Impeachment comical Circus ends: Some hard facts

Since of late the impeachment process against the Chief Justice Shirani Bandaranayke caught the attention of the people, nationally and internationally and in the end it has turned out to be a big comical circus.

Suddenly, the curtain is drawn bringing an end to the comical circus of the impeachment process against the Chief Justice Shirani Bandaranayake on Saturday 8th December, when the Parliamentary Select Committee report on the impeachment motion against Chief Justice was presented to the Parliament by its Chairman Minister Anura Priyadarshana Yapaa.

Handing over of the report by the Chairman of the Select Committee came on the heels of the boycott announcement by the 4 opposition party members of the PSC, thus nullifying and cushioning the anticipated serious effect of the boycott.

The process was cut-short as there was no defense offered by the person facing the charges, who walked out of the proceedings.

Earlier the Select Committee also summoned relevant officials to gather evidence to investigate charges against the Chief Justice. Among those who testified before the Committee were the Supreme Court Judge Shirani Thilakawardane, Central Bank Governor Ajith Nivard Cabraal, Judicial Services Commission Secretary Manjula Tilakaratne and top officials of the government and private institutions mentioned in charges.

It is learnt that the Select Committee met 8 times and in total summoned 16 witnesses in connection with the investigation of the allegations against the Chief Justice Shirani Bandaranayke.

In the meantime it was highly disappointing to note that a totally scurrilous fabricated version of what transpired in the PSC meeting when Chief Justice Shirani Bandaranayake walked out on the day before was circulated on 7th December in the form of a media release by an organization called, Sri Lanka Colombo Lawyers’ Collective.

According to the Standing orders, the Parliament has to wait for one month once the resolution is submitted to Parliament by the Select Committee for any further action.

Speaker Chamal Rajapaksa announced in the Parliament on 8th December that he was ready to allocate 10 days for a debate on the resolution after the legally required one month time.

The procedures of the PSC, in accordance with the Article 78 of the Standing orders of the Parliament preclude taking any action after the resolution is submitted until the expiry of one month.

Impeach Motion

Earlier on 24th October, a group of parliamentarians belonging to Sri Lanka ruling party - United Peoples Freedom Alliance announced of an impending impeachment motion against the Chief Justice Shirani Bandaranayake.

The impeachment motion against the Chief Justice was handed over to the Speaker by MPs Arundika Fernando, L. Alagiyawanna and Shanth Bandara with the signatures of 117 MPs on November 1.

The motion was signed by 117 government members of Parliament who called for the appointment of a Parliamentary Select Committee (PSC) to probe into 14 allegations that have been leveled against the Chief Justice.

Subsequently, the motion calling for the appointment of a Select Committee of the Parliament, to probe allegations against Chief Justice Shirani Bandaranayke, has been included in the Order Paper of the parliament on the 6th of November.

Parliamentary Select Committee

On 14th November, representatives from all political parties have been nominated to the parliamentary select committee (PSC) and appointed to probe the impeachment charges against Sri Lanka's Chief Justice Dr. Shirani Bandaranayake.

The Speaker of the parliament assigned 11 members - seven for the ruling party and four for the opposition to the proposed committee.

Ministers Nimal Siripala de Silva, Anura Priyadarshana Yapa, Susil Premajayantha, Rajitha Senaratne, Dilan Perera, Wimal Weerawansa and Deputy Minister Neomal Perera have been appointed as the government representatives.

From the main opposition - United National Party appointed two representatives, Lakshman Kiriella and Chief Opposition Whip John Amaratunga, the Marxist party Janatha Vimukthi Peramuna (JVP) parliamentarian Vijitha Herath has been appointed as the Democratic National Alliance (DNA) representative and the Tamil National Alliance (TNA) appointed its leader R. Sampanthan.

Minister Anura Priyadarshana Yapa was appointed as Chairman of the Parliamentary Select Committee.

Allegations Against the Chief Justice

14 allegations were brought against the Chief Justice including the purchase of 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 real-estate companies and not declared in the annual declaration of assets and liabilities) and the details of approximately Rs. 34 million in foreign currency deposited at a branch of NDB Bank.

She is also charged of not declaring details of more than twenty bank accounts maintained in various banks including nine accounts in the branch of NDB Bank.

The motion also noted that Mr. Pradeep Kariyawasam, the lawful husband of Mrs. 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.

The order paper said that Shirani Bandaranayake was unfit to remain chief justice, because she has the power to transfer or take disciplinary action against judges or examine case documents when her husband, a former state bank chairman is on trial for corruption.

She is also accused of misusing her position to harass other judges.

Chief Justice’s Appearances in the PSC

Chief Justice Dr. Shirani Bandaranayake arrived at the parliament on the morning of 23 November, to face the parliamentary select committee (PSC) probing charges leveled against her through the impeachment motion.

The first session of the impeachment hearing by the Select Committee ended on the afternoon of 23rd November.

Sri Lanka’s chief justice has appeared before a Parliamentary committee on 3rd December for a second time to answer charges amid protests supporting and opposing her.

On 6th December, Chief Justice Shirani Bandaranayake stormed out of the impeachment hearing against her in the parliament, alleging she will not be given a fair trial.

Chief Justice Shirani Bandaranayake would not attend the parliament select committee proceedings any more, sources close to her said. They said she and her lawyers protested that they could not expect a fair hearing.

Chief Justice Announced of boycotting PSC

A leading lawyer V. K. Choksy when commenting on the incident of 6th December, where the Chief Justice Dr. Shirani Bandaranayake walked out from the PSC Impeachment process, said if the Chief Justice was not guilty to the charges framed against her, then what she should have done was to participate in the PSC proceedings rather than boycotting it. Her walking away from the investigation process had denied the people from getting to know whether she is not guilty of the charges leveled against her in the impeachment motion against her.

Following the announcement of the boycott of the Select Committee process by the Chief Justice, the four opposition members of the Parliamentary Select Committee announced on 7th December that they withdrew from the committee and stated that they put forward four conditions before the Chairman of the PSC to further remain in the committee.

Thus the comical circus culminated when the opposition members John Amaratunga, Lakshman Kiriella (UNP), Vijitha Herath (DNA) and R Sampanthan (TNA) announced of their intention of boycotting the Select Committee involved with the impeachment process. Addressing a press conference at the Parliamentary complex, MP Amaratunga said that the PSC does not allow the formal procedures on the impeachment.

(Unfortunately there are no set of laws available regarding the process connected with the impeachment process. For details look at the ‘Question and Answer Format’ given below.)

Opposition members later walked out of the committee room as the Chairman of the PSC refused to accept the conditions put forward by them.

It was unfortunate that the opposition members in the PSC have willfully misled the public and the international community through their statement.

Standing Committee was mandated to investigate the allegations within 30 Days

According to the Standing orders of the Parliament, the Standing Committee was mandated to investigate the allegations and submit a report to the Speaker of the Parliament within 30 days.

The PSC is not a criminal tribunal and their recommendation is not the final say in the impeachment process.

The standing Committee has to submit only their recommendation which would be discussed in open parliament and the final decision will be taken by the whole house of parliament and that decision would be sent to the President of the country for the final disciplinary action based on the resolution adopted in the Parliament.

Asian Tribune always stood for the end of the tyranny of the Judiciary

Asian Trubune always stood for the end of the tyranny of the Judiciary.

Even I have faxed a four paged letter to the Chief Justice in her capacity as the Chairman of the Judicial service Commission on 24th October seeking clarification from her on several issues raised in that facsimile letter.

Subsequently, I contacted the Secretary of the Chief Justice to confirm that my fax was received and she confirmed the receipt of my fax and said she has forwarded it to the Chief Justice.

Unfortunately, up to date, I haven’t heard anything from the Chief Justice.

In case, if I haven’t heard anything in the near future from the Chairman of the Judicial Service Commission, a position doubled by the Chief Justice, then I will be publishing in Asian Tribune, my letter seeking clarification from the Chief Justice in her capacity as the Chairman of the Judicial Service Commission.

Notice to the People Of Sri Lanka

Before going into the ‘Question and Answer format,’ which is meant to elicit facts regarding the basic concept of the Parliamentary Select Committee and how it functions, I think it is important to bring to the notice of the people of Sri Lanka an important folly the majority community in the country, which has cultivated ungrudgingly and nursed in the name of safeguarding Buddhism, language, culture and to keep the country intact under a unitary form of Government, an alien concept and not an autochthonous one, against the threat of introducing any other form or concepts of Government which are considered as threat that might bifurcate the country by the separatist forces, instead of a united country.

The majority Community of Sri Lanka who jealously guard the political power since the country’s independence in 1948, has in the guise of marginalizing Tamils and the Muslims – the minority communities by means of various legal enactments of constitutions, laws and even by military power, in the end has done unto themselves the collapse of the independence of judiciary in this country by approving and hailing - in the first instance abrogating but still not repealed the Ceylon Constitution and Independence Orders-in-Council, 1946 and 1947 and installing first the 1972 Republican Constitution and subsequently by repealing it and invoking the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka.

Given below are in fact basic concept of the Parliamentary Select Committee and how it functioned - the most frequently asked ones - ‘Question and Answer Format’:

Question : Within how many days should the Select Committee must submit its report?

Answer: According to the Standing Order 78 (a) - within 30 days.

Question: Is it possible for the Select Committee to obtain an extension?

Answer: The Select Committee could have, but it is not within its power to decide. This is a matter that comes from the Parliament. The Parliament might accept the request for extension and Parliament also could refuse the request for extension.

Question: Why did the Select Committee not grant extension as requested by the Chief Justice?

Answer: That was not within the decision making power of the Select Committee. That was a matter dependent on Parliament. Nobody can force the Parliament to do what has to be done.

If one take a look at the draft of the Private Member Bill - the Draft Bill presented by UNP MP Wijayadasa Rajapaksa, the President of the Bar Association ‘The Removal of Judges of the Superior Courts (Special Provisions) Bill,’ where he is asking for two months. At least two months to conclude an impeachment procedure.

That is because you cannot have an impeachment process against a judge of the Supreme Court pending for a longer period. It is not fair by the judge and it is not fair by the public. An expeditious conclusion is in the best interest of all parties.

Of course, the Chief Justice can always ask for time. If it is refused, she is in greater difficulty as it has happened now. That is why it is always advisable to try and finish within 30 days.
She has been given every opportunity – even before the Select Committee process started, her lawyers Ms. Neelakantan & Neelakantan released the media release on her behalf, where she had denied all the 14 charges.

We find that the same 14 charges were in fact before the Select Committee which means even long before the Select Committee has been constituted, soon after the motion has been brought to the notice of the Parliament, she had the opportunity and denied, which she had gone into it.

Then when the Select Committee met, they gave her one week’s time to send her written defense and she sent her defense within that stipulated one week.

Even in that Defense, she had complained that she has not been given adequate time.

So the Select Committee which met at the end of one week gave her another 1 week’s time to send her observations, further representations, documents in support of any of her position.

After she had reportedly sent her defense she was given further time and that totaled up to 22 days out of the supposed the mandated life of 30-day period of the Select Committee.

The question now being raised, whether it was not a fair arrangement, when the Select Committee was not sure whether they will receive further extension from the Parliament?

Question : Was there any set of procedures the Select Committee has to follow when going through the impeachment process?

Answer: For this, one has to compare with the powers of the Supreme Court and the Court of Appeal under Article 105, subsection (3) where ‘Contempt of Court’ matters are dealt with by those two courts, where 105 (3) which is Contempt Court, which really does not create an offence. It only says that the Supreme Court and the Court of Appeal have some residual powers to deal with contempt of court.

The Supreme Court should have prepared rules under which people should be dealt with for contempt of court. But the Supreme Court which prepared rules for all other Supreme Court’s jurisdiction, never prepared rules for this contempt of Court cases .

In fact all other exercise of the jurisdiction of the Supreme Court and for the Court of Appeal rules were prepared.

It should be considered that they kept it in their hands to act arbitrarily without laying out any procedures. They (–meaning the Supreme Court) never prepared rules, because those rules have to be approved by the Parliament. They wanted to keep arbitrary powers for themselves.

That is how S.B.Dissanayake was sentenced for 2 years without laying out any set of procedures, which has been known to the accused long before the trial.

Question: OK.. But this impeachment process is a disciplinary matter and did the Select Committee follow the same procedure the Supreme Court and Appeal Court adopts in the case of the Contempt of Court?

Answer: The Procedure is already laid down in the Standing Order 78 A. It is fairly a clear guidance. It says for instance upon receipt of the Select Committee, just after the first meeting they must refer the alleged charges to the Chief justice and give her the opportunity of sending her written statement of Defense. That is the first procedural step and that was granted.

The Chief Justice has asked for more time regarding that and also further time were granted.
Thereafter the Select Committee has taken up further investigation before they make a report on each of those matters that were alleged.

Chief Justice was told that the Select Committee will take up allegations one and two. At this stage only, she has decided that she will not participate.

The Standing Order provides that the party accused can have the right to defend at the inquiry, defend her and disprove those allegations and all that within her right. But she can’t be compelled – it is her right.

If she doesn’t want to exercise that privilege, nobody can compel her. But the consequences are that she will have to suffer for it, because she lost the opportunity. In fact she abandoned and abdicated the opportunity of disproving the charges. Though there is no burden on her, it was a privilege that was given.

There are others who say that in this case, if you wish you can disprove. So she should have made use of that and cleared her name. Allegations may be false; allegations may be inaccurate, whatever - she should have made full use of it.

Question: OK, we have dealt with the Chief Justice’s rights and privileges in the hearing of the Select Committee, but now the pertinent question is- can the learned Chief Justice stage a walkout of the proceedings like a cheap politician?

Answer: In the first place, a learned Chief Justice should not conduct herself like a cheap third class politician. Anyhow, having made a show of it and then walking out is for collateral purpose, one should know. She might have wanted to draw the attention of the international community that the Select Committee was not fair by her.

That she should have complained only after she has made full attempt to disprove the charges in whatever way possible and make all the documents available and say I am an innocent Lady and why are you harassing me. You are making false allegations and all that she should have done. Then after the order is made she can well analyse and show these orders are not legally justifiable. By staging a walkout, she is again tried her best to prejudge the Select Committee, as she did with the country’s President when the President summoned her for a meeting. It should be borne in mind that when you prejudged, then you are disqualified to be a judge in the first place.

Question: Can the Select Committee arrive at a conclusion at this stage without the participation of the Chief Justice?

Answer: Yes, they can and they have already arrived at a conclusion, because they have an independent mandate from the Parliament. The Parliament has directed the Select Committee whether anyone participates or not, it is not the matter of the Select Committee to enforce, because they are not sitting like a Court of Law in a criminal trial.

This is a disciplinary proceeding and they have been told by the Parliament that your mandate is to investigate and report and you are not making any judgment on this matter. You are not making any orders or decisions of judgmental nature. You have to only investigate and report and we will decide. The Parliament will decide. The Parliament can have a full debate.

All these matters can be publicly argued at that time and according to the Standing Orders, Select Committee proceedings were held in camera to protect possibly the innocent Chief Justice who could be tainted with false allegations:

Question: The last questions that comes up in the mind?

Answer: It seems that the Chief Justice has not been advised properly on the powers of parliament and the procedures of Parliament. She should have made the full use of the opportunities that have been given to her.

Question: The question arises in one’s mind is whether she is of the opinion that she will be impeached at the end of the day and therefore she wanted to make the best use of this opportunity to turn into a new ‘Avatar’ as a politician in the future?

Answer: Well if that is what her intentions are, then she would be most welcomed in the political arena. Nobody would stop her for from making such an entry.

Question: There is a thinking that she might be asked to make use of this opportunity to groom herself as a common opposition candidate against the sitting President Mahinda Rajapaksa in the forthcoming Presidential election – scheduled for 2016?

Answer: If the people believe that the allegations are true, then that will be the first disqualification for her to contest. But she is free to do that.

But according to reports nobody is thinking of her entering politics. It is not in the picture at all.

One has to be in politics from the grassroots level. Also for the Presidential election, one has to wait till 2016 and by that time there is a likelihood of people forgetting this sordid episode and there will be possibility for other events taking currency.

Question: The question arises – what about the former Army Commander Sarath Fonseka?

Answer:That is a good example where people can end up.

Question: May be she might follow the footstep of Sarath Fonseka and trust UNP and TNA, the two political parties might come forward to support her again at the cost of poor Ranil Wickremasinghe?

Answer: It could be termed as a ‘ridiculous’ thing to follow.

- Asian Tribune -