Chief Justice Shirani Bandaranayake, who walked out on Thursday from the Parliamentary Select Committee (PSC) probing her, much to her surprise, received a compromise formula from a leading UPFA politician. The compromise would have ended all her woes. She would have to tender her resignation. In return she would be appointed to “an important” position [...]


Crisis escalates as PSC finds CJ guilty of three charges

= Bar Association considers resolution that lawyers should not appear before any new Chief Justice; appeals for action by international community
= New CJ likely from next month as opposition and defence lawyers challenge the PSC process; US and EU also express concern

Chief Justice Shirani Bandaranayake, who walked out on Thursday from the Parliamentary Select Committee (PSC) probing her, much to her surprise, received a compromise formula from a leading UPFA politician. The compromise would have ended all her woes.

She would have to tender her resignation. In return she would be appointed to “an important” position and charges of corruption against her husband, Pradeepa Kariyawasam, would be dropped. The offer was made during a telephone call on Thursday morning to one of her senior lawyers. The caller reportedly declared that some ‘unwanted confusion’ had been created. For obvious reasons, the lawyer had asked that he be not named. She did not respond favourably. Hence, the Parliamentary Select Committee process continued and reached finality.

We won’t recognise a new CJ: Lawyers signing a petition. Pic by Mangala Weerasekera

Government MPs in jubilant mood addressing a news conference, criticising the opposition walkout

Opposition PSC members staging a protest walkout . Pix by Amila gamage

That was just one of the major highlights in a week that saw many a spark fly in the on-going open battle between the Legislature and the Judiciary.

On Thursday, ahead of the PSC resuming its probe, a government official made available to the media voluminous photocopies of documents.

They were ‘copies’ of transactions in accounts reportedly operated by Bandaranayake in the National Development Bank, Gazette notifications, cheques reportedly issued by her, a ‘deed’ for the purchase of a condominium apartment at Trillium Residencies in Narahenpita and her “Declaration of Assets.” The official said the documents related to accusations against the Chief Justice but independent verification of any alleged irregularities, misbehaviour, misconduct or wrongdoing, was not possible.

Also included was a four-page, unsigned document that claimed, as referred to in these columns last week, that alleged ‘accounts manipulation’ amounted as much as Rs 250 million in her bank account. Lawyers for the CJ refuted these allegations. They said in a statement that the amount involved was much smaller and Ms. Bandaranayake had utilised the money to buy Treasury Bills.

Concerns in the Government became high last Monday when judges and magistrates countrywide heeded a call by Chief Justice Bandarnayake to attend a meeting. Whilst some of the distant courthouses shut down for the day, in others the magistrates and judges had heard their cases before attending the event. The CJ, in a brief speech, said she had numerous requests for separate meetings with judges and magistrates. Since she could not find time to see them individually, she had invited all of them for the meeting. Thereafter, she gave an account of the charges against her. She vowed she was determined even at the cost of her own life, to vindicate her position.

She then withdrew but the meeting continued. Later the judges and the magistrates issued a joint statement calling upon the Government to protect the dignity of the judiciary from unwarranted attacks by sections of the media.

Some of the judges of the Supreme Court themselves felt that their dignity and that of the highest court should also be protected. This in effect was the message conveyed to Chief Justice Bandaranayake by a small group of her colleagues led by Justice Shirani Tillekewardena. They were alluding to an event in the Superior Courts complex where a group of Buddhist monks had chanted pirith before the CJ had left for PSC hearings on Tuesday. They noted that such ceremonies within courts should be avoided to protect the dignity of the highest court in the country and to prevent any misapprehensions being created. A senior Supreme the Court complex judge, though invited, did not join the group. The presence of the Buddhist clergy also drew President Mahinda Rajapaksa’s ire. He told his cabinet ministers that one of them had invested Rs 70 million in the now financially besieged Ceylinco Group.

There were several disruptions to functioning of courts. If courts in the North did not function for three days last week, on Wednesday courthouses in Matara, Galle and Anuradhapura shut down in protest. On Thursday, it extended to courthouses in Polonnaruwa.

If Tuesday’s sessions of the PSC were mired in procedural wrangles, it continued on Thursday afternoon. Though Chief Justice Bandaranayake turned up at 2.30 p.m. for the sessions, she was not called in until 3 p.m. Proceedings of the PSC are governed by parliamentary privileges and cannot be reported. However, after Chief Justice Bandaranayake, staged a walkout abruptly ending three hours of sittings, her lawyers issued a late night statement on Thursday. It said:

“Today the Chief Justice of Sri Lanka Dr. Shirani Bandaranayake walked out of the Parliamentary Select Committee in protest in the face of hostile and biased conduct of the government members of the PSC so as to ensure the dignity of the judiciary of Sri Lanka. The Chief Justice reiterates that she is innocent of the false charges made against her and is always willing to face any impartial tribunal in order to vindicate herself.
“The following are the events which led to the decision of the Chief Justice to walk out of the PSC. The PSC was requested as far back as November 20th to furnish the information required to reply the allegations. This information was never provided. When the PSC commenced sitting on 23rd November 2012 learned Counsel for the Chief Justice requested that a list of witnesses and a list of documents relied upon in support of the allegations be made available. It is common knowledge that even in a disciplinary inquiry in the public service or a trivial criminal case that a respondent or accused is furnished with a list of witnesses and documents so that they could prepare for the defence. The PSC failed to meet this basic requirement at any of its sitting.

“Today at about 4 pm, the PSC handed over a bundle of documents consisting of approximately 1000 pages and required the chief justice to respond by 1.30 pm tomorrow, i.e. in less than 24 hours. It was obvious that a majority of the members of the PSC had no real intention to give the Chief Justice a fair hearing. In addition to the above, at various stages of the proceedings of the PSC, two members hurled abuse at the Chief Justice and her lawyers and it became evident that these members had been mandated to ridicule the head of the judiciary and the legal profession.

“The Select Committee was requested numerous times to formulate the procedure that it intended to follow. There was no response to this request until today. Today when this request was repeated, the Chairman of the PSC stated that no oral evidence would be led to establish the allegations and, consequently no opportunity would be given to cross examine such witnesses making the allegations. Instead it became evident today that the Chief Justice was expected to refute allegations that had not even been supported by evidence. Such an irregular and unlawful procedure would undermine every single independent judge in Sri Lanka. In almost all instances the same members of the PSC, who were in majority, overruled the submissions made on behalf of the Chief Justice without cogent reasons and often without any prior consultation with the other members.

“It is for the above reasons that the Counsel for the Chief Justice requested to waive the secrecy provisions and sought an open and public inquiry and requested for independent observers to watch the proceedings, but this request was also refused by a majority of the PSC. In the face of the above no right thinking person could any longer continue to accept the legitimacy of a body steeped in partiality and hostility towards the head of the judiciary and in this background the chief justice and her counsel had no alternative but to withdraw from participating in the Select Committee. The CJ reiterates that she is willing to continue to face any impartial and lawful tribunal as is done in other commonwealth countries as was proposed in the draft constitution of August 2000 in order to vindicate herself and she will continue in her efforts to safeguard the independence of the judiciary, which is a heritage of the people of Sri Lanka, who alone are the sovereign of this country.”

The contents of the statement from lawyers for Chief Justice Bandaranayake were borne out further at a joint news conference held in the Parliament premises on Friday afternoon by the PSC’s four opposition members- John Ameratunga (UNP), Lakshman Kiriella (UNP), Vijitha Herath (JVP) and Rajavarothayam Sampanthan (TNA). They too literally walked out of the PSC. Here are highlights of remarks made by them:
John Amaratunga: We handed over a letter to the Chairman of the PSC this morning but it was rejected by him. So we have decided to withdraw from the Committee. We had questions about the standard of proof and lack of procedure to be followed by the committee. When we went to the committee this morning, there was no agenda for the day’s proceedings. We understand that the Chief Justice has written to the Speaker through her lawyers saying she is ready to appear before an independent panel. Both the Committee and the CJ need more time. We attempted from the beginning to ensure that there is a fair inquiry but it failed. They are groping in the dark and working in an ad hoc basis. We need more time to study them. We don’t want to be party to a witch-hunt. There is no point being in such a committee.

Lakshman Kiriella: The objective of the government is not to hold a proper inquiry. What it thought is she (the Chief Justice) would step down when the charges are brought. That was its intention. It was not ready for a proper investigation. Only once the lawyers for the CJ raised the issue about the documents, the Secretary General of Parliament wrote to the relevant institutions to get them. The signatories to this motion have not seen any documents. There is a talk some signed on blank sheets of paper. The Government does not want an inquiry as it cannot prove anything. Some government members on the committee were insulting the Chief Justice and her lawyers. These are all false charges. We saw some of the documents and they prove her innocence.

R.Sampanthan: The Chief Justice was not given enough time for her response. Not only were some members of the Committee rude and impolite to her but there was a clear indication that some had come to a conclusion before the inquiry commenced. We totally agree with the position taken by the counsel for the Chief Justice with regard to this matter. We feel the refusal of time is unjust. Adequate time should be given to the Chief Justice to present her case and to study the documents. The remarks made indicate they (Government members) have come to some conclusions. We made several endeavours to enable the Committee to proceed further but unfortunately it was turned down. We had an indication they had made up their minds or were told how they should make up their minds. They have come to some conclusions.
Vijitha Herath: The previous PSC appointed to prove charges against a Chief Justice met for six months even though the person concerned admitted to the charge. There are 14 charges against this CJ and there are 117 signatories to the motion against her. We have to cross examine the petitioners and find out the basis on which they (charges) have been made. That is why we requested the Chairman of the Committee to ask the Speaker for more time this morning but that did not happen. The Government is in a hurry to finish this inquiry. It is acting to achieve a political agenda. This kind of unfortunate incident has never happened in the country’s history before. This is a deadly blow to the country’s entire judiciary.

Later JVP’s Herath rose to speak in Parliament on the impeachment issue on Friday afternoon but was heckled and shouted down by government MPs. The move saw a walkout by all opposition MPs. The foursome also wrote a signed three-page letter to Speaker Chamal Rajapaksa on Friday. This letter, released to the media, said that the opposition MPs in the Parliamentary Select Committee had raised five issues:

  • The absence of a clear direction regarding the procedure to be followed by the Select Committee.
  • Whether documents were to be made available to the Chief Justice and her lawyers.
  • The standard of proof which would be required.
  • The need to arrive at a definition of “misbehaviour”
  • Whether sufficient time would be made available to the Chief Justice and her lawyers to study the documents.

Here are other significant highlights of what the four MPs have said:

“We have also requested a direction whether the Chief Justice and her lawyers would be given an opportunity to cross-examine the several complainants who had made the charges against her. It was also our position that if and only if a prima facie case had first been made out against the Chief Justice that she can be asked to respond. None of these matters have been addressed by your Committee. We also find that we are groping in the dark and proceeding on an ad hoc basis. In addition we wish to note that over 300 documents were received by the Committee and handed over to the Members only on 5th December, 2012 and those were handed over to the Chief Justice only at 4.30 p.m. on 6th December 2012. We understand that there are several more documents to be produced.

“The lawyers appearing for the Chief Justice asked for time to study the documents. This was refused. Apart from the Chief Justice, we the Members of the Select Committee ourselves will need sufficient time to study these documents. Furthermore the Chief Justice had not been provided with either a List of Documents or a List of Witnesses. The sequence of events can be set down as follows: When the motion was filed, there were no documents provided with it. The Inquiry started on 14th November 2012 without either a list of witnesses or a list of documents. After three sittings the Secretary General was instructed to call for the documents from the Banks and other institutions. What is obvious here is that when the Impeachment Motion was filed none of the signatories could have seen any of the documents. It is regrettable that the Committee is ignoring salient provisions of the law and requirements of Natural Justice in the conduct of this Inquiry.”

More observations of the opposition MPs in the Select Committee came when they said that “the Chief Justice has not been afforded the courtesies and privileges due to her office.” They added: “We have made our position clear regarding these matters. It is the duty of the Select Committee to maintain the highest standards of fairness in conducting this inquiry. We also regrettably note that during these proceedings, the treatment meted out to the Chief Justice was insulting and intimidatory and the remarks made were clearly indicative of preconceived findings of guilt. We are therefore of the view that the Committee should, before proceeding any further, lay down the procedure that the Committee intends to follow in this inquiry. Give adequate time to both the Members of the Committee and the Chief Justice and her lawyers to study and review the documents that had been tabled. Afford the Chief Justice privileges necessary to uphold the dignity of the Office of the Chief Justice while attending proceedings of the Committee. If these matters are attended to, we feel that the Chief Justice should be invited to continue her participation in these proceedings. However, if the Committee is not agreeable to these proposals of ours we will be compelled to withdraw from the Committee.”

The Sunday Times has learnt that President Mahinda Rajapaksa spoke on the telephone on Friday morning with the UNP’s PSC member Lakshman Kiriella. During a friendly conversation, he advised that it would be better for the UNP to show its dissent whilst serving in the PSC than walk out of it. Government members of the PSC were undeterred. Despite the absence of their opposition colleagues, sittings continued till late Friday night.

On Friday, the PSC heard testimony till late into the night. Those who testified were Justice Shirani Thilakawardena, Supreme Court Judge, Lalith Weeratunga, Presidential Secretary, Duminda Prabath Mudunkotuwa, Registrar of Supreme Cour, Amitha Chandrasekara, Registrar of Colombo Magistrate’s Cour, Janaka Rathnayake, Chief Executive Officer of Trillium Residencies Company Limite, Aroshi Perera, Public Notary, Russel De Mel, Chief Executive Officer of National Savings Bank, Ajith Nivard Cabraal, Governor of Central Bank of Sri Lanka, D K Abeygunawardena, Legal Director of Trillium Residencies Company Limited, Public Notary, Mallika Samarasekara, Commissioner General of Department of Inland Revenue and Deepani Herath, Commissioner, Tax Policies, Inland Revenue Department, H. M. Hennayake Bandara, General Manager of National Savings Bank, K. B. Rajapaksha, General Manager of People’s Bank and M. L. B. Silva, Assistant General Manager, D. M. Gunasekara, Acting Assistant General Manager of Bank of Ceylon, W. A. Chulananda Perera, Controller of Department of Immigration and Emigration, Sisira Paranathanthri, Chief Editor of Rivira, and Manjula Thilakarathne, Secretary, Judicial Services Commission.
On Friday night, the PSC finalised its report and handed it over to Speaker Chamal Rajapaksa yesterday. This means that the PSC has completed its task in less than a month since being appointed on November 14.
This is whilst lawyers for Chief Justice wrote on Friday to Speaker Rajapaksa to “defer any further action until an independent and impartial panel is appointed to inquire into the allegations.” The letter added, “We request that our client be given the opportunity of vindicating herself before an independent and impartial tribunal.”

Later on Friday night, lawyers for the CJ expressed concern over reports that the PSC was going into a late night session with support staff being told to remain late.

Lawyer Saliya Peiris, issued a statement, “for and on behalf of the Chief Justice”. This is what it said: “The Government Information Department has announced that the Parliamentary Select Committee has called several witnesses to give evidence against the Chief Justice within the course of today going onto the night. Until the Chief Justice and her counsel walked out of the Select Committee yesterday it was maintained by the Committee that no oral evidence will be led and despite our demands to cross examine the witnesses we were not given the list of witnesses or documents and were told that there will be no witnesses called. This same observation has been made by the Opposition Members of the Select Committee today at 2.30 pm, according to the statement issued by them.

“We now find that after the Chief Justice and her lawyers walked out of the Select Committee, the Committee has called for witnesses and led their evidence. We understand that all those witnesses were summoned today (the 7th) after the lawyers walked out. It appears to us that as long as the Chief Justice and her lawyers were present witnesses would not have been called. We are shocked to find that witnesses have been hurriedly summoned and their evidence led, taking advantage of the absence of the Chief Justice and her lawyers who were prepared to cross-examine each and every witness in order to expose the truth. In fact, the lawyers demanded that the witnesses be called, demanded a list of witnesses and document and demanded that the procedure be laid down, all of which were refused.”

PSC Chairman Anura Priyadarshana Yapa handed over a 30-page report to Speaker Rajapaksa yesterday. The receipt of the report was announced in Parliament by the Speaker. Responding to a query from Opposition Leader Ranil Wickremesinghe, the Speaker said he would even allow a ten-day debate on the report.

The PSC has ruled that Chief Justice Shirani Bandaranayake is guilty of charges 1, 4 and 5. It has held that there was not enough evidence in respect of charges 2 and 3.

Charge one related to having removed another bench of the Supreme Court which was hearing the fundamental rights application cases against Ceylinco Sri Ram Capital Management, Golden Key Credit Card Company and Finance and Guarantee Company Limited belonging to the Ceylinco Group of Companies and taking up these cases under her (Chief Justice Bandaranayake’s) bench and serving as the presiding judge.
Charge 4 related to not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer the details of more than 20 bank accounts.

Charge 5 related to Ms. Bandaranayake’s husband being indicted for bribery or corruption case and her being “unsuitable to continue in the office of the Chief Justice.”

Charge 2 related to making payment of Rs 19,362,500 in cash to the companies of City Housing and Real Estate Company Limited and Trillium Residencies prior to the purchase of the property. How this money was earned had not been disclosed.

Charge 3 refers to Chief Justice Bandaranaike not declaring in her annual declaration of assets and liabilities the details of about Rs. 34 million in foreign currency deposited at the National Development Bank.
Although the government wanted to suspend Standing Orders and debate the impeachment resolution, it was not found feasible.

It was because the vote on the budget was to be taken yesterday. Hence, the report will come up for debate after one month, i.e. when Parliament resumes sittings after January 8 next year.

These developments came as some 30 ministers and MPs, all signatories of the impeachment resolution, held their own news conference in Parliament on Friday evening. They were united in one voice that the PSC would continue its sittings and declared that the CJ should have faced the inquiry instead of keeping away.

Here are some of the comments they made:

Minister S.B. Dissanayaka: The Speaker requested us not to discuss this motion. We adhered to that request but we saw there was a massive campaign using lawyers and other interested parties to make this a public agitation. There is no constitutional provision to hold an inquiry on anyone in the judiciary. It has to be done through parliament. We express our regret over attempts to undermine the Constitution. We request the PSC to conclude its hearings as soon as possible and give reports. It is better if she (Chief Justice Bandaranaike) came before the Committee and proved her innocence. Even if she had no faith in it by doing this, she could have proven her innocence to the country and cleared her name. Some people say they have no faith in the judiciary also but we respect it.

Minister John Seneviratne: The situation that has arisen is very unfortunate. The Chief justice walked out saying she would not get a fair a trial. This is a humiliation to the Constitution. We learnt that the opposition members also withdrew from the Committee. This seems an organised plan. We are suspicious that she may have become a pawn in the hands of some saboteurs.

Minister Gamini Lokuge: The duty of the CJ is to come before the Committee and prove her innocence. We are all bound to act in a manner to uphold the dignity of Parliament and the dignity of the judiciary. The MPs have a right to ask for the appointment of a PSC. Injustice will be done only if she does not appear before the Committee. She has to come before it and prove her innocence. This is not a political process. Some opposition politicians are trying to make this a political issue. The members of the PSC should ignore these happenings and do their job. Minister S.B. Dissanayaka had a problem and he was sentenced by court. We did not accept it but we respected the court decision. The opposition members could have stayed in the Committee and given a dissenting report. The very issues they raised regarding witnesses and procedural problems could have been raised in this report. If they said they needed more time and were not given, they could have included this also in the report. But by leaving the PSC they are sabotaging it. They can give a dissenting report and have it on record.

Among others present were Ministers Sumedha Jayasena, Mahindananda Aluthgamage, C.B. Ratnayaka, Lakshman Seneviratna, Jeevan Kumaratunga, Deputy Ministers Lalith Dissanayake, Lasantha Alagiyawanna, S.M. Chandrasena, Jagath Pushpakumara, and MPs Malani Fonseka, Nishantha Muthuhettigama, Uditha Loku Bandara and Arundika Fernando.

On Friday, the United States expressed concern over the impeachment process. A statement from The US embassy in Colombo said it “remains very concerned about the state of the Sri Lankan judiciary and the impeachment process of the Chief Justice. We urge that the Government of Sri Lanka and the Parliamentary Select Committee investigating the Chief Justice ensure any investigation be conducted transparently, guarantee due process, and is conducted in accordance with the rule of law.”

Mark Toner, Deputy Spokesperson at the State Department in Washington told a media briefing on Friday “The United States remains deeply concerned about actions surrounding the ongoing impeachment trial of Sri Lankan Chief Justice Shirani Bandaranayake.” He added “These latest developments are part of a disturbing deterioration of democratic norms in Sri Lanka, including infringement on the independence of the judiciary. The United States, along with our partners in the international community, continues to urge Sri Lanka to uphold the rule of law and democratic governance and to continue to address outstanding accountability and reconciliation issues.

On Wednesday, a statement from the European Union said, “The European Union Delegation issues the following statement in agreement with the EU Heads of Mission in Sri Lanka:

“The European Union Delegation in Colombo is concerned by a number of recent developments in Sri Lanka surrounding the rule of law and individual freedoms.

“The European Union looks to the Sri Lankan authorities to ensure that the independence of the judiciary is protected; that investigations into the large number of deaths at the Welikada prison are speedy and impartial; and that all citizens, including students, journalists and opposition politicians, are able to exercise their fundamental rights without impediment. The European Union Delegation notes that several other domestic and international actors have also expressed concerns, including the Commonwealth Secretary General, the UN Special Rapporteur on the Independence of Judges and Lawyers and the Asian Human Rights Commission.”

Meanwhile, sections of the Bar Association of Sri Lanka (BASL) are campaigning not to extend any co-operation to a new Chief Justice. More than 550 members countrywide have signed a resolution to this effect. It is to come up for discussion at a general membership meeting of the BASL on December 14. The resolution, among other matters, states:

  • We the members of the Bar shall not welcome any new appointee to the office of the Chief Justice,
  • We the members of the Bar shall not appear before such new appointee to the office of Chief Justice.
  • We the members of the Bar urge that all diplomatic missions and other international agencies such as the

United Nations, the Commonwealth, Non-aligned Movement, South Asian Association for Regional Corporation, the International Bar Association, the International Judges Association, the Commonwealth Judges Association and other related agencies should not recognise any new appointee to the office of Chief Justice.

The move came as S.L. Gunasekera, a leading Attorney at Law, said in a letter to BASL President Wijayadasa Rajapaksha that they adopt a resolution “and/or makes a public pronouncement that it requests all its members to refrain from accepting appointment as Chief Justice in the event of the incumbent Chief Justice being impeached.” Pointing out that he was and “continue to be a supporter of the present government,” Gunasekera has said, “I am strongly of the view that she must have a fair trial and be given a fair opportunity in defending herself.”

The November 28 letter adds, “Even at the risk of sounding presumptuous, I suggest that the Bar Association takes some meaningful steps to oppose this madness of the incumbent government.”

It is clear from this week’s developments that a new Chief Justice will assume office next month. Yet, a critical question that will continue to linger is whether that would end the on-going battle between the Legislature and the Judiciary albeit the Executive. By that time a Supreme Court ruling on the nine petitions challenging the validity of the Parliamentary Select Committee (PSC) would be known. That would add fuel to the burning controversy that threatens to haunt the Government from different fronts.

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