By Neville Ladduwahetty Courtesy Island

The removal of former Chief Justice Shirani Bandaranayake from office has tarnished the image of Sri Lanka both internationally and nationally. Whether the measures initiated by the former government for the removal of CJ were driven by political motivations or whether opposition to it was also driven by political considerations is not of relevance. What is of relevance to the image of Sri Lanka is not the intent but whether the procedures as required by the Constitution and the Standing Orders of Parliament as they currently stand were complied with to the best extent possible.

During the entire episode associated with the removal of the former CJ the inadequacy of the current Constitutional and Standing Order provisions came under severe criticism. One, in particular, was that current provisions did not comply with Latimer House Principles. The other was that it should be mandatory for the inquiry to be legal and not be by Parliament, notwithstanding the fact that Article 4 of the Constitution states: “the judicial powers of the People shall be exercised by Parliament through courts, tribunals…”. Yet another was the lack of “good behaviour” on the part of those conducting the inquiry for which Constitutional provisions do not exist.

These opinions reflect what should have been and ignore what was constitutionally required. What was required were the current provisions in the Constitution and the Standing Orders. And they remain as they were, unchanged to this day, thereby reflecting the disingenuousness of the critics. Therefore, the only legitimate standard by which the State could be held accountable is whether it complied with existing Constitutional and Standing Order provisions to the best extent possible in the removal of the former CJ Shirani Bandaranayaka.

CURRENT CONSTITUTIONAL PROVISIONS

Articles 107 (2) and 107 (3) of the Constitution set out the procedure that should be adopted for the removal of a Chief Justice, President of the Court of Appeal and any other Judge of the Supreme Court and the Court of Appeal “on grounds of proved misbehaviour or incapacity”.

Article 107 (2) states: “Every such Judge shall hold office during good behaviour and shall not be removed except by an order of the President made after the address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the grounds of proved misbehavior or incapacity”.

“Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehavior or incapacity”.

Article 107 (3) states: “Parliament shall by law or Standing Order provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such judge to appear and to be heard in person or by representative”.

CURRENT STANDING ORDERS

78A (1) states: “…where notice of a resolution for the presentation of an address to the President for the removal of a judge from office is given to the Speaker in accordance with Article 107 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of the Order has reported to Parliament”.

(2) “Where a resolution …is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehavior or incapacity set out in such resolution”.

(3) “A Select Committee …shall transmit to the Judge whose alleged misbehaviour or incapacity is the subject of its investigation, a copy of the allegations of misbehavior or incapacity …and shall require such Judge to make a written statement of defense within such period as may be required by it”.

(4) “The Select Committee appointed under paragraph (2) of this Order shall have the power to send for persons, papers and records…and not less than half …shall for the quorum”.

(5) “The Judge whose alleged misbehavior or incapacity is the subject of the investigation …shall have the right to appear before it (Select Committee) and be heard …in person or by representative and to adduce evidence oral or documentary, in disproof of the allegations made against him”.

(6) “At the conclusion of the investigation…of this Order shall within one month from the commencement …report its findings together with the minutes of evidence …to Parliament…”.

(7) “Where a resolution for the presentation of an address to the President for the removal of a Judge from office on the ground of proved misbehavior or incapacity is passed by Parliament, the Speaker shall present such address to the President on behalf of Parliament”.

PROOF of CONFORMANCE with CURRENT PROCEDURES as per CONSTITUTION & STANDING ORDERS. Ref. HANSARD February 2, 2015, p. 408.

Given below is a translation by a Court Certified Translator Mr. T Jayakumar, (Reg. No. 01/86) of the letter by the Speaker to the President conveying the address of Parliament.

11th January 2013

Hon. President Mr. Mahinda Rajapaksa, The President of the Sri Lanka Democratic Socialist Republic President’s Office, Colombo 1.

Honourable President,

In order to forward to the Hon. President a seconded proposal regarding the removal of the Chief Justice of the Supreme Court of the Sri Lanka Democratic Socialist Republic Dr. Ms. Hon. Upatissa Athapaththu Bandaranayaka Wasala Mudiyanse Ralahamilage Shirani Ansumala Bandaranayala according to the 107 (2) of the Constitution, the proposal signed by 117 MPs of the Parliament and handed over to me on 1st November 2012 and it was in accordance with the Standing Order of the Parliament was entered into the Agenda of the Parliament on 6th November 2012. A copy of that proposal is attached herewith marked annexure 1 for your easy reference.

As mentioned in the said seconded proposal and to investigate the corrupt charges under the provisions of Standing Order Section No. 78A (2), I appointed a 11-member Special Committee on 14th November 2012 comprising of Hon. M.P. Anura Priyadarshana Yapa (Chairman), Hon. Nimal Siripala de Silva, Hon. A.D. Susil Premajayantha, Hon. Rajitha Senarathna, Hon. Dilan Perera, Hon. Wimal Weerawansa, Hon. Neomal Perera, Hon. John Amarathuga, Hon. Lakshman Kiriella, Hon. Vijitha Herath and Hon. Rajawarodium Sampandan.

The said Committee investigated regarding the corruption charges in the said seconded proposal and forwarded the report by the Chairman of the Committee with their recommendations to the Parliament according to the Standing Order 78A (2) of the Parliament on 8th December 2012. A copy of the said Committee report is attached as annexure 2.

Afterwards the Report of the Committee was debated in the Parliament on the 10th and 11th January 2013 and wish to inform that it was passed appropriately with 155 votes in favour and 49 against on 11th January 2013 in accordance with Constitution 107 (2) of the Constitution.

Yours faithfully,

Chamal Rajapaksa Speaker.

CONCLUSION

The facts stated in the letter by the Speaker to the President are available for confirmation by reference to the Hansard. Until the above letter was tabled in Parliament on the 5th of February 2015 – two years after it was issued – the letter remained an internal document of Parliament and therefore not available to the public. The lack of public awareness of the facts stated in the letter by the Speaker to the President caused the members of the public that included prominent members of the legal fraternity and even members of Parliament to come to the conclusion that the process was “flawed”. The drama associated with the inquiry reinforced this perception; a perception that was exploited for political gain at serious cost to the image of the country.

What is of relevance is not what happened, but what happens now. If in fact the address of Parliament conveyed by the Speaker to the President for the removal of former CJ Shirani Bandaranayaka was in conformance with existing Constitutional and Standing Order provisions, what are the implications relating to the legitimacy of her reinstatement as well as the legitimacy of the appointments of the CJs that followed. Since it is the truth that shall set us free, it is imperative that this issue is not forgotten but is addressed forthrightly, if Sri Lanka’s politico/legal record is to be set straight, as well as for healing its bruised image.