By a “Ceylon Today”staff reporter

In a history-making moment, the Parliamentary Select Committee (PSC), which probed 14 counts contained in an impeachment motion moved against Chief Justice, Dr. Shirani Bandaranayake, by the ruling coalition, has recommended her removal from office by holding her guilty of three out of five counts.

In recommending her removal, the PSC in an ex parte decision yesterday (four Opposition parliamentarians withdrew from the PSC on Friday recording their protest), declared that she should be removed upon the PSC concluding her guilty of three specific charges; namely, alleged irregular conduct not befitting a Chief Justice with regard to her role in a property acquisition from Trillium Residencies, withholding of and the false declaration of information with regard to her personal bank accounts through wrongful information being submitted through her various assets and liabilities declarations and the possibility of the prevention of due administration of justice and/or causing a miscarriage of justice by continuing to hold the office of Chief Justice at a time when bribery and corruption charges have been framed against her spouse, Pradeep Gamini Suraj Kariyawasam.

Accordingly, the PSC yesterday concluded that the Chief Justice had through irregular conduct acquired on behalf of her sister and brother-in-law through a special power- of- attorney, the condominium property bearing No: 2C/F2/P4 located at the Sunset Wing of Trillium Residencies. The PSC deliberated upon her conduct in the process of acquisition and concluded it to be irregular.

Trillium Residencies

The PSC has further concluded that the property acquisition had taken place in violation of a Supreme Court directive that (due to the loss caused to investors due to the collapse of the Golden Key Group of Companies), specified properties should not be alienated without the express permission of the Court. The said properties were Pioneer Tower (Head Office Building), Trillium Residencies (Sales and housing units) and Celestial Residences.

The PSC has also concurred that the said Supreme Court order dated 06.05.2010 had been violated by the Chief Justice and the decision to adjudicate upon disputes connected to the Golden Key Group of Companies before a three-member Bench, which included herself was improper and a violation of propriety. Further, the involvement in securing ownership of a property (for her sibling through direct intervention) that formed the subject matter of a legal dispute was also considered a violation of the law and legal ethics.

Accordingly, at least two government representatives, Ministers Nimal Siripala de Silva and Wimal Weerawansa, of the PSC have raised questions about the ethical aspect of her involvement.

In supporting the same, the PSC made reference to Dimes v. Proprietors of Grand Junction Canal(1852) in which it was reportedly concluded by the House of Lords that the principle of conflict of interest applied not only to a matter in which a judge was party but also in which one had some interest.

Reference was also made to Lacabail Ltd v. Bayfield Properties Ltd and Four Other Matters (2000), in which it had been reportedly concluded that if a judge had personal interest in the outcome of an issue which he is to resolve, he is improperly acting as a judge in his own cause and such a proceeding would, without more, undermined public confidence in the integrity of the administration of justice. A third matter was also referred to by the PSC, R. V. Rand (1866) in which Balnburn J had stated: “There is no doubt that any direct pecuniary interest, however small in the subject of inquiry does disqualify a person from acting as a judge in the matter”. In this light, the PSC concluded that “the pecuniary interest involved in the trillium transaction can by no means be regarded small”.

Under count 4 of the impeachment motion, the PSC has taken into consideration, details of 20 bank accounts including nine accounts maintained with the National Development Bank (NDB). As per Clause No 3(3) of the Assets and Liabilities Law No 1 of 1975 (as amended), the accounts have been zeroed at a specific period of time by the Chief Justice and details of those accounts have not been included in her assets and liabilities declarations for a number of years.

Assets and liabilities law

The PSC has concluded that the Chief Justice has therefore committed an offence under the country’s Assets and Liabilities Law by either through the declaration of false information or the withholding of material information with regard to her assets.

In addition, the PSC has made reference to the fact that the Chief Justice had used her official designation in her personal bank accounts, which amounted improper use of her position as Chief Justice and therefore amounted to irregular conduct.

The PSC also made reference to a matter before the Colombo Magistrate Court against the alleged commission of bribery and corruption by Pradeep Gamini Suraj Kariyawasam, the Chief Justice’s husband.

The PSC concluded that as the Chief Judicial Officer under whose authority all courts and the Judicial Service Commission (JSC) functioned, there was the possibility of interference in the administration of justice by her and therefore, her continuation as Chief Justice was out of order and an ethical breach. It was averred that the courts that function under her purview may not be in a position to adjudicate upon the matter independently which could cause an erosion of public faith in the process of administering justice.

The PSC also concluded that a Chief Justice’s husband being charged with bribery and corruption alone could prove damaging to the very institution that administers justice headed by her at present, and in the above content, held there was enough evidence to conclude there had been irregular conduct on the part of the Chief Justice and to recommend her removal from the post.

Role of Select Committees of Parliament

The Select Committees of Parliament are ad-hoc Committees, which are appointed by the Speaker to inquire into and report to the House on a particular matter referred to these Committees. The scope of an inquiry by these Committees is defined by the Terms of Reference under which they are appointed, but it may be enlarged or restricted by the instruction of the Parliament. The Chairman and members are appointed by the Speaker. It may include a maximum of 12 members, according to the Standing Orders of Parliament but the composition may be increased with the leave of Parliament. Parliament empowers these Committees to send for persons, papers and records.

Impeachment ignores international standards

The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the International Commission of Jurists (ICJ).

The ICJ urges the Government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.

On Thursday, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing. Protests supporting and opposing the impeachment process erupted on Tuesday 4 December 2012, as the Chief Justice appeared before the Parliamentary Select Committee for the second time.

Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.

Opposition members of Parliament publicly called on the government to adhere to principles of fair trial and due process in the impeachment process.

Reportedly, the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.

The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.

“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”

As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed only in exceptional circumstances involving incapacity or gross misconduct.

A cornerstone of judicial independence is that tenure of judges be secure.

“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.

The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights.

The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of Parliament, the majority of which are drawn from the government coalition. No members of the judiciary are permitted to sit on the Select Committee.

Comparatively in India, an impeachment hearing is presided over by a three-member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.

In South Africa, a judge may only be removed after a hearing by the Judicial Service Commission, a body composed of members of the judiciary.

In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.

The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.

The timing of the impeachment motion raises questions. The impeachment motion was initiated just days after the Chief Justice ruled against the government on a controversial Bill – the Divi Neguma Bill – before Parliament.

If the Bill is passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapaksa) would have had control over a fund of 80 billion Sri Lankan rupees (611 million US$).

Attacks on the judiciary have been escalating in recent months. In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse.

In early October, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.

In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of State accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.

The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.COURTESY:CEYLON TODAY