No To Laugh, Not To Lament, Not To Detest, But To Understand: CJ Must Go But After Setting Up Standards

By Uvindu Kurukulasuriya -December 19, 2012

Uvindu Kurukulasuriya

Rajapaksa regime is using one of my articles on the independence of the judiciary to justify their witch hunt against the Chief Justice. As Spinoza said this is not to laugh, not to lament, not to detest, but to understand.

The government has created a television advertisement with my article and an opposition MP’s speech and broadcasting it repeatedly. Regime-support journalists like my friend C. A. Chandraprema has been quoting the samearticle for weeks. This article was also highlighted this week at the Diplomatic Briefing by External Affairs Minister G.L. Peiris.

They used my article in talk shows. Last week, in the state-run television programme, Wedikawa (Platform) Parliamentary Select Committee MemberRajitha Senaratne also highlighted this article. Senaratne said: “This is what my friend Uvindu Kurukulasuriya wrote earlier although he now writes against this.”

Rajitha was wrong. I never wrote anything against my stance. What is this article? I wrote an article when the NSB scandal occurred. It was titled “Not Only The Chairman Husband; Chief Justice Wife Must Also Resign!” I wrote;

“The Chief Justice is automatically the Chairperson of the Sri Lankan Judicial Service Commission. This means that, effectively, she is the boss. While much of the work is delegated to others, it is the Chairperson who is ultimately responsible for the ‘corporate culture’ in the operation of any organization. This is how organizations operate on a psychological level. The leader sets the tone. The relationship between the Chief Justice of Sri Lanka and her spouse cannot be private. Not when that spouse holds key positions in government institutions leading to a conflict of interest. A conflict of interest is also corruption. It is worthwhile quoting Dr. Colvin R. De Silva when he said, while participating in a no-confidence motion against the then Prime Minister Sirima Bandaranaike, “the service exacts from itself a higher standard because it recognizes that the state is entitled to demand that its servants shall not only be honest in fact but beyond the reach of suspicion of dishonesty”.

I said;

“We do not need to go for India or to the west for best practices. Sri Lanka already has a good example. When the husband of the head of the Bribery Commission Nelum Gamage was allegedly involved in corruption, she resigned.”

But people who quote this particular article forget other articles which I wrote as soon as Shirani Bandaranayake was appointed as Chief Justice. One was “Chief Justice Or Her Husband Must Resign”

I wrote;

“Within the Asian region, the sixth Conference of Chief justices of Asia and the Pacific in Beijing in August 1995 adopted the statement of Principles on the Independence of the Judiciary. Sri Lanka was represented by the Supreme Court Judge P.R.P. Perera voluntarily who agreed to the Principles on behalf of the then Chief Justice G.P.S. De Silva.

Principle 39 of the Beijing statement says, “ Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.”

The Chief Justice must explain how her husband was appointed as the Chairman of Sri Lanka Insurance Corporation, and to the Lanka Hospitals Corporation PLC as a member of its Board of Directors along with Defence Secretary and Presidential sibling Gotabhaya Rajapakse, who was Board Chairman. How was he also appointed as Chairman of the National Savings Bank? Has he applied for the job? Was he interviewed? Who were the other applicants? Weren’t there any qualified applicants other than her husband? She must also explain how these things are consistent with international standards concerning judicial independence. If she cannot, she or her husband must resign. After all, “Caesar’s wife must be above suspicion.”

I wrote;

“Dr. Shirani Bandaranayake was sworn in as the new Chief Justice of Sri Lanka on 18 May 2011. While some remained silent most local media outlets published news items and features supporting her appointment. Certainly none were willing to do their jobs as journalists. I phoned a couple of editors and inquired of them, “are you forgetting the past? Why do you ignore the blatant conflict of interest issue here because of her husband’s position in a government job? Why do you not focus on the wider issues of rule of law and independence of the judiciary?”

“It was easy for the local media to gloss over the real issues as Shirani Bandaranayake would, on May 18, become the first woman Chief Justice of Sri Lanka. And it was convenient for the media to focus on this positive aspect rather than grapple with the more uncomfortable and more dangerous issue of a country descending into democratic failure.”

Week after week I raised serious issues related to the misconduct of judges, but none of the Sri Lankan journalists, academics or Civil Society leaders raised the issues I raised until the impeachment motion against Shirani B. was handed over to the Speaker.

In another article titled “Wither Independence When Judges Host Parties For Politicians?” I wrote;

“There were editors who fought for the independence of the judiciary. Ravaya Editor Victor Ivan, Sunday Times editor Sinha Rathnathunga, then Deputy editor now Lakbima News editor Rajpal Abenayake and the late Lasantha Wickrematunge. Sadly, since Rajapaksa came to power, we can’t see any of these acts of misconduct discussed in the Sri Lankan media. The editors who fought for the independence of the judiciary are sleeping, or converted to the Mahinda Chinthana or they can’t write because of media suppression. But what is sad is that these editors say there is no media suppression in Sri Lanka or they are not fighting against media suppression. How did these journalists and activists who stood for democracy get into this blind alley? Especially Victor Ivan, the one who wrote hundreds of article about such issue and he later published a book called “ An Unfinished Struggle”. When Sarath Silva was appointed as CJ Ravaya printed a black front page with the picture of the oath ceremony upside down. When Shirani Bandaranayaka was appointed to the supreme court Ravaya attacked her appointment week after week, and headline after headline. When Victor Ivan and Ravaya exposed corruption in the judiciary he was criticized by some others saying he had personal problems with Sarath N Silva and Chandrika Kumaratunge. He is proving that allegation now criticizing only the former Chief justice.”

But sadly, instead of raising the issue of independence of the judiciary, Victor Ivan started a printed debate with me in Ravaya. He criticised me for writing while living in exile. The debate went for four weeks. You can read Ivan’s responses here and my replies to Ivan here and here. It was not even about independence of the judiciary; his intention was to protect Rajapaksa and attack me (Rajapaksa’s critics). But one can find an interesting untold stories behind the struggle of the independence of the judiciary.

If the media had done their job most probably we could have got her husband to resign, Then the CJ may not have had to face this sad situation.

Last month, Dr Laksiri Fernando analysed my last article as follows;

“When the bribery charges were raised against her husband, whether he is innocent or not, the Chief Justice could have gracefully resigned, because the first mistake was already committed. That was unfortunately not done. These and related matters were raised impartially by Uvindu Kurukulasuriya before. Holding onto positions some way or the other whether politicians, government officials, academics or judicial officers is not a good practice for democracy and transparency or as a personal principle. It is my personal impression that the bribery charges are vindictively framed up.”

Laksiri is correct but as he also wrote several times now the issue is giving her a fair trial. I have to agree with even my friends like Chandraprema when he says; “We Have Reached A Situation Where The CJ Refuses To Acknowledge That There Is A Conflict Of Interest.” It is sad, she does not acknowledge it, not only her, none of our CJs at least Sarath Silva to Asoka De Silva acknowledged it.

But now the issue has shot up to politics since the case against her husband was fixed. Her husband is the Non Executive Chairman of the NSB. Charitha Ratwatte raised this issue clearly.

I quote Charitha Ratwatte;

“Now it is strange that only the Non Executive Chairman is the accused in this case. The bank being referred to, a statutory organisation, in which it is presumed, its officers and servants follow due process. When the board of a statutory organisation, approves a purchase, when the executive officers, especially the accounting staff and other executive officers sign off on checks, for any purchase, we have to presume that the process has been followed, authorisation, approval and certification.

Then why is the Non Executive Chairman the only accused? At least the other board members of the bank and its executive officers and the other financial sector employees must be charged with dereliction of duty, at the very least? Whether this has been done is not in the public domain. A newspaper reports that Chairman of the Bribery Commission has refused to comment on why this particular case against the Non Executive Chairman is being fast tracked.”

We all know how Rajapaksa is fixing cases against his opponents. The President angrily banging his palm on the table and told me, “We can fix cases and we can free people.” That is my experience. I wrote this last year. He told me this in front of Minster Anura Priyadarshana Yapa (Chairmen of the PSC against CJ) and SLFP General Secretary, Minister Maithripala Sirisena,

Having a 2/3 majority in the parliament, Rajapaksa is determined to remove her now. So she has to go and she must go, in my opinion she is dishonest, I have no question about it, but it should be after setting up an international standard relating to judicial removal. Her fight will, at least, create the standards. The whole charge sheet against her is based on violating standards. So give her a fair trial according to the standards.

Meantime I urge columnists like Chandraprema and those who only attack Shirani to raise the misconduct/conflict of interest issues related to other judges! How many other Supreme Court judges are corrupt? Why do thiese spin doctors only want to attack Shirani?