H. L. D. Mahindapala

Judge C. G. Weeramantry, the senior most retired judge in the country with 65 years of legal experience behind him, has come forward , out of the blue, to address the current crisis facing the Sri Lankan judiciary by issuing a general message on the subject. His message calling upon “every citizen and institution in the country to be concerned” about the legal propositions enunciated by him deserves serious consideration. This, incidentally, is quite an unusual move for him because he has studiously avoided getting involved in domestic politics. It is his practice to keep a respectable distance from the maddening mob peddling their political pork barrels. For him to come out in defence of the Chief Justice, Dr. Shirani Bandaranayake, therefore, is somewhat unusual and, I would venture to say, shocking.

Of course, he backs her in his quiet, inoffensive way by taking cover under the legal principles which he has advocated systematically and consistently in his voluminous writings and intermittent speeches. Without mentioning her by name he invokes all the the hallowed legal principles involved in her case, one of which is the security of tenure of judges — the critical issue faced by the CJ. Quite rightly, he has also expressed the need to protect the independence of the judiciary for the preservation of rule of law and democracy. No one can cavil with that.

But the general thrust of his message is to join the rest of the black-coated “coconut heads” — thick skull on the outside and hollow inside — who are posing as latter day saints of the highest principles of law enunciated ever since Moses came down from Mt. Sinai with his Ten Commandments. With his inside knowledge of how the legal system operates, both at home and abroad, it is somewhat disconcerting to find him lending a hand to the “coconut heads” who have made a fool of themselves with their coconut cracking antics at Hulftsdorp. Besides, reiterating the known legal principles in his own phraseology does not lift him above the fray. In fact, he parachutes right into their middle with his unexpected foray into the current crisis.

Since his message is for “every citizen and institution:” it is open for scrutiny, more so because the current crisis stands out partly as the third known case of impeachment of a Chief Justice and partly because of the political implications. There is an added significance in that CJ Bandaranaike is the first woman Chief Justice and the gender factor too has been dragged into politicize the case. The previous two cases melted away without causing much political divisions. But the current crisis has gathered some momentum with lawyers who first opposed her appointment to the supreme court doing a somersault to back her. In 1996 when she was appointed they said that her political appointment was a threat to the independence of the judiciary. Now when there is a possibility of her being removed, after found guilty of some charges, they say that it is a threat to the independence of the judiciary. This is typical of the lawyers to have it both ways. They are like the two-headed donkeys described by Dr. Colvin R. de Silva in a political context where they could say “yes” and “no” at the same time.

Overall, it can be said that the current crisis has placed the judiciary on trial. Judge Weeramantry begins his message by saying: “It is a judiciary which has been a great pride to the country and has been highly esteemed both domestically and internationally.” He is absolutely right. The history of the legal system in Sri Lanka demonstrates amply that it has covered the full gamut from fiercely independent Judge T. S. Fernando to Prabhakaran’s kangaroo courts. Despite all infirmities it has resisted all pressures and threats and revealed a remarkable resilience and the potential to stay the course and to argue, against this background, that the removal of one Chief Justice is going to end the independence of the judiciary is a myth wrapped in fictitious fears of politically deviant lawyers at Hulfstdorp, anti-national academics and NGO wallahs. The judiciary is a sacrosanct body that must be protected from threats and abuses from all quarters. It is the last defence available to the average citizen. But when the threats and abuses come from within, with the legal fraternity perverting the law not only with corrupt practices but also with narrow legalistic pettifogging, then the black-coated professionals stands out as abominable showmen mouthing high principles not to uphold the scales evenly but for petty political/personal gains.

The threat to the independence of the judiciary and the rule of law comes more from within the corrupt practices prevailing in the legal system than from external sources. Judge Weeramantry’s vast knowledge of the Sri Lankan judiciary should have, therefore, prompted him, in the first place, to ask how it had fallen into disrepute and eroded the confidence in the judiciary and the integrity of the judges. He also, quite correctly, highlights (1) the role of the judges and (2) the role of the state in maintaining the independence of the judiciary which is the guarantor of the rule of law for a functional democracy. (More of this later). But he misses the most vital factor that is necessary for the independence of the judiciary: the integrity of uncorrupted legal practitioners from which the judiciary is generally drawn. If the bottom of the tree is rotten then the branches at the top can’t produce the fruits without worms, can it?

For instance, he knows only to well how political patronage plucks lawyers from the floor of courts and places them on the high branches of the judiciary. Dr. Shirani Bandaranayake is classic example. She was not even plucked from the floor of the courts. The general consensus in the legal community claims that hands-on experience in the courts is a valuable qualification to sit on the bench. She was picked from the Law Faculty, without any knowledge of the court craft or court culture. Leading lawyers of the bar protested when she was appointed in 1996 because President Chandrika Kumaranatunga was packing the courts with her ideological twins to push her divisive politics. This contradicts one of the fundamental legal propositions enunciated by Judge Weeramantry which states that “there cannot be a fair hearing unless the tribunal is totally and patently impartial. It is essential that a tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted before the hearing to any conclusion on the matter.”

Besides, this proposition relates specifically to a charge on which CJ Bandaranayake was found guilty. She was presiding in court with her sister’s power of attorney in one hand and the sister’s file dealing with investments running into multi-millions on the other. This knowledge was in the public domain. There is a palpable co-relation between this fact and the legal proposition that demands “totally and patently impartial” tribunal. Of course, Judge Weeramantry was directing his fusillade against the Parliamentary Select Committee. But in his own words, it should also apply to the tribunal of the CJ which should have “consisted of persons who are totally uncommitted before the hearing to any conclusion on the matter.” The patent violation of this proposition condemns CJ Bandaranyake and she has no alternative but to resign.

When the CJ grabbed her sister’s file from another judge’s court it blatantly vitiates the legal proposition that the “tribunal deciding on the rights of any citizen must consist of persons who are totally uncommitted….” A principle/proposition which grossly ignores the basic facts on which it must stand doesn’t go far to uphold or enhance the value of the proclaimed principle.

In fact, there can be no escape for the CJ if the principles proclaimed by Judge Weeramantry are applied to her case. Another principle emphasized by him states: “In the fourth place if any members of the tribunal have directly or indirectly indicated their views upon the matter in advance of the hearing that tribunal ceases to be impartial. It follows that such a tribunal is not functioning according to the rule of law.” So hasn’t the CJ violated the rule of law when she decided to hear the case of her sister knowing that she was the sole custodian of the power of attorney dealing with the investments of her sister who was in Australia? As he says quite correctly : “Where the issues involved are as grave as misconduct of the Chief Justice of a country these general principles of law need to be applied with the greatest strictness.” And if these principles of law are “applied with the greatest strictness” for how longwill she be entitled to sit in the chair of the Chief Justice?

Based on the Judge Weeramantry’s propositions questions can be raised legitimately about the capacity of the CJ to be a defender, protector or saviour of the rule of law. As he states quite accurately “all three branches of government ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Executive, Legislature and Judiciary ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” rest upon the bedrock concept of the rule of law. If the rule of law is not observed, the work of all three organs of government is impaired, with resulting damage to equality and freedom.” This makes it obligatory for the CJ to apply the rule of law to “(E)very citizen from the lowest to the highest…..” which includes herself too. Her failure to apply this basic proposition would condemn her even in the eyes of a gamsabha tribunal.

Her case is symptomatic of the corruption that has corroded the integrity of the Sri Lankan legal system from top to bottom. Hulftsdorp is infested with the Biblical “snakes, vipers and hypocrites”. In his writings and speeches he has often referred to these “snakes, vipers and hypocrites.” It is time for a high-powered commission to probe the corruption that is eroding the integrity of the legal system. Among the subjects that needs studying are: 1. the failure of the legal system at all levels to uphold the rule of law and serve equal justice to all citizens; 2. the internal mechanisms needed to monitor the integrity and quality of the legal practitioners to maintain a legal system which cannot be corrupted easily; 3. the standards of the legal education imparted to lawyers coming out of various institutions; (Remember Prabhakaran too had law colleges to produce the kind of lawyers he wanted!) 4. providing a quality legal mechanism which can be easily accessed by the disadvantaged section of the community; 4) evaluating the emoluments paid to judges to keep them away from predatory legal brokers who approach them with offers they cannot refuse; 5. provision of language facilities in all courts, particularly in the provinces; 6. maintaining the dignity of courts by housing courts in refurbished buildings and accommodation for judges and staff in remote corners. Etc., etc.

The idea of boycotting courts is typical of the arrogant, short-sighted, narrow-minded thinking of a section of legal beagles whose sole intent is to divert attention from internal corruption anddefects. Instead of looking inward into their own profession to improve the quality of justice they can deliver to the public they are proposing to deny justice to the long-suffering public who are way behind in getting their cases heard. Besides, it is unworkable, will divide the legal profession, deny the people justice, and make them look like prize idiots when they return, after some time, back to the courts they boycotted to earn a crust. Moreover if they immobilise the courts from where are they going to get their next bottle of whiskey and gin? Courts can go without the boycotters because there will always be another section who will see great opportunities in keeping the courts running. In any case, can you imagine the money-grabbing lawyers going on strike until they find their ideal Chief Justice? After this CJ goes they will be combing Hulfstsdorp looking for more coconuts to welcome the incoming Chief Justice.

Lawyers must get real and clean up their pig sty before they try to clean up the other parts of the state. If they can get their act together it will be more effective than the coconuts they crack to farewell or welcome Chief Justices.

ƒÆ’-¡ƒ”š‚ (PS: I must confess that each word in this article weighed heavily on my shoulders as I wrote it because it concerns a dear and close family friend of many decades. If my wife knows this she will most probably file a divorce suit. I will have to face the music sooner or later, after it is published, of course. In the meantime, Judge Weeramantry will, I hope, understand when I say that I was drawn irresistibly to point out that the separation of principle from the known facts do not substantiate the principles with the necessary quantum of moral and legal power needed to back up the case of CJ Bandaranayake. As an experienced judge of the highest court in the world he would probably agree with me that the principles on which CJ attempts to stand will hold her up only if the substratum of facts can carry her weight of guilt.,)