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Government parliamentarians began a campaign to impeach Chief Justice Shirani Bandaranayake, at the auspicious time of 10.12 a.m. on Thursday. It seemed ironic if not hilarious that the day coincided with the United Nations in Geneva taking up Sri Lanka’s human rights record under the Universal Periodic Review (UPR).

The five Government Group members — Pavithra Wanniaratchchi, Lasantha Alagiyawanna, Sudarshani Fernandopulle, Anuradha Fernando and Shantha Bandara — handed over to Speaker Chamal Rajapaksa, at that felicitous hour a resolution of impeachment. The resolution itself is a privileged document and cannot be published until it appears in the Order Book of Parliament. The five members later joined government spokesperson and Minister Keheliya Rambukwella at a news conference at the Government Information Department to declare that 117 parliamentarians had signed it.

There were more to sign. House Leader and Minister Nimal Siripala de Silva returned to Colombo on Friday after leading a government parliamentary delegation to South Africa. Others in the team were Minister Anura Priyadarshana Yapa, Neomal Perera, Vinayagamoorthy Muralitharan, Faizer Mustapha and Janaka Bandara Tennekoon. It follows visits to Colombo by two high powered South African delegations in the past months.

The next step Speaker Rajapaksa will take is to formally announce when Parliament meets on Tuesday (November 6) the receipt of the resolution. He is expected to say he will place the motion in the Order Book of Parliament. Thereafter, he is expected to chair a meeting of party leaders to discuss the appointment of a Select Committee to investigate and report to the House on the allegations. Whilst the onus of proving the allegations will be on MPs who have signed the resolution, the Committee will ask the Chief Justice to make a written statement in defence within a stipulated period. She also has the right to be heard personally or through a representative. The main opposition United National Party (UNP) has already announced that it will serve in the Select Committee. The party has sought a meeting with Speaker Rajapaksa on Tuesday to discuss matters related to its participation.

A committee which is not less than seven members or more could be appointed and is required to report on their findings to the House within a month. However, there is no barrier to such a committee seeking extensions with House approval. In the event the Committee deems a Judge which it is trying is guilty, it will report the matter to the House which will through a resolution impeach him or her. The entire proceedings of the Select Committee are covered by privilege and will remain secret until the findings are reported back to the House. Hours after the resolution was handed over, the office of the Chief Government Whip (CGW) went into hyper mode. All government MPs were contacted on the telephone and warned that they should refrain from making any comments on the contents of the resolution. Directing the operation was Minister Dinesh Gunawardena, the CGW. He wanted to avoid them being accused of violating privilege or laws of contempt. Coincidentally, the opposition United National Party (UNP) also sent out a missive to its MPs not to speak on the matter until the party issued a statement, which it did on Friday.

Moves for an impeachment resolution against Chief Justice Bandaranayake became active in a week where Parliament was debating an adjournment motion on October 25. This was days after Janatha Vimukthi Peramuna (JVP) parliamentarian Anura Kumara Dissanayake raised issue over the assault on Manjula Tilakaratna, Secretary of the Judicial Service Commission (JSC). A detailed statement on the attack came earlier from House Leader Nimal Siripala de Silva. (The Sunday Times – Political Commentary October 14)

The debate centred on that statement.
While this debate was in progress last week,  drama was being played out at a VIP’s office in the parliament complex. In singles and groups, government MPs walked in to be briefed by Minister Mahindananda Aluthgamage on a proposed resolution to impeach the Chief Justice. The list of allegations, however, was not on hand for them to see. Yet, the MPs placed their signature taking Aluthgamage’s word for granted. They were also conscious that the paper they signed bore the words impeachment resolution on the Chief Justice on top. Word soon leaked that an impeachment of the Chief Justice was in the offing. Even after Parliament sessions were over, those MPs who did not sign received SMS on their mobile phones urging them to visit Aluthgamage’s office at the Sports Ministry in Torrington Square and sign it. Ministers who were unable to do so, were told to place their signatures shortly after the weekly cabinet meeting last Wednesday evening.

The meeting of the ministers lasted only some 45 minutes and was entirely devoted to some 59 cabinet papers listed in the agenda. No discussion took place on the subject “Any other item.” The Cabinet did not discuss the resolution. “The government parliamentary group also did not discuss the resolution,” Chief Government Whip Dinesh Gunawardena told the Sunday Times. UPFA leaders, conscious about the legal implications. By Wednesday night, lawyers backing the government, particularly two of them who have been advising on the key issues, were busy knocking into shape a document that listed the allegations. It was merged together with the list of signatures to form one package that was to be delivered to the Speaker. Some lawyer-politicians privy to the allegations were sceptical whether they were strong enough grounds for impeachment. Others contended it would hold good.

However, many allegations against the Chief Justice surfaced at a meeting of leaders of the United People’s Freedom Alliance (UPFA) partners at ‘Temple Trees’ last Monday night. They covered a broader area including matters relating to affidavits from some serving members of the judiciary, alleged irregularities at the Judicial Service Commission, matters relating to bank accounts, the alleged abuse of a Power of Attorney given by a close relative in relation to a property in Narahenpita, the transfer of some cases and purported harassment of a junior judicial officer. Sources close to Chief Justice Bandaranayake said she was steadfast in her denial of being involved in any act of impropriety, misbehaviour or alleged corruption. “We cannot comment on any specific charge until we know what they are,” these sources added saying “she will face what comes.”

This week, the impeachment motion ‘talk’ matured into the impeachment motion ‘walk’. Political analysts were quick to point out that the ‘talk’ became ‘walk’ after the Supreme Court’s determination on the constitutionality of the Divineguma Bill came to be known to the government. There is no official news on the determination, and it cannot be official until it is read out in Parliament, presumably when it convenes next Tuesday (Nov. 6). But the quick footed action by the government seemed to co-incide with the delivery of this determination. Another hint that there was a co-relationshop between the Divineguma Bill and the impeachment motion came when Economic Development Minister Basil Rajapaksa told the Daily Mirror on Friday that the government was prepared to obtain a two-thirds majority in parliament and even go to the people at a referendum to have the bill passed if the Supreme Court’s determination was that such steps were required. In other words, such steps would have to be taken only if the Supreme Court has determined that the Bill is unconstitutional and requires such a procedure to have it passed.

Some members of the judiciary complained about the treatment meted out to a judge and pointed out that a judge does not have even the safeguards that any normal public servant has. For instance, when a public servant is charge sheeted, he or she is called upon to explain, there is an inquiry, there is an appeal process and the like. In the case of a judge, he or she is “thrown to the wolves” straightaway. “What is the protection a judge has; what is this thing called the independence of the judiciary,” one of them asked.

A free exchange of views took place between those in favour of the resolution and those who sought middle ground on the issues. Minister Patali Champika Ranawaka was to raise a question on whether there were “substantive” reasons to establish a case against the CJ. Minister Vasudeva Nanayakkara also voiced the need to exercise restraint. Justice Minister Rauff Hakeem, the only minister who has been allowed not to place his signature to the resolution in view of his official position, UPFA sources said, called for a ‘proper mechanism’ to look at cohabitation issues between the Executive and the Judiciary. He said that a panel of retired judges could be called upon to formulate guidelines for adoption legally. Noting that there has been a breakdown in communications, Hakeem said even in the Indian judicial system there were mechanisms to deal with such situations. That night Rajapaksa also met a group of government MPs.
Presidential Secretary Lalith Weeratunga had earlier briefed Hakeem on the background to the cold war between the Executive and the Judiciary. He is learnt to have explained that tensions developed after he had, on behalf of the President, invited members of the Judicial Service Commission (JSC) for a meeting. Weeratunga had said it was to discuss broadly two issues — budgetary allocations for judges and disbursement of scholarships for them. However, a JSC statement said it was for other issues that amounted to “interference in the judiciary.” Among other speakers at the party leaders meeting were Ministers Susil Premajayantha and Maithripala Sirisena. The President had explained that there were two issues that had to be dealt with separately. One was the conduct of Manjula Tilakaratna, Secretary to the JSC. The other was the conduct of the Chief Justice.

According to UPFA sources, Hakeem made a last minute effort to bring about a dialogue between President Rajapaksa and Chief Justice Bandaranayake. He had met the Chief Justice in her Chamber’s in Hulftsdorp on Thursday morning, the same day the UPFA resolution against her was handed over to the Speaker. A long conversation had ensued. Chief Justice Bandaranayake, UPFA sources said, had discussed a variety of issues where there were frictions with the Executive but did not explain what they were. Chief Justice Bandaranayake, the same sources said, was not averse to a meeting with President Rajapaksa to iron out the issues involving cohabitation but indicated to Hakeem that time was necessary. By Thursday evening, Hakeem had driven to ‘Temple Trees’ to convey the outcome of his talks with Bandaranayake. This time Rajapaksa too was not averse to a meeting with the Chief Justice. However, he made it clear that the resolution would go ahead. It became apparent that a political decision to probe the conduct of the Chief Justice and impeach her has now become imperative. That appeared to have put paid to any conciliatory moves or a rapprochement once and for all.

The previous night, a team of senior lawyers, all Presidents’ Counsel from the private bar were also to meet President Rajapaksa. They were there as ‘goodwill ambassadors’ sent on a request of the Judicial Officers Association. They had earlier met Chief Justice Bandaranayake as well. Their brief was to ensure that the growing conflict between the Executive and the Judiciary did not get out of control.

The senior lawyers included former Attorney General, C.R. de Silva, K. Kanag-Ishvaran, Romesh de Silva, Upali Goonaratne and Ikram Mohamed. They told President Rajapaksa the clash between the Executive and the Judiciary was bad for governance. The President was quick to say he had nothing against the Judiciary. The lawyers were then to urge the state’s electronic media in general and President Rajapaksa to ask Hudson Samarasinghe, Chairman of the Sri Lanka Broadcasting Corporation (SLBC) in particular to exercise restraint on attacks on the judiciary, including the minor judiciary. They complained that some of the commentaries by Samarasinghe ridiculed and even humiliated members of the judiciary, and that this did not augur well for the country. Rajapaksa was to point out that even other radio and television stations had commentators who were critical only to be reminded by delegation members that Samarasinghe represented a state media arm. They were also to say that the language used was inappropriate, to say the least.

The President said he would speak to Samarasinghe and then joked that he himself had been at the receiving end of Samarasinghe’s belittling, but he managed to silence him by giving him the government appointment. The delegation did not raise the issue of the Impeachment Motion that was to be presented the next day as that was not part of their brief. At one point of the meeting, the President pointed towards one of the members of the delegation and said jocularly, “mama meyata oya Chief Justice kama baaraganna kiwwane. Ko ithin, eya one buck, two bucks hoyagena yanawe ne (I told this one to accept the post of Chief Justice, but instead he is going about earning small change (in the private bar)”. One among them in the delegation then said, “that’s the thing, we have asked him to take this job, but he’s going around earning millions”. “Ow, ow, eka thamai miniha oka baaraganne naththei” (yes, yes, that’s why he is not accepting the post), remarked the President and invited the delegation for a hopper dinner later.

Jokes apart, there was also a serious message in that Presidential assertion. Rajapaksa was seeking a change in the post of Chief Justice and had offered it to a senior lawyer, who seems to shy away from the offer. The resolution in Parliament against the Chief Justice is in accordance with Article 107 (2) and (3) of the Constitution. The provisions say:

“(2) Every such Judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an 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 ground of proved misbehaviour 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 misbehaviour or incapacity.”

“(3) Parliament shall by law or by Standing Orders 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 misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.”

Besides the resolution to impeach the Chief Justice, the Government is also examining measures necessary to “deal with” issues relating to JSC Secretary Tillekeratne. Legal advisors to the Government are looking at several options. During the adjournment debate in Parliament, External Affairs Minister G.L. Peiris went so far as to call Tilakaratna’s appointment “unconstitutional”. Peiris contended that Tillekeratne was 29th in the line of succession. JSC sources said yesterday that he was sixth in line.

Peiris’ remarks were to draw a sharp retort from UNP parliamentarian Sujeeva Senasinghe. This is how the proceedings went:

G.L.Peiris: The 17th amendment, those opposition members who spoke so highly of, states how the secretary to the JSC should be appointed.  Not anyone can be appointed to this post.  There is clear definition of who can be appointed.
“Earlier the power was vested with the President but under the 17th Amendment it was taken away and given to the JSC. But the JSC was not told they can appoint anyone. There is a certain yardstick. A senior judge has to be appointed to this post. The District Judge who was appointed was the 30th in the seniority list overlooking even High Court judges. The majority of the 29 seniors who were overlooked were taught law by me. I can say they have knowledge of the law, are honest and have an ability to carry out their work well.

“If we appoint a junior person over a senior, it is an invitation to disaster. What is the specialty of the person who was appointed? Is it an acceptable reason?  They have contributed to the situation that has arisen today. This is a violation of the constitution.

“Opposition members interrupting:  A voice says: Are you saying then that it was correct to attack the JSC Secretary?
“Sujeewa Senasinghe”: The Professor is misleading the House. He is uttering untruths.

“Dayasiri Jayasekera: When was a High Court Judge ever appointed as JSC Secretary? Can he name one such person?
“G.L.Peiris: We don’t endorse the attack on the JSC Secretary. We have condemned it.”

The issue that brought the cold war between the Judiciary and the Executive to breaking point, the Divineguma Bill, still remains a key question. The Supreme Court last Wednesday (October 28) sent its determination on four different petitions both to President Rajapaksa and Speaker Chamal Rajapaksa. The petitions challenged the constitutionality of the Bill and prayed that it would require both a referendum and has to be passed in Parliament by a two thirds majority.

The petitioners included Mavai Senathirajah, General Secretary of the Tamil National Alliance and Pakiasothy Saravanamuthu of the Centre for Policy Alternatives (CPA). Eleven others emerged as intervenient petitioners (to the four petitions) to say that the Bill was constitutional and could be passed with a simple majority. Speaker Rajapaksa is expected to announce the determinations in Parliament. In the event of the SC holding the Bill constitutional, Chief Government Whip, and Minister Dinesh Gunawardena has already announced that it would be debated to a finish on Tuesday (November 6). However, a critical question arises if the SC rules that it has to be passed through a referendum, a two thirds majority or both.

The Sunday Times learns that government concerns have been heightened by what it fears is a ‘conspiracy by western elements’ to effect a regime change. The cold war between the Executive and the Judiciary, just one of the aspects, is being fanned by them as part of an overall plot, said one source. “Intelligence reports also suggest this,” claimed another high ranking government source, both not wishing to be named for obvious reasons. However, independent verification of such claims is not possible. Yet, the strong reaction of the government over the recent events and the counter measures, some in secrecy, reflects the seriousness UPFA leaders attach to it.

At the Universal Periodic Review (UPR) in Geneva on Thursday, time constraints prevented the US envoy there to set out her government’s position in detail. She was, like 98 other speakers, were allotted only a minute and 22 seconds. After Ambassador Eileen Chamberlain Donahue made the brief statement, the United States diplomatic mission in Geneva issued a detailed public statement. It expressed concern over Thursday’s process to impeach the Chief Justice. Here is the full text:

“The United States welcomes Mahinda Samarasinghe, Minister of Plantation Industries and Special Envoy of The President on Human Rights and the Sri Lankan delegation to the UPR Working Group.”We note steps taken by the government of Sri Lanka to resettle IDPs, foster economic growth, improve infrastructure, and develop a National Action Plan for implementing a number of recommendations of the Lessons Learnt and Reconciliation Commission (LLRC).

“We remain concerned by the consolidation of executive power, including the passage of the 18th amendment, and that no agreement has been reached on political devolution. Former conflict zones remain militarized, and the military continues to encroach upon daily civilian and economic affairs. The Ministry of Defence has controlled the NGO secretariat since 2010.

“Serious human rights violations continue, including disappearances, torture, extra-judicial killings, and threats to freedom of expression.  Opposition figures have been harassed, detained, and prosecuted.  There have been no credible investigations or prosecutions for attacks on journalists and media outlets.  In the past 30 days, a judge who questioned executive interference in the judiciary was severely beaten in broad daylight by multiple assailants and derogatory posters appeared in Colombo threatening the director of an NGO challenging a government bill that would weaken provincial councils.  No arrests have been made.

“Bearing in mind these concerns, the United States makes the following recommendations:

“1.    Implement the constructive recommendations of the LLRC, including the removal of the military from civilian functions; creation of mechanisms to address cases of the missing and detained; issuance of death certificates; land reform; devolution of power; and disarming paramilitaries.

“2.    Transfer NGO oversight to a civilian institution and protect freedom of expression and space for civil society to operate, by inter alia investigating and prosecuting attacks on media personnel and human rights defenders.

“3.    End impunity for human rights violations and fulfill legal obligations regarding accountability by initiating independent and transparent investigations, which meet international best practices, into alleged violations of international law and hold those found culpable to account.

“4.    Especially in light of today’s news of the efforts to impeach the Chief Justice, strengthen judicial independence by ending government interference with the judicial process, protecting members of the judiciary from attacks, and restoring a fair, independent, and transparent mechanism to oversee judicial appointments.”

On Friday, the issue also came up at the noon news briefing at the State Department in Washington D.C. Spokesperson Victoria Nuland said, “The United States is concerned by actions taken to impeach Sri Lankan Chief Justice Shirani Bandaranayake. We also note with concern recent threats to Sri Lankan judicial officials, including the assault last month on a judge who had publicly criticized government pressure on members of the judiciary. We urge the Government of Sri Lanka to avoid any action that would impede the efficacy and independence of Sri Lanka’s judiciary. The United States, along with our partners in the international community, continues to urge Sri Lanka to address outstanding issues of the rule of law, democratic governance, accountability and reconciliation.”

At Thursday’s media briefing (after the previous day’s weekly meeting of ministers), official government spokesperson Rambukwella was asked why the impeachment resolution was brought. He said: I have said here before. In the recent past there has been an issue between the Legislature and the Judiciary.  Here is one case where the Speaker had to make a special statement to underline the supremacy of Parliament. If those mistakes are not corrected, then action has to be taken as provided by the Constitution. It is this process that the Government has set in motion.

If you look at the Constitution, it has different sections for the Executive, the Legislature and the Judiciary. It states that they must work in harmony and they should work with an understanding. There are also provisions in the Constitution to deal with if that exercise is disturbed or it is not carried out. I have mentioned this earlier. The Government parliamentary group was not satisfied with that. They have gone to the next stage of exercising the provisions of the Constitution. If 75 MPs have signed it, the Speaker can entertain a motion for the removal of the Chief Justice. At the moment more than that number has signed.

A Q and A followed:
Q: Is there a conflict between the Legislature and the Judiciary?
A: It’s not a conflict but a misunderstanding.
Q: Is this about the supremacy of parliament?  We thought the matter rested there?
A: There were so many other things. There were certain other issues that prompted the Government to believe that the Judiciary at one point is overstepping. I am afraid I am unable to say it now as it is in the form of a resolution. Such actions can deter the smooth operation of the three institutions.
Q: Does this include the CJ or all the judges of the Supreme Court?
A: That all depends. Now we have handed over the resolution against the CJ as she is also the head of the institution.
Q: Have you inquired from the opposition for its views?
A: As a precedent, we do not consult the opposition on such matters. But I saw in the media today that the UNP will take part in such a process.

Q: The International Commission of Jurists has issued a statements saying that the judiciary in Sri Lanka is under serious threat. They fear about judicial independence in the country? What is the Government’s response to this?

A: The supremacy is vested with the people of this country. This people’s power has to be exercised through these institutions. If there is deterioration in any of these institutions, then the Constitution has stated the remedy for them. If the law of the jungle is adhered to then no one can talk of these things like stoning houses etc. or judges being hooted at. That is the jungle law. This is not jungle law. This is the law of the land and the Constitution is what safeguards the rights of the people.

Q: The attack on the JSC Secretary has been in focus for a while. Is this a move aimed at intimidating members of the judiciary?

A: The judiciary must be independent as well as just. If you speak about independence of the judiciary you must also speak of them being just. How can they be just if they’re not independent?

The last motion of impeachment against a Chief Justice took place in 1984 when Neville Samarakoon faced a resolution over a public speech he had made critical of Parliament. The final report of the committee chaired by Lalith Athulathmudali eventually exonerated Samarakoon. They held that “We are satisfied that the Hon. Chief Justice’s speech, taking into account all the circumstances, constitutes a serious breach of convention and thereby imperilled the independence of the judiciary….. however, every breach of convention does not necessarily amount to proved misbehaviour. The standard of proof required is very high. In all the circumstances of this case, while this Committee cannot but condemn this speech, we cannot come to the conclusion that the Hon. Chief Justice is guilty of proved misbehaviour” (Official Report of the Parliamentary Select Committee, page 91).

The three Opposition MPs on the Committee, viz., Anura Bandaranaike, Sarath Muttetuwegama and Dinesh Gunawardene gave a separate report dismissing the resolution to impeach Neville Samarakoon and said that his speech could not have “even remotely” be considered as ‘proved misbehaviour’. They said “there exists no basis whatsoever” for the removal of Chief Justice Samarakoon.

The UNP’s statement on Friday under the name of its General Secretary, Tissa Attanayake, set out what happened at that Select Committee, and adds: “The Parliament acts in a judicial capacity from the time it appoints a Select Committee to hold such inquiry until the debate on the Resolution is presented as an Address to the Head of State is concluded. This is specifically provided for in our Constitution under Article 4 (c): The judicial power of the People shall be exercised by Parliament directly in regard to matters relating to its powers. Such powers include presentation of an address to the President under Article 107. Since no Court has defined “misbehaviour or incapacity,” Parliament has to make its determination case by case. This results in Members of Parliament acting in a judicial capacity bringing their minds to bear on the facts as Judges would do. Members should refrain from acting politically in such an instance. This is one key safeguard in exercising these powers. The Media has reported that Members of the Government Parliamentary Group will be presenting a Resolution of an address to the President calling for the removal of the Chief Justice Dr. Shirani Bandaranayake.

“One Member of Parliament Jayaratne Herath, Deputy Minister of Industry and Commerce quoted an anonymous letter pertaining to the Chief Justice during a recent Adjournment debate in Parliament. This makes him unfit to sit in Parliament if a Resolution to remove the Chief Justice is debated in the House. This is why the Leader of the UNP has directed the UNP Members of Parliament to refrain from making any comments on this issue. At all times Parliament should act according to the established traditions. We will also come under scrutiny………………….”

UNP Leader Ranil Wickremesinghe told the Sunday Times that a party delegation would meet Speaker Chamal Rajapaksa on Tuesday when Parliamen re-convenes and ask him what procedures are going to be adopted by the Select Committee the government hopes to appoint. He said that now, MPs who serve on the Committee will have to sit as judges and put the charges to test on the basis of how a judge would determine a case and not as politicians.

Asked if this was expecting too much from some MPs, he referred to the Neville Samarakoon Committee findings that exonerated him. Wickremesinghe said that in recent times, many countries had a Code of Conduct for Judges, drafted by the Judges themselves, which Sri Lanka did not have. “Every breach does not amount to proved misbehaviour”, he said.
The UNP Leader said that the party would be asking the Speaker how Parliament was going to act independently without relying on the Attorney General or the Courts and that his party would be supporting what position the Judges Association and the Bar Association would take on the matter.

The recent events show that the on-going tensions between the Executive and the Judiciary on the one hand, and the Legislature and the Judiciary on the other, was sparked by the Divineguma Bill. That the approval of the Bill in Parliament so far has been delayed, there is little doubt, has angered UPFA leaders. The result is an impeachment resolution on the Chief Justice and action against the JSC Secretary, Manjula Tilakaratna over the three-page statement from the judicial body alleging government interference in the judiciary.

The repercussions of the events that are now playing out because of the tensions with the judiciary will have far reaching consequences both in Sri Lanka and abroad. The fact that the government chose to introduce an impeachment resolution on the day the UN Human Rights Council in Geneva was reviewing Sri Lanka under the Universal Periodic Review (UPR) underscores the government’s firm resolve no matter what the international community had to say. No matter how the legal fraternity in Sri Lanka would react. Even more importantly, no matter how Sri Lankans who have recourse to courts to seek redress for their grievances would feel.

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