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FINANCIAL CHRONICLE™ » DAILY CHRONICLE™ » Political tsunami for New Year: Solution lies in right-is-might principle

Political tsunami for New Year: Solution lies in right-is-might principle

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Redbulls

Redbulls
Director - Equity Analytics
Director - Equity Analytics

* Court of Appeal warns of legal chaos if rulings are not honoured; CJ gets standing ovation from hundreds of lawyers at Voet Lights 2012


*1575-page PSC report for debate in Parliament on January 9, 10 and 11; Peiris briefs foreign diplomats but Govt. still under heavy pressure

By Our Political Editor

External Affairs Ministry officials worked overtime last Monday to put together an urgent meeting of Colombo based diplomats the next morning (Tuesday).

UPFA leaders were worried that the EAM had done little or nothing to counter what one high ranking source said was the “bad publicity” the Government was receiving. This was over moves to impeach Chief Justice Shirani Bandaranayake. They feared that these diplomats would base their reports to home governments on the media accounts, more so with no official inputs.

For some 75 minutes, External Affairs Minister G.L. Peiris waxed eloquent on the government’s position and the need for the international community to be briefed on the impeachment. He said the procedure was entirely constitutional and explained why it should not be submitted to judicial review.

Insisting that Chief Justice Bandaranayake was treated with “extreme cordiality” he argued that the facts could be verified not only through closed circuit camera footage but also from voice recordings. “There has been no harassment or intimidation in any form,” he said. He offered to make available official records that confirmed allegations against her have been proved before the Parliamentary Select Committee. The Chief Justice’s lawyers, however, had earlier complained to the Speaker at the way she was treated in general and the degrading, humiliating words that were thrown at her in particular.


Besieged Chief Justice Shirani Bandaranayake getting a standing ovation from hundreds of lawyers at their annual Voet Lights 2012 dinner on Friday. Pic by Mangala Weerasekera
For Peiris, it was no doubt a painful task, to delve at length on the charges against the CJ. It was he who had singularly backed Ms. Bandaranayake for the post of Chief Justice in May 2011. He assured President Mahinda Rajapaksa that she was the right person to head the country’s apex court and the Government could have full confidence in her. “I was so convinced by what GL said,” Rajapaksa confided to a journalist, and added “this is what happens when I listen to such advise”.

She was his pupil at the Law Faculty of the University of Colombo where Peiris taught law before taking to politics. This was whilst his other cabinet colleagues supported Mohan Peiris, who served as Attorney General, and now functions as legal advisor to the cabinet. Minister Peiris alleged that Ms. Bandaranayake had purchased an apartment at Trillium Residencies (using a power of attorney) for her sister and brother-in-law having won a discount of Rs 1.6 million. This was money that should have gone to depositors of Golden Key, part of the Ceylinco Group that went financially bankrupt and twenty people who placed their savings were driven to suicide. The External Affairs Minister accused Chief Justice Bandaranayake of financial impropriety and added that her husband, Pradeepa Kariyawasam, was now being investigated for alleged bribery and corruption. When it came to question time, there were no takers. The meeting adjourned.

However, a few diplomats were around Peiris in the foyer outside the conference room. One of them representing a western country asked him what would follow when Parliament adopts the impeachment resolution. Is it then incumbent on the President to remove the Chief Justice, he asked. “Yes, yes,” replied Peiris. India’s High Commissioner Ashok Kantha joined in by then. Evidently not hearing Peiris’ remarks, he asked the External Affairs Minister whether there was a time frame during which the President would have to act after Parliament adopts the impeachment resolution. “I am not very sure about that,” replied Peiris.

Another witty western diplomat who was present was to remark to a colleague what he saw was a contradiction in External Affairs Minister’s assertions. He noted that Peiris had accused the United Nations Secretary General Ban Ki moon of not following the “due process,” when he appointed a three-member panel of experts to probe alleged war crimes in Sri Lanka. Simialr accusations, he said, were made over the Charles Petrie report on the internal workings of the UN in the last stages of the war. “In his remarks today, he altogether forgot to address accusations that the due process has not been followed. He asked us to look at the substance,” he told a colleague. Both laughed out loud but EAM officials who stood nearby were unaware of what was said.

The hurriedly summoned meeting of diplomats on Tuesday put paid to another regular event. On Tuesday mornings, diplomats turned up at the Maldivian High Commission at Melbourne Avenue, Colombo, to watch a live satellite feed of their External Affairs Ministry spokesperson in Male give the day’s update on political developments in the archipelago. Most envoys posted to Sri Lanka are concurrently accredited to the Maldives. The government of President Mohamed Waheed Hassen is locked in intense political battles with his predecessor, Ahmed Nasheed. The latter was debarred on Friday from leaving the country. He was to travel to Bangkok.

Peiris’ offer of official documents to diplomats came as Parliament released to MPs two voluminous accounts of the report of the Parliamentary Select Committee (PSC). Printed in two parts, the report runs into some 1,575 pages. It contains the findings, minutes of evidence, names of those who testified and all the documents placed before or obtained by the PSC. An edited record of proceedings from the day it started sittings until it ended appears in a box story on this page.

It gives an insight into the working of the controversial Committee – a subject that had remained couched in secrecy so far due to Parliamentary privileges the consequent ban on reportage. It also highlights the fact that government and opposition parliamentarians were at variance over the conduct of the PSC sittings and on other important issues. Besides errors, the report also contains repetitions and is replete with grammatical errors. Names have been spelt differently in different places.

According to present plans, the Government proposes to debate the impeachment resolution in Parliament on January 9, 10 and 11, next year. When Parliament sittings resume on January 8, the controversial Divineguma Bill is to be debated to a finish. A decision to go ahead with the Bill was taken by the cabinet when it met on Wednesday night. The Bill seeks to provide Minister Basil Rajapaksa control of more than Rs. 60 billion in poverty alleviation programmes. Ministers took note of an observation by the Attorney General that based on a Supreme Court judgment, two clauses of the Bill required approval by Parliament with a two thirds majority.

The government believes that with the passage of the impeachment resolution in Parliament next month, Chief Justice Bandaranayake will be removed from office. It plans to appoint a new Chief Justice. The procedure, they point out, is intimation by the Speaker to the President that a resolution to remove the Chief Justice has been approved by Parliament. The President, thereafter, would issue a proclamation that the CJ has ceased to hold office in the light of this. However, lying on the path of government’s political initiatives are some serious legal obstacles.

It would have to literally veto its way from opinions expressed by the Court of Appeal as well as the Supreme Court – a move that is fraught with many debilitating repercussions. Main among them is the fear of a major breakdown in the judicial system and its immediate impact on other democratic institutions. Already, the Deputy Speaker has said that the Speaker and the PSC members who probed the impeachment motion against the CJ will not respond to the notice issued by the Court of Appeal on them based on the writ application filed this week by the CJ in that court. This comes in a climate where lawyers opposing the impeachment move are facing threats and intimidation from goon squads.Lawyer Gunaratne Wanninayake complained that armed men tried to assault him near his house in Boralesgamuwa.

Past midnight Thursday, unknown intruders fired shots at the Nawala residence of Wijeyadasa Rajapakshe, President of the Bar Association of Sri Lanka (BASL) and a UNP parliamentarian. Then, senior lawyer Upul Jayasuriya complained to Police Chief N.K. Illangakoon on Friday that he faced threats to his life.
Attorney Wanninayake told the Sunday Times:” I lodged a complaint with the Inspector General of Police about the threat posed to me at gunpoint last Monday.

A Senior Superintendent of Police from the Criminal Investigations Department (CID) telephoned me and wanted me to call over at their office. I told them if they wanted to carry out a proper investigation they should call over at my place. I refused to call over at the CID. However, the Colombo Law Society had sent a letter to the IGP calling for an investigation.

Accordingly the letter had been directed to Colombo Crimes Division (CCD). An Inspector of Police called over at my residence and recorded my complaint. Even after the statement was recorded by the CCD, I received a call on my mobile phone saying I should not think that I have escaped.” He said he has passed on the telephone number to the CCD officer. Wanninayaka was in his Jeep parked outside his residence at Pirivena Road, Boralesgamuwa around 5 p.m. last Monday waiting for his gate to be opened, when a person who got off a van, walked up to him came and threatened him at gunpoint.

Wijayadasa Rajapakshe told the Sunday Times: “There has been a series of investigations carried out on the gun attack on my residence. I am satisfied about the manner in which investigations are being conducted. I heard the sounds of firing that night. My son too heard them. But it was the next morning that I noticed the damages caused from the firing towards the wall. I informed the Police. I am confident that there will be a breakthrough. President Mahinda Rajapaksa who visited the residence has also directed the police to carry a full investigation.”

Rajapakshe has become an enigma in the legal fraternity. The previous Saturday he chaired a meeting of the general membership of the BASL. How he introduced his own resolution and had it carried “unanimously” whilst the two others on the agenda were not put to vote has drawn considerable comment. The two remaining resolutions were one signed by more than 550 lawyers who strongly criticised the Government move to impeach the CJ and one by some 250 lawyers backing the Government. Rajapakshe’s “moderated” resolution, one high ranking source said, came after he had met two top officials, one of them closely linked to the UPFA leadership and the other working in a pivotal organisation.

According to the source, the BASL President came under heavy criticism in the state run electronic media over his move only for two days. Orders had gone out thereafter to stop it, these sources said. However, lawyers backing Rajapakshe said he took the course of action to prevent the rival factions ending up “in fisticuffs”. They argued that some elements of the resolution signed by most lawyers were incorporated into the Rajapakshe resolution.

On Friday, the head-on confrontation between the Judiciary and the Legislature reached a new high. This was after a three-judge bench of the Court of Appeal made order on a writ application filed by Chief Justice Bandaranayake. The bench comprised S. Sriskandarajah (President), Anil Goonaratne and A.W. Salam. They took note of the claim by Ms. Bandaranayake’s counsel that Sri Lanka had given an undertaking to the UN that Select Committees are subject to judicial review.

Here are significant highlights from the Court’s order:

“The power of the Court of Appeal to exercise judicial review on findings or orders of persons or body of persons exercising authority to determine questions affecting the rights of subjects are wide and this power has been provided to the Court of Appeal by the Constitution of the Democratic Socialist Republic of Sri Lanka. Therefore this power cannot be abdicated by the other arms of the government namely the Legislature or the Executive.


“Article 140 of the Constitution provides that:

“Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any court of first Instance or tribunal or other institution, and grant and issue, according to law, orders in the nature of certiorari, prohibition, procedendo, mandamus and quo warranto against the judge of any court of first instance or tribunal or other institution or any other person.

“The circumstances in which certiorari and prohibition will be available have been summed up by Lord Justice Atkin in R v Electricity Commissioners (1924) 1 KB 171 at 205 in the following words:

“Whenever anybody of persons have legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

“These famous words of Atkin LJ on numerous occasions have been cited and followed by our courts. Dheeraratne J, in Sirisena Cooray v Tissa Dias Bandaranaike (1999) 1 SLR 1 16 observed that, “Over the years frontiers of Lord Atkin’s formula have been advanced by judicial decisions. It is no longer the duty to act judicial or quasi-judicially which attracts review but the duty to act fairly.”

“In the instant application the Petitioner’s complaint is that the body of persons (PSC) appointed by the 1st respondent (the Speaker, Chamal Rajapaksa) which comprised Members of Parliament were entrusted with the task of determining questions affecting the rights of the Petitioner and therefore they should have acted judicially and or fairly but they have failed in their duties.

The submission of the Learned President’s Counsel of the Petitioner was that the PSC had acted in violation of the rules of natural justice in arriving at the finding that the charges No: 1, 4 and 5 are proved against the Petitioner and hence the said decision is subject to judicial review and be quashed by a writ of certiorari.”

Note: Charges 1, 4 and 5 are ones on which the PSC found Chief Justice Bandaranayake guilty. Charge 1 related to removing another bench of the Supreme Court which was hearing the Fundamental Rights application cases against Ceylinco-Shriram Capital Management, Golden Key Credit Card Company and Finance & Guarantee Company Ltd. belonging to the Ceylinco Group.

She was accused of taking up these cases under a Bench headed by her. Charge 4 related to Chief Justice Bandaranayake not declaring in the annual declaration of assets and liabilities the details of more than 20 bank accounts. Charge 5 related to Ms. Bandaranayake’s husband being indicted in a case of bribery or corruption and her being “unsuitable to continue in the office of the Chief Justice.” Ms. Bandarnayake has strongly denied she is guilty of these charges and has said she was not given time to explain herself.

The Court of Appeal further said:

“The PSC in considering the charges against the Petitioner is not exercising its legislative power but exercising powers of judicial nature, whether it can exercise judicial power against a person who is not a member of parliament is a question that will be determined in another application pending before this court. The PSC appointed by the Hon. Speaker has in fact exercised powers of judicial nature in finding that the 1st, 4th and 5th Charges are proved against the Petitioner. Whether the PSC has the power and authority to act in the manner it has acted or whether it has exceeded its power or has failed to act judicially in arriving at their finding are matters subject to judicial review under Article 140 of the Constitution.

“The Petitioner also complained that the Petitioner was not given a fair hearing as two of the members of the PSC who were biased towards the Petitioner sat as members of the PSC which arrived at the said decision despite the objection of the Petitioner. The Petitioner contended that there is no evidence to come to the conclusion that the charges 1, 4 and 5 are proved. As the Petitioner has established a prima facie case for consideration, this Court issues notice on the Respondents.

“The Petitioner has also sought an Interim Order restraining the 1st Respondent and / or 2nd to 13th Respondent (Note: Members of the PSC and the Secretary General of Parliament) from acting on and or taking any further steps based on the purported report until the hearing and determination of this application.

“This Court is of the view that any steps taken in furtherance of the findings and/or the decision contained in the report of the 2nd to the 8th Respondents (Note: the seven government members of the PSC) would be void if this court after the hearing of this application issues a writ of certiorari to quash the said findings and/or the decision of the PSC, therefore the relevant authorities should advise themselves not to act in derogation of the rights of the Petitioner until this application is heard and concluded, since any decision disregarding these proceedings to alter the status quo may lead to chaotic situation.

“This court is conscious of the fact of a ruling of the Honourable Speaker on the notice issued by this court (in relation to another application pending in this court) on the Hon. Speaker of Parliament and on the Members of the Select Committee appointed by the Hon. Speaker. Where Hon. Speaker ruled: ‘I declare that the purported Notices, issued to me and to the Members of the Select Committee are a nullity and entail no legal consequences. I wish to make it clear that this ruling of mine as Speaker of Parliament, will apply to any similar purported Notice, Order or Determination in respect of the proceedings of the Committee which will continue solely and exclusively under the authority of Parliament.’

“On this ruling of the Hon. Speaker this Court wishes to have it placed on record that the order to issue notice on the Respondents of this application is nothing but a legal obligation on the part of the court to afford the Respondents an opportunity of being heard, thus adhering to the concept of audi alteram partem.” (Note: This Latin phrase refers to the legal principle of fairness given to ensure that the accused has the chance to refute an accusation).

Among matters Chief Justice Bandaranayake raised in her petition are:

Not being afforded sufficient time to respond to ‘purported charges or to prepare her defence.’
Bias by Ministers Rajitha Senaratne and Wimal Weerawansa, who were members of the PSC. They had appeared before SC benches chaired by her where judgements were not in their favour.
No procedure being laid down by the PSC despite repeated requests by her legal counsel.
Turning down a request for public hearing by the PSC, waiving the secrecy provision.
Decisions taken by the Chairman of the PSC sometimes without the knowledge of members.
Insults by several Government members of the PSC.
That seven government members were conducting the proceedings of “the purported Select Committee in an unreasonable, unlawful, ad hoc, manifestly unfair and an arbitrary manner in breach of the principles of natural justice.”
Besides the Court of Appeal ruling, a Supreme Court determination on nine different cases challenging the constitutionality of the PSC is now pending. These petitions are on the grounds that the Standing Order 78 (a) under which the PSC has been appointed to probe the CJ is not part of the country’s legal statute but only one that sets out procedures for the conduct of business in the House.

On Friday, the CJ was the guest of honour at the annual end-of-year dinner of lawyers of the century-old Voet Lights Society, named after a famous Dutch jurist. The event was attended by more than 600 lawyers who gave the CJ a standing ovation as she walked into the Cinnamon Grand banquet hall.

She sat at the head table flanked by Attorney General Palitha Fernando PC and the the Society’s President R.J. de Silva, who said the night was when the world was supposed to end according to the Mayan calendar. He said it was not the end of the world, but only the end of an era, and that a new era would begin tomorrow.

The Chief Justice sat through the dinner laughing at the jibes of the ‘scribe’ and the yarns of the youngest lawyer to take oaths, known as ‘the Baby of the Bar’. Former Attorney General C.R. de Silva, PC was the guest of honour at the event. The CJ was again given a standing ovation as she left the convivial evening.

As a New Year dawns in just over a week, the gathering storm may turn into a political tornado. Ms. Bandaranayake has weathered it so far though many expected her to say farewell to her office. How the upcoming political tsunami, the result of the head-on collision between the Executive and Legislature on one side, and the Judiciary on the other, will play out in the New Year has to be seen. But there is a golden thread in the drama. There are many who still believe that right is might and not the other way around.

How the PSC hearings were rushed through

The 1575 page report of the Parliamentary Select Committee that probed Chief Justice Shirani Bandaranaike following a resolution signed by 117 MPs to impeach her has now been officially released.
The lengthy report contains proceedings, minutes and volumes of documents which were made available by different state agencies or individuals. They were related to the 14 charges preferred against her.

Since the start of sittings until closure, the PSC sittings were cloaked in secrecy due to parliamentary privileges. Now that the Committee is defunct and its report has been placed in the public domain, an account of the PSC proceedings which began on November 14 and continued till December 8 reveals different facets. It shows how opposition MPs took exception to the conduct of business at different stages and how legal counsel for Chief Justice Bandaranayake raised objections. For reasons of clarity and to avoid repetition, some parts have been edited without in any way affecting the factual content. Other parts, though with repetitions or errors, have been reproduced since changes will not project the actual account. Here is what it says:

The Parliamentary Select Committee appointed by Speaker Chamal Rajapaksa on November 14 under Standing Order 78 (a) “to investigate and report to Parliament on charges mentioned in this resolution within one month from the commencement,” commenced its inquiry on November 14. It sat on eight occasions on November 14, 16 and 23 and December 4, 6, 7 and 8.

At the first sitting, the Chairman of the Committee (Minister Anura Priyadarshana Yapa) explained “the procedure adopted by the Committee and the Standing Order 78 (a) and Standing Order 78 (a) 6 in particular.” At the same sitting, the Committee decided to transmit a copy of the resolution placed in the Order Book of Parliament of November 6 to Mrs Shirani A. Bandaranayake and requested her to submit her defence in writing before November 22, as per standing order 78 (a) (3). The Committee “further decided to request Chief Justice Hon. Mrs. Shirani A. Bandaranayake to appear before the next sitting” to be “held on 23rd December (sic).” Note: The month should read as November since there were no PSC sittings on that date. “The Committee also inquired her (sic) whether she was willing to appear before its next sitting on her own or through a representative.”

The Committee sat on November 16. The report says, “Your Committee discussed the letter dated 15th November 2012 sent by Neelakandan and Neelankandan law firm and concluded that under Standing Order 78 A (5), the right to nominate her representative was vested solely in the Chief Justice and that right could not be transferred to Neelakandan and Neelakandan law firm. Accordingly it was decided to inform her to submit a request, if any, to appear before the next sitting day of the Committee on 23rd November 2012, or nominate a representative, if any representative was going to appear on her behalf.”

“The Hon. Lakshman Kiriella, presenting a written statement emphasized that your committee should stick to principals (sic) – Note: should read as principles – of natural justice and the rule of law. The Hon. Rajitha Senarathna expressing his views on the above statement stated that at a previous occasion too, the Committee that probed allegations against a Chief Justice acted in this manner and that Parliament is supreme according to a ruling given by a former Speaker Hon. Anura Bandaranaike and the proceedings of the Committee should comply with the Standing Orders.

“Addressing the Committee, the Chairman opined that Members of Parliament are representatives of the people and the constitution had vested certain powers in the Parliament. He further stated that similar procedures are followed in Great Britain, India and the United States and the responsibilities vested in the Members of Parliament by the Constitution should not be belittled.

Accordingly, your Committee was of the view that a party outside Parliament cannot be vested with powers to conduct such an investigation.”

The Committee met again on November 23. The Secretary (who is also Secretary General of Parliament) marked documents which are included in Appendix 1 of the report.

The report adds: “Drawing the attention of the Committee to the documents tabled in the Committee pertaining to the case SC 3/2012, (Note: It relates Supreme Court’s recommendation to be prudent not to go ahead with the PSC until cases before them were heard) Hon. Nimal Siripala de Silva emphatically stated that these documents had not been lawfully presented. He further stated that it was not the accepted procedure of Parliament to table them in the Committee after having them handed over to Parliament when the same had been addressed to the private addresses of the Members of Parliament. Pursuant to discussions on the matter, the Chairman decided that these documents could not be deemed as the documents of the Committee as they have not been duly presented. The Hon. John Ameratunga, the Hon. Lakshman Kiriella, the Hon. Vijitha Herath and the Hon. Rajavarothiyam Sampanthan expressed their disagreement with this decision. The Hon. Vijitha Herath and the Hon. John Ameratunga further stated that as informed by the Supreme Court, the proceedings of your Committee should be suspended until the conclusion of the proceedings of the cases before the Supreme Court.

“Commenting on this matter, the Chairman opined that your committee had been appointed as per the powers vested in Parliament under Article 107 of the Constitution and as set out clearly in the Standing Orders and that there were precedents in this regard and that the Committee had been given only a very limited period of time by the Parliament and as such the Committee could not deviate from the responsibility it had been entrusted with by Parliament.

“Expressing their views, the Hon. Lakshman Kiriella and the Hon. Rajavarothiyam Sampanthan stated that action should be pursued in such a way so as not to harm the mutual relationship with the Parliament and the Supreme Court. The Hon. John Ameratunga, the Hon. Lakshman Kiriella and the Hon. Vijitha Herath stated that they did not agree with the Committee’s decision not to accept the determination by the Supreme Court. The Chairman again stated that Your Committee should act in accordance with the Standing Orders and the Constitution and discharge the responsibility entrusted to it by the Hon. Speaker in an independent and impartial manner.

“Thereupon, the Hon. Dr. (Mrs). Shirani A. Bandaranayake, Chief Justice and Mr. Romesh de Silva, President’s Counsel were summoned before the Committee. Mr. Romesh de Silva, PC, who appeared for the Hon. Chief Justice, first thanked the Committee for the degree of courtesy accorded to them on their arrival in Parliament. With permission from the Committee, the following counsel were nominated to assist senior President’s Counsel Romesh de Silva, who appeared for the Chief Justice: Mr. Nalin Ladduwehetty PC, Mr. Saliya K. Peiris, attorney at law, Mr. Sugath Caldera attorney at law, Mr. Riyaz Ameen attorney at law, Mr. Iraj de Silva, attorney at law and Kandayyah Neelakandan attorney at law.

“Mr Romesh de Silva, PC, submitted a certified copy of an order by the Supreme Court in Case No 3/2012 and stated that a request had been made that the proceedings of the Committee be suspended on grounds of mutual trust between the judiciary and the legislature till the judicial action before the Court has been dealt with. The Committee discussed this at length and the Chairman decided that your committee, which had been appointed in terms of the Constitution, had no power to suspend its proceedings. The Chairman informed that, according to the traditions of Parliament, the Hon. Chief Justice should take an oath at the first instance of her appearance before Your Committee, to which Mr. Romesh de silva, PC, who appeared for the Chief Justice objected.

“However, the Chief Justice agreed to take the oath as amended when it was pointed out that the records of evidence show that on a previous occasion, the Chief Justice who appeared before the Committee last appointed to hold a similar examination had taken the oath at the first instance of his appearance before that Committee, and accordingly the Hon. Chief Justice took the oath before the Committee.

“As Mr. Romesh de Silva, PC, who appeared for the Chief Justice, asked for a period of six weeks to submit the case for the defence, the Committee considered it and decided to give him time till 30th November 2012 to submit the statement of defence and to hold the next meeting on 4th December 2012, and informed the defendant party that, in that meeting, they could make their submissions pertaining to the jurisdiction and bias, which they have cited as their preliminary objections. The Chairman informed the Committee that action would be taken through the Secretary General of Parliament to send for documents necessary for the investigations of the Committee. After considering a request made by the senior counsel of the Chief Justice, the committee agreed to provide the minutes of evidence of the Committee on condition that confidentiality would be guaranteed.

“At the following meeting of the Committee on 4th December 2012, the Hon. Vijitha Herath stated that a mechanism should be formulated for the continuance of the proceedings of this Committee. At that moment, presenting a written statement, the Hon. John Ameratunga stated that some agreement should be entered into in relation to the matters like the procedures of the committee and the onus probandi. (Note: The Latin term refers to the burden of proof, the onus; the duty of a party in a legal proceeding to prove an assertion of fact). The Hon. Rajavarothiyam Sampanthan explained that the standing orders and the rules related to procedures of the Committee should be formulated by the Parliament.

“Hon. (Dr.) Mrs Shirani A. Bandarnayake and the counsel were called before the Committee. President’s Counsel Mr Romesh de Silva informed the Committee that Counsel Sarvanan Neelakandan, too, will appear before the Committee for his support at its next meeting in addition to the counsel already appearing before the Committee. Leave was granted for the aforesaid counsel to appear before the Committee.

“Making a request, President’s Counsel Mr. Romesh de Silva stated that despite Standing Order 78A (8.) which provides that the proceedings of the committee shall not be made public until reported by the Committee, and since such right has been established in order to ensure the protection of his client, and since his client, Hon. Chief Justice, had advised him to waive such right, the public and the observers be given the opportunity to observe the proceedings of the Committee accordingly.

“The Hon. Rajavarothiyam Sampanthan, the Hon. Lakshman Kiriella and the Hon. Vijitha Herath expressed their support for the aforesaid stance. Giving a ruling on the matter, the Hon. Chairman expressed the inability of the Committee to act in contravention of Standing Order 78B(8.). Raising his objection President’s Counsel Romesh de Silva objected to the methodology adopted by the Committee in sending for documents necessary for the committee. Responding to this, the Hon. Chairman informed that the methodology usually adopted by the Committee in terms of the Parliamentary Practice had been adopted by this committee in that regard. Hon. Chairman briefed the Committee of the documents that had already been sent for by the Committee.

“The Committee sat on 05 December 2012. The Chairman informed the Committee that the future meetings of the Committee could be discussed. The Hon. Lakshman Kiriella and the Hon. Rajavarothiyam Sampanthan stated that it had been the convention of the parliament not to have sittings or committee meetings after the budget debate and that they had already made personal arrangements for this period. The Hon. Vijitha Herath stated that four members who represent the opposition had already made a request in that regard. The Committee, after deliberation, agreed to continue the proceedings of the Committee until 12th December and then take a decision on the future meetings of the Committee.

“The documents received by the committee so far were distributed among the members and the Hon. Chairman informed the Committee that these documents had been legally obtained by the Secretary General of Parliament. In addition to that, the Hon. Neomal Perera requested the committee that the assets reconciliation statements and receipts and payments accounts details of Hon. Chief Justice, her husband and her son should be obtained.

“The Committee resumed sittings on 06th December 2012. The Hon. Rajavarothiam Sampanthan, the Hon. John Ameratunga, the Hon. Lakshman Kiriella and the Hon. Vijitha Herath informed that they had informed the Speaker of their inability to participate in the affairs of the committee from 08th December 2012 to 08th January 2012 (sic) (Note: should read as 2013) and requested not to have committee meetings during that period. In response to that Hon. Chairman informed that as per the decision taken on 5th December 2012, permission for an extension of time should be sought from Parliament after having the maximum possible meetings in the month of December. Thereafter, Chief Justice Hon. Dr. (Mrs.) Shirani A. Bandaranayake and her panel of lawyers including senior counsel were invited to the committee.

“Hon. Chairman of the Committee, making an announcement, rejected the verbal submission by the senior counsel of Chief Justice on bias and tabled his order in that regard. At this stage, the Secretary of the committee read out the list of all the documents that had been received by the Committee so far and the copies were provided to senior counsel for the Chief Justice. Here, the senior counsel for Chief Justice stated that time was required to study these documents and in order to take a decision in this regard the committee suspended its activities briefly and carried out a discussion only with the participation of the members of the committee.

“Subsequently the Committee convened and the Hon. Chairman of the Committee informed the senior counsel for the Chief Justice that the investigation into the first and second charges mentioned in the resolution against the Chief Justice would be conducted at 1.30 p.m. on the following day, when submissions could be made and witnesses could be sent for to disprove the aforesaid charges and if the witnesses required for that were nominated they could be called before the Committee. On that occasion, Mr. J. Romesh de Silva, the senior counsel for the Chief Justice objected to the decision and the panel of lawyers walked out of the Committee along with the Chief Justice informing that they would not participate in the proceedings of the Committee any further due to the fact that the defence was not provided sufficient time and precise information with regard to the procedures of the Committee was not made available. Your Committee reconvened on 07th December 2012. The Hon. Lakshman Kiriella and the Hon. Vijitha Herath expressed their objections regarding the fact that minutes of the Committee held on 06 December 2012 were not made available on that occasion.

“The Hon. John Ameratunga made a written submission to the Committee and inquired the Chairman (sic) whether the Committee would consider the facts mentioned therein and provide the Chief Justice sufficient time and request her to appear before the Committee again. The Chairman of the Committee informed that it was clearly evident as per the letter forwarded by the law firm Neelakandan and Neelakandan to the Hon. Speaker that the Chief Justice would not appear before the Committee again. On that occasion, the Hon. John Ameratunga, the Hon. Lakshman Kiriella, the Hon. Rajavarothiam Sampanthan and the Hon. Vijitha Herath walked out of the Committee.

“The Hon Dilan Perera making a request from the Committee reminded that it has been decided to investigate into the first and second charges of the aforesaid resolution of 6th November 2012. On that occasion the Committee decided to send for witnesses” Its decisions had been arrived at after hearing the witnesses and perusing the documents, the report claimed.
http://www.sundaytimes.lk/121223/columns/political-tsunami-for-new-year-solution-lies-in-right-is-might-principle-25794.html

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