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by Dharisha Bastians
Courtesy:
Financial Times, Colombo
(
December 13, 2012, Colombo, Sri Lanka Guardian) During the inauguration of a
four-storey building for the Institute of Charted Accountants of Sri Lanka at
Malalasekera Mawatha in Colombo, President Mahinda Rajapaksa blithely asserted
that he would appoint an independent committee to review the report by the
Parliamentary Select Committee submitted to Parliament on Saturday (8).
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If the impeachment saga is folding like a pack of cards, the joke is on the seven UPFA members of the Parliamentary Select Committee, those tried and tested political acolytes who will be the first victims of a hasty Government retreat.
For
a nation that has been bristling over the process undertaken to remove the Head
of Sri Lanka’s Judiciary, the statement came as resounding shock. In his speech
to the Chartered Accountants gathered there, who he acknowledged as being
largely supporters of the opposition UNP, the President said that he had not
been in favour of the impeachment motion from the beginning, but a group of MPs
had ‘gathered the evidence’ and put the resolution forward in Parliament.
“As
a lawyer and a member of the legal profession, this whole situation is
saddening me. After all, I do not wish to undermine the Judiciary,” President
Rajapaksa explained, saying that in accordance with his conscience, although
not mandated to do so by law, he would be appointing an independent body to
study the report on the impeachment submitted by the seven remaining members on
the PSC, all of them ministers or deputy ministers in the Government.
PSC
– setback after setback
The
President’s conscience-stricken assertion about not wanting to play a part in
the undermining of the Judiciary at the public event puts the seven Government
members of the PSC and the 117 members who signed the impeachment motion – many
of them telling the media later that they signed the motion without seeing the
contents or the charges – in a sticky situation.
The
legal fraternity reacted instantaneously, claiming that it was an admission by
the President no less that the process was unlawful and the report of the
Committee flawed. Mobilising at breakneck pace, the Lawyers Collective demanded
the immediate withdrawal of the PSC report and an independent and fair trial
for the Chief Justice.
SLFP
seniors annoyed
The
President’s statements have irked Government representatives on the PSC, who
hastily pronounced on the Chief Justice’s guilt only three days ago. SLFP
seniors are reportedly angered by attempts by senior members of the ruling
regime to absolve themselves of the fallout from the impeachment drama. Some
SLFP seniors, who wished to remain unnamed, said that the entire impeachment
process was set in motion by a senior presidential aide in charge of
Parliamentary affairs, who was irked by the Judicial Services Commission’s
decision to take disciplinary action against a magistrate friend. The issue
intensified following the Supreme Court position on the Divi Neguma
legislation.
The
PSC has suffered setbacks from the get-go. Litigation has piled up against it
at the Court of Appeal and the Supreme Court, and notice has been served on the
11 members of the PSC who are cited as respondents in almost all the petitions.
Legal challenges to the PSC spring from an interpretation of Article 4 (c) of
the Constitution which vests judicial power of the people in the courts of law.
Then
the committee attempted to conduct its deliberations behind the cloak of
parliamentary privilege, exercised through the controversial Standing Order
78A, which pertains to the removal of judges of the Superior Courts. The
Standing Order stipulates that unless the judge in question is pronounced
guilty on any of the charges in the motion, proceedings of the PSC may not be
made public.
The
closed proceedings were an attempt to safeguard the reputation of a judge under
investigation, until such time his or her ‘misbehaviour’ or ‘incapacity’ was
proven. Chief Justice Shirani Bandaranayake’s lawyers in the interest of
transparency, during her second audience before the Committee, waived her right
to privacy and asked for an open trial. Government members of the PSC refused
the request. The Chief Justice then requested observers from the Commonwealth
or even the Bar Association of Sri Lanka. Once again, the Government majority
in the Committee refused.
Public
proceedings
In
the end, it did not matter in the least. Proceedings were made public from the
moment they concluded for the day, splashed all over the websites that are
immune from the confines of Parliamentary privilege that govern the mainstream
media. Along with the revelation that Government members on the probing
committee were vetoing every request of the Chief Justice’s lawyers, including
that for additional time to prepare her defence, were other exposés that put
the PSC in an awkward position, especially following Chief Justice
Bandaranayake’s final audience before the Committee on 6 December.
The
Lawyers Collective, an umbrella organisation for several legal associations and
senior lawyers, provided excruciating detail about the proceedings at the PSC
on the afternoon of 6 December that prompted the walkout by the Chief Justice
and her lawyers. The details included certain derogatory remarks cast at
Bandaranayake and even the head of her legal team, President’s Counsel, Romesh
De Silva by two Government members of the PSC. At a media briefing this week,
the Lawyers Collective said that the Chief Justice was compelled to quit the
PSC proceedings in order to maintain the dignity of her office and her dignity
as a woman, because the slurs cast upon her proved beyond endurance.
Officially,
representative of Bandaranayake’s legal team, Attorney-at-Law Saliya Pieris
said that submissions by the Chief Justice’s senior lawyer, De Silva, PC, had
been repeatedly disturbed by Government members on the panel and that some members
of the ruling party had got abusive with the Chief Justice. Citing a lack of
faith in the proceedings and the belief on the part of his client that she
would not receive a fair trial at the hands of the PSC, the Chief Justice
walked out of proceedings and informed the Committee through her lawyers that
she would not return, Pieris said.
PSC
Chairman Anura Priyadarshana Yapa flatly denied the allegations of abuse being
hurled at the Chief Justice, but DNA MP Vijitha Herath, who walked out of the
Committee with his three other Opposition colleagues on Friday (7), said the
official transcripts of the proceedings would soon be made public. “Repeatedly,
the PSC Chairman told the Chief Justice’s lawyers to speak to him. He told them
not to listen to the remarks being made from his colleagues, so there is no way
he can say those things were never said,” Herath said.
Less
than 24 hours after the Chief Justice and her lawyers walked out of the PSC,
the four Opposition members on the committee – John Amaratunga (UNP), Lakshman
Kiriella (UNP), R. Sampanthan (TNA) and Vijitha Herath (DNA) – quit the
committee, protesting the unfairness of proceedings and the undignified way in
which the Chief Justice had been treated.
In
order to remain in the Committee, the Opposition committee members demanded
that due procedure for the investigation by the Committee be laid out, that the
Chief Justice’s legal team (and the four opposition members) be allowed time to
peruse the evidentiary documents presented to them on 6 December and that she
be invited back into participate in the proceedings on the guarantee that she
would be treated with the respect due to the office she holds. All the demands
were rejected by PSC Chairman Yapa, culminating in all four members from the
Opposition quitting the Committee.
Not
only were the proceedings from then on effectively ex-parte, but with the
Opposition boycott, the PSC’s legitimacy was further eroded since any ‘verdict’
by the committee now would be seen as entirely one-sided, senior lawyers
warned. The gravity of this situation was not lost on President Rajapaksa,
prompting him to call UNP Senior Vice President and Committee Member Lakshman
Kiriella on Thursday (6) night and urging the Opposition to stay on and fight
for a fair trial for the Chief Justice.
The
witnesses
Be
that as it may, the sequential walkouts firstly by Chief Justice and
subsequently by the Opposition did nothing to stem the enthusiasm of the seven
remaining Government members on the PSC. With renewed vigour, the PSC deliberated
late into the night on Friday (7) in Committee Room 1 of the Parliamentary
complex. Following the Opposition walkout earlier that day, the PSC hastily
summoned 16 witnesses, including Supreme Court Justice Shirani Tilakawardane,
several representatives from Trillium Residencies, Immigration Controller
Chulananda Perera, Judicial Services Commission Secretary Manjula Tillekaratne,
Central Bank Governor Ajith Nivaard Cabraal, and even Presidential Secretary
Lalith Weeratunga.
Also
on the witness list presented in the 29 page report to Parliament by the PSC
were several officials from state banks, including the NSB, Bank of Ceylon, and
People’s Bank. The Editor of a Sinhala newspaper that publishes both daily and
weekly was also summoned to give evidence. The witnesses were issued last
minute summons, yet all of them managed to appear before the Committee, which
conducted proceedings well into the night on Friday.
According
to the PSC report, now in the public domain thanks to the state media, Justice
Tilakawardane gave evidence primarily about the Golden Key case that was first
pending before a three-judge bench headed by her and subsequently transferred
to a bench headed by Chief Justice Bandaranayake. The Committee report hails
the Supreme Court Justice’s testimony as being ‘greatly useful’ to reaching a
correct conclusion.
The
report says Justice Tilakawardane swore an oath before the Committee and gave
evidence that former Chief Justice Sarath N. Silva had urged her to remain on
the bench hearing the Golden Key case before he retired, in order to ensure
justice is done by some 9,000 depositors in the case. According to the Report,
Justice Tilakawardane testified that while she was hearing the case, a motion
had been filed requesting for a fuller bench of the Supreme Court to hear the
case. However the report quotes the response submitted by Bandaranayake’s
lawyers which says that the Chief Justice ordered that the case be continued to
be taken up before the bench comprising Justices Tilakawardane, Chandra
Ekanayake and Priyasath Dep. The report then concludes the following:
“This
Committee concludes that the Chief Justice’s conduct in having maintained close
ties to and obtained a Rs. 1.6 million discount on the Trillium apartment from
Executive Director Janaka Ratnayake who was found by Justice Tilakawardane
during her investigation into Trillium to be suspect in major fraud, having
refused to make an order appointing a five judge bench to hear the Golden Key
case as per the constitution and subsequently removing Shirani Tilakawardane
who had worked with dedication for 3 ½ years from the bench hearing the case
and appointing herself and two other justices to the relevant bench was
systematic and for some purpose. She (Justice Tilakawardane) stated that she
did not remove herself from hearing the case voluntarily and she was surprised
to hear she had been removed from the bench.”
To
support this charge, the PSC report also quotes transcripts of the proceedings,
specifically with regard to questions posed by Committee members to Trillium’s
Executive Director.
The
line of questioning when perused, legal experts opine, indicates that the
prosecution and the jurists in the PSC were one and the same.
Guilty
on three counts
After
hearing from these witnesses, the PSC members stayed back very late to conclude
their findings and draft the report with the assistance of several clerical
officers in the complex, all of whom were sequestered for the purpose. The
report investigated the first five charges in the impeachment motion, and found
the Chief Justice to be guilty on three charges: 1, 4 and 5. It has exonerated
her on charges 2 and 3 in the impeachment motion which deals with money the
Chief Justice said in her response to the charges were transferred from her sister
for the purpose of purchasing an apartment in Colombo and an alleged transfer
of Rs. 34 million into her bank account, which the Committee has been unable to
prove. The PSC said it had not gone into the other nine charges in the motion.
Charge
1 pertains to the Chief Justice having purchased an apartment at Trillium while
hearing a Ceylinco case using her sister’s power of attorney, Charge 4 deals
with non disclosure of some 20 bank accounts she maintained at NDB bank. Charge
5 deals with the case pertaining to Pradeep Kariyawasam filed in a Magistrate’s
Court and the Chief Justice’s potential to abuse power as Chairperson of the
Judicial Services Commission and how her position as Head of the Judiciary
hearing the case could hinder or be perceived as hindering the administration
of justice.
The
report was handed over to Parliament on 8 December, in keeping with a trend by
the ruling powers to pick dates that add up to the number 8 for elections and
other significant political events. By any standards, with the PSC having
commenced deliberations on 23 November, the report has been handed over with
undue haste, despite the fact that Standing Order 78A makes allowance for an
extension of the Committee’s tenure if it required more time to probe the
charges. Government Members on the PSC said they could not tarry because the
Speaker had mandated that the Committee must deliberate and submit a report
within a period of a month. Had the Committee taken its time, studied the
evidence and make provision for a fair trial, its legitimacy would not be in
such furious question today.
Ex-parte
evidence led
The
announcement that several witnesses had appeared before the PSC on Friday
evening drew a furious reaction from the Chief Justice’s lawyers and across the
board. Issuing a statement on behalf of Bandaranayake, Attorney-at-Law Saliya
Pieris said that the Committee had consistently maintained since 23 November
that no oral evidence would be led during the proceedings and the Chief
Justice’s legal team would not be permitted an opportunity to cross examine
witnesses and those submitting documentary evidence to the PSC.
“Despite
our demands to cross examine the witnesses, we were not given the list of
witnesses or documents and were told that there will be no witnesses called.
This same observation has been made by the Opposition Members of the Select
Committee today at 2:30 p.m. We now find that after the Chief Justice and her
lawyers walked out of the Select Committee, the Committee has called for
witnesses and led their evidence. We understand that all those witnesses were
summoned today (7 December) after the lawyers walked out. It appears to us that
as long as the Chief Justice and her lawyers were present witnesses would not
have been called,” he said.
The
calling of witnesses after the Chief Justice had quit the proceedings
exacerbated problems for the PSC, which was already burdened by allegations
about a lack of due process and fair trial. Attorney-at-Law Srinath Perera told
a media briefing on Tuesday that no matter how high profile a witness, a
defendant in a case had the right to cross examine a witness testifying against
them to ascertain the truth or otherwise of the testimony. “It is a well
recognised principle that a witness, no matter how high profile, has to be
tested in cross examination by counsel for the defendant. This is a weapon
given to a person against whom charges are brought. The Chief Justice was
denied this right and the PSC led ex-parte evidence against her,” Perera
charged.
The
Government faced a hailstorm of criticism from all quarters after the report
from the PSC was submitted to Parliament. The Opposition has condemned the lack
of due process and transparency and the PSC’s inability to guarantee a free
trial. Even UNP Leader Ranil Wickremesinghe came out strongly against haste
with which the report was submitted and the treatment meted out to the
country’s most senior Judge at the hands of the Government members on the
committee.
Wickremesinghe,
who told Parliament on 29 November that there was no way the PSC could submit a
report on 8 December because procedures had to be followed, during the infamous
privilege debate regarding notice served on the PSC by the Supreme Court,
charged this week that Sri Lanka was at risk of losing Commonwealth membership
by failing to follow due process in the removal of a judge. The main opposition
also mobilised a small protest at Lipton Circus on Monday (10) to protest
against the impeachment process.
Over
to the black coats
But
the major mobilisation is occurring in the legal fraternity, where zonal bar
associations and legal societies are striking work in solidarity with the Chief
Justice. Constitutional Lawyer and Activist, J.C. Weliamuna said that for the
legal fraternity, this was not about protecting an individual. “This is about
protecting the office of the Chief Justice, the judicial system and the people
from undue interference by the Executive that is deeply damaging to democracy
and the rule of law,” he said.
On
Saturday, lawyers are engaged in massive efforts to ensure a large turnout at
the Bar Association General Meeting, which Weliamuna says will make major,
drastic decisions on the way forward. Some lawyers, he said were preparing a
resolution to be moved that would refuse to recognize the appointment of a new
chief justice. The Lawyers Collective and Lawyers for Democracy are mobilising
the black coats to boycott ceremonial sittings by a new Chief Justice and file
contempt charges if demonstrators are mobilised to insult the Judiciary at
Hulftsdorp again.
The
solidarity of the tribe of black coats in this instance has proved unshakable
for a Government that is accustomed to being able to win over influential
members of any fraternity over to its way of thinking. Instead, even Government
proponents such as S.L. Gunesekera, Attorney-at-Law, are coming out strongly
against the impeachment process, saying it was a pseudo trial by a kangaroo
court and posed a threat to the Judiciary at large. Lawyers are also working on
mobilising judges and retired judges to agitate against the proposed
impeachment and the lack of fair trial afforded to Bandaranayake.
On
Tuesday, Sri Lanka’s senior most Judge, and former Vice President of the
International Court of Justice, Christopher Gregory Weeramantry set out in a
measured statement the pre-requisites for fair trial. According to the eminent
Justice, who has remained silent on the impeachment process thus far, “The Rule
of law demands that every person being investigated by a tribunal has the right
‘to be informed of the charges, to know the evidence against him or her, to
have a full and fair opportunity to scrutinise that evidence and to respond to
it’ and a denial of any of the factors ‘vitiates the inquiry and its
findings.’”
Justice
Weeramantry observed that unless these principles are involved in an inquiry,
where the security of judicial tenure is involved, there is profound damage to
the independence of the judiciary. In his statement, Justice Weeramantry notes
that he felt compelled to make observations on the current crisis facing the
Judiciary in Sri Lanka.
Pressure
abroad
Internationally
too, the pressure is mounting, with observers saying it is likely that the
repercussions of the trial held with undue haste to remove the country’s most
senior Judge would certainly be felt when Sri Lanka’s case is re-examined at
the UN Human Rights Council sessions in March next year. The undermining of an
independent Judiciary is particularly pertinent in terms of the challenges Sri
Lanka is facing internationally, especially with regard to its alleged lack of
commitment to going into accountability issues in the final phase of the war
with the LTTE in 2009.
With
the world crying out for a war crimes inquiry against the Sri Lankan State, the
Government has maintained that it has both the will and the capacity through
its judicial system to investigate any alleged excesses. Analysts point to the
fact that not only has one year gone by with Sri Lanka refusing to show any
true commitment to going into accountability issues, but the impeachment motion
and resultant fallout, including the compromised independence of the judicial
arm which will from here on fear political reprisals, will also demonstrate
that Sri Lanka’s judicial system no longer has the capacity to go into an
accountability investigation – that is patently an investigation of alleged
State excesses.
For
the setting up of an international independent war crimes tribunal, two
conditions must be fulfilled – the State must show unwillingness to investigate
and its own judicial system must be proved incapable of independent decisions.
Last week, the US State Department followed up a statement from the US Embassy
in Colombo expressing grave concern about the Rule of Law and challenges to
judicial independence in the country.
All
this posturing is not lost on the Sri Lankan Government. Hemmed in from all sides,
the independent panel to review the PSC report is a face-saving mechanism. It
remains to be seen who will comprise the ‘independent’ panel and whether it
will necessarily invalidate the findings of the PSC and demand a new trial for
the Chief Justice. If so, all the hard work of the Government members of the
PSC would have been for nought, with the President Rajapaksa and his family
effectively disassociating themselves from both the impeachment motion and the
PSC report that pronounced on the guilt of Chief Justice Bandaranayake.
If
the impeachment saga is folding like a pack of cards, the joke is on the seven
UPFA members of the Parliamentary Select Committee, those tried and tested
political acolytes who will be the first victims of a hasty Government retreat.
(The writer is a journalist with the Financial Times, a daily newspaper based in Colombo, where this piece originally appeared. For more information please visit at www.ft.lk )
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