{"id":12277,"date":"2012-11-10T18:56:16","date_gmt":"2012-11-10T22:56:16","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=12277"},"modified":"2012-11-10T18:56:16","modified_gmt":"2012-11-10T22:56:16","slug":"chief-justice-should-have-resigned-when-serious-charges-were-levelled-against-her-husband","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=12277","title":{"rendered":"Chief Justice Should Have Resigned When Serious Charges Were Levelled Against Her Husband."},"content":{"rendered":"

By Dr. Tharindra Ranasinghe<\/strong><\/p>\n

The impeachment of the Chief Justice, Dr. Shirani Bandaranayake is the hottest political topic in Sri Lanka at present. As usual, many observers and critics have already taken sides based on their preconceived political views. <\/p>\n

Many critics of the Government are quick to castigate the Rajapaksa regime for its apparently gross interference to the judicial independence of Sri Lanka. For them, the Chief Justice has suddenly become a heroine \u2013 a woman of unbound courage and personal conviction who fearlessly stood up against the tyranny of the Rajapaksa regime and being hounded by the regime for that same reason. The irony is that, not too long ago, it is this same crowd that demanded the resignation of the Chief Justice following the serious allegations of corruption that were levelled against her husband. It is this same crowd who insinuated that the Supreme Court decision on the constitutionality of \u201cThe Underperforming and Underutilized Assets Act\u201d \u2013 which went in favour of the Government \u2014 was politically biased. <\/p>\n

<\/p>\n

The position of the many commentators who support the Government is equally pathetic. Gone are the days that the chief justice was hailed as the first woman leader of the Sri Lankan judiciary and a lady beyond reproach. Now, they point to the seriousness of allegations levelled against her and remind us that impeachment is the only constitutionally available option to remove a Supreme Court judge who has exhibited such gross misbehaviour. However, these commentators maintained a deafening silence with respect to the glaring conflict of interests that arose through the political appointments of her husband to various government institutions. They also ignore the broader context with respect to the timing of the impeachment \u2013 the chances are that we would not see this impeachment if the government had been confident that the chief justice would go along with it on the legality of the Divineguma Bill.<\/p>\n

It is unfortunate that many in Sri Lanka fail to see any issue beyond their preconceived political convictions and prejudices. As a result, they not only fail to become a part of the solution to major institutional difficulties faced by the Sri Lankan state, but also invariably become a part of the problem. <\/p>\n

An unbalanced view on the issue can only be formed if one is to analyze the issue in a holistic manner, taking the circumstances under which the chief justice was nominated to the Supreme Court and her subsequent accession to the leadership position of the same into account. Moreover, this needs to be evaluated in the broader context of the institutional characteristics of the Sri Lankan state and how they are designed and manipulated to protect the powerful, and diminish the supremacy of the people. Then only one can at least have the hope of employing the current conflict between the Executive and the Judiciary to generate an informed debate and expose the inherently corrupt nature of our political and judicial systems. Such a debate is essential if we are to have some chance of cleansing these institutions and restore some level of public confidence in them. <\/p>\n

Shirani Bandaranayake\u2019s entry into the Supreme Court was nothing but controversial. At the time of her appointment to the highest court of the country in 1996, by the then President Chandrika Kumaratunga, she did not have experience whatsoever in the court system of Sri Lanka, either as a judge or a lawyer. It was widely believed that President Kumaratunga appointed Dr. Bandaranayake mainly because of the latter\u2019s pro-devolution political views. Apparently, the president believed it will be useful to have such judges at the Supreme Court in the event of her intended power sharing package facing legal challenges. <\/p>\n

Surely, President Kumaratunga acted within her power to appoint Supreme Court Judges, but the notion that the appointment was somehow improper (though legal) remains. This directs to the inherent dictatorial nature of the 1977 Constitution, where, even though there is a namesake balance of power between the Executive, the Legislature, and the Judiciary, the effective balance is very much tilted in favour of the Executive. The Legislature has no say in the process of appointing Supreme Court Judges and there is no transparent mechanism for the people to assess the suitability of the appointment. At times, these appointments have been challenged in courts (including the appointment of Shirani Badaranayake), but no such challenge has been successful so far.<\/p>\n

For a comparison, in the USA, the president appoints the Supreme Court justices, but the appointment must be confirmed by the Senate. Before such confirmation, the Senate Judiciary Committee conducts hearings, intensely questioning the nominee to determine his\/her suitability. For example, Justice John Roberts was questioned for not less than 20 hours. These hearings are given wide publicity and telecast live on TV so that interested citizens can watch. Once the Judiciary Committee is satisfied with the nominee, then the nomination will be referred to the full Senate for a vote. <\/p>\n

One of the darkest episodes of the chief justice\u2019s career in the Supreme Court was the appointment of her husband, Pradeep Kariyawasam as the chairman of the Sri Lanka Insurance Corporation (SLIC) back in 2009 when Dr. Bandaranayake was a judge at the Supreme Court. In any event, appointing the spouse of a Supreme Court judge into a high position of a state institution would be regarded as a blatant violation of ethics as it undermines the independence of the Judiciary. In such a situation, the acceptable position would be for either one party (spouse) to reject the government\u2019s offer or the other party (the judge) to step down. This was not to be the case in the above event, despite the circumstances that culminated in Mr. Kariyawasam\u2019s appointment being even more sinister than a mere political appointment.<\/p>\n

It was the very Supreme Court of which the current chief justice was a member that ordered the Treasury Secretary to appoint directors to SLIC which was taken over by the Government. The Court demanded that the names of persons nominated be submitted to its approval. Among other things, it also stipulated that the nominees should possess more than 10 years of relevant experience in the fields of business management, accountancy, law, commerce, economics and insurance. <\/p>\n

Among the names submitted by the Treasury Secretary for the Court\u2019s approval was that of Pradeep Kariyawasam \u2013 the husband of the current chief justice. This was despite the fact that Mr. Kariyawasam did not possess any qualifications, experience, or expertise to command such a high profile position. It appears that the conditions stipulated by the Court order did not apply as long as the appointee is the spouse of the member of that very same Court! <\/p>\n

The Court did not object to the appointment of Mr. Kariyawasam either on ethical grounds or on the grounds he was not sufficiently qualified for the post. Ultimately, Mr. Kariyawasam became not just a director, but the chairman of SLIC! Had the chief justice possessed any sort of decency and thought that it was her duty to ensure not only that the Court system is relatively free of conflict of interests, but it also appear as such, she should have resigned at that very moment. But it wasn\u2019t to be. And the saga does not end there.<\/p>\n

Mr. Kariyawasam\u2019s tenure at SLIC was not a rosy one by any means. He ran into disputes with the board of directors who alleged that he violated procedures. Finally, the Treasury stepped in and Mr. Kariyawasam was removed from SLIC. But his good fortunes did not end there. Soon afterwards, he was appointed at the chairman of the National Savings Bank (NSB), one of the most trusted government institutes in the country. By the time Dr. Bandaranayake took oath as the chief justice, her husband was the politically appointed chairman of NSB and apparently the newly sworn in chief justice did not see any problem with that!<\/p>\n

It was during his tenure as the chairman of NSB, and while his wife was the chief justice, that Mr. Kariyawasam was accused of orchestrating one of the most openly corrupt deals of recent times. In a deal worth over Rs390 million, Mr. Kariyawasam was accused of circumventing board procedures in making NSB purchase a 13% stake of The Finance Company at an inflated price of close to Rs50 per share when the open market share price was hovering around Rs30. In doing so, Mr. Kariyawasam allegedly enabled a handful of his trusted friends to enrich themselves to the tune of over Rs150 million at the expense of the Sri Lankan public who are the ultimate owners of NSB. The main Opposition UNP and especially the lawmaker, Dr. Harsha de Silva, did a commendable job of exposing this blatantly corrupt deal. Dr. de Silva called it a \u201csophisticated bank robbery\u201d and questioned whether the government inaction was due to Mr. Kariyawasam being the husband of the chief justice.<\/p>\n

Ultimately, public pressure compelled the Government to annul the deal and Mr. Kariyawasam was forced to resign. As the relationship between the Government and the chief Jjstice continued to strain, we also learned through the media that the Bribery Commission has initiated an investigation against Mr. Kariyawasam. <\/p>\n

If the chief justice had any graciousness left in her, she should have resigned when these serious allegations were levelled against her husband. As the leader of the judicial system, surely there would be conflict of interests if and when Mr. Kariyawasam is brought against the law. When Mr. Kariyawasam was first appointed to a high profile government job under controversial circumstances, Dr. Bandaranayake was a member of the Supreme Court. But by the time most serious allegations of corruption were levelled against her husband, she was its leader. <\/p>\n

It is indeed sad that the parties who attempt to portray the chief justice as a symbol of judicial independence want us to forget her checkered past. But we should not forget.<\/p>\n

As must be clear by now, while the current chief justice is hardly a symbol of a well-functioning and independent judiciary, it needs to be noted that all the (above) mentioned took place with either the explicit or the implicit blessing of the Executive. It was the former president who ignored the normal procedure and inducted her to the Supreme Court. It was President Rajapaksa, as the Minister of Finance who appointed her husband Mr. Kariyawasam, to the chairmanship of SLIC. And it was the president who had faith in him to later appoint him as the chairman of NSB despite serious questions about his conduct at SLIC. This is how the system works in this country. As long as you toe the line of the executive you will be showered with perks and privileges. The rules, procedures and ethics that are applicable to the common people will not apply to you. <\/p>\n

It was very clear that President Rajapaksa was showering the chief justice\u2019s husband with high level political appointments just to ensure that his wife at the helm of the Supreme Court will \u201cnot make things difficult\u201d for him. Given her ideology on power devolution, it is natural to believe that President Rajapaksa was not too comfortable having Dr. Bandaranayake as the chief justice. While she was the most senior member of the Supreme Court (in terms of the time served in the Court), President Rajapaksa would have been acutely aware of the fact that Dr. Bandaranayake has about 12 years to serve before she retires \u2013 quite a long time indeed. While the president had the legal authority to appoint someone else as the chief justice, he followed the protocol of appointing the most senior member, probably with the hope that taking care of the chief justice\u2019s \u201cfamily interests\u201d would ensure that the chief justice takes care of the president\u2019s interests as well. (This is the general approach taken by the president in dealing with his potential adversaries.) Besides, Dr. Bandaranayake\u2019s past behaviour did not indicate any sign of things turning out otherwise. <\/p>\n

For whatever reason, the implicit arrangement between the executive and the chief justice fell through with the Supreme Court ruling on the Divineguma Bill. While the exact reason for this is unclear and might never be known, it is possible that the Supreme Court decision on the case was based solely on its merits. But having observed the Supreme Court behaviour from the time when Sarath N. Silva was the chief justice, I am reluctant to believe that the Supreme Court makes any decision involving the executive based purely on its merit and constitutionality.<\/p>\n

Now that the relationship has fallen apart, all bets are off. Legal action is being sought over the misconduct of the chief justice\u2019s husband. The chief justice is being impeached. The behaviour of the executive under the 1977 Constitution is very clear. As long as the other branches of power are in line with the executive, the executive will not only turn a blind eye towards corruption and abuses of them, but will also actively encourage them. The moment the other branches attempt to deviate and assert themselves, all the hidden files with their corruption and malpractices will be opened and the \u201claw will be enforced.\u201d The vast majority of the Government\u2019s actions and inactions with respect to allegations of corruption by the members of the Legislature and the Judiciary can be explained in this context.<\/p>\n

The relationship between the executive and the chief justice appears severely strained at the moment and the first indications are that Dr. Bandaranayake is resolved to \u201cfight it out.\u201d However, having observed the behaviour of Sri Lankan polity over the years, I still believe there could be some settlement between the two. The simple reason is that regardless of who emerges victorious at the impeachment process (given the power structure, the odds are in favour of the executive), the battle will severely wound both parties. Hence it is in the best interest of both parties to come to a mutual settlement. <\/p>\n

As a concerned citizen, my only hope is that there will be no intermediate settlement. While such settlements will save the face of both the Government and the Judiciary, it will also ensure that the status-quo, which is rotten to its core, will continue. On the other hand, a long drawn out battle between the two parties has the potential to enlighten the public on the inherently corrupt nature of the current political system, which is a direct product of the 1977 Constitution. In other words, to the extent the impeachment battle can damage the Executive and the Judiciary, it can eventually end up benefitting the country.<\/p>\n

This will only be possible, however, if the concerned parties \u2013 the Opposition in particular \u2013 are strategic enough not use the current conflict to advance short term political agendas but to push through structural reforms that would restore some sort of credibility to the Sri Lankan state in terms of good governance. While the Government possesses a super majority in Parliament, given the highly sensitive nature of the issue, it will find some sort of support from the Opposition to be truly invaluable.<\/p>\n

The question is whether the Opposition will be able to leverage this position of strength to the betterment of the country. While it is too early come to conclusions, early indications are that at least the main Opposition UNP is taking a carefully measured approach to the situation. Unfortunately, the same cannot be said about the JVP.<\/p>\n

Tweet<\/a><\/div>","protected":false},"excerpt":{"rendered":"

By Dr. Tharindra Ranasinghe The impeachment of the Chief Justice, Dr. Shirani Bandaranayake is the hottest political topic in Sri Lanka at present. As usual, many observers and critics have already taken sides based on their preconceived political views. Many critics of the Government are quick to castigate the Rajapaksa regime for its apparently gross …<\/p>\n

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