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Friday, 6 February 2015 00:00 - - {{hitsCtrl.values.hits}}
This is the cornerstone of judicial responsibility and integrity. In order to exercise this sacrosanct principle, judges must demonstrate erudition hence a person who is properly trained and learned in law must occupy the position. One’s learning also not sufficient but conduct too adds to the equation.
Genesis of the crisis
During the Rajapaksa Administration the Judiciary was functioning smoothly, but all of a sudden, the judicial bias on the part of former CJ Dr. Shirani Bandaranayake hit rock bottom when people came to know that her husband had been appointed Chairman of the National Savings Bank. This was a political appointment made by then President Mahinda Rajapaksa knowing full well that this appointment would interfere with the proper exercise of duties by the former Chief Justice Dr. Shirani B.
The judicial bias is a serious threat to the scales of justice. One question that struck the private and official bar was whether appointment of CJ’s husband would likely to influence the conduct of the CJ. The press reports do not clearly indicate that CJ had requested that her husband be appointed as Chairman of a State institution or whether then President had done it voluntarily. Nevertheless, this was a situation the husband of CJ Dr. Shirani B should have avoided at all cost.
If a judge is biased, a litigant cannot expect fairness and equity because the judicial reasoning would blunt the application of fairness, equity and logic. There would be convoluted arguments from the Bench. In other countries judicial bias is considered a serious erosion of the confidence reposed in the Judiciary by the people especially litigants and the ‘would be’ litigants.
In the case In Re Pinochet, the case had to be re-heard because it was later found that one of the judges, that is Lord Hoffman, had been found to have had close links with Amnesty International. Lady Hoffman had been a Director of Amnesty International (AI). AI is an organisation whose objectives are to promote human rights across the world.
The case against Pinochet, the former President of Chile, was that he had been involved in violating human rights and conventions on crimes against humanity especially during his authoritarian rule in Chile. The Lord Hoffman, without disclosing his wife’s involvement with AI, hearing this case is clearly a case in point where judicial bias might have had some impact. The reason being that Lord Hoffman’s wife was a human rights activist. The former CJ’s husband too got embroiled in a conflict over the share transfer of The Finance Ltd. and the Government was pursuing a case against him.
Controversy surrounding Divi Neguma Bill
When Divi Neguma bill was placed before the parliament, it was discovered that the bill had certain provisions that encompass the devolved functions and duties of provincial administration which are demarcated in the 13th Amendment to the Constitution.
The Constitution is clear as to the procedure dealing with provincial powers. The civic minded citizens had the guts to challenge the Bill on the grounds that the bill was inconsistent with Article, 154 G(3) of the Constitution which provides that “no Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its’ views thereon, within such period as may be specified in the reference”.
The former CJ Dr. Shirani B pointed out this matter in her determination, whereupon the Government withdrew the Bill from the Order Paper and set about getting the PCs to agree to the passing of this Bill.
This judgment really infuriated the Rajapaksa Administration and put a damper on Minister Basil Rajapaksa’s effort to get Divi Neguma taking off the ground. The former CJ Dr. Shirani B had given a correct interpretation and Rajapaksa Administration should well have been aware of the legal implications resulting from such a scenario – before proceeding with such a bill.
Since the Northern Provincial Council had not been formed and non-existent at the time the bill was presented, the Rajapaksa Administration was on the horns of a dilemma. Basil Rajapaksa was not willing to revise or redraft the Bill.
The administration resorted to a childish exercise of getting the signature of the Governor of the Northern Provincial Council. The legal challenge resurfaced again and former CJ Dr. Shirani B gave a scathing judicial reasoning on the validity of such an exercise but her interpretation had nothing do with politics but it was the correct interpretation as had been confirmed by many legal luminaries, including the International Commission of Jurists. Her final judgment had been analysed by many legal scholars and have found it to be free from any personal bias.
Vengeance unleashed
The Rajapaksa Administration went into panic mode and swiftly moved the Government Parliamentary group to impeach her and to remove her from the office of CJ by the procedure established in the parliament and the extraordinary speed with which she was removed was even quoted in the international fora such as in Geneva and other international reports, compared to the lethargy demonstrated in implementing LLRC recommendations. The whole country watched the bewildering political drama. This exercise had a damaging effect on the former Presidents PR ratings because this was preceded by the Sarath Fonseka saga.
Dr. Shirani B was disgraced by the certain members of the committee who inquired into her alleged misdeeds and she had no legal means of defending her position. She moved the Court of Appeal by a writ petition to nullify the proceedings of the Parliamentary Committee. The then Attorney General was an amicus curie for the case argued his legal reasoning on the basis that he has no partiality but just being an amicus curie, means the friend of the court. The Court of Appeal dismissed the Parliament Select Committee report and the decision was conveyed to the Speaker.
There was a clear battle between the Judiciary on one side and Executive and the Legislature on the other, each asserting that the boundaries of each pillar of the constitution must not be encroached upon by the other. By that time former CJ Mohan Peiris had been appointed and there was a clear physical presence of the private political goons and government forces around Hulftsdorp to ensure that Dr. Shirani B is sent to oblivion.
The resulting legislative stampede to remove her had one obvious legal flaw. The procedural requirement of the Constitution had not been met. Dr. Shirani B simply gave way but never resigned, hence the post of CJ never fell vacant. The article 107(2) requires that Parliament must present an address to the President, requesting him to remove the judge. There is a clear deficiency in meeting the constitutional requirement. Is this yet another blunder by the former President Rajapaksa? Did he not listen to legal advice on the impeachment procedure?
When former CJ Mohan Peiris was in office, the former Attorney General who intervened at the Court of Appeal’s writ petition case asamicus curie decided to appeal the decision to Supreme Court, yet another legal manipulation without a precedent, and the Court of Appeal decision was then reversed by the Supreme Court.
Morality of the issues for citizens to ponder
The office holder of the Chief Justice is a person who must command respect from the lower ranks of the judiciary and citizens and his conduct must always be above suspicion. The former CJ Dr. Shirani B had been too close to Rajapaksa family and had broken the centuries-old tradition of keeping aloof from politics.
Dr. Shirani B had taken a picture with Rajapaksa family when Namal Rajapaksa took oaths as an Attorney-at-Law. These are the incidences that Judges should avoid. The former CJ Mohan Peiris too had been seen at ‘Carlton’ celebrating New Year with Rajapaksa family, had been a member of the delegation to Vatican and was also seen at Temple Trees on the day election results were announced. All these are serious issues that border on the judicial ethics.
The Bangalore Principles of Judicial Conduct has identified six principles that must be upheld viz., (i) Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects. (ii) Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made. (iii) Integrity is essential to the proper discharge of the judicial office. (iv) Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge. (v) Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office. (vi) competence and diligence are prerequisites to the due performance of judicial office.
(This writer is a freelance journalist and government affairs analyst. He is a registered member of the American Association of Political Consultants)
