= Unprecedented chaos and confusion continues with senior lawyers urging judges not to sit with any new CJ = US, Britain and Commonwealth Secretariat issue tough statements and Govt. faces grilling at UNHRC sessions = UPFA insiders say force may be used to prevent CJ from entering courts, but lawyers also planning counteraction By Our [...]


Govt. considers new CJ but Shirani won’t go


= Unprecedented chaos and confusion continues with senior lawyers urging judges not to sit with any new CJ
= US, Britain and Commonwealth Secretariat issue tough statements and Govt. faces grilling at UNHRC sessions
= UPFA insiders say force may be used to prevent CJ from entering courts, but lawyers also planning counteraction

By Our Political Editor

UPFA leaders were busy yesterday to ensconce a new Chief Justice, the country’s highest judicial office, on January 18 (Friday). On this day, he will be sworn in by President Mahinda Rajapaksa.  Other than that ceremony, it is likely to be sans official events and ceremonial fanfare that goes when a Chief Justice takes office in Hulftsdorp.

Last night, the government was looking at the possibility of appointing a serving Judge to succeed Shirani Bandaranayake as the Chief Justice. As revealed last week, C.R.de Silva, President’s Counsel, turned down an offer from his good friend President Mahinda Rajapaksa, not once but several times. Having just retired as Attorney General, de Silva was a possible contender for the post when Chief Justice Sarath Silva retired in 2009, but the President must be ruing the fact that he didn’t appoint him then, to fill the vacancy. 
Others who declined similar offers for this high office were Palitha Fernando, the current Attorney General and Justice Eva Wanasundera, a serving Judge of the Supreme Court. At least two other aspirants in the SC bench were not considered though one was, last week, a hot favourite.

For the Government, a replacement for Chief Justice Shirani Bandaranayake has become necessary after the impeachment resolution against her was passed in Parliament on Friday with more than a two thirds majority. 

One of those who abstained from voting was Senior Minister and Communist Party Leader D.E.W. Gunasekera. However, he will not face any disciplinary action in the light of “the contribution his party (the Communist Party) had made towards the UPFA,” a high ranking source said. Another Minister representing a partner in the UPFA, their leaders warned on Friday, faced expulsion from cabinet. This was after reports claimed he was voting against the resolution. In the face of this, an expulsion letter was also ready. However, he voted in favour. Voting for the resolution was 155 government MPs as against 49 from the opposition.

Economic Development Minister Basil Rajapaksa defended the Government’s action. He told the Sunday Times yesterday, “We have followed the normal procedure. The President is the appointing authority of a Chief Justice. However, he cannot remove an incumbent for misbehaviour or incapacity without a request from the legislature. Those are the checks and balances in the Constitution.” 

He said under the Soulbury Constitution as well as the Constitution of 1972, a Chief Justice could have been impeached without charges. However, the present Constitution required that charges be preferred. Instead of the required 75 MPs such charges were signed by 117. “We have passed the resolution with more than a two thirds majority,” he added. He said it was now up to President Rajapaksa to initiate action.

In the light of this, at least for the Government, the fact that the country will not be without a Chief Justice for three days, from January 15, has raised some issues. Though tomorrow is a public, bank and mercantile holiday on account of the Hindu harvest festival of Thai Pongal, Tuesday, Wednesday and Thursday are working days. In terms of existing law, no bench of the Supreme Court can sit without a Chief Justice holding office. This has given rise to a question in some quarters whether there would be an acting Chief Justice in the interim. However, such a move is being strongly discounted. That will mean there will be no sittings of the Supreme Court during the three-day period, at least as far as the Government is concerned. However, it is likely the Supreme Court will sit since in its view, the entire impeachment process is illegal and Chief Justice Bandaranayake still holds office. The question is whether Bandaranayake CJ will come on the bench herself. The impeachment of her is also incomplete until the President signs the warrant giving effect to the motion passed by Parliament.

President Rajapaksa was to sign a warrant yesterday declaring that Parliament has by majority vote decided to impeach Chief Justice Bandaranayake. This was after a Parliamentary Select Committee has found her guilty on three counts of “proven misbehaviour”. Thereafter, the Parliamentary Council, successor to the Constitutional Council after the passage of the 18th Amendment to the Constitution, will have to endorse the appointment of the new Chief Justice. The Council is chaired by Speaker Chamal Rajapaksa. Other members are Prime Minister D.M. Jayaratne, A.H.M. Azwer MP, Ranil Wickremesinghe as Leader of the Opposition and M.A. Sumanthiran MP, on behalf of the Tamil National Alliance (TNA). It is not immediately clear whether Wickremesinghe will take part since his party has chosen to boycott sessions of the Parliamentary Council since the 18th Amendment to the Constitution was passed.

Yet, the controversy over the office of the Chief Justice is far from over. Until Friday afternoon, emissaries, some high ranking and others from the legal profession, have been playing honest brokers. When efforts to reach an amicable understanding between the Government and Chief Justice Bandaranayake fell through, they traded allegations. 

One who negotiated on behalf of the Government said they conveyed that they would not be averse to dropping the impeachment if Ms. Bandaranayake resigned. He claimed that the Chief Justice had asked for three months’ time so she could retire. However, he said this was turned down at the highest levels of the Government. The reason given for the refusal sounded somewhat bizarre – that she (Chief Justice Bandaranayake) had in the interim planned to appear before the UN Human Rights Council and state her case. He alleged that NGO groups were making preparations for this and added that would be damaging to the country.

Sources close to Chief Justice Bandaranayake scoffed at the claims, but conceded that a dialogue did take place with different ‘intermediaries’. 

“In all the talks we were involved; we made it clear that the only pre-condition Chief Justice Bandaranayake wanted was that the Government should not proceed with the unfair and unjust impeachment process. Other than that, she was willing to either have her investigated properly or readily consider any other measures she should take,” the source said.

The source added that Chief Justice Bandaranaike had reminded her interlocutors of what she had told External Affairs Minister G.L. Peiris when she received her appointment. This was after Peiris had helped obtain it for her. She had said that though she would be entitled to serve as Chief Justice until 2023, she planned to retire in 2016. That was after completing five years in office. However, in the interim, attempts were being made to force her out on purported charges which she was not even allowed to counter by placing facts. Hence, she had wanted to prove her innocence first and expose the politically motivated move against her.

Therefore, Chief Justice Bandaranayake will not give up office, voluntarily. Though Mohan Peiris is to be named as the new Chief Justice, she has chosen to fight it out. On Friday night, she was defiant and was at her official government bungalow located along Bauddhaloka Mawatha and Wijerama Road, together with her husband Pradeepa and her son, Shaveen. A government parliamentarian from the Colombo District had helped his supporters hoist tents nearby where music blared. Some of those taking part were described as one-time depositors in the now bankrupt Ceylinco Group of Companies. Milk rice or Kiribath was cooked on the roadside for ‘celebrations’ after Parliament approved the impeachment resolution. Some used loud hailers to make speeches which were directed towards the Chief Justice’s official residence. Despite the raucous behaviour, it became clear that Bandaranayake was continuing to remain as Chief Justice, said a source close to her. According to the source, she would continue on the grounds that in terms of the Supreme Court determination, the Parliamentary Select Committee that probed her was unconstitutional.
Her decision to continue in office has received the backing of senior lawyers including several President’s Counsels. They urged her to heed the Supreme Court ruling and remain in office. On Friday, they sent out a signed appeal to judges of the Supreme Court. This is what it said:

Your Lordships and Your Ladyships of the Supreme Court,

“As Your Lordships and Ladyships are aware the Supreme Court has on the 1st of January 2013 exercised its Constitutional Jurisdiction and interpreted the Constitution holding that a Select Committee appointed under Standing Order 78A of the Parliament, does not have the power to arrive at a finding against a Judge of a Superior Court in terms of Article 107(3) of the Constitution.

“On the 3rd of January 2013 the Court of Appeal, exercising Writ jurisdiction under Article 140 of the Constitution, quashed the decision of the Parliamentary Select Committee finding the Chief Justice Dr. Shirani Bandaranayake guilty of three charges set out in the impeachment resolution submitted by 117 Members of Parliament.

“In view of the interpretation given by Your Lordships’ Court and the decision of the Court of Appeal, the attempt to remove the Chief Justice from office is without any legal basis and contrary to the Constitution and the law of the land.

“We understand that despite the aforesaid interpretation and the judgment of the Court of Appeal, nevertheless the Parliament of Sri Lanka is debating the resolution of impeachment and seeking to submit an address of Parliament to the President calling for the removal of the Chief Justice.

“We understand that there is a likelihood of such an address being followed by Her Ladyship the Chief Justice being illegally removed from office and being replaced with a new appointee, whose appointment is illegal and contrary to the Constitution of Sri Lanka and the very decisions of Your Lordships’ Court. Such a person would be a usurper in the Office of Chief Justice.

“As you are well aware you are obliged (as are we) to honour and follow the decisions of our courts whether we agree with it or not. Thus a disagreement in other quarters is irrelevant.

“In the aforesaid circumstances, at a time the Judiciary and the Bar of Sri Lanka are facing the gravest crisis in the history of its existence, we as members of the Bar feel it our bounden duty to call upon Your Lordships and Ladyships’ to act to protect the independence of the judiciary which is an intangible heritage of the people of this country. 

“Accordingly we the undersigned earnestly request that the Judges of the Supreme Court should refuse to recognise any person appointed to the office of Chief Justice and refuse to sit with a person appointed as the Chief Justice as such an appointment would be contrary to the Constitution which Your Lordships and Ladyships and we as members of the Bar have sworn to uphold.

“We may add that Your Ladyships and Lordships are obliged to follow the decisions of our Courts and that if Your Lordships or Ladyships refuse to abide by the rulings of the Supreme Court and the Court of Appeal you cannot expect any other person to follow the orders of any of our Courts.”

Among the signatories to the statement are S.L. Gunasekera, Shibly Aziz PC, Ikram Mohamed PC, Ananda de Z. Wijesekera PC, Geoffrey Alagaratnam PC, Uditha Egalhewa PC, M.L.M. Ameen PC, Romesh de Silva PC, Prasanna Jayawardena PC and Shammil J. Perera PC.

The Executive Committee of the Bar Association of Sri Lanka (BASL) on Friday night decided to endorse the appeal sent out by senior lawyers to Judges of the Supreme Court. The Exco appealed to them not to accept the appointment of a new Chief Justice nor sit with him or her on the bench. The Bar Council yesterday endorsed the Executive Committee’s decision. 

The Government is aware of plans by incumbent Chief Justice Bandaranayake to remain in office. At meetings at the highest level, several options were being considered. One was to ask her to quit her official residence or face eviction. The other was to prevent her from entering her office by introducing new security procedures. Lawyers and supporters of Chief Justice Bandaranayake, on the other hand, were also busy discussing counter measures. One of the main steps is to move court against the appointment of Mohan Peiris as Chief Justice on the grounds that the present incumbent was still in office. There is little doubt that the steps taken by both sides will lead to chaos and confusion, and a disruption in the administration of justice.

These new developments came after the Government, like a behemoth, bulldozed its way using its two thirds majority in Parliament, to pass the highly controversial impeachment resolution against Chief Justice, Dr. (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake. Ignored in the process was a determination of the Supreme Court declaring the exercise “illegal” and an order of the Court of Appeal annulling the validity of the PSC that probed the Chief Justice. Pleas by leaders of the Maha Sangha, other religious dignitaries, civil society organisations and foreign governments that encouraged democratic values were also ignored.

The first note of caution from outside Sri Lanka came from the United States on Friday night. Their Embassy in Colombo said in a statement: “The United States Embassy remains deeply concerned by the impeachment proceedings against Chief Justice Shirani Bandaranayake, which were conducted in defiance of a Supreme Court order. This impeachment calls into question issues about the separation of powers in Sri Lanka and the impact of its absence on democratic institutions. The Embassy is also concerned about accounts of violence during several of the protests. The Embassy calls on all sides to respect the right of peaceful protest, and calls on the government to ensure that non-violent protesters are protected. The United States, along with our partners in the international community, continues to urge the Government of Sri Lanka to uphold the rule of law and respect the principles of democratic governance.”

Later on Friday night, the British government also responded. Here is what its Foreign Office spokesperson said: “The British Government is deeply concerned by the impeachment proceedings against Sri Lanka’s Chief Justice Shirani Bandaranayake. We share the concerns already expressed by many people in Sri Lanka over both the process and related reports of the intimidation of members of the Sri Lankan Bar Association. The motion to impeach the Chief Justice runs contrary to the clear rulings of Sri Lanka’s highest courts and the proceedings appear to contravene basic principles of fairness, due process and respect for the independence of the judiciary and the Commonwealth Latimer House Principles. Together with our international partners, we call on the Sri Lankan Government to respect democratic principles and the right to peaceful protest and to ensure the continued safety of Chief Justice Shirani Bandaranayake.”
The US and British statements are significant in the light of the upcoming sessions of the United Nations Human Rights Council (UNHRC) in Geneva. Its 22nd sessions begin on February 22 and ends on March 22. Sri Lanka is on the agenda after the 19th sessions adopted a US backed three-point resolution. It called upon the government to (1) “implement the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission”, (2) requested “the government to present, as expeditiously as possible, a comprehensive action plan detailing the steps the government has taken and will take” to implement the LLRC recommendations, and (3) encouraged the “office of the United Nations High Commissioner for Human Rights and relevant special procedures mandate holders to provide and the Government of Sri Lanka to accept, advice and technical assistance” on implementing the two above mentioned steps. It requested a report from the Office of the High Commissioner to present a report on the provision of such assistance to the Human Rights Council at its twenty-second session.

Following suit with a statement was Kamalesh Sharma, the Commonwealth Secretary General. He has “urged the Sri Lankan Government to pause for further careful consideration following the passage by the country’s Parliament today of the impeachment motion against the Chief Justice of Sri Lanka.” 
He added: “The impeachment of a Chief Justice is a very serious matter. In this particular case, it has called into question aspects of the Constitution of Sri Lanka.

“The Commonwealth, collectively, is profoundly concerned about this situation. “I strongly urge that time be taken to reflect and consider fully the constitutional and other ramifications of the differing positions taken by the Judiciary and the Legislature before any decision is taken by the Executive on the impeachment of the Chief Justice.

“I have been in touch with the Sri Lankan Government at the highest levels to offer Commonwealth assistance to find a way forward. I recognise that this is a matter for Sri Lanka, but am also conscious of our shared Commonwealth values and principles, to which Sri Lanka and all member governments have subscribed,” the Secretary-General said.

In respect of the Commonwealth, diplomatic sources said, the Commonwealth Secretariat would initiate action based on principles agreed at the last CHOGM. This is on the basis of the report of the Commonwealth Ministerial Action Group titled on strengthening their own role. It was endorsed at the last Commonwealth Heads of Government Meeting (CHOGM) in Perth, Australia last year.

This followed two years of deliberations by CMAG, which was mandated in 2009 by Heads of Governments in Trinidad and Tobago. The core changes in CMAG’s mandate now accepted by Commonwealth leaders include using the following as among the types of situations that might be regarded as constituting a serious or persistent violation of Commonwealth values. Among them are: The unilateral abrogation of a democratic constitution or serious threats to constitutional rule, and the abrogation of the rule of law or undermining of the independence of the judiciary. 

The Sunday Times learns diplomatic initiatives already under way by some countries to widen the scope of the matters to be discussed when Sri Lanka is taken up for discussion at the UNHRC sessions beginning next month. Such initiatives are expected to heighten, particularly in Washington DC, soon after the inauguration of President Barrack Obama for a second term on January 21. They are to include the prevailing human rights situation, the breakdown in law and order, media freedom issues and the impeachment of the Chief Justice leading to a chaotic situation in relation to separation of powers. Backing the US in their initiatives are Britain and Canada among others.

In fact, much ahead of these issues receiving attention, the UN Human Rights High Commissioner Navanetham Pillay had written to External Affairs Minister G. L. Peiris drawing the Government’s attention to areas where it should receive UNHRC co-operation. An External Affairs Ministry source said Peiris responded to Pillay by inviting her to Sri Lanka but did not answer any of the issues. He had been of the view that such matters could have been discussed when Pillay arrived. However, she is now expected to report to the Council of a government failure to accept her offers or take initiatives towards implementing the resolution. Other issues including those related to law and order and the judiciary come in this backdrop. 

In the light of these developments, diplomatic sources in Colombo say, Pillay may report to UNHRC of what she calls the Sri Lanka Government’s failures. In such an event, another broader resolution which may incorporate stricter measures against Sri Lanka is not being ruled out. Such measures, one source said, could vary from an international investigation on Sri Lanka to the appointment of a Special Representative to advise UNHRC on what needs to be done. Another possibility is a call by the Council to work with the High Commissioner’s Office. This is in marked contrast to the March 2012 resolution which wanted the “office of the United Nations High Commissioner for Human Rights and relevant special procedures mandate holders to provide and the Government of Sri Lanka to accept advice and technical assistance.” Any such measures would mean that Sri Lanka will remain on the UNHRC agenda for years to come.
It was not only within Parliament that the Government’s steamroller majority was reflected.

Police officers on duty outside the Chief Justice’s official residence at Wijerama Mawatha. Pic Indika Handuwala

At Hulftsdorp, the citadel of the country’s judiciary, the ‘demonstrators’ who turned up on Thursday to protest against Chief Justice Bandaranayake outnumbered lawyers, their well-wishers and even supporters of political parties. Some of the ‘demonstrators’ were armed with clubs, and used them as flagpoles. “Again we are compelled to talk about goons with political blessings because we are fast becoming a failed state and the rule of law in our motherland is crumbling down,” complained Karu Jayasuriya, MP and one time deputy leader of the United National Party (UNP). He added: “The law of the jungle reigns supreme in place of law; power of the goons in place of discipline; injustice in place of justice; dictatorship in place of democracy, are being established”.

Similar scenes played out in Hulftsdorp and outside the Parliamentary complex on Friday, the day Parliament took the unprecedented vote. Crackers were lit and fireworks displays followed the adoption of the impeachment resolution. Even the United National Party (UNP), whose role in the impeachment issue was described as confused, blowing hot sometimes and cold at other times, reacted strongly.

Its communications manager Mangala Samaraweera, once Foreign Minister in the Rajapaksa cabinet, declared: “Up to yesterday (Friday) at least we kept up appearances of being at least a nominal democracy. But as of Friday night, the Rajapaksa Government sheds the façade and the country becomes a pariah of the international community.” He called what lawyers have dubbed ‘Black Friday’ – as Government members in the majority prepared to vote on the impeachment motion against the Chief Justice – “the darkest day in Sri Lanka’s recent history”. The Matara District UNP MP was speaking at a launch of its communication drive at the party’s trade union office, the Jathika Sevaka Sangamaya Headquarters on Friday. 

Ahead of the Parliament sessions, opposition members walked out of a party leaders’ meeting chaired by Speaker Chamal Rajapaksa on Monday morning. Representing the main opposition UNP were Lakshman Kiriella and Ravi Karunanayake whilst Suresh Premachandran represented the Tamil National Alliance (TNA) and Anura Kumara Dissanayake the Janatha Vimukthi Peramuna (JVP). Minister Wimal Weerawansa (National Freedom Front) said that Parliament should go ahead with the impeachment resolution against Chief Justice Bandaranayake. This is because the Government respects the Speaker’s ruling and not that of the Supreme Court. Minister Basil Rajapaksa (who represented the Sri Lanka Freedom Party) claimed that the recent Court of Appeal order was made up of 27 pages though only 20 pages have been released to the media. Nowhere has the Court of Appeal, Basil Rajapaksa argued, said that Parliament cannot proceed and called upon the opposition to point out if he was wrong. At this stage, representatives of the opposition parties, who had urged that Parliament should respect the order of the Supreme Court, and not go ahead with the debate, staged a walkout.

At noon on Tuesday, party leaders met again with Speaker Rajapaksa in the chair. It came at the request of opposition parties. TNA parliamentarian M.A. Sumanthiran quoted remarks made by Speaker Rajapaksa in October last year that the Supreme Court was the final authority on the interpretation of the Constitution. “You now say that the Parliament is supreme,” he said. The Speaker was to ask Sumanthiran to read his entire order if he wanted to understand what was said. Discussions continued and Nimal Siripala de Silva (Leader of the House) read out the final paragraph of the Court of Appeal order and argued that there was no bar for Parliament to continue proceedings. Minister Basil Rajapaksa was to add that it has to be remembered that neither the Speaker nor other members of the Parliamentary Select Committee, though noticed, made their appearance in court. He said if they did so, they would have been bound by the court ruling. He argued that Article 107 of the constitution allowed the use of provisions in the Standing Orders for the appointment of a Parliamentary Select Committee (PSC). 

Constitutional provisions relating to appointments and removal of judges of the Supreme Court and the Court of Appeal are set out in Article 107: Here are the relevant provisions:

107 (1) The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand.
(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……….

Speaker Rajapaksa said that the impeachment debate would begin later that day. Members of the opposition parties asked that their dissenting views, expressed at the meeting, be recorded in the minutes.

Proceedings of Parliament as well as other issues related to the impeachment resolution on Chief Justice Bandaranayake appear elsewhere in the Sunday Times.

As the two-day debate on the impeachment resolution came to an end on Friday evening, there was more embarrassment for the Government. This came when it was pointed out that the government side had failed to place before the House a formal address to the President, now that the “findings” by the Parliamentary Select Committee (PSC) had concluded, seeking the removal of Chief Justice. Raising the issue was UNP’s Lakshman Kiriella, who served in the PSC but walked out with other opposition members without signing the report. This was on the grounds that Chief Justice Bandaranayake was not given a just and fair chance.

Kiriella said that the Order Paper for Friday had simply listed the full text of the resolution. That resolution had first been printed in the Order Paper on November 6 last year. Since then, he said, a Parliamentary Select Committee (PSC) had sat and brought out a report that has been circulated to MPs. As is required, there was no text of a formal address to the President where the House urged that the Chief Justice be removed in the light of the “findings” of the PSC. Kiriella called this a “serious lapse.”

The UNP also took up the position that the PSC had found the Chief Justice guilty of three charges, not guilty of two charges and had not made an order on the balance nine (of the total 14) charges. The party said that that was also irregular and vitiated the mandate given by Parliament to the PSC. The UNP pointed out that what the motion before the House ought to have been was one which said, inter-alia, that “taking into consideration the need to complete the examination within a limited period of time, the Committee decided that the need to conduct an investigation into the remainder of the charges does not arise as the Select Committee of Parliament has decided that it is a futile effort in the circumstances to examine whether evidence is available to prove the guilt of a person who is already guilty of acts of misbehaviour contained in the first, fourth and fifth charges since they are of a very serious degree”. 
But the Government was not even prepared to consider this amendment to the motion before the House. A heated exchange followed as both government and opposition MPs expressed different views on the issue. It forced Speaker Rajapaksa to seek a brief adjournment of the House.

When sittings resumed, Speaker Rajapaksa declared that to him there appears to be an address to the House. Hence, he said, voting on the resolution could proceed. The Government was in no mood to abandon the debate. The rest is now history. The developments that would arise as a result of this, in the days ahead, would be history too.

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