H. L. D. Mahindapala

The raging public discourse on the charges levelled against the Chief Justice, Dr. Shirani Bandaranayake is wrapped mostly in legal, constitutional, political and moral principles. The legal luminaries who have defended her have studiously skipped the charges and focused essentially on issues like the legality of the Parliamentary Select Committee to hear her case, or on the rights and wrongs of procedures adopted by the PSC, or whether it is the Parliament or the Courts that would have the final say, or on the issues of separation of power arising from the conflict between the Legislature and the Judiciary, or what would happen if the two Titans stick to their guns, each issuing diktats to the other etc. In short, all relevant issues have been discussed except the most critical issue: is the Chief Justice guilty of the charges levelled against her or not? Oddly enough, not even the Chief Justice has spoken in her defence. Nor her legal team.

This is seen as a deliberate and tactical move to divert public attention to avoid the harsh reality facing the Chief Justice. The last defence when faced with a critical/indefensible situation is to blame everybody and everything else. It is becoming increasingly clear that she has no leg to stand on, which will be shown later. So she and her defenders have been proclaiming the ideal principles of justice and all that paraphernalia that helps to divert attention. Even the speech of Dr. Bandaranayake to the Magistrates and District judges at Annual General Meeting of the Judicial Services Association held on December 22, 2012 was about ideal principles. As she said in her speech there is nothing new in what she said. The only new thing would have been to listen to her side of the story defending her innocence. But she has not said one word in her defence. Members of the PSC too were surprised to find her behaving like a monk who had taken the vow of silence. It is always easy to float in the ideal world of noble principles. For instance, as Buddhists we recite the five precepts but how many of us observe even one or two? What matters is not invoking abstract principles to cover-up sins but to applyƒÆ’-¡ƒ”š‚ them rigorously and meticulously to prove and maintain credibility, acceptability and integrity.

So it is time to leave the airy-fairy world of principles and bring down the public discourse to the nitty-gritty of facts and relate them to the principles pronounced by defenders of the Chief Justice. No doubt one part of the whole process consists of principles. But these principles cannot stand without legs and the legs are in the facts. What then are the known facts and how do they relate to the principles invoked in her defence?

Fact 1: Justice Mark Fernando in his judgment made an order forbidding then Justice Bandaranayake to sit in cases related to matters involving devolution of power. This was because she was accused in the very first case brought against her that she was ideologically committed, like her patron President Chandrika Bandaranaike who appointed her, to the politics of devolution. Despite this she presided over the Divineguma Bill and predictably ruled that it was unconstitutional as it infringed on principles of devolution of power to the provinces.

Fact 2: Before he retired Chief Justice Sarath N. Silva gave a ruling to the effect that the Senior Judge Shiranee Thilakawardena, who had sat with him and followed the lengthy trial of Lalith Kotelawela Golden Key trial, should handle the case. What does Chief Justice Dr. Bandaranayake do? She walks in and takes over the case with two other judges on a single petition sent to the courts. Worst is, she excludes Justice Thilakawardena? Why? Why should a senior judge who had sat through the case be excluded from the Golden Key Trial and only two new judges hand-picked by the Chief Justice be included?

Fact 3: Justice Thilakawardena had reported the Chairman of Trillium Residences, Janaka Ratnayake, to the CID to investigate the discount of Rs. 1.6 million given to Chief Justice Bandaranayake, when she purchased a residence at Trillium Residences belonging to the Golden Key enterprises owned by Kotelawela. Ratnayake later admitted that it was a bribe. After she took over the case from Justice Thilakawardena the Chief Justice had made no further inquiries into the bribery charge. So was the removal of Justice Thilakawardena from the case because there was no room on the bench or because she knew too much of the case?

Fact 4: Dr. Bandaranayake’s moves are quite clear : a) she discards the ruling of the former Chief Justice that Justice Thilakwardena should hear the case and (b) stops inquiring into the bribery charges investigated by the CID. These two facts are co-related. It is obvious that (b) had to follow (a) — and both point a finger at the Chief Justice. Besides, Justice Thilakawardena had reported to the CID to investigate the Rs. 1.6 million given by Chairman of “Trillium Residences” to the Chief Justice. So the exclusion of Justice Thilakawardena from the case is self-explanatory.

Fact 5:ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ Dr. Bandaranayake operates 15 to 20 bank accounts simultaneously in several banks. Nothing wrong with that. But then suddenly, come March 31, — the time to declare income tax — the accounts drop to zero. This happens each year. How? Why? What does she gain by this manipulation of accounts in banks?

Fact 6: Her husband too is facing bribery charges. The case is in the lower courts. Well, if she took over the case of Trillium Residences, excluding Judge Thilakawardena who sat on the case from the beginning, who are the likely judges to be appointed to hear her husband’s case? Mark you, the spoon is in her hand to ladle the gravy.

Fact 7: Her legal team was demanding documents and the list of witnesses. On the day the documents they wanted were handed over to them and on the day the list of witnesses were given — including the name of Justice Thilakawardena — she and her legal team withdrew. The timing was impeccable. It was time to face the witnesses — including Justice Thilakawardena — and the evidence in the documents. So they cut and ran.

Fact 8 : It is the normal practice for the proceedings of the PSC to be kept secret till the findings are presented to Parliament. But the legal team insisted that the proceedings be made public and even invite foreign observers. Now that the information leaking out about her dealings is exposing the Chief Justice the legal same team is pressing hard to stop the publication of news critical of their client. They are complaining that the state media is sullying the image of the Chief Justice. Well, there is only one way to counter it: i.e., by telling their side of the story instead of running away.

Fact 9: Not surprisingly, on the day when their version of the story was to be scrutinised they retreated without presenting their case. The tactic was simple. They counter-attacked saying that the PSC was abusive to the Chief Justice and not enough time was given for them to peruse the documents. It can be argued that on technical grounds that they had a point. But they were faced with bigger issues than these technicalities. Why did they decide to withdraw on technicalities leaving the serious charges facing the Chief Justice wide open for interpretation? What should have been their priorities? Instead of fighting to save the Chief Justice by taking their stand in the PSC they decided to counter-attack on technicalities and run, leaving them open to the charge that they don’t have a case to defend. No legal team which is sure of winning on hard evidence would cut and run like the way the CJ’s team did. Their task was not just to save the job of the Chief Justice but, more importantly, to save her reputation. That could have been done only by sitting down with the PSC and fighting every inch of the way.

Their next move is go to the other channel in courts, which is also based on legal technicalities. They are hoping that the application by the Chief Justice for a writ of certiorari to quash the “decision” of the Select Committee will be upheld by the Appeal Court. They also know that the Parliament will reject it out of hand. Where does all this leave the Chief Justice? They are hoping that chaos will ensue with courts and lawyers going on strike. They are even hoping for a Sri Lankan version of an “Arab spring”. Their ultimate aim is to get Dr. Shirani Bandaranayake into the seat of the Chief Justice. But her fate is sealed. The Appeal Court can’t save her because she has to face the ultimate court of the public. Can a Chief Justice found guilty on three charges go back to occupy the highest seat of justice in the land? Can the legal technicalities of the Appeal Court clear the corruption charges?

For the moment, leave aside all the other charges. Take only the unimpeachable evidence of a senior judge, Justice Shiranee Thilakawardena. She has stated categorically that the Chief Justice, acting against the minute of the former Chief Justice took over the Golden Key case, excluding her, and suppressed the CID investigation into the Chairman of the company that gave her a bribe. How can the Chief Justice go to court and win the confidence of the public with a charge like that hanging over her head? More importantly, the charge against her is “misbehaviour”. She is not charged with committing a criminal act where the strict court rules apply. The PSC has only to determine whether she misbehaved or not. Justice Thilakawardena’s evidence nails the “misbehaviour” of the Chief Justice without any shred of doubt. She is guilty. And she must go.

The Bar Association is threatening to boycott any other chief justice appointed in her place if she is removed from the bench. But before doing that can they prove thatƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ their favourite Chief JusticeƒÆ’-¡ƒ”š‚ did not “misbehave”? It was when she was faced with Justice Thilakwardena that she decided to cut and run. So how can the boycotters in the Bar Association appear before Dr. Bandaranaike when her name is sinking in the mud? Which citizen can appear before her with confidence knowing that she is not clean to sit on the bench? Can the Bar Association, if it is genuinely committed to preserve the credibility, purity and the integrity of the judiciary, ever allow a judge with a damaged reputation to sit on the summit of the Hulfstdorp Hill?

The tut-tutters commenting on this crisis are predicting chaos if the Bar Association boycotts the judiciary in the event of a new chief justice taking over. The black-coats know only too well that their boycotts will not last longer than the next to case they lose to the their rivals at the bar. If the black-coats don’t appear before the next chief justice, or his/her appointees in the superior courts — and that is where the big money and big names are made — they will be the losers. Since Wijedasa Rajapakshe does not lead a monolith, the dissident lawyers will be laughing all the way to the bank, not to mention the summit of the Hulfstdorp Hill. If they decide to boycott they will be only cutting their noses to spite their faces. They must face reality. They must ask a simple: they have no power to appoint judges and they have no alternative but to work with the judges on the bench. Besides, if they can work with a Chief Justice whose name is sullied, and who is yet to answer at least the Facts stated above, why can’t they work with a new judge who has no charges to answer?

The upshot of all this is the polarisation of the judiciary into two camps: 1. pro-politicized camp of Dr. Bandaranayake fighting with the opposition, who initially wanted her removed from the bench when she was appointed and 2. the neutral camp willing to work in the judiciary as officers serving the public, hopefully according to the law.

The coming scenario is clear: the proverbial dirt will hit the ceiling once the issue comes up for debate in Parliament. This will damage the image of the Chief Justice some more. The MPs will vote according to party lines. Even Lakshman Kiriella, Opposition MP appointed to the PSC, who told Rajitha Senaratne that Chief Justice is guilty after seeing the documents shown to him by Senaratne (see Sunday Leader – 30/12) will vote against the PSC report on party lines. After that the newspapers will have their pages cut out by the strident voices of the pro-Bandaranayake camp, including NGOs, the black-coated Hulfts-dwarfs of the Bar Association looking around for more coconuts in Mariakaday, and the Opposition which is dreaming of turning the Chief Justice into a “Sri Lankan monsoon” (not “Arab spring” which has already turned into dry, dusty Arab simoom).

But at the end of the day Dr. Bandaranaike will not find a place to sit on any bench in highest courts. Nor will she find her black-coated coconut crackers following her. She leaves behind a corrupt legal system. She presided over it without any qualms or shame. She has no one to blame except herself. She has, unfortunately, no other option but to go — and she must do it gracefully without dragging the nation deeper into her mess.