H. L. D. Mahindapala

To say thatƒÆ’-¡ƒ”š‚ the Chief Justice, Dr. Shirani Bandaranayake, is the central figure in the impeachment case is to state the obvious. It is her role that will be scrutinised minutely to test how well she has protected and maintained the independence of the judiciary to win the confidence of the public and the integrity of the judges in upholding the values and community standards on which the society depends for justice. In any society the independence of the judiciary does not mean that the judges can go out on their own, without any respect for the law, to impose their will, based on their political or personal preferences. It is the primary duty of the judges to conduct themselves, both in public and private, in a manner that would inspire confidence both in themselves and the judicial institutions they serve. At this stage what can be said safely is that the battle lines are drawn, the two sides are ready and every facility must be made available for both sides to begin the battleƒÆ’-¡ƒ”š‚  and proceed on the lines laid down in the constitution.

While that process goes onƒÆ’-¡ƒ”š‚ the public discourse on this controversial issue that touches keyƒÆ’-¡ƒ”š‚ aspects of governance must also go on, weighing the pros and cons. More so, because the independence of the judiciary cannot be left in the hands of the judges, or the black-coated professionals, or the legal weasels quibbling in academia. The judiciary cannot be left in their handsƒÆ’-¡ƒ”š‚ alone like the way wars cannot be left in the hands of generals who can run amok.ƒÆ’-¡ƒ”š‚ 

First point to be noted is thatƒÆ’-¡ƒ”š‚ in a democratic society the task of protecting and maintaining the independence of the judiciary does not depend entirely on the state. It is also the duty of the courts to act in a manner to uphold the independence of the judiciary. There are certain roles and rules that the judiciary — and this extends to the lawyers at the bar too — must uphold to protect and maintain the independence of the judiciary, primarily to win the confidence of the community without being a pawn in the hands of manipulators — i.e., the state, kalu koatƒÆ’-¡ƒ”š‚ kelum-karayas who pervert the legal system from within, and even judges who play games of their own to achieve partisan political agendas, personal gains, or ego-centric glory. In the last analysis, the integrity, credibility and the purity of the judiciary can come only from the role played by the judiciary. A tainted judiciary cannot claim to be independent or trustworthy. Its political and personal games would certainly undermine the integrity , independence and the dignity of the judiciary.

It is in this context that the role of the CJ in maintaining the independence of the judiciary comes into question. And not much attention has been paid to this aspect that has led to the current confrontation between the state and the judiciary. Did the CJ wittingly or unwittingly contribute to undermine the independence of the judiciary in any shape or form? In the midst of all the other competing issues, it is this issue that will come to the fore in the coming days and, perhaps, even months.

At the outset it must be mentioned that not every inquiry into the conduct of a judge should be categorised as an invasion into the independence of the judiciary. There is provision in the constitution to question the conduct of presidents, MPs, judges, newspaper editors, corporate bodies and whoever else is suspected of violating the law or threatening the security and well being of the society as a whole.

Initially, it mustƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ also be recognised that the Chief Justice, like any other citizen, is a creature of the society into which she was born and grew up and it is necessary to step back a bit and assess the route she took to arrive on the bench and the route she has taken since she arrived on the bench. Placing her in the context of the social milieu she occupied can help to understand her role as CJ. At least some of the main events of her judicial career need to be revisited as they are relevant to the charges she is facing right now.

The judicial career of Chief Justice, Shirani Bandaranayake, began inauspiciously, covered with the mud of politics staining her cap and gown. The moment she stepped on the bench her credentials to sit on the bench were challenged mainly on political grounds. This came about because she was catapulted from the Law Faculty of the Colombo University into the judiciary purely on the political patronage showered on her by President Chandrika Kumaratunga, a charlatan, if ever there was one, whose favourite pastime is to pose as an all-knowing political pundit.

ƒÆ’-¡ƒ”š‚ CJƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ is also vulnerable because she was never a part of the court culture. Nor did she come up the ladder through the usual court craft that gives a deeper insight into the operations of the law and the nuances and the subtleties of the legal system than those found in text books. Legal tradition has always opted for those who come up from the ranks instead of those who parachute from air into a judicial chair. Besides, when CBK overlooked several other experienced and deserving candidates and plucked Shirani Bandaranayke from the Law Faculty and plonked her into a chair in the Supreme Court it reflected the culture in Prabhakaran’s courts. A political appointee, however qualified he/she may be academically, immediately raises the spectre of justice not seen to be done. It can also justify the critics who could say that judges who live and rise by politics will also die by politics.

ƒÆ’-¡ƒ”š‚ Despite pious protestations she has been a political animal in the Aristotelian sense. According to newspaper reports she has even rushed to the Mahanayakes to present her case. Judicial ethics and conduct demand that she should not have politicized her case at a religious institution, however sacred it may be. Obviously, she is not averse to playing politics when it comes to defending her interests. Her son too has joined the fray and is making statements on her behalf in the face book. This does not augur well for the independence of the judiciary struggling to win the confidence of the neutral public.

ƒÆ’-¡ƒ”š‚  If the final decision goes against the CJ it will go beyond the borders to the international community which has already prejudged the case and decided that the CJ is a victim of political machinations. Gabriela Knaul, the UN Special Rapporteur on the independence of judges and lawyers, has issued a statement from Geneva saying: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Judges may be dismissed only on serious grounds of misconduct or incompetence, after a procedure that complies with due process and fair trial guarantees and that also provides for an independent review of the decision.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ She added that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ Knaul went further and said that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ This warning shot fired by Kanaul signals clearly that the international community had already made up its mind without hearing the evidence. In fact, they started issuing statements in defence of the CJ even before the charges against her were known.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ To all intents and purposes, it is nothing but a pre-emptive strike, manipulated by the local NGOS, to strengthen the hands of the CJ.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ It is against this background that that the politics of the CJ must be explored and placed in context.

ƒÆ’-¡ƒ”š‚ Everyone knows that Shirani Bandaranayake was a protƒÆ’†’ƒ”š‚©gƒÆ’†’ƒ”š‚© of Chandra Bandaranaike Kumaratunga (CBK) — the difference in spelling doesn’t make much of difference. Even theirƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ Sai Baba hairstyles looks the same. (This should be read only as a fashion statement and not as a personal affront). However, unlike CBK who was born with a silver spoon in her mouth the other Bandaranayake was, more or less, a country girl (nothing wrong with that) who came up through provincial schools and joined the Colombo University — the last resort of intellectually handicapped troglodytesƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ basking in the reflected glory of imported, bunkum theoriesƒÆ’-¡ƒ”š‚ that had not served the nation in solving its problems, one way or the other.ƒÆ’-¡ƒ”š‚ For instance, which theory of theirs helped to end the war? Our village lads and lasses did a far superior job than all theƒÆ’-¡ƒ”š‚ puerileƒÆ’-¡ƒ”š‚ pundits peddling pop theories to advance their careers in the departments ofƒÆ’-¡ƒ”š‚ political science, history, sociology etc. This tertiary institution was also seen as the den/coven of anti-Sinhala-Buddhist, pro-separatist hack-ademics who were aligned to pro-devolution politics of CBK.

ƒÆ’-¡ƒ”š‚ Colombo University, dominated by the anti-national lumpen left-wing, wasƒÆ’-¡ƒ”š‚  also over-populated with academic mercenaries hired by the foreign-funded anti-national NGOs to manufacture anti-national tracts and theories. The latest is Nira Wickramasinghe, former professor in the Department of History, Colombo University, who was “commissioned” (quote – unquote) by the anti-national ICES of Radhika Coomaraswamy to manufacture aƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ written product that would demonise the post-Prabhakaran period. Nira Wickramasinghe does not reveal how much she earned by way of “commission” but she had gone forth merrily and predictably to denigrate post-Prabhakaran Sri Lanka forƒÆ’-¡ƒ”š‚ celebrating the ending of the longest running war in Asia by branding it asƒÆ’-¡ƒ”š‚ “triumphalistic nationalism”ƒÆ’-¡ƒ”š‚ which, according to her, inhibits reconciliation.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ She has forgotten — poor thing! — to focus onƒÆ’-¡ƒ”š‚ the arrogance, intransigence and the raucous, rambunctious racism of the Vadukoddians repeating their violent historyƒÆ’-¡ƒ”š‚ that began with the Vadukoddai War declared on May 14, 1976.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Her commissioned product, regurgitating all what the anti-national NGOs like “Paki” Saravanamuttu’s CPA had said umpteen times before, does not add credit toƒÆ’-¡ƒ”š‚ herƒÆ’-¡ƒ”š‚ capacity to produce new findings, or perspectives, or to her new work place, the Leiden University.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ In her commissioned product she comes out nakedly as the hired gun of Radhika Coomaraswamy to target post-war Sri Lanka.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ICES has the foreign funds to hire guns to do the dirty work. And, no doubt,ƒÆ’-¡ƒ”š‚ Radhika Coomaraswamy must have patted Nira Wickramasinghe on the back for executing the contract killing.

ƒÆ’-¡ƒ”š‚ Shirani Bandaranayaka was a part of this pro-devolution/separatist ideological gang which rules theƒÆ’-¡ƒ”š‚ anti-nationalƒÆ’-¡ƒ”š‚ humanities wing of the Colombo University. She was hunting jointly and severally with this ideological pack at the Colombo University. She fitted into CBK’s politics because the latter needed judges who would back her political agenda in courts. CBK had gone to the extreme of offering Prabhakaran the north and the east for ten years without an election — a move that was bound to face challenges in courts. CBK’s choice of filling the vacancy in the judiciary with Shirani Bandaranyake speaks volumes about the political affinities of the two ideological twins pursuing identical devolutionary goals.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ Shirani Bandaranayaka was commissioned by CBK like the way Radhika commissioned Nira Wickramasinghe. ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Now it is recorded in bold black letters in legal history that despite all the ballyhoo and ha-ho and ho-ha about the independence of the judiciary it is the common practice of the state to pack the courts with judges who will follow the political line of those in power. President Roosevelt, for instance, sacked the entire US Supreme Court and packed it with his nominees with the sole intent of pushing his New Deal without obstructions from the courts. So it can be argued that there are some precedents for CBK to pack the court with her nominees. But how does this reflect on judges who accept political appointments?ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ After all, Roosevelt didn’t pack his court for his appointeesƒÆ’-¡ƒ”š‚ to smoke their pipes, did he?ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ In any case, Shirani Bandaranaike’s political appointment did not appeal to all at the bar. A president’s counsel and two others mounted a case against the appointment of Shirani Bandaranayake to the bench. It was also pointed outƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ in court that though she had a theoretical knowledge of the law she has had no court experience to go on the bench. Accepting a political appointment is the first point where Shirani Bandaranayake compromised her independence. But let us overlook that because the court that heard the case against her said that she was entitled to hold her political opinions. The critical point comes when the same judge, Justice Mark Fernando, who granted her the right to hold political opinions irrespective of the position she holds in the courts, drew a demarcation line which told her in unambiguous terms that her sitting in judgment on issues like devolution of power can lead to disqualification.

Mark you, the lawyers who petitioned against Justice Bandaranayake said categorically that she had been in the bandwagon of CBK’s devolution package, virtually becoming a part of the political apparatus of the SLFP lawyers, thereby compromising her independence. Quite correctly, Justice Mark Fernando dismissed the petitions, ruling that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-her views and conduct even if they related to political issues, were neither illegal nor improper and did not constitute a disqualification for officeƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. But here comes the rub. In the same breath Justice Fernando said that ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-they may disqualify her from hearing particular casesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ — the cases being those related to the devolution package of which Shirani Bandaranyake was a committed campaigner at the Colombo University campus.

Questions that arise from this ill-considered decision of the CJ to preside over a case (example: Divi Neguma Bill) which deals with powers devolved to the provincial councils multiply like a Hydra-headed monster. What made her preside over a case on which guidelines have been set, warning her in particular that she can be disqualified from hearing such cases, is not yet known?ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ However, wasn’t it ethically incumbent upon her to keep a professional distance from such cases even if there was no determination warning her not to get involved in such cases? Of course, one can argue that it is a mere warning, or an obiter dicta, or a non-binding determination, or the counsel had not challenged her presence on the bench. But isn’t it commonsense, if not prudent, for any judge to pay heed to a warning written specifically for the conduct of the judge to keep away from such cases?

She can’t claim that she was not aware of it because Justice Mark Fernando made a special note defining the judicial role of Shirani Bandaranayake in hearing or not hearing particular cases. So why did the CJ knowingly and deliberately go against the decision of her own court which had circumscribed her role? As CJ she may have the powers to overrule any previous decisions and choose to sit on any bench. But can she get away with such crass disregard for a warning directed specifically at her by her predecessors/peers? Besides, in brushing aside the guidelines set specifically for her conduct, wasn’t she aware that she was committing a political act in deciding to sit in judgement over the Divi Neguma Bill ? Can she get away with it by displaying the kind of arrogance that is unworthy of any judicial officer?

Herein lies the crux of the matter. When the issue of the independence of the courts come up there are two outstanding models that come to mind: 1. the model of the two Fernandos (T.S. and Mark) and 2. the model of Sarath N. Silva. The arbitrary authoritarianism of Sarath N. Silva which eroded the independence of every nook and corner of the judiciary, reducing it virtually into a chicken coop in his backyard, is hardly the model for legal practitioners to accept or follow in a democratic society. Possibly every lawyer would have a tale to tell about the manner in which he ruled the judiciary with an iron fist.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

It seems that SarathƒÆ’-¡ƒ”š‚ Silva’s role has had a lasting impression on CJ Bandaranayaka. It is said that she resisted the pressures of Sarath Silva. But in the post-Silva period did she change her mind?ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ The overwhelming impact of absolute power can corrupt even the most innocent of minds. Having seenƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ Sarath SilvaƒÆ’-¡ƒ”š‚ in action and also having seen theƒÆ’-¡ƒ”š‚ corrosive andƒÆ’-¡ƒ”š‚ unethical power he wielded, which was destructive to the independence of the judiciary, did the current CJ decide to borrow a leaf from Sarath Silva andƒÆ’-¡ƒ”š‚ follow in his footsteps? Was her deliberate participation in the Divi Neguma Bill — despite being warned about it — meant to be a signal exhibiting the powers she intends to wield in the future? Was she determined to impose her will, throwing all caution and respected judicial norms to the winds? Should not the bar, whichƒÆ’-¡ƒ”š‚  did protest against her appointment on political grounds, weigh the pros and cons and nip in the bud any tendencies that threaten to bring back the Sarath Silva model?

The more enlightened, fair and respected model of the Fernandos was to go in the opposite direction of Sarath Silva. Justice T.S. Fernando wrote himself out of a case saying his court has no jurisdiction to deal with it. He did it on purely legal principles without any warnings from any other court, obiter dictum, or disqualifications restraining him. But CJ Bandaranayake seems to have rushed into a court where the Fernandos would never have dared to tread. Why? Knowing the political sensitivities of the time and the issues involved, she should have known that even a blind man’s blind dog would not have gone in that direction unless a sudden rush of blood had pumped some arroganceƒÆ’-¡ƒ”š‚ into her headƒÆ’-¡ƒ”š‚ and thrown her off balance.ƒÆ’-¡ƒ”š‚ Was it, therefore, a genuine error of judgment or was it a deliberate attempt to thumb the nose at her more respected predecessors?

She had done the government a favour by pointing out, quite professionally, the aspects that goes against the constitution which the government has accepted and is ready to come back with an amended bill. It’s a mere technicality for the government. But for CJ to sit in a case where she is disqualified is a serious breach of judicial propriety and ethics. She has no excuse for playing the roleƒÆ’-¡ƒ”š‚ she played violating theƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ expressed wishes/obiter dictum laid down for her conduct. This is why she has to go and it would be in the interest of all — including herself — if she goes out on her own before being found guilty of violating the principles, guidelines and determinations of her own court.