show that it was not only by constitutional changes but also through widespread practices that the role of the judiciary and judicial power were enormously undermined in Sri Lanka, and there was no attempt at all to undo that situation. 

What we saw during that period was not judicial resistance to the undermining of their role and of judicial power itself, but, as the cases of Sarath Nanda Silva and Mohan Peiris clearly demonstrated, there was an adaptation to whatever that the Executive President wished to do. 

Judicial impeachment treated as a practical joke

It is within such a background that the impeachment story should be looked at. While the demand of the Chief Justice and her lawyers was for due process and the observance of the normal procedures that would be followed in a matter as serious the removal of Chief Justice in more serious jurisdictions, the fact was that, in Sri Lanka, such a situation did not exist. The Mahinda Rajapakse government treated the whole affair of the removal of the Chief Justice simply as a practical joke. 

This practical joke consisted of arbitrarily getting the required number of members of parliament to sign a petition with charges that they hardly knew anything about, then giving the highest possible publicity to these charges, and then appointing a group of politicians – the majority of whom were of the same governing party – to be judges on the alleged misconduct of the Chief Justice, and then engaging in amateur dramatics to make it impossible for the Chief Justice and her lawyers to perform any useful function during the inquiry, and then getting their resolution while ignoring all objections that were made by the opposition. 

The intention behaving as though it was all a practical joke was starkly clear: it was to pressurize the Chief Justice to resign on her own and to make it quite clear to her that the justice she expected was not going to take place, and that the executive will do whatever it wants, and that all attempts to insist on innocence was a futile exercise. It was to her enormous credit that she did not play her part in that game. The public impression was therefore that what was being done was illegal, void and completely unjust. 

Injustice is not an abnormal affair in Sri Lanka anymore.  It is what the people are facing throughout the country at every instance, whether they belong to the majority community or minority communities. Even the killings of over 250 people on Easter Sunday did not lead to any kind of justice. Thus, it appears that justice is simply an irrelevant matter in Sri Lanka.

What the impeachment story brings to the notice of the public and the international community is this stark fact. Will the people, and even the judges, acknowledge this reality, or would it be more convenient to believe in the illusion of there being separation of powers, independence of the judiciary and a possibility of fair trial in Sri Lanka on any matter of significance to the executive? These illusions are from a past in which there were possibilities of such practices based on liberal democratic norms. So long as these illusions persist, they will only lead to greater catastrophes.

Former Chief Justice Dr Shirani Bandaranayake has done a great service in producing this memoir. It is to be hoped that in the years to come she may undertake to examine the history of the loss of the independence of the judiciary in Sri Lanka, and the historical developments that have led to the possibility of turning the whole impeachment procedure into a farce.  She has made a good beginning. However, if this work is to create possibilities for change, much more needs to be done, with deep self-searching by those had the opportunity see things with their own eyes, 

This is the way to be faithful to her father’s calling to be truthful to one’s conscience. This is not only for those who supported her throughout the impeachment, but also for all Sri Lankans, who are condemned live without liberty and who have lost their precious institutions.

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Latest comments

  • 4
    0

    What is the remedy one has , when a verdict on a Fundamental Rights petition is delayed for over 4 years.The constitution says that “The Supreme Court shall hear and finally dispose of any petition or reference under this article within two months of the filing of such petition or making of such reference”. Almost all the Chief Justices in service between 2011 to 2016, including Dr .Shirani Bandaranayake were on the bench at one time or other, to hear the petition under reference..

  • 12
    1

    Unfortunately MR’s rule was not ‘Democracy’ in action but ‘Autocracy’ in action! Fortunately, the voters, in their wisdom, chased him away in 2015. But he hasn’t got the message as he has other self centred personal ‘goals’ to achieve! There are ‘slaves’ around him egging him on!

    Let’s resolve to send him another message in November 2019. Voters, please use your valued franchise wisely!

  • 6
    0

    “What came to be known as enforced disappearances is the usurpation of judicial power by the executive, which then hands that power to anybody it wishes, including the lowest ranking officers of the police or the military. All applicable legal requirements, including the need to hold postmortems for suspicious deaths, were removed and certain ranks of police officers were given the power to order burials, and they had no obligation to keep any record of what they did.”

    If Gota is elected President there will be more of this and it will become routine and institutionalized.

  • 3
    0

    Sri Lanka has no basic or fundamental safety with MR or his people. SERIOUSLY. The more I think about what happened from these people in past, the more I feel to be living under uncertainty and horror soon.

  • 6
    0

    Gamini,
    I appreciate your plea. however, how can we expect average voters to make decisions based on lessons learned, when even the Bar Association and experts lawyers like Wijedasa R take the side of the power of politics over separation of powers? The important question, therefore, is: Why public don’t pay enough attention to the issue of separation powers if the issue affect their own rights for fair trial? Why the voters are reluctant to punish politicians who disrespect separation of powers?

    I think that the answer is obvious if understand what the majority of voters expect from their political leaders. Majority of the voters don’t like their politicians losing power b’cos, the bond between them is such that it makes them feel like becoming helpless. Only the independently thinking educated middle class voters are sensitive to the issue democratic rights including the independence of the justice system. But, in SL this group is still in the minority. Most importantly, even the media is not very much supportive of them; rather media favors abusers! This change of attitudes since 1972 has been the tragedy of SL social system as a whole; the sad situation of judiciary is one aspect only!

  • 3
    3

    Whatever impeached and later re-instated for one day former Chief Justice Shiranthi Bandaranayake may say to defend herself it was A CONFLICT OF INTEREST and not keeping in line with PROFESSIONAL ETIQUETTE, when her husband accepted the post of Chairman of the National Savings Bank, which was a POLITICAL APPOINTMENT made by the then Finance Minister and President Mahinda Rajapakse.

    This compromised her professional integrity and whatever she would say is useless because she too tried to keep the cake and eat it. Either she or her husband should NOT have accepted these political appointments from the President of that time.

    Her appointment and that of her husband were both made by Mahinda Rajapakse, and unlike any other Head of State MR expected her and her husband to toe the Rajapakse line. If Shiranthi Bandaranayake was naive and stupid enough to think otherwise she was really NOT FIT to be appointed to that exalted post in our judiciary.

    Today trying to justify herself is nothing but crap and a load of BULLSHIT.

  • 4
    3

    The blind folded lady with a weighing scale in one hand and a sword in the other hand left Sri Lanka on the day JR Jayawardena became the President.

  • 6
    2

    A poor piece of bland writing, meant to be a Memoir, by a so called legal-academic whose claim to high positions in the judiciary has been roundly questioned and criticized by members of her own profession. Many looked at her as a carpetbagger. Trying to play to the Gallery of Sinhala Buddhist public opinion by invoking in the vernacular Amma, Thatha, Appachi, Putha, Nangi etc. are all mere theatre and folly. She was used as a pawn by a legal luminary – major political player – to please the Robber Gang family with the guarantee with her on the top spot everything will fall into place for wholesale looting of the country’s meagre resources. The conspirators trapped her by appointing the unemployable hubby into a plum job. She was seen in places with the robber gang where she should never have ventured in public. Granted – much wrong was done to her position and to her personally by the ruling clique. But there is so much in which she is legally culpable.

    The village damsel should have remained in her social hinterland. She yearned for undue fame, riches and a long lofty social place beyond her realm. That she fell flat on her face – literally and figuratively is, sadly, to be expected..

    It is difficult to sympathise with her nor congratulate her. She had it coming.

    Pandaranayagam

    • 2
      2

      Pandaranayagam,

      Very true. She never realized, because she was naive and stupid, to comprehend that she was being led up the garden path by the vicious Rajapakses. Appointing her the CJ and giving her husband Pradeep Kariyawasam the Chairmanship of the National Savings Bank on a platter was to corner her to do their bidding.

      Surely she could have seen through the veil but her upbringing was too simple to have calculated the ulterior motives of the Rajapakses and when she delivered judgement against them, they came down on her like a ton of bricks.

      She just deserved what she got. It is said that in Sinhala “that you cannot put a leech on a mattress”‘.

    • 2
      1

      Pandaranayagam,
      It is true that her appointment was as bad as the eviction, but that shouldn’t be a reason to insult her for what she is. She is bright, talented and ambitious; so what? The reason she didn’t earned the due sympathy from the general public is not he fault; it is b’cos a vast majority of the general public don’t have a favorable attitude towards the court system – towards police(bribes & favoritism), the clerical staff of courts (bribes) & the lawyers (efforts drag cases) in particular. The whole justice system gets a bad rap b’cos of the corruption surrounding the justice system. That is why public don’t come forward to protect justice system in disputes with popular Gvts. This will not change unless judges themselves start to send a strong message indicating their willingness to hear public grievances related to their litigation.

  • 3
    1

    Well educated and well qualified Buruwansa will do everything for Botabaya

  • 0
    0

    pressures exerted on the Chief Justice, and the ‘so-called-impeachment’ story.

    For someone who can never repay no exercise better for the heart than reaching down and lifting people up. These tricks persist, they will only lead to greater bad luck.

  • 3
    1

    Hail gota and Pol Pot Rajapakse will rule he country for ever and their siblings will take over after their death! Sri Lanka will be a filed state like Uganda or Central African Republic!!!!!!

  • 0
    3

    ” For example, the issues related to the separation of powers and the independence of judiciary, the need to follow the principles of natural justice in giving a proper hearing to person whose conduct is being examined…”

    These are nice ideas, but few countries actually obey them to the letter. It is true that in Sri Lanka, the judiciary is heavily biased towards politicians. Politicians can get away with murder, bribery, etc. In the West, however, wealthy or famous individuals use their influence to do the same thing. Western countries also practice torture, what they do is extradite the torture to a 3rd country where torture is legal. The prison camp called “Guantanamo Bay”, owned and operated by the USA, was built on a Cuban island so that prisoners could be held indefinitely and tortured outside of the USA. The primary issue in Sri Lanka is the Executive Presidency. It was necessary to fight terrorism – this is how the war was won. Now there should be a serious discussion in regards to its removal. Otherwise, it will enable various abuses and pave the way for nepotism. After the Easter attacks, however, removal may not be so easy. Politicians will claim terrorism is still an issue.

  • 0
    1

    Shiranee’s case was analysed by Prof. Mark Coorey who was a law Professor of a famous Australian University (and previously a Prof. at Colombo University who probably taught GLPeries and others. I don’t know if Basil Fdo went to Colombo U ro got his degree of Law College or God knows where. But if he went to Colombo U he should have been a student of Coorey. Prof. Coorey wrote a transparent piece showing that there was excellent grounds for impeaching Shiranee B. It was simply not done according to etiquette. The UNP came into power and asacked Mohan Peiries also without due process. Basil Fdo who is a well-known backer of all that is right-wing and retrograde in the Catholic Church, and has appeared in Eelamist circles ostensibly to support his bogus brand of “human rights”, has never raised his pen to defend the Muslims when the LTTE took to ethnic cleaning of the North on Black-October 22nd, nearly three decades ago nor when Mulsims praying in Kattankudy were massacred, and so on.

  • 0
    0

    Good analysis. Thank you. The book itself is disappointing. It is an effort as self-exculpation. It seeks to portray Shirani B as a saint. Her appointment to the bench was suspicious. She was a protege of the slimy GL Pieris who gets a trenchant one paragraph dismissal in the book. In other countries, there have been instances of academics being appointed to the bench. But, In Shirani B’s case, she was not such a distinguished academic that the bar would accept the appointment on the basis of merit. Her invocation of her parents is touching. She has some good judgments to her credit. She did stand up to MR’s bullying and to the thugs who constituted the Parliamentary Committee. There is reference to a spy-thriller attempt to kill her. The fall from the heights of power to the depths of depression is a touching human story. The book is good and easy reading. There are still missing factors in the story. Was the appointment of her husband justified? Was there a conflict of interest in the appointment? What justified her own initial appointment? What was the role of the snake, GL Peiris while all this was happening?There are no answers to these questions. Yet, the book will be considered an interesting contribution to the story of the dismantling of the independence of the judiciary in our hapless country.

  • 0
    0

    A fine piece this is.
    1972, when a set of Bandaranayake’s began destroying SL from within.
    It will get worse before it gets better.

  • 0
    2

    Look who are the legal advisors for the Lotus Bud party. One is supposed to be Prof of: aw and the other retired Chief justice. Both are a shame for Judiciary Mahinda and are very good in finding loopholes withe the help of this both the Typical case is the Gotas Citizenship case. They cheated the; law by hiding the documents

  • 2
    0

    Basil

    ‘What Happens To The People Happens Also To Judges, Lawyers & Others’

    *** You have left out another important group of peole such as the Tamil MPs TNA and others.

    Gotha , Mhintha and now the CROWN PRINCE Namal the Paksa have raised the stakes. They have now openly laid charges against all the Tamil MPs

    1) They were all paid 300 Million each by UNP to join forces with them . I am not sure whether Pounds or Rupees . I bet they were Pounds which works out to 12 Billion each
    2) Gotha says TNA supporting UNP will strengthen Separatist Demands. Gotha I am sorry you have to ask Mr.Modi why did you encourage them and the answer will be it is time i put my foot in.
    3) The CRIWN PRINCE has also questioned as to why TNA are supporting UNP. Prince it will be suicidal to support Butchers like you. Sadly for TNA you are going to win and so TNA are gong to have to take cover behind Modi.

    I hope the USA State Department will drop the Bomshell a week before the elections that Gotha is still an American Citizen.

  • 0
    0

    Moderato

    It looks like you are underworked and overpaid and complacency has crept in

  • 0
    0

    The problems are caused by racist, and religious extremism. I blame the Malwattha and Asgiria chapters. They unanimously supported SWRD. They don’t care if all the Buddhist become prostitutes like THAILAND but for them racism and extremism are far more important.

  • 0
    0

    Singapore and India should ban anyone who advocate racism and extremism. I don’t know why they are permitting who violate UN charter.

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