Hiran Kulatilake- Courtesy The Daily News

Whilst it is spot-on to say that we live in cranky times and that every public institution is under intense scrutiny ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” if not siege ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” our system of justice is the last edge. The public appears forcefully and finally to be saying, ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-lawyer, heal thyself!ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚, and we in the system cannot be heard to say that we are not sick enough to take the cure. Public trust in the legal system is eroding because; the justice systemƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s status quo feels too prodigal, opportunistic, and costly for what it delivers and to whom.

During the last several months, over the television, internet and newspapers we witnessed a number of lawyers, most of whom I may say of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Hulftsdorp Traffic fameƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ acting as if they dare putting their lives on line to defend the freedom of the judiciary by setting fire to coffins, holding placards, picketing in front of court houses etc. It is indeed questionable whether their slogans and conduct on the Superior Courts premises actually serve any purpose or represent the interests of the independence or the dignity of the profession they are indulging in or just being motivated by a vicious political stimulus. As a matter of fact just by stepping into a traffic court anybody can see whether these Lawyers have any self-respect in their day to day activities let alone in their profession.

Missing the target

Many an eminent counsel were not seen in the vicinity when these self proclaimed torchbearers of independence of judiciary were shouting their heads off ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Jaya wewaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ and ‘Bhanga weva’ as if at a local election or on May day processions. AndƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚¦ making matters worse, for the first time in our lives we saw a Chief Justice acting like a desperate politician reminding us of Jayalalithaa of Thamilnadu! Waving hands and greeting these learned hooligans acknowledging their acts of faith and amity, I am curios how she would cope in the event she continues in the same capacity without currying favour to those lawyers, plaintiffs and those defendants like Sarath Fonseka, Maduluwave Sobitha thera etc., among those present. Ooops! I forgot she has been very much in the practice of doing so in the recent past. No big deal!

Justice Shirani Thilakawardene	Jayalalithaa Jayaram
Sarath Fonseka	Wijedasa Rajapakshe, PC

I must admit I was certainly not a great admirer of CJ Bandaranayake from the very outset.

It was neither because she lacked commanding Oxford English language skill and accent nor because she was not from one of the leading schools of Colombo or Kandy. My doubts were not even faintly based on the fact that her maiden name was Bandaranayake where she did not belong to the limited elite of ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”Dias BandaranaikeƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s. However deep down in my conscience I had my own reservations whether she had the familiarity, maturity and impartiality a judge of the Supreme Court should invariably possess.

The vociferous conveners of the recent string of protests in the likes of lawyers Krishantha Weliamuna, Wijedasa Rajapakshe fail to practice what they preach; WeliamunaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s transparency doctrine has selective vision when it comes to the conduct of the Chief Justice and WijedasaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s procedural fairness does not apply to the resolutions that have been passed without holding a vote at the Bar AssociationƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s meeting last week. People should bear in mind the fact that he is a Member of Parliament representing the UNP. It is again debatable why his house was under attack! Was it classical or soap operatic or a case of missing the target? It appeared to be a blockbuster Bollywood scene! Nonetheless the President never attributed that shameless deed to an act of some exasperated individuals who could not stand the behavior of Wijedasa Rajapakshe in the aftermath of the latest Huftsdorp fiasco where he brazenly declared that the Bar Association ƒÆ’‚¢ƒ¢-¡‚¬ƒ”¹…”unanimouslyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ passed all the resolutions taken up that day.

Allegations against CJ

Whether most people who expound their theories of the independence of the judiciary, procedural fairness, transparency or putting their two cents in against the impeachment of the CJ so that their presence might be felt, have ever read the proceedings of the PSC is somewhat doubtful. Had they done carefully so they would have thought twice before taking the leap.

The government should publish the grounds for impeachment of the Chief Justice and distribute it free of charge among the public. It is a right of the general public to know the truth.The first allegation against the CJ was that she took over three fundamental rights cases pertaining to ‘Golden Key dispute’ which had been taken up before a certain bench of the Supreme Court. These cases had a direct relationship to one of the properties she had bought on behalf of her sister and her brother in law who live overseas. These cases were heard by a bench presided over by the former Chief Justice Sarath Silva where Justice Shirani Thilakawardene was also a member. In due course Justice Thilakawardene became the president of the aforesaid bench once Sarath Silva retired.

While this dedicated new bench spared no pains in exploring the possibilities of bringing the culprits to justice in order to award maximum compensation for the aggrieved parties, the court was moved for a five member bench by an over enthusiastic petitioner. Since a decision on the constitution of a bench solely lies in the hands of the Chief Justice Shirani Bandaranayake, Justice Thilakawardene quite correctly sought her advice in this regard. Regrettably she did absolutely nothing other than constituting another bench where justice Thilakawardene was not a member. Ironically the Chief Justice herself became the president of the new bench hearing the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Golden KeyƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ matter.

Chief Justice Dr. Shirani Bandaranayake

The Drama unfolded during the proceedings of the PSC and it was brought to light as to why Justice Thilakawardene, who is one of the most respected and senior judges of Sri Lanka was omitted from the said bench constituted afresh. She had ordered the CID to investigate and institute immediate action against one Janaka Ratnayake who at the time was one of the top brass of the above mentioned companies in question.

The aforesaid actions of the Chief Justice where she had on her own decided to preside over the bench which was previously presided by Justice Thilakawardene, buying a property through companies related to infamous Golden Key issues, removing Justice Thilakawardene from the already existing bench after it was revealed her complaint against Janaka Ratnayake, are serious wrongdoings which could not be otherwise overlooked. These actions clearly amount to a breach of the golden rules of natural justice.

Conflict of interest

“Iniquum est aliquem suae rei esse judicium” (it is prejudicial for somebody to be a judge in his/her own matters)! This universal rule is for all intents and purposes taken from the Roman Law: “aliqius non debet esse judex in propria causa, imo iniquum est aliquem suae rei esse judicum” (because someone ought not to be a judge in his own affairs). Then this was developed into: “For it is a maxim law, someone ought not to be a judge of his own case” (nemo judex en causa sua). This is correlated to the conflict of interest, where a judge or other law enforcer must not determine or adjudicate a case or an affair if there is a tag of personal interest that comes with it, which can cause his/her decision or action or assertiveness to be biased due to such delicate interest.

Supreme Court Complex

If a judge is related to a party, lawyer, or spouse of either party within three degrees of relationship it is a universal ground for recusancy since in laymenƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s language ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-blood is thicker than waterƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. In such instances the judge must determine he or she cannot act impartially.

A judge who has grounds to recuse him/herself is expected to do so forthwith. If a judge does not know that such grounds exist to recuse themselves, but does, the error sometimes is excusable. But alas! Then Dr. Shirani Bandaranayake Phd is our Chief Justice and was a onetime Law professor of the only Faculty of Law in Sri Lanka! So here it is a matter of refusing to understand rather than failing to understand the golden rules of natural justice. If a judge does not recuse him/herself when they should have known to do so, they may be subject to sanctions and the litigants may have the right to substitute a judge, even if no bias is amply demonstrated.

The writer is a former assistant editor of the Sri Lanka Bar Association Newsletter.