The lack of transparency, the indecent haste, the total disregard for fairplay and justice make a mockery of the legitimacy of the CJ’s removal By Chandani Kirinde, Our Lobby Correspondent The fate of Chief Justice (CJ) Shirani Bandaranayake was sealed on November 1, 2012; the day a motion signed by 117 Government legislators seeking her [...]


Away with the CJ as Govt. has its way, as usual


The lack of transparency, the indecent haste, the total disregard for fairplay and justice make a mockery of the legitimacy of the CJ’s removal

By Chandani Kirinde, Our Lobby Correspondent

The fate of Chief Justice (CJ) Shirani Bandaranayake was sealed on November 1, 2012; the day a motion signed by 117 Government legislators seeking her removal from office was handed over to Speaker Chamal Rajapaksa. Once the process was set in motion, there was no turning back for the Government which defied all those who stood in its way.

A Supreme Court judgment on the legality of the Parliamentary Select Committee (PSC) that probed charges against the CJ, as well as a Writ of Certiorari issued by the Court of Appeal, quashing the findings of the PSC, did not deter the Government’s determination to have her removed, less than two years after she was appointed to the high post by President Mahinda Rajapaksa. Last Friday, the motion was approved by a two-third majority in Parliament.

Despite the seemingly large scale opposition to the move, particularly from members of the legal fraternity, except for four government members, all others, including some who have publicly voiced their displeasure at the move to remove the CJ in this manner, said ‘aye’ to the motion, when the vote was taken by name on Friday night.

The only, almost feeble voice of dissent came from Senior Minister D.E.W. Gunasekera of the Communist Party, a coalition partner of the ruling United People’s Freedom Alliance (UPFA). He informed the House that he would refrain from voting for the motion. Hence, he, along with the other CP member in Parliament, Minister Chandrasiri Gajadeera, Minister Tissa Vitarana from the LSSP and National List MP Dr. Rajiva Wijesinha were absent when the vote was taken, the only show of some opposition to a Government which has got accustomed to having its way, thanks to the unchallenged power it enjoys in the House, ably aided by a largely indifferent Opposition led by the United National Party (UNP).

While the Democratic National Alliance (DNA) walked out of the House at the start of the debate on the impeachment motion, the UNP and the Tamil National Alliance (TNA) MPs decided to stay on and voice their opposition to the move to remove the CJ. However, Chief Opposition Whip MP John Amaratunga, who was one of the two UNP members who participated in the PSC proceedings, before walking out, made it clear that they had no intention of safeguarding the CJ, if the allegations levelled at her are true in any manner, but his contention was that, she was being removed using a procedure that denied her the most basic right that is accorded to all the other citizens of this country, that of a fair hearing.

“We have no intention of safeguarding the CJ. If she was found to be guilty of any of the charges levelled against her by an independent panel, we would have supported the Government’s move to remove her,” Mr. Amaratunga said.

Not so strangely, some of the most vociferous voices within the UNP, who have spoken out against the impeachment, such as MPs Dayasiri Jayasekera and Sujeewa Senasinghe, were not among those who spoke on the debate, while Opposition Leader Ranil Wickremsinghe too did not participate in it, even though he raised objections on several other matters.

While the majority of the Government members who participated in the debate were drawn from among the members of the PSC and some of the MPs who signed the motion, many senior ministers did not participate.

The debate on the impeachment motion got off to a rocky start on Thursday, after several UNP MPs argued that the mandatory period of one month that is required between the time of tabling of the report of the PSC and the day it was taken for debate, had not lapsed, as there had been a delay in getting the printed copies to MPs.

Opposition Leader Ranil Wickremesinghe also argued that the PSC had not completed its mandate, as it had been asked to look at 14 charges, but had only looked at five charges.

A raucous pro-impeachment gathering was held on Friday night opposite Chief Justice Shirani Bandaranayake’s official residence on Bauddhaloka Mawatha, Colombo 7 with fireworks, the serving of milk rice and vulgar slogans against the lady. Parliamentary Select Committee president Minister Anura Priyadarshana Yapa and member Deputy Minister Dilan Perera were present among others. Pic by Indika Handunwela

However, on both issues, Speaker Rajapaksa ruled that they were not legitimate grounds on which to postpone the debate as requested by the Opposition, and hence allowed it to go ahead.

Leader of the House Minister Nimal Siripala de Silva who was himself a member of the PSC, moved the motion against the CJ and defended the procedure used, saying it was the constitutionally provided manner for removing the CJ.

He said there were serious allegations levelled at the CJ, and the witnesses who appeared before the PSC, had clearly stated that she had abused her powers. Hence, she should be removed from office, he said.
The 1978 Constitution took a beating this time around as well, for being the reason that such a system was in place. “We can claim to be supreme, as representatives of the people who are sovereign. But the fact remains that, under the 1978 Constitution, our supremacy has eroded. Our power has been substantially reduced. This is the root cause of the chaotic situation,” Minister D.E.W. Gunasekera said.

His words did not go down well with another of his leftist comrades, Minister Vasudeva Nanayakkara, who voted for the motion. “Those who say that the Parliament is not supreme, are undermining the very same institution they are part of,” he said.

These few hiccups aside, the motion was passed with 155 members voting for and 49 against it. Fireworks lit up the skies around the Parliamentary complex at Kotte, as the news broke that the motion had been passed, while the sound of crackers filled the air, a blatant sign of how politicised the process of removing the CJ had become.

During the two-day debate, the usual niceties accorded to the Judiciary by MPs were thrown to the wind, with none other than External Affairs Minister G.L. Peiris leading the onslaught against the Supreme Court. “The (Supreme Court) judgment is not worth the paper it’s written on,” he said, while Justice Minister Rauff Hakeem too differed with the position taken by the Supreme Court and the Court of Appeal on the matter, accusing, them of having “sounded the death knell of Parliamentary sovereignty”, and said the two judgments would “stand as judicial anomalies.” 

While Government members all stuck to the position that they had used the constitutionally enabled process to remove the CJ from office, what it lacked was good faith and transparency, while stubbornly and arrogantly using its power in Parliament to have its way. The PSC that looked into one charge against former CJ Neville Samarakoon in 1984, took six months to complete the process, but the Committee that probed 14 charges against the present CJ completed its work in less than a month, a record by any standards. In the indecent haste with which the Government acted to send the CJ home, some of the serious and legitimate charges against CJ Bandaranayake may never be subject to proper scrutiny.

While the Legislature and Judiciary locked themselves in a battle for supremacy in the past two and half months, the image of both institutions has been damaged, mainly due to the politicisation of the process, largely by the Government. The challenge for both these institutions is now to ensure that they work to restore public faith in them, and are not further eroded.

Meanwhile, President Mahinda Rajapaksa will not only have the distinction of appointing the first woman CJ of the country, but will soon also have the distinction of impeaching her from office.

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