I have now had an opportunity to go through the report of the Parliamentary Select Committee that looked into the conduct of the Chief Justice, and its contents amply confirm the position I have advanced, namely

  1. Shirani Bandaranayake has not always acted properly
  2. She should not be impeached

With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.

One problem with regard to which the Select Committee finds her guilty does not seem at all appalling. To accuse her of misconduct because she is in overall charge of judicial procedures at a time when her husband might be subject to them is not at all reasonable. Had she tried to influence the judiciary in such a situation, she would certainly have done wrong, but to find her guilty because she is in a position to do wrong is a strange interpretation of justice. All she need do to ensure nothing improper occurs is recuse herself from decision making with regard to cases involving her husband.

The other point on which she has been found guilty is not declaring various accounts in her annual declaration of assets and liabilities. Several other improprieties in this connection are also noted in the Report, some of which also seem reprehensible. However, there is provision for prosecution for any serious misdemeanours in this regard. Given that there is a judicial process laid down for those suspected of offences, it is best that that process be followed. For Parliament to sit in judgment on such matters, without ensuring due judicial process, is inappropriate, and worries in this regard have been increased by the haste with which the Parliamentary Select Committee went about its business.

That is why I think it would be wrong for the Chief Justice to be impeached on the strength of this Report. The Report itself, in asserting that Mrs Bandaranayake was guilty of misconduct, cites several cases to claim that, ‘the appearance of bias, even if there is no actual bias’, is sufficient to taint a decision. It has been observed that the test of bias is whether the fair minded and informed observer, the tribunal was biased’.

Unfortunately the Parliamentary Select Committee has certainly given the impression of bias. Initially, when the lawyers for the Chief Justice asked for six weeks to submit the case for the defence, the Committee granted one week. Subsequently, after copies of various documents relevant to the case were given to her lawyers on December 6th, they were told that the investigation into the first two charges would being the next day.

The Report notes that the defence could then send for witnesses to disprove the charges, but no mention is made of proving the charges. The Chief Justice and her lawyers then walked out of the Committee, on the grounds that ‘the defence was not provided sufficient time and precise information with regard to the procedures of the Committee was not made available’.

A fair minded observer would have no doubt that insufficient time had been provided. With regard to procedures, worse was to come, because the Report says that, on the day after the Chief Justice walked out, witnesses were called, and gave their evidence. There is no record that the Chief Justice had been told that these witnesses were to be called to give evidence. The fact that she had been told she could send for witnesses to disprove the charges, before the charges had been substantiated by the witnesses the Committee had decided to call, would suggest bias to any fair minded observer.

In such a context Parliament would be wrong to impeach the Chief Justice without an objective review of the Report of the Committee. The President has declared that he will appoint a Committee to advise him. That might not be formally a satisfactory solution, but if he constituted the Committee in a manner acceptable to the Chief Justice as well as the Select Committee, and allowed a fair time for written representations, we might begin to move towards the fairness required with regard to so grave an undertaking as impeachment of a Chief Justice.  

Colombo Telegraph 27 Dec 2012http://www.colombotelegraph.com/index.php/reconciliation-looking-forward-vii-the-cj-and-the-report-of-the-psc/