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The Making and Unmaking of “Shape Niyaya” in the Impeachment of Chief Justice Issue

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By
Charitha Ratwatte

A newspaper quoted the President, speaking at a function of the Institute of Chartered Accountants of Sri Lanka, as follows: “I want to say something about today’s situation as well since it was mentioned earlier.

People may misunderstand, the Chairman of the National Savings Bank (Pradeep Kariyawasam, husband of the Chief Justice) was appointed by us. We appointed the Chief Justice. There were allegations against the Chairman (NSB) that they bought shares at a higher value. It was making headlines every day. I called P.B. Jayasundera (Treasury Secretary) and the relevant people. I told them we will get the money back and managed to shape the matter. That’s the way things are done for our people. So we managed to shape the matter.”

Strangely, things have now become dramatically and drastically ‘un-shaped’! Kariyawasam has been charged with causing loss to a State institution by the Commission for the Eradication of Bribery or Corruption. This is well within the role of a righteous State which is pursuing the norms of good governance and the Dasa Raja Dharma and is to be welcomed.

A process has also begun to impeach the Chief Justice. The latter process has become rather confused by allegations that the principles of natural justice have been grossly violated in the case of the Chief Justice and some constituent parties to the Government, even a former Prime Minister, advising caution and a rethink of the fundamental issues, advising that the Government takes a step back and reconsider the whole process.

These bodies may attract some attention from the powers that be, rather than the other civil society and international organisations and countries which have expressed negative opinions. These include the Maha Nayaka Theras and other religious leaders, the Bar Association of Sri Lanka, the organisation representing the country’s Judges, the Ceylon Chamber of Commerce, the Organisation of Professional Associations and many, many others. Further the confusion has been confounded by reports of a sort of plea bargain offered to the parties concerned by the powers that be!

‘Shape Niyaya’

It would be useful at this stage, to consider what exactly is meant by the word ‘shape’ in this context. The dictionary meaning is ‘to mould or make into a particular form; to give shape to, to figure; to devise; to assume a form or definite pattern, form figure, outline, pattern, mould, condition.’

This dictionary definition does not reflect adequately what was meant by saying that, in effect ‘things are shaped for our people’. There is a concept called ‘shape niyaya,’ which can accurately described as one known uniquely to the hybrid language that is described as ‘Singlish’ – a potent mixture of English, Sinhala and Tamil slang. One of the most popular Singlish slang is the word ‘Machang,’ now a name for a brand of liquor bars!

A ‘niyaya’ in Sinhala is a doctrine, policy or principle. ‘Shape Niyaya’ is a policy which involves taking the line of least resistance, and resolving a matter in dispute, without causing harm to any party involved in the transaction, though the law may be grossly violated, in the best interests of political expediency and survival, ignoring the prevailing lawful procedure or the best practice usually adopted in such a situation. In this case, the stated aim of ‘shaping’ the matters referred to, seem to have come unstuck, and a prosecution and an impeachment set in train.

The ‘Shape Niyaya’ is a violation of the concept of equality before the law, which is one of the Fundamental Rights protected under our Constitution.

Former Chief Justice S. Sharvananda, in his masterly Commentary on Fundamental Rights in Sri Lanka says: “Equality before the law, including equal protection by the law, means the right to equal treatment of persons in similar circumstances, both in the privileges conferred and in the liabilities imposed by the law. There should be no discrimination between one person and another if as regards the subject matter of legislation or state action, their position is the same. Equal protection guarantees protection from both legislative and executive tyranny by way of discrimination. This guarantee of equality is directed against arbitrary discrimination. It aims at equal treatment of equals and the right to equal treatment in equal circumstances. The law forbids discrimination between persons who are substantially in similar circumstances or conditions.”

In the case we are considering a person who is accused of causing loss to the State must be prosecuted under the law, similar to all others who have similarly accused; there can be no question of ‘shaping’ anything and not prosecuting. Or even the Attorney General, later after a prosecution has been filed, entering a ‘Nolle Prosequi’ and saying that he does not intend to proceed with the prosecution on some frivolous grounds. Of course if there are serious grounds for not proceeding, it is different, but this must be established to the satisfaction of the Court.

In the same way, where a Chief Justice is accused of behaving in a manner which will justify impeachment and removal from office, things cannot be ‘shaped,’ lawful steps to impeach must be taken.
This has been attempted twice before in this country. The first time, the procedure dragged on until the Judge reached the age of retirement. In the second the Judge was saved by Parliament being prorogued. This third attempt has been prejudiced by allegations of fundamental violations of due process and boorish and un-parliamentary behaviour. So the proclaimed ‘shaping’ process described so eloquently to the Chartered Accountants – “the way things are done for our people” – has been sunk, with all hands on deck!

But there are suggestions that, a sort of lawful ‘shaping’ be done by proroguing Parliament and putting a stop to the presently-flawed process. There is a precedent for this. But the bottom line is that notwithstanding the proclamation of ‘shaping,’ the equal treatment required by the law of persons in similar circumstances has been adhered to, in the two situations, so far. There is also the news of some sort of plea bargaining going on.

Curse of our populist democracy

This concept of ‘shaping’ things for our people is the curse of our populist democracy. A multi party political system has resulted, in the political party, which rules, having to satisfy, people who supported them to get into power. This has resulted in some horrendously square pegs being appointed to round holes, solely on the merit of their political affiliation and not on any ability or suitability for the job.
The worthy who is the subject of the first part of the attempted ‘shaping’ referred to here was earlier running a State-owned insurance company, before being appointed as the non-executive chairman of the State savings bank, of which the Government guarantees the depositors’ money.

These are areas of specialised knowledge and expertise. The responsibility is onerous, so much so that the law requires that the financial regulator has to sign off – less said of that the better! A cavalier attitude, of ‘shaping’ – “that’s the way we do things for our people” – has resulted in ‘our people’ appointed to various posts running riot with public assets.

The reports of the Public Accounts Committee (PAC) and the Committee on Public Enterprises (COPE) of Parliament are full of the various misdemeanours of these political appointees. Even now, when these Committees of Parliament are chaired by ‘our people,’ not Opposition Members of Parliament, as was the custom.

Time was when the full time professional executives of public institutions used to act as a limitation on attempted abuses by political appointees. But of late standards in the public service have dropped so low, that even this constraint sometimes does not apply. This is reflected, in the fact that in the NSB case, only the former ‘our person’ who was non-executive chairman is charged in the Magistrate’s Court, and not any of the executives of the NSB, who would have necessarily have to sign off on a transaction of that magnitude, the authority, approval and certification required by due process being complied with in any transaction.

The undeniable implication is that the politically-appointed non-executive chairman ‘our person’ ran the State financial savings institution, handling depositors’ money, as his personal pocket borough. As the saying goes in Singlish, “My car, my petrol!” The fact that at least one of the sellers in the impugned transaction is also supposed to be an ‘our person’ adds fuel to the fire!

Throughout the recent history of our land, if there was a State institution – financial, service, manufacturing, utility supplier, regulatory, sports controlling body or whatever – in which the PAC or COPE reports misdemeanours, you can be sure that it has been headed by one ‘our people,’ sans experience, sans suitability, sans qualification, sans knowledge, sans brains, sans ability, sans honesty, and secure in the knowledge that he is ‘our man,’ has impunity, and will be protected, whatever mischief he gets into, whatever the taxpayer’s losses.

It seems that the equation collapses only when the protection quid pro quo is taken away, and ‘our man’s’ spouse is holding an office using which vengeance can be visited on those who call the political shots!

If there is one lesson to be drawn from this whole sorry episode, it is that we cannot, in the interest of good governance, continue to allow this sad and sorry situation to continue. It has to be noted that there are institutional checks and balances in place, which plainly are not working.

There is a Parliamentary Committee on appointments to high offices, which meets and interviews nominees proposed by the government for high posts, such as secretaries to ministries, ambassadors and heads of statutory agencies. But rarely is it reported that this committee has found that any nominee is not suitable.

An unverified anecdote from another scenario is useful to shed some light how useless such committees can be. It is said that there was a nomination made for an ambassador’s post, which the opposition members of the committee clearly expressed their reservations and indicated that they would question the nominee at the committee hearing on some serious allegations against him, on some of his acts while he held a public office from which he had retired prematurely.

The committee met a week before the sitting for which the nominee who the opposition representatives intended to challenge, to consider another nominee – say Mr. A. Let’s call the nominee who was to be challenged by the opposition as Mr. B. As Mr. A, a retired senior public servant, was not a controversial case, the opposition members of the committee did not attend the sitting at which Mr. A’s nomination was taken up. The government members of the committee, seeing an opportunity, after dealing with Mr. A’s case very expeditiously, telephoned Mr. B., summoned him to the committee meeting, and approved his nomination, taking advantage of the absence of the opposition members. This was done notwithstanding the fact that Mr. B’s nomination was not even on the agenda for that meeting of the committee!

When the committee met the following week, and the opposition members asked why Mr. B was not present, they were told that Mr. B had been approved last week, in their absence! This is the kind of puerile behaviour it is rumoured that people indulge in! With such a model, how can one stop unqualified, even criminal ‘our people’ being appointed to high posts?! Mr. B, it is said, duly took up his diplomatic post and later settled down in the country he was posted to as a migrant.

Remedying the situation
One way of remedying this situation would be to give the Committee which vets nominees for high posts some meaningful power and autonomy. There should be an independent secretariat to support the committee. The chair should be from the ‘real’ opposition.

Presently a paper notice is placed giving the names of the nominees, the posts and stating that the nomination will be considered on a given date, the public is invited to present their view on the nominees. This process can be strengthened. Officers from the Police Department, the Attorney General’s Department, the Auditor General’s Department, and the Commission for the Eradication of Bribery and Corruption should be attached to the committee’s secretariat so that complaints made by the public or concerns of Members of Parliament on the suitability of the nominee can be inquired into.

The sittings of the committee should be held in public. The model should be the committees of the American House of Representatives and the Senate which examines the suitability of nominees of the president for high posts. The sittings are televised. Some potential nominees withdraw themselves from possible nomination, where it is made clear by Congressman or Senators and that they would oppose their nomination.

This happened recently when the US Ambassador to the UN, Susan Rice, withdrew herself from possible nomination to succeed Hilary Clinton as Secretary of State, due to Congressmen and Senators making it clear that they had reservations on her behavior on the handling of the terrorist attack on the US Consulate at Benghazi Libya, where a serving US Ambassador was killed. This shows the transparency of the system. You simply don’t smuggle a nominee past the committee on a day when the opposition members are not present! It is the only way to ensure that the taxpaying voters are served by good women and men in public office.

Another possible safeguard may be to have a credentials committee of three senior public officers, say – the Secretary Finance, the Secretary to the President and the Secretary to the Prime Minister – who could forward to the Parliamentary Committee on Appointments to High Office a personal report on the suitability of the candidate, to give an alternative opinion to what the Secretariat to the Parliamentary Committee provides.

If, for example, to take an extreme hypothetical case, far from reality, if the prime minister of the day is able to convince the three senior public officers that his future fundamental human and matrimonial rights will be jeopardised if the spouse’s sister/brother is not appointed to some high post, the three officers, in their infinite wisdom, if they agree, may even on sympathetic grounds, report this to the Parliamentary Committee, who I hasten to add, will not be bound to go along with this recipe for marital bliss at the highest level, whatever the consequences to the national wellbeing!

Recipe for disaster

Absurd examples help to bring out the absolute absurdity. The present system we have in Sri Lanka, where public office is a reward for political loyalty, whatever the competence, stinks, and has been proved to be a recipe for disaster. On top of this, when the misdeeds of miscreants are ‘shaped up’ because the crook and others to the transaction are ‘our people,’ the nation is in real trouble, as we are in at present.
Watching a nominee of the President of the United States of America, literally ‘getting the works’ (Singlish again) from the Senate Judiciary Committee, is a treat for anyone who prays for a robust, transparent democratic system of governance.

The nominees, earlier opinions, views expressed in articles and speeches, the fact that an immigrant maid working for the nominee was an illegal immigrant, who did not have a social security benefits, are all ‘grist for the mill’! One can appreciate the yearning of those misgoverned by so called dynasties, for this type of democratic, transparent good governance, with adherence to the Dasa Raja Dharma.
Until that day dawns, we are condemned to suffer the ‘shape niyaya’ culture and having to tolerate the ‘shaping up’ of the misdemeanours of ‘our people’ who, as the rather crude but erudite and pithy, Singlish saying goes:, “do not have a qualification to even scratch their collective backsides with,” misbehaving in high posts in Government and getting away with the equivalent of criminal blue murder, in broad daylight! What a tragedy!

Readers would have read about the horrific gang rape and murder of a 23-year-old girl in a moving bus in Delhi. Politicians across the spectrum in India have condemned the incident and promised quick justice. Public outrage has spurred a tsunami of demonstrations. Imagine what the reaction would be if Sonia Gandhi now declares that the murder and rape gang leader Ram Singh, is “‘our man,’ so I am going to ‘shape it up’”. Can you even imagine such a thing happening? Can you imagine the consequences?
Would it be similar to the murder of British National Khuram Sheikh and assault of his fiancé Russian National Viktoria Aleksondrova, on Christmas Eve 2011 at a tourist hotel in Tangalle? Will Ram Singh be also out on bail presiding over a local government authority in one year’s time? That would be a horrendous shame on India.COURTESY:FINANCIAL TIMES

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