ƒÆ’-¡ƒ”š‚ Interviewed by Mandana Ismail Abeywickreme Appearing in Sunday Leader 25 Nov 2012

ƒÆ’-¡ƒ”š‚ Q: What are your views on the impeachment motion against Chief Justice Dr. Shirani Bandaranayake?ƒÆ’-¡ƒ”š‚ 

A:ƒÆ’-¡ƒ”š‚  Move by the Judicial Service Commission snowballed into a sequence of events leading to a catastrophe. ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ The President/Minister of Finance summoned JSC for discussion before the budget ostensibly to discuss welfare measures for the judiciary. A former Chief Justice has alluded that such discussions are common and has attended many. The PresidentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s Secretary at the request of the JSC submitted the oral request in writing; the response was a refusal complaining of undue interference by members of the executive.

ƒÆ’-¡ƒ”š‚ There must have been interferences, which surely needs a halt. JSC may have speculated on the Divineguma bill – will hard talk originate from the President? Why fear when they were right in their decision.

ƒÆ’-¡ƒ”š‚ Refusal to meet the Head of State by the CommissionersƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ is not acceptable when invited to discuss official matter ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” it promotes a clash between the Executive and the JSC. The three CommissionersƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ should have attended: listened to the President on what he had to say, then at an eyeball to eyeball contact level tell to his face, that members of his entourage are not to interfere in judicial matters. Hard talk should have come from the JSC instead of staying closeted at home. Public would have applauded it.

ƒÆ’-¡ƒ”š‚  These are not ordinary people; Commissioners are senior Supreme Court Judges. Saying to the face is the most effective delivery, often accepted by the President gracefully, unlike speaking behind the back of a person. ƒÆ’-¡ƒ”š‚ He would learn a lesson of a lifetime.

ƒÆ’-¡ƒ”š‚ By refusing to meet the Head of State to discuss common matters, Commissioners took the confrontational route. A juvenile decision. Instead JSC issued two press statements, discrediting Sri Lanka that reached the foreign enemy camp, in the midst of accusations, to damage the country image. It was irresponsible conduct by a statutory body that triggered a chain of events. Unforgiveable.

ƒÆ’-¡ƒ”š‚  It is very proper for the judiciary to keep a distance from the executive, as the Commissioners desired; maintaining proper distance is best shown by not accepting benefits from the executive during the happy hours. Benefits are not given out of affection: Executive anticipates reciprocity and that places beneficiaries under unnecessary obligation.ƒÆ’-¡ƒ”š‚  If qualifications are possessed it can justify an appointment but no material has surfaced to satisfy that count. DonƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t jump a ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”hop on ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”hope offƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢- bus with glass carriages at which many a stone is thrown. ƒÆ’-¡ƒ”š‚ Heads of Executive and Judiciary must be above suspicion in the national interest. Both are culpable in this sorry state.

ƒÆ’-¡ƒ”š‚ Granting favor is as bad as accepting favor. Judiciary is the umpire deciding the good and bad for society. They unlike politicians carry a higher degree of respectability and trust: carry more blame too. People at an election can throw out the executive and legislature. Judges hold office permanently dependent on their glory on their own performance and know of their public standing on retirement. Judges, more than others, must live up to standards in their public lives: if there are deficiencies in private life- that is a forgivable personal matter.

ƒÆ’-¡ƒ”š‚  Lack of experience and wisdom by the JSC – not the judiciary – caused the confrontation. Judiciary is innocent but stands injured.

ƒÆ’-¡ƒ”š‚ Q: Do you feel the Chief Justice would get a fair trial in the probe on the impeachment motion?

ƒÆ’-¡ƒ”š‚ A: ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ Certainly not, with the procedure presently in force. Dice is heavily and unfairly loaded against an accused judge. So too are citizens when charged for contempt of court.ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Upper judiciary must partly take flak for doing sweet nothing with a sword over their heads for years.ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  A procedure in place for over 25 years and 4 judges being subject to impeachment motions with these rules in force with public controversy at such times too. Why did they not seek to have them revised if such were offensive? Remember the Media agitated and had criminal defamation expunged from the Penal Code. Higher judiciary is more influential with the legislature than the media. Nobody bothered when everything was tickety- poo. Kissing cousins areƒÆ’-¡ƒ”š‚  not life long relationships. It is worthless seeking a change when there is charge and a motion, its just too late; like crying over spilt milk.

ƒÆ’-¡ƒ”š‚ But why did the higher judiciary or public rights forums sleep over such deficiencies when they watched the plight for over 25 years? We had so many Justices from the time of Neville Samarakone taken to Parliament but who made representations or created public opinion on this issue after the event?

ƒÆ’-¡ƒ”š‚ Now these forums have woken from slumber belatedly. This is a national malady. You cannot blame the public since it does not touch them.

ƒÆ’-¡ƒ”š‚ Q: What action do you think the BASL could take to ensure independence of the judiciary?

ƒÆ’-¡ƒ”š‚ A: BASL is divided to be effective unlike the Pakistani Bar. In Pakistan, judiciary in the worse of times did not bow to the military government. They won respect of the Bar and the Public and with that strength, were able to topple a regime and remove a prime minister because they were no lap dogs of authority. People take pride in their judiciary, if they live up to it, at all times.

ƒÆ’-¡ƒ”š‚ Bar never stood unanimously on an issue except when a lawyer was killed by the Police. Understandably, they look after their interest just like others. Bar did not stand up on behalf of Neville Samarakone but instead gave a grand farewell dinner, which they organize with finesse and made great speeches. ThatƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s our Bar!

ƒÆ’-¡ƒ”š‚ Q: Can the judiciary alone ensure the balance of power in the current system?

ƒÆ’-¡ƒ”š‚ A: No way. If the legislature and the executive are cooperative and helps to maintain the equilibrium it is possible.

ƒÆ’-¡ƒ”š‚ Sufficient distance can be travelled provided the head of the judiciary is a respected, fearless, independent person who brooks no nonsense from the executive or legislature. It cannot be an on-off relationship at whim and fancy living on shifting sands. Executive also must be strong and genuine on law and order since you need two to tango. ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ Q. How you think a balance between the executive, judiciary and legislature is maintained under the current system?

ƒÆ’-¡ƒ”š‚ A: ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s a difficult to answer with limited space constraints and furthermore I am not living in a fabled land called Utopia to believe in this legal fiction. Face it- it does not exist in its purity any where in the world. Under the current system in Sri Lanka there is more imbalance than balance; there is no balancing act- it survives in three distinct leagues in vastly varying strengths. In reality after the war and its ensuing victory and the peace dividend, in the public mind, the executive stands tall notwithstanding deficiencies. ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s a fact that has to be noted in practicality by the judiciary on entering into combat with the executive. This David needs Peoples support to fight this Goliath.

ƒÆ’-¡ƒ”š‚ People matter in a democracy. With whom will the people stand? Who do they respect more? In Pakistan the Chief Justice had a pronounced edge because of his unimpeachable record.

ƒÆ’-¡ƒ”š‚ Q: Do you feel the current impeachment motion against the Chief Justice would create a bad precedence where future Chief Justices are concerned?

ƒÆ’-¡ƒ”š‚ A: Of course it would but it is not limited to Chief Justices. It puts judges in the appellate courts on red notice. That is appalling.

ƒÆ’-¡ƒ”š‚  Man on the road would only agitate if he believes courts dispense justice: the common man decides on judges on the judgment that they deliver speedily which affects them on a personal front or at a political level or on a motivating national principle. People have an ear earthed to ground. ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s on this principle the Chief Justice of Pakistan out played the Head of State. Time will tell whether our Chief Justice is of similar stature or the principle or political issues attract the People to take to the streets. Otherwise it will be like watching another tele-drama that will have an entertainment value and a story where audience knew of the sorry end from the beginning but still watched a live action packed drama.

ƒÆ’-¡ƒ”š‚ Q: How do you think the judiciary could protect its independence while building confidence in the people?

ƒÆ’-¡ƒ”š‚ A:ƒÆ’-¡ƒ”š‚  A tall order and a long tale with public confidence at low tide against all institutions including the judiciary. The judiciary can succeed whereas other institution may fail, provided there is a Chief Justice with grit and determination to cleanse society. He must first set high standards personally and press the foot on the equality accelerator. If there is favored treatment or playing coy with the executive and legislature, say bye to credibility. Tact and diplomacy are necessary to maintain a distanced cordiality with the other two branches. If there is confrontation the judiciary will become a lame lone sitting duck unless there is respect from the People gained by conduct. Ultimately the mythical Chief Justice must carry his assignment with the strength of character based on his integrity. I do not expect to see such a legendary person in my lifetime.

ƒÆ’-¡ƒ”š‚ Q: ThereƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s a lot of international concern over the impeachment motion against the Chief Justice. What implication do you think it would have on the country?

ƒÆ’-¡ƒ”š‚ A:ƒÆ’-¡ƒ”š‚  Government is totally responsible knowing a pack of international hounds keep barking at every turn. When the government undertook this mission did they not give mind to this aspect? If the thinking is they can ride over it, it is a mistaken notion. Is there damage control? Except for the stupid JSC missiles the responsibility on the international front is entirely in governmentƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s court, and the consequences will be far reaching. Take care of the country without playing as sycophants of others.

ƒÆ’-¡ƒ”š‚ Q: How do you see the future of the judiciary?

ƒÆ’-¡ƒ”š‚ A.ƒÆ’-¡ƒ”š‚  We are a stoic nation that bounces back from the edge of the precipice. Minor judiciary is vastly improved with rated professionals attracted by better emoluments and benefits on offer. I see a great future if they are properly guided. Judiciary is still the cream of our public services. ƒÆ’-¡ƒ”š‚ If the top is exemplary the worthy lower rungs will become still better. ItƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s the same with lawyers too. Benefits given to the judiciary must be equitably distributed on the equality rule. That was the root cause of this problem that must never again recur.