Issues
Impeachment motion: Were crimes committed by the PSC members?
“I always believe that ultimately, if people are paying attention, then we get good government and good leadership. And when we get lazy, as a democracy and civically start taking shortcuts, then it results in bad government and politics.” – Barack Obama
Declaration of assets
Among the charges mentioned in the Impeachment Motion against Chief Justice Shirani 
Bandaranayake is charge number 3 which goes on to state, “whereas, by not declaring in the annual declaration of assets and liabilities that should be submitted by a judicial officer, the details of approximately Rs. 34 million in foreign currency deposited at the branch of NDB Bank located at Dharmalpala Mawatha, Colombo 07 in accounts 106450013024, 101000046737, 100002001360 and 100001014772 during the period from 18 April 2011 to 27 March 2012….”. According reports reaching the media, the details regarding this particular charge have been produced before the Parliamentary Select Committee (PSC). The account numbers have been revealed with the amounts of rupees in each of these accounts.
Is this correct procedure – releasing account numbers
It is most pertinent that we examine whether the Parliamentary Select Committee followed the correct procedure both legally and administratively, in obtaining the details with regard to the accounts. Banking law is very stringent and ‘tight-fisted’, so to speak. For the convenience of the reader, I give below some pertinent laws and statutes that spell out the practices and laws that a bank has to adhere to, when releasing banking details about their customers. If and when any misdoings are detected, the consequent punishment on the doers of such misdoings should and would be in the severest form, for the commission of such illegal and unlawful deeds should be taken in a sense of absoluteness without the nuances of relativity of the case.
Banking laws and the NDB
The bank in question is National Development Bank NDB). The Board of Directors of the NDB is as follows:
Board of Directors
Hemaka Amarasuriya
Ashok Pathirage
Russell de Mel
Trevine Jayasekara
Anura Siriwardene
Kimarli Fernando
Sarath Wickramanayake
Chandra Ekanayake
Sujeewa Rajapaksa
Wickrema says
Chapter 17 on Banker’s Duty of Secrecy (Confidentiality) of “The Financial System, Banking and Check Law in Sri Lanka”, a text book written by the foremost authority on banking in Sri Lanka, Dr. Wickrama Weerasooria states thus:“[17.1]One of the most well–established rules of banking is that a bank must observe strict confidentiality about its customer’s account. Current banking law texts and judicial decisions refer to it as the duty of confidentiality or confidence while the older texts and cases called it the duty of secrecy. The Sri Lankan statute dealing with the subject uses the term secrecy [17.8].
Customers and the laws of secrecy
“The general relationship between a bank and its customers is that of debtor and creditor but there is no duty of confidentiality in law between a normal debtor and creditor. The bank’s duty of confidentiality arises out of the special relationship between it and the customer. A new entrant to the staff of a bank is invariably required to give an undertaking in his or her service agreement to strictly observe confidentiality about the affairs of customers. Indeed quite apart from law, confidentiality is a jealously guarded tradition among bankers. Bank staff must appreciate that the duty is not merely to be discreet but to be secretive – a duty which is far wider and higher than a duty to exercise discretion.”
Court order required
Dr. Weerasooria’s textbook explanation is quite explicit on the strictness of the law regarding divulgence of banking details about customers’ accounts. He further explains under what circumstances a bank could release customers’ accounts details. Unless there is a ‘court order’ no details about customers’ accounts could be released to outside parties. The only other exceptions are: 1. Under the Inland Revenue Act and 2. On a request of the Central Bank’s Financial Intelligence Unit (FIU), in cases of suspected money laundering activities.
Criminal Offence
In the case of the evidence led in the Parliamentary Select Committee on the Impeachment Motion against the Chief Justice, as far as known, no court order has been sought or granted for the release of account details of Chief Justice Shirani Bandaranayake. If no court order was obtained, under what laws did the PSC manage to get the account details that were distributed among its Members? If these details have been made available to the PSC without such a court order, Chairman, Chief Executive Officer and the Board of Directors of the National Development Bank would have committed a criminal offence.
Imprisonment
In the same textbook of Dr. Weerasooria, under Criminal penalties for not observing Secrecy, he continues: “[17.12] Section 79 of the Banking Act goes on to say that any officer of a bank who contravenes the strict duty of secrecy and who ‘knowingly or willfully’ discloses or divulges confidential information, will be guilty of an offence and will be liable is convicted to a prison term of three years or a fine not exceeding rupees one million. A judge has discretion to impose both a fine and a prison term. Thus while under common law, a bank was only liable for damages for breaching its duty of secrecy, in Sri Lanka, apart from suing a bank for damages, the defaulting bank employee can be criminally prosecuted and fined and imprisoned if convicted.”
Currying favour
The national Development Bank may have treaded too dangerous a path in order to curry favor with powers that be. In an atmosphere of intimidation backed by ‘white van syndrome’, in which the powers of the Executive is more exhibitionistic and terror-driven, Sri Lankan bank executives could be subjugated to go the proverbial ‘extra mile’ to satisfy a political greed of those who exercise power without any notion of dignity or self-discipline. The lure for immediate recognition by the king or his family might be too tempting to refuse. Therefore the mundane and the ordinary succumb to political and other social pressures most willingly. The rewards too may be too enticing for them.
Callous disregard to secrecy code will have all customers up in arms
We are sure Chief Justice Shirani Bandaranayake as an aggrieved party in the case of Impeachment Motion against herself, would follow up on this aspect of the betrayal of trust on the part of the National Development Bank. The entire fraternity of account holders of the NDB would be up in arms when they find out about the callous disregard shown to the sacred ‘secrecy-code’ with which their accounts are guarded by the Bank. Obviously, in their mighty hurry to impeach the Chief Justice, the Government is found to be committing one blunder after another.
Let us list these blunders one by one:
1. Presentation of the Divi Neguma Bill without realizing that it would infringe upon the Thirteenth Amendment and the Provincial Council administration.
2. Miscalculation on the response of the Chief Justice to the Impeachment Motion. It was quite obvious that the ‘ruling club’ would have thought that the Chief Justice would resign rather than fight the Impeachment Motion.
3. Obtaining signatures of those who wished to impeach the Chief Justice even before they could read the specific charges etc.
4. Holding back the essentially relevant material from the Members of the Parliamentary Select Committee itself. Waiting just twenty four hours before the commencement of the inquiry, to distribute the evidence material speaks volumes for a pre-planned plot to hoodwink the Opposition Members of the PSC.
5. Misreading the mind of the Leader of the Opposition. Now that Ranil Wickramasinghe has got himself well-entrenched in the UNP system, he might not see the necessity for the Government’s backing and patronage any more.
6. Making conditions intolerable for the Chief Justice to stay in the PSC hearings.
7. Letting the ‘mad dogs’ out of the cage, especially during the PSC hearing.
8. Initiating a telephone call to one of the lawyers appearing for the Chief Justice and promising ‘something different’ in exchange for resignation.
9. The President promising, without any constitutional or legal basis, another ‘independent’ panel to look into the findings of the PSC.
10. Chairman of the PSC, Minister Anura Priyadarshana Yapa, making himself a joker by uttering blatant falsehoods as to the behavior of some Government members of the PSC.
The story is not yet over. More exciting stuff will be unraveling in coming weeks. Let us sit and watch.