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I have no regrets

By Upul Joseph Fernando-2013-06-02 01

As I reached the house opposite the police guard post close to the Royal Park condominiums, a policeman shouted; "Where are you going?" When I replied to him, I saw a lady dressed in a purple blouse and a pair of black trousers standing at a stark black gate nearby.

"He has come, putha, can you open the gate?" she asked a young man, who appeared to be her son. The lady, who stood before me, was none other than the 43rd Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake. While many have attempted to portray her in many lights, the Aluthkade legal fraternity would describe her as a simple, charming lady wearing a Kandyan saree and wore no makeup. My first impression of her was that she was quite calm without even a shade of ennui. Seeing her inside the closed compound of her home, with windows and doors closed, I had the impression that she was under house arrest. Q: Don't you get the feeling that you are sort of under house arrest? A: I certainly do. It was all due to my honest struggle to promote the cause of justice. I am proud of it. With the Bribery Commission periodically summoning me there, neither myself nor my son and husband, have any rest and peace in our lives now. A: Would you like to tell us about your family, village, schools and so forth? Q: My father is Wilson Bandaranayake, a student of both Maliyadewa and Ananda Colleges. He was an honours graduate from the University of London. He started his career as a school principal and functioned in that capacity until 1970 when he joined the Education Administrative Service. Thereafter, he became a Provincial Director of Education. There were only 25 such Directors for the entire country then. At the time I was born, my father was the Principal at Dedigama Maha Vidyalaya. My mother, Flora Bandaranayake, an old girl from St. Joseph's Girls School, Kegalle, was a trained English teacher. After my birth, my mother resigned and when my younger sister reached the age of eight, she rejoined the Department of Education. My father was transferred to Ginigathhena Madya Maha Vidyalaya in December 1960, at a time when my mother was expecting my younger sister. She was born in March 1961, in Nawalapitiya. My first school was Ginigathhena Primary School. In January 1965, my father was transferred to Hettimulla Maha Vidyalaya. At that time, I was studying at Kegalle Balika Vidyalaya. That was for a very short period. It was during this time, late Prime Minister Dudley Senanayake wanted my father to be the Principal of Tholangamuwa Madya Maha Vidyalaya, also known as Tholangamuwa Dudley Senanayake Vidyalaya. Therefore, in 1965, I joined the Tholangamuwa Primary School. When my father joined the Education Administrative Service in 1970, his first appointment was to Gampaha. With the change of government in 1970, my father was transferred to the North Central Province on 7 July 1970. He served there for well over a decade. He was considered an exemplary Education Administrator. Thereafter, our family moved to Anuradhapura and I changed school from Tholangamuwa to Anuradhapura Madhya Maha Vidyalaya. I achieved high marks in my A/L examination in April 1976 in the Arts stream from North Central Province. At various times, my parents wanted to admit my sister and me to Maliyadewa Girls' School and to Visakha Vidyalaya, Colombo. But I was adamant that I should be with my parents, as much as possible. Sometime later my sister attended Devi Balika Vidyalaya and Vishaka Vidyalaya. My parents always willingly devoted their time and resources to help children of rural communities. For instance, Ginigathhena Maha Vidyalaya produced its first undergraduate during my father's tenure as Principal. We became bi-lingual thanks to the

efforts of my parents. Amma always encouraged us to learn and to live by the mantra; ugatha mana shilpayamai mathu rekena. Appachchie always assisted her. Their efforts to bring us up as honest and upright human beings stood us in good stead in our lives under trying circumstances. Appachchie hailed from Purijjala of Matale and Nekatta of Kurunagala whereas Amma was from Kegalle and Madabawita close to Nittambuwa. I always long for their loving guidance, but sadly they are no more. Q; When did you enter the university? A: I entered the university in 1977. I am proud of the fact that I became First in Order of Merit obtaining a Second Class in the Upper Division, obtaining my LLB at the University of Colombo. Q: Did you get an appointment in the university academic staff? A: Yes, in 1981 as a visiting lecturer. At that time it was very difficult to get an appointment as a lecturer in the Law Faculty. Preference was always given to products of Royal, S. Thomas, Vishaka and Ladies' College. As I had obtained the highest marks in both that year and the previous year, I had to be taken into the Faculty. Later, I was made permanent. By September 1983, I had completed my MPhil and had taken oaths as an Attorney-at-Law. I had been awarded an Open Commonwealth Scholarship to read for my PhD, which I completed in 1986. I got married in 1982 and left for England to read for my PhD at the University of London in October 1983. My PhD was based on Constitutional and Administrative Law with emphasis on Devolution of Power. Amma influenced me to study law and Appachchie was very happy to see me becoming a university don. I had served the University of Colombo in several different capacities, which included; the Head of the Department, Dean of the Law Faculty, Associate Professor of Law and Acting Vice-Chancellor. Q: Was it a love affair? A: Yes. His family and my family were friends even before we were born. His mother was also in education. Q: Do you remember 88-89 period of terror, which prevailed in the universities? A: Yes. Most of the staff was reluctant to work during that period some had even left the country. I used to work in the campus from morning till 5 p.m. My son was not born then. I was in the campus at the time when Prof. Stanley Wijesundera was assassinated. Q: In 1996, you were appointed as a Judge of the Supreme Court? A: The academic staff in the university are entitled to sabbatical leave once in seven years. As universities did not function during the 87-90 period, due to the then prevailing unsettled state in the country, the universities were taking 'double batches' after 1990, to reduce the backlog. There were exams at the end of each year, for the entire four year period of study. At the same time there were various suggestions to bring in other compulsory requirements, which in my opinion were too strenuous for the students. As I was then eligible for my sabbatical leave, I decided to pursue my post-Doctoral Research in Constitutional Law. I was granted a Fulbright Fellowship to pursue my post-Doctoral Research where I became First among the applicants. All three of us went to America in September 1996 for me to commence my research at the University of Virginia at Charlottesville. It was at this time the government requested me to take office as a Judge of the Supreme Court. Since it was a request from my country and as I thought that it was a good opportunity to serve my people, rather than being away in a foreign country; I decided to accept it. I suppose it's a trait I have inherited from Amma and Appachchie, who always gave up working in Colombo and went to serve the rural masses. Maybe, it is in my genes. In hindsight, despite all that has happened to my family and me, I still feel there is much more that I can do for my country. So, I returned immediately, resigned from the University of Colombo where I served for 16 years; also resigned from various other positions I was holding at that time and took oaths as a Judge of the Supreme Court on 30 October 1996. Q: Your appointment led to severe protests from your opponents at the time? A: There were four petitions filed against my appointment. Some in the legal profession did not like my appointment. Q: That experience must have given you an edge in facing difficult situations? A: Yes. It was a litmus test for me. After all, everything happens for a purpose. For almost two months I did not sit in Court, pending the decision of those petitions. I put that time to good use. I will always remember, 24 January 1997. My son gave his first speech, welcoming the incoming Grade I students, in English, while being a Grade II student at Royal College and not too far away in Hulftsdorf, I delivered my very first judgment. I feel many mistook my appointment to be a political one. The tide changed, once I started working. Since then, to this very day, the legal fraternity have given me their fullest cooperation. Q: Thereafter, you were elevated to the position of the Chief Justice. How did it come about?

A: I was appointed acting Chief Justice on two occasions in 2004; in January and December respectively. Since then until 2009 I was not appointed to act as CJ though I was the senior most judge in the Supreme Court. When CJ, Sarath Silva retired in June 2009, Asoka de Silva was appointed as the Chief Justice, although I was the senior most judge in the SC. However, I gave my fullest support for him to carry out his functions. I can recall a certain incident which took place during that time. A top member of a certain Commission inquired from me over the phone whether I could cooperate in a move to change the Constitution in such a way that the term of office of the CJ is to be limited to five years and also to make it possible to grant an extension of two years to sitting CJ, Asoka de Silva, who was due to retire on 17 May that year. And of course he made a proposition that I could become CJ after Asoka de Silva's extended term. I declined it, reminding him that I have no powers to amend the Constitution. Q: How did you get the invitation to assume duties as the CJ? A: I was informed over the phone. Q: Did you know by then that you were going to be appointed CJ? A: Something to that effect was doing the rounds in the legal circles and I too felt that it could be so. Q: How did you feel when you heard you were going to be appointed CJ? A: Nothing special. Of course, there was an unpleasant incident associated with it. I do not want to talk about it at this point. A verbal exchange took place with another person, which was not at all to any liking. Q: Could you recall your personal experiences during that period? A: There were scores of anonymous letters against me, both immediately before and after my appointment as CJ. These were either addressed to me personally or to other Judges, who sent them to me, noting that the handwriting was familiar to them. Whoever had sent them must have thought I would become distressed and dispirited. Contrarily, I became more determined than ever. Strangely, some of them had accused me of being Kuveni. To me, in a historical sense, Kuveni has a great relevance in the progress of this country. Incidentally, in Wilpattu, we once visited a place called Kuveni's palace. Q: Any remarkable things that happened during that period? A: I began by commencing some much-needed projects, especially to address the delays by clearing the backlog of cases. I had lined up financial support from USAID and World Bank to do that. I was also keenly working on introducing a sentencing policy to overcome certain shortcomings in the system. I had made arrangements for videoconferencing with the judges from outstations for training and discussion purposes. I started sending judges abroad for further training. My intention was to see the end of delays by 2016. I was also planning to introduce E-filing in the Commercial High Court. Simultaneously, I was taking steps to amend Supreme Court rules, which were last amended in 1990. The Judges' Manual was compiled in 1938 and steps were taken to re-introduce a new Judges' Manual. I had appointed committees to make recommendations for necessary amendments. By December 2012, nearly 85% of this work had been completed. My intention was to retire by April 2016, at the age of 58. I did not want to cling on till I was 65. Q: How did the problems with the government arise? A: The first manifestation of a fallout with the powers that be, came to light when a District Judge was subjected to a disciplinary inquiry subsequent to a spate of allegations from members of the civil society and those in the legal profession. The Judicial Service Commission (JSC) in a preliminary inquiry found there was a prima facie case against the District Judge and decided to institute an inquiry after placing him under interdiction. We (JSC) had the first inkling of trouble, when we heard the said District Judge had been boasting that very soon the JSC will be summoned by a top authority to instruct them to remove the order of his interdiction. Interestingly, it was said that this judicial officer had 20 unpaid bank loans and incidentally, in the allegations against me there is a charge of allegedly maintaining 20 undeclared bank accounts. Q: When did you come to know about the developing situation, against you? A: I heard about it through the grapevine. Little by little I came to realize that a conspiracy against me was being hatched. One person who came to see me at the time I was appointed, told me that a former big wig in the Judiciary had told him, that I would not hold CJ's post for more than two years. The person who related the story was even ready to give an affidavit. I was unflustered by the developments taking place, since I had not done anything wrong. Q: Was the decision on the Divi Neguma Bill the reason for the government's displeasure with you? A: It was only the immediate cause. There were many others. Just a year before, I took a similar stand on another bill

known as the Town and Country Planning Amendment. It was a subject devolved to the Provincial Councils. My likes and dislikes of the Constitution or the devolution process, is immaterial in this regard. My only role is to interpret the Constitution. There were several other decisions which could have antagonized the powers that be, although I acted in good faith and according to law. Decisions on university entrance fiasco (Z-Score), Sujatha Senaratne's case, grease devils cases, the police officers promotion cases, Jaffna lands cases, Free Trade Zone employees' injury cases and school admission cases, all of which went against the government, could have displeased the higher authorities. I only did my duty without any fear or favour. All my decisions as a Judge of the Supreme Court and CJ were made in good faith and according to law. Q: During your tenure as CJ what benefits and privileges were afforded to you? A: Already, I had served in the Supreme Court for over 16 years. Once in every five years, we were entitled to a dutyfree car permit. Accordingly, I could have got three car permits. I did NOT get a single such permit. I did not go on foreign trips on the invitations I received through the Supreme Court; I gave them to others. After my appointment in 1996, I was asked whether I wish to avail myself of the balance period of my Fellowship to complete my post-Doctoral Research work at the University of Virginia. I did not do so, as I was no longer in the academia. I believed that my duties and obligations were no longer personal, but for my country and for my people. It would be unconscionable for me to have left at that time, purely thinking of myself and to be away from my work. Q: Before the impeachment proceedings were initiated by the government, weren't there any moves to patch up the differences with you? A: There were. In fact, it was made known to me that if we could come to an amicable settlement no impeachment motion would be brought against me. Q: What is the truth about the allegations made against you in the impeachment motion? A: Absolutely false! They accused me that I have used my influence in Pradeepa's (Pradeep Kariyawasam) case. Leave alone using my influence, in truth the case had not even been heard till then. Other allegation which is equally mala fide was that I bought a Trillium Apartment in my sister's name. I did not buy it in her name. My sister and her husband are both professional engineers. They migrated to Australia in 1990 and since then have worked hard to earn reputed positions in that country. They have been holding high positions and drawing a good income. Whenever Nangi and Kapila came here they used to look for apartments close to our place. Since they were without children, their intention was to return to Sri Lanka after their retirement. Considering several advertisements and discussions with the Sales Manager, they had decided to purchase one of the apartments from the Trillium Complex. It is puzzling that the purchases of Trillium Apartments by those who sat on benches and gave orders, have suffered no recourse and yet, I am being accused of allegedly 'purchasing' an apartment, which was actually bought by my sister and her husband. As they say, I suppose the only plausible explanation is; miti thanin thamai wathura bahinne. Q: Another allegation against you is handling of the Golden Key Credit Card case? A: I had to take over the case because several judges refused to take it up. In the meantime, I was receiving letters, saying that it was my duty as the CJ to take up this matter, which had been pending before the SC for some time. The Bench, which had previously heard the case, had also sent it to me for a decision on the basis of a motion that had been filed. In that too, there was a query as to whether the same bench could continue. I had made order for the previous Bench to continue to hear the case, but the file was again sent to me as some of the judges who comprised that Bench, had refused to participate. After a discussion with some senior judges, I decided to take up the matter before a three-judge Bench, including myself. By that time, my sister had already completed the initial agreement with Trillium. She had paid the down-payment. She wanted to pay the balance amount as well, but couldn't do so as the construction of the apartment was not completed. She was asked to wait and to make the payment in instalments until it was ready. She did not get any financial benefit other than the fixed rebate of 5% given to all buyers of those apartments. At the time I was presiding in this case, anybody could have raised objections against my hearing of the case. But none did so. Q: What have you got to say about the appointment of your husband as Chairman of the National Savings Bank (NSB) and about allegations made against him? A: As the matter is currently pending in Court, it would not be proper for me to talk about it at this point. However, at an appropriate time we will disclose our side of the story. Q: Your sister's name has also been dragged into this imbroglio. What does she say about it? A: She was angry and frustrated. Both of them wanted to send their hard earned money to this country instead of investing it in Australia. Rs 29 million is a considerable amount of money, which they invested here. She very strongly feels that, their hard earned money had been used to smear my reputation. Q: What were the unpleasant happenings you had to face at the Parliamentary Select Committee that heard the

impeachment motion? A: I was unfairly treated there. I had expected an honourable conduct of business from an honourable institution. But it was not to be. When my counsel and I realized that we would not get justice done to us, we decided to leave. My fervent wish is that no judge, let alone a citizen in this country, will ever be made to suffer such humiliation. Q: When you stood unperturbed before the Select Committee what was their reaction? A: I could look straight into their eyes because I had not done anything wrong and I had nothing to hide. When I was in the UK in 1990, on my Chevening Scholarship, through a project I had saved 750 pounds. On my return, I deposited that amount in an NRFC account. With the accumulated interest from 1990 it has grown to over 2,000 pounds now, which I wanted to one day leave for my son. We opened our Dollar account in 1996 from what we had saved in America during our stay there. It's only my sister and me in my family. What we inherited from our parents could not be well-maintained, due to our fierce career commitments. I therefore decided to sell some of them and Nangi did not want to take any money of such sales. I invested them in Government Secured Treasury Bills. Pradeepa was well employed in private sector companies where he had functioned for over 12 years as General Manager, CEO and so forth, where he was paid well. Wherever possible, we saved. Is that a crime? Some people were trying to portray us as billionaires. We do not belong in that category. Q: Was there any pressure brought on the other judges during the time of the impeachment proceedings? A: Some of them had complained about such incidents, specially one judge had been threatened with death. Q: Were you aware of a party held in front of your official residence by some people, including ministers, on the day the impeachment motion was passed by the Select Committee? A: It was about three days before the finalization of the impeachment that a group of people had put up a hut on a prominent side of the wall of the Residence of the CJ. Loud music was played throughout. Soon after the impeachment debate concluded in Parliament, they served 'kiribath' to a crowd gathered there. We were surprised how such things were allowed by the police, because they did not even allow us to park our private vehicle, even for a brief moment, near that wall. Q: Did you anticipate the impeachment motion would be passed against you? A: Yes I knew. Q: Were you prepared to face its outcome knowing that it was coming? A: Yes. I was ready to face the consequences. Everybody plans for the future, especially, for your retirement. I too had those plans. I was planning to retire in April 2016. People who were close to me knew this very well. I was relying on my pension and our savings, knowing very well that Pradeepa had already got most of the funds from what he had received from his EPF. In those circumstances, like anyone else, losing my pension was a bombshell. Many offers were made to me through third parties to resign from my post, with the promise of allowing my pension and dropping all charges against me and withdrawing the case against Pradeepa. I rejected all such offers and decided to fight for justice because I have not done anything wrong. I also felt that if I had conceded this would be used on others as well. I took a stand for justice not for myself alone, but for all the others who could one day face such injustices. Q: When did you get the news of the passing of the impeachment? A: We heard it while we were having dinner at Wijerama Mawatha. I saw the news on my son's i-Pad. Q: What did you feel when you heard the news? A: I did not feel anything at all. Later, I thought that this is what would befall anybody who would sacrifice benefits to serve the country. Q: After the impeachment, did you want to continue your struggle from your official residence? A: If I wanted I could have attended Court, even after the impeachment. At that time judges' cars were so exhaustively checked, even the trunks were not spared. Police were moving in and out of the official residence of the CJ many times that day; notably three police officers. The Chief Justice's official residence has staff including a cook, caretaker and supporting staff. I felt that my continued occupancy would be detrimental to their personal safety. I therefore decided to leave. We had our house available unoccupied since we had not rented it out like many others who do so when they get official bungalows. However, we had very little time to move out. With the Thaipongal holiday intervening we had exactly one and half days to do all the packing. I could not collect anything I had in my office at the Supreme Court, the things I kept for over 16 years. I could not bid farewell to anybody there, with whom I had been working for so many years.

Q: Why did you remain silent after the ordeal you went through? A: I did not want to find fault with my country. I love my country so much. I would like to see it prosper. Therefore, I did not want to do anything to make it look bad in the eyes of the international community. I still hope I will ultimately get justice. Q: There was an allegation that you are being used as a cat's paw by some foreign powers? A: Nobody has used or can use me as a puppet on a string. I always and steadfastly, act according to my conscience; for instance, my resignation as a Commissioner of the JSC in 2006. As I mentioned, I love my country so much. In spite of many opportunities I got to go abroad and live a happy and a comfortable life, I preferred to remain here and do what I can for my country. Now they are acting maliciously to victimize me most unjustly by fabricating allegations against me before the Bribery Commission. It is motivated by hate and revenge. I have always filed my Declarations of Assets and Liabilities on time with all the relevant information every year. Details were given to the very last cent. For those who are acting against me with hate and vengeance, I have no reciprocal hatred or anger. I believe in showing compassion, even to one's enemies. Q: You are now prohibited from going abroad? A: Even after the impeachment I had received many invitations from foreign universities and some countries to participate in conferences and seminars. I had declined them because I did not want to be away from the country. I thought that this is not the time to leave my family, my legal team and other lawyers who had fervently supported us throughout. My last trip abroad was in 2006, which was a private visit to Singapore. Q: Don't you feel any regret for losing the much coveted post of CJ? A: No I have no regrets. All my decisions were taken according to the dictates of my conscience and the law. My singular wish and fervent hope is to serve my country however and whenever I can. I do not look for personal gains. I act in the interest of justice for my countrymen. Q: Don't you feel that you were subjected to the same act of injustice meted out to the world's first women Prime Minister, Mrs. Bandaranaike? A: Yes. Certainly that too was a conspiracy, an injustice committed to the entire womanhood of the country. Q: In 1988, Neville Samarakoon, a former CJ who was also removed as you were, had many requests to contest the Presidential Election as a common opposition candidate. If you are invited to be a common opposition candidate what would you do? A: I have dedicated my life to the law. I have no wish to indulge in politics. But if the people of this country decide that my help is needed to build a better country with justice and fair play held in highest esteem, I will consider it as a rare privilege to extend my support to attain it. Q: Were you influenced by Pakistan's revolutionary CJ, Iftikhar Muhammad Chaudhry? A: Not at all. Q: Do you think you will become the CJ ever again? A: As a Buddhist I believe in impermanence of all worldly things. An injustice is also impermanent. Therefore, time and nature will justify what I have done. Q: Do you believe in horoscopes? A: Yes I do. Q: What do your stars foretell as regards your future? A: To be frank, I haven't got a reading for a long time. I did not have the time. Q: After you became a justice of the Supreme Court you never gave a press interview. Even during the controversial impeachment proceedings you did not give a press interview. Why now? A: Judicial officers should lead a secluded life as a matter of principle. I was silent all along despite many false charges, canards and defamatory statements. I have ultimately decided to tell my side of the story, since it seems to be officiously covered up by interested parties.