Tuesday, 12 May 2020

CJ 43 alleges calculated UNP attempt to sabotage her defence against arraignment



A smiling Shirani Bandaranayake greets a person. The late attorney-at-law Kandiah Neelakandan stands behind her.

By Shamindra Ferdinando

CJ 43 Shirani Bandaranayake, in her memoirs, Uththarithara: Dhoshabiyogaye Athulanthaya, questioned the conduct of the then Speaker, Chamal Rajapaksa, as regards the politically motivated high profile bid to impeach her, during the 2012-2013 period.

CJ 43 raised the boorish behaviour of UPFA representatives in the 11-member Parliamentary Select Committee (PSC), headed by Anura Priyadarshana Yapa (SLPP Kurunegala District candidate at the forthcoming 2020 general election). Having faulted Speaker Chamal Rajapaksa for not responding to her letter, dated Dec 14, 2012, that dealt with the conduct of UPFA members, CJ 43 explained the circumstances leading to her lawyers, on Dec 19, 2012, moving the Court of Appeal, seeking redress on three major matters.

They requested the Court to reject a report, submitted by the UPFA group in the Parliamentary Select Committee. The PSC comprised Anura Priyadarshana Yapa, Dr. Rajitha Senaratne, Nimal Siripala de Silva, Susil Premjayantha, Wimal Weerawansa, Dilan Perera, and Neomal Perera. The UNP was represented by John Amaratunga and Lakshman Kiriella, whereas Vijitha Herath and R. Sampanthan spoke on behalf of the JVP and the TNA, respectively.

The April 1, 2020 edition of The Island carried part I of the review on Uththarithara: Dhoshabiyogaye Athulanthaya. Disruption of printing and distribution of newspapers, as a result of the countrywide shutdown imposed to combat the COVID-19 outbreak, caused the delay in the publication of part II.

However, the most significant revelation, in Chapter 06, in her sensational memoirs, was nothing but CJ 43 questioning the intentions of the two UNPers, who conveniently missed the Court of Appeal proceedings. Was their move meant to give an advantage to the then administration? Did they act unilaterally in that regard? The UNP certainly owes an explanation as to why its representatives acted in a manner which CJ 43, in her memoirs, deemed were a calculated attempt to sabotage the legal recourse, adopted by her legal team.

Today, Kiriella is with UNP Deputy Leader Sajith Premadasa’s breakaway Samagi Jana Balavegaya (SJB) , having switched allegiance, while John Amaratunga, heads the UNP National List. Dr. Rajitha Senaratne, too, is with SJB. Kiriella and Dr. Senaratne are in the fray, from the districts of Mahanuwara and Kalutara, respectively.

UNP MP Dr. Wijeyadasa Rajapakse, PC, who spearheaded the BASL efforts against what the influential organization, at that time, considered an illegal move to impeach the CJ, is in the fray from the Colombo District. Wijeyadasa Rajapakse is contesting on the SLPP ticket. Having served the UNP parliamentary group from 2007 to 2020, Wijeyadasa Rajapakse switched his allegiance to the Rajapaksas, at the last presidential election.

Quit or face the consequences

The sixth episode dealt with CJ 43 coming under unbridled pressure to resign or face the consequences. Had that happened, the then executive President Mahinda Rajapaksa could have saved his image, especially against the backdrop of the Commonwealth condemnation of Sri Lanka’s parliamentary procedures (205-215)

Having claimed that she didn’t believe the government intended to impeach her, when first told of the move, in Oct 2012, CJ 43 contemptuously mentioned how lawmakers Arundika Fernando, Lasantha Alagiyawanna, Pavitra Wanniarachchi, Dr. Sudarshini Fernandopulle and Shantha Bandara, on behalf of the UPFA handed over the impeachment proposal, at the auspicious time of 10.12 am, on Nov 01, 2012, to Speaker Chamal Rajapaksa.

CJ 43 discussed what she could have done, in the face of the then ruling party initiating impeachment proceedings. She had the option to immediately send her retirement papers, reach a ‘deal’ with the political authority, or take on the authoritarian administration. She chose to fight back against the backdrop of heavy international criticism of Sri Lanka’s conduct, in respect of human rights (pages 106 -107).

The author discussed how top lawyers, Romesh de Silva and the late Kandiah Neelakandan (KN passed away on Feb 18, 2018), accepted the challenging task of defending her, both before the PSC, as well as in court, after Jayanta Mootatamby Swaminathan, the senior partner of possibly the oldest law firm in the country, Julius & Creasy, rejected her request as soon as it was made. CJ 43 refrained from dwelling on Swaminathan’s decision. Kandiah Neelakandan had been picked by Romesh de Silva, in the wake of Swaminathan’s rejection, in spite of Julius & Creasy personally knowing CJ 43, in addition to the well-known legal firm twice representing the Bandaranayakes. CJ 43 mentioned, with gratitude, both Romesh de Silva and Kandiah Neelakandan representing her without accepting fees. However, CJ 43’s claim that she had been unaware of how much a case cost in spite of being in the legal profession for over three decades (pages 108 to 111)is surprising.

The writer had an opportunity to accompany Kandiah Neelakandan, to Vavuniya, sometime after the conclusion of the war. The visit was arranged by the then Minister Milinda Moragoda to enable senior members of All Ceylon Hindu Congress (ACHC) meet detained LTTE cadres. When inquired about the Tamil National Alliance (TNA) throwing its weight behind General Sarath Fonseka, at the January 2010 General Election, after having accused his Army of war crimes, the top lawyer confided: "We chose to back the person who actually conducted the war at the expense of the one who gave political leadership."

Four years before the launch of Uththarithara: Dhoshabiyogaye Athulanthaya, CJ 43 addressed the Swarna Pusthaka awards ceremony, organized by the Sri Lanka Book Publishers Association. The UNP-led yahapalana administration was in place. The awards ceremony was held between the first and the second Treasury bond scams, perpetrated in Feb 2015 and March 2016. CJ 43’s presence, at the awards ceremony, had been her first public appearance, since her removal, in January 2013. Addressing the gathering, CJ 43 declared she received an invitation, from a book publisher known to her, on behalf of the said association, and she accepted the invitation with great reluctance. CJ 43 received the invitation from Prof. Sarath Wijesuriya, who played a significant role in the civil society campaign against the Rajapaksa government.

She took the opportunity to carry out a scathing attack on the then Rajapaksa administration, though no previous, or a later Chief Guest, made a political speech as such, at a Swarna Pushthaka event.

Swarna Pushthaka awards were inaugurated in 2007. Interestingly, the then serving CJ Sarath Nanda Silva, had attended the event as the Chief Guest. At the 2017 event, CJ Priyasath Dep delivered the keynote address as the Chief Guest. His speech wasn’t certainly controversial.

An insight into allegations

Thanks to Uththarithara: Dhoshabiyogaye Athulanthaya, readers gained an insight into 14 allegations, directed at CJ 43, in addition to her strong opposition to the inclusion of Dr. Rajitha Senaratne, and Wimal Weerawansa, in the PSC, headed by Anura Priyadarshana Yapa.

CJ 43 dealt with her leaving the Superior Court complex, on the morning of Nov 23, 2012 - on the day of her only child, son Shaveen’s 22nd birthday - to face the PSC, amidst a stepped-up campaign against her. The Chapter that discussed the despicable attempt to isolate CJ 43, before the PSC, by depriving her legal team, headed by Romesh de Silva, to accompany her, subsequent negotiations between the two parties and the proceedings therein, underscored how the then ruling party brazenly manipulated the parliamentary process (pages 151-197). Her decision to boycott the PSC proceedings, in consultations with her legal team, cannot be faulted, under any circumstances.

Such abuse of proceedings is certainly not an isolated incident, in our Parliament, dubbed the most corrupt institution in the country, by no less a person than one time Justice Minister Wijeyadasa Rajapakse.

In the touchy third chapter, CJ 43 discussed how the then President Mahinda Rajapaksa repeatedly sought a meeting with her to discuss developments, against the backdrop of the Judicial Service Commission (JSC) initiating disciplinary action, in respect of complaints received as regards the conduct of a Colombo-based judge. The JSC, consisting of three Supreme Court judges, including the Chief Justice, launched disciplinary proceedings, on Sept 11, 2012. CJ 43 received a call from Lalith Weeratunga requesting her to meet President Mahinda Rajapaksa.

The President wanted CJ 43 to be accompanied by other JSC members. On the following day, Weeratunga sent her a brief letter reiterating the request for an urgent meeting. CJ’s memoirs revealed the contents of the letters, exchanged between her and the Office of the President, a section of the media carrying out a politically motivated attack on the judiciary, anonymous letters critical of CJ’s conduct and the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) initiating action against husband Pradeepa Kariyawasam (pages 78-87)

CJ 43 asserted that the court had been moved against her husband, Pradeepa Kariyawasam, as a last resort to secure an agreement with her. The author discussed as to how the government used the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) to achieve its political goals. CJ 43 explained the indecent way the CIABOC moved against Kariyawasam.

The need to thoroughly examine the CIABOC’s role in the government project cannot be ignored, even years after the incident (Pages 92 and 93). In fact, independence enjoyed by so-called independent commissions should be scrutinized. The controversy over the conduct of the Election Commission, consisting of Mahinda Deshapriya (Chairman), Prof. Ratnajeevan Hoole and President’s Counsel Nalin Abeysekera, regarding its response to the COVID--19 threat, in the run-up to the 2020 parliamentary election.

Impartiality of police

CJ 43, in her memoirs, repeatedly questioned the impartiality of the police. Her assertion that the police cannot be trusted, and always cooperated with the political authority, at the expense of public interest, should have galvanized those interested in the rule of law. Did at least those at the helm of the Bar Association of Sri Lanka peruse CJ’s 43 memoirs? Impartiality of law enforcement authority had been questioned by no less a person than one-time CJ with vast experience in the local judiciary and, prior to that, as a law professor.

The police allowing unruly gathering, outside her official residence, on Baudhaloka Mawatha, a little distance away from the IGP’s official residence, in a high security zone, is nothing but a damning indictment on the entire police service. Perhaps, members of the current Independent Commissions should read Uththarithara: Dhoshabiyogaye Athulanthaya.

CJ 43 also dealt with how Sri Lankans deliberately propagated lies, not only within the country, but overseas, as well. The fear of the rumour mill compelling CJ 43 to shift some of her belongings, in late Dec 2012, and January 2013, from her office to her residence, at Lake Drive, highlighted the seriousness of the issue. CJ 43 felt removal of her belongings, amidst intense government pressure on her to quit, could have demoralized staff (page 233). The reader should take into account that CJ 43 finalized her book project as she was being actively considered as a possible candidate at the 2019 presidential poll, which was comfortably won by Gotabaya Rajapaksa. It would be pertinent to mention that in the run-up to the 2019 presidential poll how determined bids were made to disqualify Gotabaya Rajapaksa from the contest, now proven to be totally false. The threat was so acute that lawmaker Chamal Rajapaksa, on the advice of the SLPP, paid a deposit to qualify to contest the last presidential poll, on its behalf, in the event of the disqualification of his younger sibling.

CJ 43 lambasted the conduct of government members, in parliament and outside, underscoring her dilemma as she couldn’t defend herself against accusations, including the taking over of a five acre of land, belonging to the sister of Dr. Bandaranayake’s mother. Reference was made to the speech made by the then UPFA lawmaker, Thilanga Sumathipala, as a member of group of 117 seeking approval for a resolution to be handed over to the President, seeking the removal of CJ 43.

At the end, however, that resolution was quite ashamedly, and with utter disrespect for parliamentary proceedings, was used to remove the CJ from parliament, the reader was told.

CJ 43 quite fearlessly denied accusations directed at her, including the alleged land take over, at the expense of Navaratne, teacher on the staff of Nalanda College, sister of Shirani Bandaranayake’s mother. Sumathipala is also in the fray at the 2020 parliamentary polls on the SLPP ticket.

In the Chapter that dealt with the proceedings, leading to two-thirds of lawmakers voting against the CJ, with 49 for and 20 abstentions, the author dealt with how the government member Prof. G. L Peiris, her mentor, responded to the move against her in spite of knowing her for over 35 years. CJ 43 revealed how she struggled to cope up with Prof. Peiris role in the impeachment process, especially the speech the academic made in parliament, on January 10, 2013, the day before the vote, the result of which was a foregone conclusion. The author explained the circumstances she interacted with the academic who earned her respect (pages 230, 234). Prof. Peiris heads the National List of the SLPP, for the 2020 general election, submitted to the Election Commission.

A CJ sans security

In a country, where security provided to various persons, at taxpayers’ expense, is abused, CJ 43 revealed how she refrained from securing police protection, throughout her tenure, even after she and members of her family allegedly came under threat, in Nov 2012. In spite of the CJ being entitled to a group of five law enforcement personnel and a jeep, she moved on her own. In fact, she had driven alone, along the Kandy-Jaffna A9, to Jaffna peninsula, to open the new court complex there. Of course, that wouldn’t have been possible if President Mahinda Rajapaksa government failed to eradicate the LTTE, in May 2009.

CJ 43 also confirmed how those government servants rented their houses, within the Colombo city limits, and obtained government quarters. The accusation was made having faced possible forcible entry to CJ’s official bungalow, in the wake of her being removed. CJ 43 backed her argument that she couldn’t depend on law enforcement authorities, with accusation that the IGP, in spite of having official quarters, close to the CJ’s, did nothing when unruly crowds gathered outside her official residence, on the night of January 11, 2013.

CJ 43 revealed a last desperate bid, made by the then administration, to convince her to step down before parliament made its move. The offer, made known to her by her lawyers Romesh de Silva and Neelakandan, at the CJ’s official residence, though they knew she wouldn’t change her decision taken on Nov 01, 2012 not to succumb to political pressure. Since the battle erupted in Nov 2012, over 30 lawyers inquired from Bandaranayake whether she intended to quit on her own. Their interest to know what she was going to do should be examined with rumours that she sought time till April 2013 to quit.

CJ 43 dealt with the police delivering a letter signed by President Mahinda Rajapaksa, dated January 12, 2013, informing of her removal on the basis of a request by parliament on the previous day (pages 244-245). CJ 43 included the Sinhala translation of her son Shaveen’s English Facebook post that expressed confidence in her strength to take on the Rajapaksa government. Shaveen Bandaranayake threw a challenge to the public whether they were ready to throw their weight behind his mother. That post ended up in parliament Hansard at a time perhaps CJ 43 never considered a high level political role, though she received attention as Opposition candidate in the run-up to the 2019 Nov presidential polls (pages 246 and 247).

CJ 43 revealed controversial developments in the wake of receiving a letter from President Rajapaksa. The deposed CJ explained how she refused to heed police request to get rid of the journalists, on Wijerama Mawatha, and also to leave the CJ’s bungalow, via a side entrance, on Baudhaloka Mawatha. Bandaranayake took the bold stand that she would leave through the main entrance and wouldn’t ask the media to leave as she didn’t invite them in the first place.

The description of CJ 43 leaving the official bungalow, in a car driven by Shaveen, seemed like a scene out of a movie, with law enforcement officer, identified as Ranagala, demanding they leave, unidentified motorcycle riders riding in a threatening manner and the unsavory scene outside (pages 254-257) their Lake Drive home.

CJ 43 appreciated how her son forced her Uththarithara: Dhoshabiyogaye Athulanthaya and helped her to finalize her memoirs. But, at the end, her reinstatement as CJ 43 on January 28, 2015, and retirement on the following day, is as controversial as her removal in January 2015. What the yahapalana leaders expected by that move is still not clear. The yahapalana lot made quite a number of controversial appointments, in January 2015. One is Singaporean Arjuna Mahendran as the Governor of the Central Bank. Bringing back Bandaranayake, as CJ, was nothing but a part of the yahapalana charade that was terminated, last November, with the election of Gotabaya Rajapaksa as the President.