H. L. D. Mahindapala

With each passing day the evidence pointing to the guilt of ex-Chief Justice, Dr. Shirani Bandaranayake, abusing the powers of her office and misbehaving has mounted to the point of removing all shreds of doubt. The most damning evidence against her has come from the most unexpected source. It has come from Prof. Rajeeva Wijesinghe, the government MP who absented himself from the House at voting time on a point of procedure. He can’t be categorised as a partisan of the government though he is a member of the government. Coming from the liberal end of politics he’s been a sort of maverick. He listed the evidence against the ex-Chief Justice in a speech he intended to make but never did. Here are some of those listed by him:

1.”The Chief Justice buying a flat from Trillium while judging their cases. It is clear she understands this was wrong, inasmuch as she withdrew, immediately after the impeachment resolution, from that Bench.

2, “The Chief Justice replacing the Bench hearing the Trillium cases with a Bench headed by herself.

3. Referring to the high position given to the husband of Chief Justice, Mr. Kariyawasam, he said “no judge or spouse of a judge should be offered or accept office from government.

4. “The Chief Justice was given a substantial discount on a purchase from Trillium when there was a Court Order enjoining that the highest possible price be obtained for these.

5. “The Chief Justice did not submit a Declaration for 2001.

6) “Concealment of funds by emptying accounts just before March 31st each year, as is alleged was done by the Chief Justice.

7) “Accumulation of misleading statements as seems to have been the case with the Chief Justice.

8). “The ‘moral conduct of an exceptional degree’ expected from a Chief Justice that the Committee believes is necessary was not forthcoming.” (Sunday Island — January 13, 2013)

Obviously, he has read the PSC report, come to his own conclusions and refused to vote. In doing so P:rof. Rajeeva has proved the point made earlier by S. L. Gunasekera, a leading light of the Lawyers’ Collective, that Dr. Bandaranayakae is not “lily white”. Jointly and/or severally, the list above,ƒÆ’-¡ƒ”š‚ which has notƒÆ’-¡ƒ”š‚ been refuted convincingly or even faintly by her legal team or Lawyers’ Collective, proves just one thing: Dr. Bandaranayke is a corrupt lawyer with a Ph.D who is unfit, by any known code of conduct for judges, to sit in the chair of the Chief Justice. The international interventionists and their local agents in the NGOs, not to mention moral purists like Wijedasa Rajapak-she, skip the list cited above and harp on the procedure of not giving her a fair hearing. This is a lame excuse where the incapacity of the failed dancer to live up to her advertisements as a star ballerina is blamed on the floor. It can be conceded that she did face some obstacles at the hearing but it was she who decided to cut and run at the critical moment when she had the chance to test the evidence against her. She would have had a better case to argue on the issue of not getting a fair hearing if she stood her ground and fought inside the Parliamentary Select Committee (PSC), in the full glare of publicity, instead of running away from facing the evidence and witnesses, to go over the heads of the PSC and politicize her case, depending on coconut-dashers to save her.

Second, compared to the procedural snags, which could have been overcome easily, she is up against massive and inescapable charges. Is there a co-relation between the evidence presented by the Parliamentary Select Committee to substantiate the charges and her decision suddenly to cut and run from the hearings of the Parliamentary Select Committee? She cut and ran at the critical moment when the evidence she was clamouring for was handed to her. What was the strategy /objective in this? Did she cut and run because she knew that the evidence would go against her overwhelmingly? First she cried that the evidence and the witnesses were not given to her. When the evidence and the witnesses were presented to her she decided to cut and run and latch on to the other excuse that she was not given a fair hearing. That isƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ also absolutely true. How can anyone give a fair hearing when she had decided to cut and run away from the hearing?

Third, she was running away like the proverbial prawn claiming to be clean and pure while she was carrying all the muck on her head. Even her defenders/apologists like lawyer Gunasekera and Prof. Wijesinghe agree that she is not “lily white”, meaning, in essence, that she is not fit to sit in the chair of the chief justice. So even if you grant the infirmities in the procedure how can she go back to occupy the seat of the chief justice when the crustacean muck from her head had hit the fan? It’s all over the judiciary and Hulftsdorp. The Mayor will have to hire a special contractor to clean up Hulftsdorp though it will take longer to get rid of the foul smell of the muck left behind.

Finally, and most importantly, she is sitting between two findings — one from the Parliament and the other from the Supreme Court. Her strategy has been to escape the findings of the PSC, based on the facts placed before it, by relying on legal technicalities manufactured to fit the interpretation of the Supreme Court. Essentially, this means that she is guilty of misbehaviour based on the facts placed before the PSC and yet escapes by hiding behind legal technicalities. None of the charges against her were tested in a court of law. Her legal team was depending solely on the courts to get her out on a technicality. It is, of course, a common tactic of lawyers to rely on legal technicalities when they know that the facts are loaded against their client. If they wanted to contest the facts they should have remained in the PSC and fought their battles there. They knew that he facts would NOT exonerate their client of misbehaviour. So they tried the legal backdoor to escape the hard facts convicting herƒÆ’-¡ƒ”š‚  — and they succeeded byƒÆ’-¡ƒ”š‚ pushing the backdoor.

This does mean that she is not guilty of the charges. As stated earlier, the legal team merely asked the courts to determine whether Parliament had the right to try her according to law stated in the Constitution. Predictably, the courts gave a judgment in her favour quashing the authority of Parliament to try her — a move that is highly controversial because the Constitution states categorically in 107 (3) that Parliament has the right to provide all necessary means “either by law or Standing Orders….”ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ to try the judges. This, however, was not a declaration of her innocence. The Supreme Court only found Parliament “guilty”ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ for actingƒÆ’-¡ƒ”š‚ the way it did ƒÆ’-¡ƒ”š‚ and NOT that she was innocent of the charges. The guilty verdict of Parliament still stands over her head unquashed by any courtƒÆ’-¡ƒ”š‚ , tribunal or institution legally established by Parliament. The Parliament had decided that it was their obligation to investigate the facts (as stated in Article 107 (3))ƒÆ’-¡ƒ”š‚  and on the evidence before them they found her guilty and reported it to the President.ƒÆ’-¡ƒ”š‚ And the PresidentƒÆ’-¡ƒ”š‚  has exercised the most sensible option availableƒÆ’-¡ƒ”š‚  to him and sacked her.

Not knowing where to go from here she is banking on the Pyrrhic victory scored at the Supreme Court. ƒÆ’-¡ƒ”š‚ She has provisionally won her argument that Parliament has no right to try her.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ But no court has either tested her charges nor declared her innocent. She stands guilty in the eyes of Parliament and the sovereign people who had given the Parliament the right to use its Standing Orders (78A) to try judges.

This has squeezed her into the tight space of a legal fork which she can’t escape. Since her “lily white” status — a sine qua non for a judge of the superior courts — has been sullied by the prawn muck that had hit the fan how is she going to occupy the chair of the Chief Justice? Will the court authorities have to recruit a new employee to clean her chair each time she sits on it? This reminds me of another veritable anecdote from Hulftsdorp that I think is relevant to this case. A judge broke wind accidentally and to cover it up he pulled the chair loudly hoping it would silence the sound of the escaping wind. But the lawyer conducting the case heard it and retorted: “Your Honour you can cover up the sound but not the smell!” That is what the Lawyers’ƒÆ’-¡ƒ”š‚  Collective is trying to do. They want to cover up the sounds leaving the smell behind.

AnywayƒÆ’-¡ƒ”š‚  (forget for a moment the legalities) if the ex-Chief Justice has any self-respect or respect for her office she should either resign or stand-down until the charges are cleared. Besides, how can the Lawyers’ Collective appear before her when they know that she has yet to clear the findings of the PSC — may be right, may be wrong — against her. It was their client who ran away without facing the charges and getting them cleared from the legally established institution that investigated the evidence. Running away from any court, tribunal or any other institution established by Parliament does not give any accused the right to even pretend that he/she is clean, or not guilty. If she can sit on the bench with all the guilty charges sitting on her head why can’t “Kudu” Naufer, who assassinated a supreme court judge, share her bench? Will the Lawyers’ Collective object to that?

President Mahinda Rajapakse did the Lawyers’ Collective favour when he sacked her. Otherwise all the distinguished PCs and other legal luminaries, who are so upright when it comes legal rights and morality, would have to scrape and bow before a “Kudu” Naufer in sari. That would be the ultimate degrading of the Judiciary — the last refuge of the sovereign people.

Given this background, will the American President, for instance, nominate and will the Senate approve anybody to be a judge of the US Supreme Court if he/she is a prawn-head with a Ph. D? Will the British Prime Minister accept Dr. Shirani Bandaranayake as his Chief Justice, if she is a British citizen? How would the Western media react to any candidate just tainted — not proved — with anyone of the eight charges listed above? Why is it that the West always keep on insisting that we do what they would never dream of doing? Why are their morals based on do-as-we-say and not do-as-we do? If they don’t have anything better to do than meddling in the affairs of the domestic affairs of Sri Lanka why don’t the Europeans and Americans spend their energies on winning some more Nobel Peace prizes by bombing children in Afghanistan, Iraq, Pakistan and Mali, with Iran kept on hold for the time being until Israel gives the order? I’m sure if they need any assistance, President Mahinda Rajapakse will gladly send “Paiki” Saravanamuttu, Jehan Perera and Not-so-transparent Weliamuna to write reports — for a fee, of course (in dollars please!) — glorifying the indiscriminate bombings as the best thing that happened to children and non-combatant civilians in these countries, like the way they manufactured con theories to cover-up Prabhakaran’s war crimes and crimes against humanity.

Of all the excuses made for Dr. Bandaranayake the most bizarre is the speech made by Wijedasa Rajapak-she in Parliament where he compared her to Socrates, and Galileo Galilee. He even made an oblique reference to Jesus. Dropping these big names to defend a prawn-head with a Ph. D., questions the intellectual capacity of Rajapak-she to make a rational comparison to draw the right conclusion. This is worse than comparing apples with oranges. This is a perverse comparison to make just plain muck look like pure 16-carat gold. Normally the black coats behave like coconuts — thick skull outside and hollow inside. But Rajapak-she is just plain nuts when he resorts to such chicanery that is not worthy of the president of even a bar in Mariakdday, let alone the one at Hulftsdorp. He projects her as if she is a female Christ carrying the cross of democracy, liberty and freedom up the Hulftsdorp Hill on behalf of humanity. On the evidence of Judge Shiranee Thilakawardena alone he knows, only too well, that Shirani Bandaranayake, P:h. D., has aggressively and rudely misconducted herself in grabbing the files in which her sister had a big financial stake. With that evidence staring in his face how can Rajapak-she compare his “guilty” judge toƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ innocent ƒÆ’-¡ƒ”š‚ Socrates and Galileo. For a lawyer — and President of the Bar Association to boot — he seems to be totally incapable of sifting the evidence and arriving at the logical conclusion. In his speech he dragged in the big names to show his learning but in reality he was unaware that he was merely dropping the grass that comes out of the other end of a cow.

The fatal flaw that has ruined the future of Bandaranyake, Ph. D., is that she had fallen into the hands of legal pundits who can’t defend her in any rational way to exonerate her from guilt of misbehaviour. Besides, both her legal team and her defenders in the Lawyers’ Collective and Bar Association are incapable of presenting a valid case on which she could return to the office of the Chief Justice. When inescapable grave charges are hanging over her head they resort to legal technicalities. Let us for the sake of argument concede that they are right on the legal technicalities. But can Bandaranayake, Ph. D, go back to the bench purely on the basis that she had been cleared on a technicality? That would be a travesty of justice. That would be like exonerating Hitler of all his crimes on a technicality and appointing him to the High Court in Germany to judge the Jews who had spent their lives in Belsen camp.

She followed the wrong advice of her legal lackeys in fighting her case. Now she is relying on them to save her job byƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ crasslyƒÆ’-¡ƒ”š‚ bull-dozing her way into her former seat. But Prof. Wijesinghe’s unread statement in Parliament should have convinced the ex-Chief Justice of exiting gracefully,ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ particularlyƒÆ’-¡ƒ”š‚ afterƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ she had been sacked. There is no courage in sitting on a chair whichƒÆ’-¡ƒ”š‚ doesƒÆ’-¡ƒ”š‚ notƒÆ’-¡ƒ”š‚ belongƒÆ’-¡ƒ”š‚  to her. To quote another defender of hers, Luckshman Ka-kiriella, any cow could go to war particularly to occupy a chair that does not belong to her. However, when a dissenting MP of the government makes these points it has serious consequences to the integrity, credibility and the prestige of the office of the Chief Justice. Above all, it means that this list has knocked the bottom out of the international interventionists who argue that she must be allowed to stay in office. It has also thrown eggs on the faces of the leading counsel at Hulftsdorp who oppose her removal. The irony is that they are refusing to acknowledge the in-coming Chief Justice but they are ever ready to scrape and bow to the ex-Chief Justice whose integrity is in tatters, ripped apart by any set of judicial code of conduct the Lawyers’ Collective is ready to quote. As pointed out earlier, her conduct has violated even the Bangalore Principles drafted by eminent jurists headed by no less a legal luminary like Judge C. G. Weeramantry.

To quote only two of the Bangalore principles: a). A gift, bequest, loan or favour to a member of the judgeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s family or other persons residing in the judgeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s household might be, or appear to be, intended to influence the judge. Accordingly, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage the family members from violating them.

b). A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judgeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s family or of anyone else. A judge is generally regarded by members of the public as a very special person, and treated in court, and probably outside too, with a measure of subservience and flattery. It is improper for a judge to use or attempt to use his or her position to gain personal advantage or preferential treatment of any kind.

There can be no doubt that these two principles apply to 1, 2, and 3 counts (listed above) against the ex-Chief Justice.

President has put them out of their moral misery by sacking her. But in their bovine stupidity they want her back. Obviously, the must love the smell of prawn-heads and not the lilies.

PutƒÆ’-¡ƒ”š‚ plainly, Shirani Bandaranaike, Ph. D., has forfeited all rights to sit even in a bench in a gam sabhawa. Even her defenders who aim to keep her in the chair of the Chief Justice because of procedural flaws (example: lawyer Gunasekera and Prof. Rajiva Wijesinghe) are fully aware that she has fallen far below the expected standards of a Chief Justice. They too are like the villager who had caught the tigress’s tail without knowingƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ what do next. Their dilemma is understandable. But they also know that it is untenable. They know that sooner or later that they will have to let go. In short, the only place left for Shirani Bandaranayake, Ph. D, now is the dustbin of has-beens. Why?

“For sweetest things turn sourest by their deeds;
Lilies that fester smell far worse than weeds.” — Sonnet 94, Shakespeare.