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A Need To Be Whiter Than White

  • “The Court Of Conscience Supersedes All Other Courts”

By
Faraz
Shauketaly

We form a particular group in the community. We comprise a select part of an honourable profession. We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not some day depend upon our judgment.
They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations.” – (Mr Justice Thomas, United Kingdom)
Indeed that is the conundrum that Sri Lanka is faced with regard to the behaviour of Chief Justice Mrs. Shiranee Bandaranaike.
The Chief Justice is of course innocent until proven otherwise and there is nothing to suggest that the Chief Justice is anything but a paragon of integrity indeed a model member of what Mr Justice Thomas refers to as ‘an honourable’ profession.
In fact the point is that as a Supreme Court Judge, Mrs Bandaranaike is a select member of that honourable profession.
Clearly, when one heads that very select membership as indeed the Chief Justice does, the standards must essentially be without ambiguity – in toto. There can be no mitigating circumstances.
The people expect and nothing else matters. It is paramount that personal standards must be above question.
Indeed especially so if one hopes to continue to hold such office.  Last week and the week before the public at large were privy to the Chief Justice’s letter in addressing various issues reported by the 5th Estate.
Mrs Bandaranaike also confirmed in open Court that she would not sit on matters being heard about Golden Key the scandal-ridden Ceylinco Company that managed to misappropriate Rs 26 billion from the people of Sri Lanka.
Very unfortunately for these high personal standards and expectations that the people hold, Mrs Bandaranaike decided to sit-out on Golden Key matters after the impeachment process began.
Up until then she sat in on this matter and clearly thought nothing of the fact that she had, on behalf of her sister, co-ordinated a purchase of a property from a component member of the Ceylinco Group.
Her decision then to be part of those sittings leaves the imagination of the public to run at a tangent to the expectations on these noble and admittedly high standards.
The Supreme Court of the United Kingdom has so-called ‘6 Principles’ that govern the conduct of Judges.
These follow through on the Bangalore Principles. Impartiality, Integrity and Propriety occupy items 2, 3 and 4 of those Principles.
Impartiality is essential to the proper discharge of Judicial Office – it applies not only to the decision but also to the process by which that decision was made.
Integrity is essential to the proper discharge of Judicial Office. Propriety, and the appearance of propriety, are essential to the performance of all of the activities of the judge.
The Independence of the Judiciary is of course the first of these Principles. It is not a Judge’s privilege but rather a basic democratic precept which ensures that the rights of the people are kept intact. Consequently members of the Judiciary must be seen to be distinctly separate from the Legislature and the Executive with mutual respect for each others’ role.
Much to the dismay of the people of Sri Lanka in recent years we have seen less of the mutual respect between the different arms of government; when the 18th Amendment sailed through into the statute books, without the people being given a chance for a Referendum, it was clear that the people’s rights and some safeguards were compromised.
Mrs Bandaranaike may well regret that she did nothing overtly in terms of her husbands’ role in government.
Pradeep Kariyawasam’s appointment to Sri Lanka Insurance, Lanka Hospitals and finally National Savings Bank was clearly politically made.
His appointment to the Board of Sri Lanka Insurance was said to be not within the spirit of the Supreme Court order on who may serve on the Board of Directors of Sri Lanka Insurance; It was a matter that was not debated although the people did express concern through the print media.
The Principles relating to a Judges conduct in the United Kingdom specifically places the onus of responsibility on a Judge to be aware of the spouse’s role in matters that are political. (Where a close member of a judge’s family is politically active, the judge needs to bear in mind the possibility that, in some proceedings, that political activity might raise concerns about the judge’s own impartiality and detachment from the political process.)
Chief Justice Shiranee Bandaranaike’s decision to step out of the Golden Key hearings in all fairness ought to have been made before the rumpus erupted. It matters little what the specific reasonings were for the rumpus to erupt.
Divi Neguma, Husband or whatever notwithstanding, Mrs Bandaranaike ought to have stepped out no sooner she became aware that her sister was purchasing a property at Trillium because her sister was not doing so directly but doing so by making her sister the Chief Justice her attorney.
The fact that Finance Minister Mahinda Rajapaksa appointed Pradeep Kariyawasam to the boards of various government-led entities cannot be brought into the appointment of the Chief Justice.
The onus is very clear that the burden of maintaining acceptable decorum, propriety, integrity and to remain above matters that may be construed as contentious if not downright partial even at some future date, is very much the responsibility of the Judge.
In other matters – for instance the presence of dormant accounts – the Chief Justice may well have been advised to have been more circumspect and acted to have those accounts closed for good measure.  To now state – within the ambiance of controversy and innuendo – that these accounts were dormant and therefore may well have been closed by the banks themselves is to leave open doors of speculation.
These matters, however trivial at first appearance, have nevertheless led to a virtual storm – even if it is within a tea cup.
Whilst it is debatable – and that is what the Parliament Select Committee will look into – that these transgressions warrant impeachment, the salient question will be whether indeed the Chief Justice has been ‘whiter than white’.
Many of the charges that the Chief Justice will be asked to explain may at best be tenuous almost frivolous but by choosing to not deal with these matters expeditiously has been the cause of a great pain of mind to the people of this country to whom the Supreme Court is the last bastion of hope.
Letting them down and permitting the tentacles of government to step in has been the cause of grave anxiety for the people for whom, every bit of positivity is a much needed bonus.
Shiranee Bandaranaike does not have many options open but to defend herself in a parliament where the government has a clear majority.
In deliberating whether in the greater interest of Sri Lanka as a whole, an immediate resignation would be better served, Madam Chief Justice may well have to deliberate upon the wisdom of the Late Mahatma Gandhi who said, “There is a higher court than the court of justice and that is the court of conscience. It supersedes all the other courts.”
(faraz@thesundayleader.lk)

4 Comments for “A Need To Be Whiter Than White”

  1. Vicar

    I agree. The Chief Justice ought to have asked her husband to reconsider at least the Sri Lanka insurance appointment as there was (still is) an Order from the Supreme Court on who should serve on that Board. That Mahinda Rajapaksa ignored that or took a wide-angled view of that and appointed him is not related to the Judge’s own personal standard of conduct. The onus is very much on the Judge not on anyone else not even the President or the Minister of Finance or the Treasury Secretary – whoever nominated Kariyawasam to sit in on the SLIC board.

  2. bil

    There is a higher court than the court of justice and that is the court of conscience. It supersedes all the other courts.

    Brilliantly put. Thank you Ghandhi sir and Sunday Leader.

  3. Sameen Jan

    What a man to look after the ‘bastion of hope!
    This a bit like piracy-against all flags but so very subtle’.Turning and twisting in the survival wind.
    Advising the CJ too!
    There was and is no entity called Ceylinco Group -ask Lalith Kote but what was the problem if the CJ decides to stand down in ‘Ceylinco’ cases if what she was doing was to show even belatedly that justice must not only be done but also seem to be done’. It was done and now it seems so too.
    Ask NDB about how it maintains accounts and you will be told no lies-hopefully- even as some one nevertheless got hold of the account numbers throwing confidentiality and secrecy to the winds. Did you know it was NDB that decided to give new account numbers for old? So does that make like in Alladin’s tales ‘new lamps for old’ or does it double the numbers?
    So the CJ’s hubbie got so many appointments. Whose fault was that? Whiter than white or black and white ? Suppose your wife got one in the ‘Leader’ too. Is that your fault?
    Quoting pacific Mahatma Gandhi -what a brain wave for S Ali.
    If conscience ‘ supersedes all other courts’ what happens to the ‘last bastion of hope’? Is that the judiciary or the legislature? Honestly?
    Well done thou faithful servant earning your salt if not your bread or singing like a canary for your supper no less.

  4. bil

    actually had the CJ been Whiter than White the government would have had no leg to stand on in terms of bringing in an impeachment motion. That is the point

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