Chief Justice must go to save the judiciary
Posted on November 8th, 2012

H. L. D. Mahindapala

  In the current tensions facing all three arms of the state — the executive, the legislature, and the judiciary — there is one simple, time-tested adage that over-rides all the legal, political and moral principles that would come into play: “Caesar’s wife must be above suspicion.” The 14 charges levelled against the Chief Justice, Shirani Bandaranayake, by 117 legislators casts, rightly or wrongly, serious suspicion on the conduct of the CJ. Besides, the impeachment motion presented to Parliament (see full text of motion below) makes one thing absolutely clear: there is a prima facie case that she has to answer and even if a whiff of one of the accusations tends even faintly to taint her image then she should resign before Parliament decides to act one way or another. She is not a politician with a thick skin to ignore charges contained in the impeachment motion. She is the Chief Justice and she must at all costs maintain the dignity of the office by leaving it unsullied by charges arising from her personal conduct.
 
 There is an honourable precedent set by the former Chief Justice, Neville Samarakone, who resigned when faced with an impeachment. That enhanced his image and that of the judiciary too. Shirani Bandaranayake, CJ, is facing more serious charges than her predecessor. It would save her image and, more importantly, that of the judiciary which has come under crushing blows from all quarters, particularly from the time of Sarath N. Silva who narrowly escaped impeachments motions. She may want to defend herself — a natural reaction, no doubt — either by appearing in person before Parliament or in writing. But she should not stop at that. The honourable course of action for her is to tender her resignation along with the submission in her defence.
 
 It doesn’t need a lawyer to point out that this institution is more important than the individuals who holds office in it. The judiciary, unlike the other two arms of the state, have a sacred status that must be maintained over and above the interests of the individuals. Besides, it is not the guilt or innocence that is critical in the charges faced by the CJ. What is of primary importance is the import of the charges that would leave a permanent smudge the image of the judiciary.
 
 She is also in a critical dilemma. There is, no doubt, an element of personal hurt would creep in and colour her views in judging her own case. Nevertheless, the 14 charges have thrown the ball into her court and she is in an awkward position to hit back because some of the strings in her racquet have snapped and the return would be severely weakened.
 
 The controversy surrounding her case so far has been clouded by counter charges of a political witch-hunt. This response gained some credence because the charges were not revealed to the public initially. In fact, J.C. Weliamuna, one of the legal beagles hunting for the NGOs, based his case of witch-hunt mainly on the fact that the CJ was accused without any charges. In the absence of any specific charge/s it did look like a witch-hunt. But the 14 charges levelled against her has knocked the bottom out of this argument. Looking at the charges — none of which seems frivolous, or smacks of political blow-back — it is apparent even to a an that the CJ is answerable to all of them. In the main the charges relate to her personal conduct and she and her backers cannot get away with the excuse that the charges are politically motivated.
 
 From an overall point of view, even if one accepts the counter-charge of the anti-Government wing of the divided bar as valid, she is still under moral obligation — apart from legal obligations — to meet the challenges to her integrity, authority and credibility contained in the 14 charges. For an individual holding the highest chair in the judiciary, the Chief Justice and her backers just cannot brush aside the charges saying that they are politically motivated. The nature of the charges are so damaging that no judicial officer — let alone the Chief Justice — can hide under the gown of self-righteousness, or counter-charges against the accusers, or political backing from the Opposition and some misguided diplomats who jumped in, with boots and all, to defend the Chief Justice without even knowing the nature of the charges.
 
 In hindsight, it is clear that the backers of the CJ jumped the gun in accusing the Government of playing vindictive politics to get rid of an anti-Government CJ. It is clear now that they were making a pre-emptive strike to tie the hands of the vilified Government with the sole intent of keeping the CJ in her seat. The listed charges, however, have pushed the backers of the CJ into an embarrassing corner from which they cannot get out easily. They have now to face each and every charge, along with CJ, and the prima facie case against the CJ does not seem promising. Of course, this saga was bound to end in a mud-slinging match. But the backers of CJ began throwing mud even before they knew what they were up against. They are now in the same position as the LTTE which used chemicals against the Security Forces without realising that the rising counter winds would blow it back on them.
 
 Take, for instance, the charge against her spouse who was holding the position of the Chairman of the NSB. He is alleged to have engaged in a shady share deal. CJ should have known that her spouse accepting a key position in the administrative branch of the government which also appointed her to the judiciary involved a conflict of interests. It is at this point that she should have conducted herself as Caesar’s wife. But she compromised hoping to gain from having one foot in each branch. And the rot began from there. She was happy to go along with the Government then. But when her spouse fell from grace after the share scandal at the NSB things turned sour. The President who appointed both husband and wife was forced to take action against the husband who was hauled up by the Bribery Commissioner. Then the better half reacted. The contrasting reactions of the CJ when her spouse was appointed and later when her spouse was removed reveals the hidden politics of the CJ.
 
So the charge of the government playing politics can be countered by the politics of the CJ. In any case, it is the business of any government to play politics, leaving aside the morality of it. But it is never the business of the judiciary to play politics. If the members of the judiciary want to do that they must retire from the bench and run after politicians like Sarath N. Silva pontificating on law and morality which he failed to uphold when in office..
 
The most damaging aspect revealed in the charges, even as a prima facie case, is that Hulftsdorp is not free from corruption. It casts a shadow over the entire legal profession. Hulftdorp was seen in the colonial and in the early independent days as the bastion of the right-wing conservatives in Cinnamon Gardens. Has the Hulftsdorp now become the leading citadel of corruption where the guardians of the law can be bought and sold for a fistful of rupees, or for quickie in the car on the way from home from courts?
 
Dr. Colvin R. de Silva, one of the leading legal lights of the Marxist left, once told Parliament (I am quoting from memory drawn from the days I was a lobby correspondent) that the last refuge of the people was the courts. As a Marxist he didn’t see anything redemptive in the socio-political structures of the capitalist state. But he said that the people had faith in the courts and he went on to praise even the legal acumen of the Gam Sabawas whose judgements, he said, had never been overturned by the higher courts.
 
But, of course, those were the days when justices did not appoint their brothers as secretaries, or when the chief justice never ever threatened the bar and the judiciary with intimidator tactics, turning both into pliant tools, or when the highest posts in the judiciary were not filled by political appointees who have had no judicial experience at all. One of the leading legal luminaries of Sri Lanka told me (on Chatham House rules) that no legal pundit, however learned, should go on the bench if he/she has had no experience in courts. The risks are too great. It is like appointing a surgeon, who had passed only a correspondence course in surgery, to operate on the brains of judges. The medical profession would have been up in arms if such an appointment was even mooted at any level. But the legal profession accepts it lying down.
 
 In this case it is just not the CJ that is on trial. It is the legal profession as a whole that is on trial. If they had stood by principles of its profession this crisis could have been averted. But unfortunately Hulftsdorp is politicized beyond redemption. But this is not to imply in any way that the entire bar is bent one way or other. There are decent types as in any other profession. The time has come for the bar to hold an inquiry into the professional standards of lawyers with a view to improve the conduct of those practicing law.
 
Hulftsdorp also shines with luminaries who had made stellar contributions to the Sri Lankan legal system in the past. But as always it is the future that is at risk. In the interests of its own profession Hulftsdorp must rise to defend the principles of the sacred institutions they serve and not their favourites on the bench.
 
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Impeachment Motion signed by 117 MPs:

 

Resolution as per Article 107(2) of the Constitution for a motion of Parliament to be presented to His Excellency the President for the removal of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake from the office of the Chief Justice of the Supreme Court of the Democratic Socialist Republic of Sri Lanka,””‚

1. Whereas by purchasing, in the names of two individuals, i.e. Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne using special power of attorney licence bearing No. 823 of Public Notary K.B. Aroshi Perera that was given by Renuka Niranjali Bandaranayake and Kapila Ranjan Karunaratne residing at No. 127, Ejina Street, Mount Hawthorn, Western Australia, 6016, Australia, the house bearing No. 2C/F2/P4 and assessment No. 153/1-2/4 from the housing scheme located at No. 153, Elvitigala Mawatha, Colombo 08 belonging to the company that was known as Ceylinco Housing and Property Company and City Housing and Real Estate Company Limited and Ceylinco Condominium Limited and is currently known as Trillium Residencies which is referred in the list of property in the case of fundamental rights application No. 262/2009, having removed another bench of the Supreme Court which was hearing the fundamental rights application cases bearing Nos. 262/2009, 191/2009 and 317/2009 filed respectively in the Supreme Court against Ceylinco Sri Ram Capital Management, Golden Key Credit Card Company and Finance and Guarantee Company Limited belonging to the Ceylinco Group of Companies and taking up further hearing of the aforesaid cases under her court and serving as the presiding judge of the benches hearing the said cases; (18)

2. Whereas, in making the payment for the purchase of the above property, by paying a sum of Rs 19,362,500 in cash, the manner in which such sum of money was earned had not been disclosed, to the companies of City Housing and Real Estate Company Limited and Trillium Residencies prior to the purchase of the said property;

3. Whereas, by not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer, the details of approximately Rs. 34 million in foreign currency deposited at the branch of NDB Bank located at Dharmalpala Mawatha, Colombo 07 in accounts 106450013024, 101000046737, 100002001360 and 100001014772 during the period from 18 April 2011 to 27 March 2012;

4. Whereas, by not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer the details of more than twenty bank accounts maintained in various banks including nine accounts bearing numbers 106450013024, 101000046737, 100002001360, 100001014772, 100002001967, 100101001275, 100110000338, 100121001797 and 100124000238 in the aforesaid branch of NDB Bank;

5. Whereas, Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake is a suspect in relation to legal action initiated at the Magistrate’s Court of Colombo in connection with the offences regarding acts of bribery and/or corruption under the Commission to Investigate into Allegations of Bribery or Corruption Act, No 19 of 1994; Whereas, the post of Chairperson of the Judicial Service Commission which is vested with powers to transfer, disciplinary control and removal of the Magistrate of the said court which is due to hear the aforesaid bribery or corruption case is held by the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake as per Article 111D (2) of the Constitution;

Whereas, the powers to examine the judicial records, registers and other documents maintained by the aforesaid court are vested with the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake under Article 111H (3) by virtue of being the Chairperson of the Judicial Service Commission;

Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake becomes unsuitable to continue in the office of the Chief Justice due to the legal action relevant to the allegations of bribery and corruption levelled against Mr. Pradeep Gamini Suraj Kariyawasam, the lawful husband of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake in the aforesaid manner, and as a result of her continuance in the office of the Chief Justice, administration of justice is hindered and the fundamentals of administration of justice are thereby violated and whereas not only administration of justice but visible administration of justice should take place; (19)

6. Whereas, despite the provisions made by Article 111H of the Constitution that the Secretary of the Judicial Service Commission shall be appointed from among the senior judicial officers of the courts of first instance, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake acting as the Chairperson of the Judicial Service Commission by virtue of being the Chief Justice, has violated Article 111H of the Constitution by disregarding the seniority of judicial officers in executing her duties as the Chairperson of the Judicial Service Commission through the appointment of Mr. Manjula Thilakaratne who is not a senior judicial officer of the courts of first instance, while there were such eligible officers;

7. Whereas, with respect to the Supreme Court special ruling Nos. 2/2012 and 3/2012 the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake has disregarded and /or violated Article 121 (1) of the Constitution by making a special ruling of the Supreme Court to the effect that the provisions set out in the Constitution are met by the handing over of a copy of the petition filed at the court to the Secretary General of Parliament despite the fact that it has been mentioned that a copy of a petition filed under Article 121 (1) of the Constitution shall at the same time be delivered to the Speaker of Parliament;

8. Whereas, Article 121(1) of the Constitution has been violated by the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake despite the fact that it had been decided that the mandatory procedure set out in the said Article of the Constitution must be followed in accordance of the interpretation given by the Supreme Court in the special decisions of the Supreme Court bearing Nos. 5/91, 6/91, 7/91 and 13/91;

9. Whereas, irrespective of the absolute ruling stated by the Supreme Court in the fundamental rights violation case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka 92) challenging the appointment of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, when she was appointed as a Supreme Court judge, she has acted in contradiction to the said ruling subsequent to being appointed to the office of the Supreme Court judge;

10.Whereas, the Supreme Court special rulings petition No. 02/2012 filed by the institution called Centre for Policy Alternatives to which the Media Publication Section “ƒ”¹…”Groundview’ that had published an article of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake, while she was a lecturer of the Law Faculty of the University of Colombo prior to becoming a Supreme Court judge, has been heard and a ruling given; (20)

11. Whereas, in the case, President’s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayake (1992 New Law Reports of Sri Lanka 92) that challenged the suitability of the appointment of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of the Judicial Service Commission in terms of the Constitution, Attorney-at-Law L.C.M. Swarnadhipathi, the brother of the Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi filed a petition against the appointment of the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake owing to which the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake has harassed the said Magistrate Kuruppuge Beeta Anne Warnasuriya Swarnadhipathi;

12. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake who holds the office of the Chief Justice and thereby holds the office of the ex-officio Chairperson of the Judicial Service Commission in terms of Article 111D (2) of the Constitution has, by acting ultra vires the powers vested in her by the Article 111H of the Constitution ordered the Magistrate (Mrs.) Rangani Gamage’s right to obtain legal protection for lodging a complaint in police against the harassment meted out to her by Mr. Manjula Thilakaratne, the Secretary of the Judicial Service Commission;

13. Whereas, the said Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake being the Chief Justice and thereby being the Chairperson of the Judicial Service Commission, in terms of Article 111D (2) of the Constitution, has abused her powers by ordering the Magistrate (Mrs.) Rangani Gamage to obtain permission of the Judicial Service Commission prior to seeking police protection thereby preventing her from exercising her legal right to obtain legal protection;

14. Whereas, the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake by performing her duties as the Chairperson of the Judicial Service Commission has referred a letter through the Secretary of the Judicial Service Commission to the Magistrate (Mrs.) Rangani Gamage, calling for explanation from her as to why a disciplinary inquiry should not be conducted against her for seeking protection from the Inspector General of Police by exercising her legal right;

By acting in the aforesaid manner,””‚

(i) whereas it amounts to improper conduct or conduct unbecoming of a person holding the office of the Chief Justice;

(ii) whereas she had been involved in matters that could amount to causes of action or controversial matters, (21)

(iii) whereas she had influenced the process of delivery of justice,

(iv) whereas there can be reasons for litigants to raise accusations of partiality/ impartiality, she has plunged the entire Supreme Court and specially the office of the Chief Justice into disrepute.

Therefore we, the aforementioned Members of Parliament resolve that a Select Committee of Parliament be appointed in terms of Article 107 (3) of the Constitution read with the provisions of Article 107 (2) and Standing Order 78 A of Parliament enabling the submission of a resolution to His Excellency the President for the removal of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake from the office of the Chief Justice of the Democratic Socialist Republic of Sri Lanka in the event the Select Committee reports to Parliament that one or more of the charges that have been levelled have been proved after the aforesaid charges of misconduct have been investigated

15 Responses to “Chief Justice must go to save the judiciary”

  1. dhane Says:

    Late Mr. Neville Samarakone was a reputed and very honorable lawyer who was appointed by JR as Chief Justice. I think it is the first such appointment in SL. However been a very straight forward gentleman Chief Justice Neville Samarakone made a speech against the ruling UNP. Then master of manipulation JR initiate the impeachment against Chief Justice, Neville Samarakone. Thereafter as a true gentleman he resigned. It enhanced his image up to date. Although UNP is talking against present impeachment against present CJ its the UNP having history of impeachments in SL.

  2. Lorenzo Says:

    “Chief Justice must go to save the judiciary”

    Absolutely.

    I’m thinking beyond SB.

    After sacking her, Sriskandarajah should NOT be appointed CJ.

    Already his relatives are making BIG MONEY using his position. We don’t want a another SIVA PASUPATHY (LTTE)!!!

    The govt. KNOWS this. So no excuse.

  3. nandimitra Says:

    Why should the CJ go? Yes she should if the allegations of corruption are true. on the other hand all the people who are corrupt and the people who safeguard them also must go. It is a moral duty that they have to observe for the sake of the country.

  4. Charles Says:

    Chief Justice Shirani Bandaranayake should resign, as her name is tarnished. Even if none of the charges in the Impeachment Motion against her is not proved, she has lost the prestige and the honour to continue as the Chief Justice of Sri Lanka. Therefore it is in her own interest , that of the Judiciary and the country that she should resign.

  5. samaraweera Says:

    Shielding behind the ‘gown of Judges’ , the CJ., Shirani B. was playing games with ‘illegal’ money and illegal practices and harassing Junior Judicial officers which is unbecoming of a CJ. The CJ holds the highest office in the Island. The President takes oaths before the CJ. During the days when Sri Lanka had a Gov. General and if for some reason he was away, it was the CJ who took his place. But things have changed so much that people have no trust even with Judges. If we can’t trust Judges what more can we say of other ‘high ranking officers’ in the Govt. Now that the CJ had been exposed, the best she could do is to resign with respect. It is no use wearing a ‘mask’ and denying the charges levelled against her.

    P.A.Samaraweera

  6. Fran Diaz Says:

    It is with a heavy heart that we note the points against the CJ.

    In analysing, take a look at #3 :

    “3. Whereas, by not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer, the details of approximately Rs. 34 million in foreign currency deposited at the branch of NDB Bank located at Dharmalpala Mawatha, Colombo 07 in accounts 106450013024, 101000046737, 100002001360 and 100001014772 during the period from 18 April 2011 to 27 March 2012; ”

    Some questions to ask in this matter :

    – Who (husband ?) or What, influenced her to break the law and indulge in corrupt practices ?
    – Did the malpractices start in 2011 ? If so, why only in 2011 ? Why did she cave into negativity only in 2011 ? Are we right in assuming that the malpractices started in 2011 ?
    – Did it have something to do with any business community in Sri Lanka or/& the 13-A ? Who paid in moneys into her
    accounts ?
    – Did elections in USA play a part ?
    – Did looming retirement for the CJ play a part ?
    – What was she to do in return for moneys received ?

  7. lingamAndy Says:

    Charles
    Chief Justice Shirani Bandaranayake should resign Even if none of the charges in the Impeachment Motion against her is not proved, -Why she lost the prestige and the honour to continue as the Chief Justice of Sri Lanka because farud compline by a group of RP family member & thier 117 Thevies (MP) !!! –

  8. Charles Says:

    The office of the Chief Justice is the highest next to the President. Even the President takes his oath before the Chief Justice. Her position of distinction carries prestige, honour and the highest trust. Any allegation against her by the people- that is the representative of the people- the MPs to the highest legislature which is the Parliament, leaves a scar and affects her position to hold that office of Chief Justice.

    There are two aspects to consider one is the Office of Chief Justice and the other Shirani Bandaranaike person who has been appointed to hold that Office.

    That is how I see it.

  9. lingamAndy Says:

    Charles
    I see your point but person is not gulty until proven !!!
    think like this do you think a chief justice make any disdishonour or break highest trust in mother lanka !!! NO

  10. Charles Says:

    I am sorry Lingam Andy you have not seized my point.

  11. lingamAndy Says:

    Sorry Charles I can understood you point but I feel who ever it is We need to give a chance to clarify their (defendant) side of story !
    person is not guilty until proven !!!

  12. Charles Says:

    person is not guilty until proven !!! -that is only another aspect of it-the end result…

  13. Dham Says:

    Nondilingams has a point here.
    Why are we assuming “117 thieves” = “people’s representative” and 1 CJ = thief ?

    CJ has acknowledeged having 19 million in banks ( not 34). This means this family saving 1 lakh every month for 18 years. Is this possible ? Why used other peoples names ?

    117 thieves impeaching 1 thief and neglecting murderous 13A.

  14. Lorenzo Says:

    DRUG DEALERS in Welikada prison had attacked STF causing death and injuries.

    ALL these violent elements MUST BE KILLED. Existing punishment clearly FAILED to fix them. Eliminate these terrorists in full.

  15. Lorenzo Says:

    Sarath Silva is no govt. supporter. But he too supports the impeachment.

    “Sarath Silva, A former Chief Justice, who himself was a victim in an earlier impeachment proceeding, has said that there was nothing wrong in this case. “Chief Justice or no Chief Justice, one cannot have improprieties and that is fundamental. That is why I have no objection against this case,” The Sri Lankan Financial Times quoted him as saying.

    Mr. Silva said that the charges against Chief Justice Bandaranayeke included financial improprieties. “The crucial matter is that there is a case of bribery against the Chief Justice’s husband. I feel the Chief Justice should have been well advised to take leave during that period and allow that case to go on. Or some such mechanism should have been resorted to in discussion with the President to avoid such a situation,” he said.”

    – the hindu

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