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Sunday, April 21, 2024

Sri Lanka: How Do You Solve A Problem Like The Chief Justice?

[ 43rd CJ is  about to make a comeback but for a short time]

by Dharisha Bastians

Two years ago on 15 January, the Rajapaksa Government had to deploy elite police guards, water cannons and barricades to install Mohan Peiris in the Chief Justice’s chair at Hulftsdorp. As police prevented lawyers and journalists from entering through the main gates of the Supreme Court, Peiris was driven in through a side entrance and hustled up to the fifth floor of the superior courts complex. Outside the barred gates, activist lawyers who had fought hard against the illegal sacking of Chief Justice Shirani Bandaranayake lit candles in bright sunlight to symbolise the onset of ‘darkness at noon’ as Sri Lanka’s upper judiciary tumbled into the hands of the incumbent regime.

The intervening years have been hard ones for members of the legal fraternity.

The Bar Association contemplated a continuous boycott of cases that came before Peiris, who its members considered to be an usurper of the office. Yet practical considerations and concerns that such a boycott would not serve the interests of their clients resulted in a swift change of heart.

Mohan Peiris accepted the appointment as the post-impeachment Chief Justice after other men – including former Attorney General C.R. De Silva – had already refused. The appointment was clouded by the drama and scandal surrounding Shirani Bandaranayake’s ouster. Few wanted any association with the controversy.

In his two years at the helm of the Judiciary, Chief Justice Peiris has left his mark.

Outrageous pronouncements from the bench, about prison riots, the human rights of never-convicted “terrorists” and illegal evictions that are the “price of development” were never included in the court record. But they caused shock and outrage in legal circles.

A spate of cases filed against his occupation of the Chief Justice’s office was ruled on or dismissed by benches appointed by Peiris – a respondent in the cases himself. Every contention, every outcry that the state of affairs was a violation of a basic principle of natural justice, that ‘no man shall be a judge in his own case’ fell on deaf ears.

Peiris was handpicked by a regime that would brook no opposition about its choices, especially when it served their purposes so well. In the two years he held office, it would be difficult to pinpoint to a case in which Pieris presided over that resulted in an adverse judgment for the state. In fact, in clear cases of state excess such as the Ganesan Nimalaruban prison death, victims were denied redress, and instead labelled as ‘terrorists’ based on ‘prior knowledge’.

Throughout his brief tenure, Chief Justice Peiris appeared to care little about how his close and public associations with the ruling family were affecting the image of the Judiciary. Sri Lanka’s Chief Justice unabashedly celebrated the traditional Sinhalese New Year in 2014 at President Rajapaksa’s Tangalle home, Carlton.

Coup connections
Late last year, Peiris broke with tradition again when he participated in a presidential junket to the Vatican to meet with Pope Francis.
It is January again, and with a new administration in office things have come full circle.

His conduct over the past two years should have made it much less surprising, but the news that Peiris had been present at Temple Trees in the early hours of 9 January still sent shockwaves through political and legal circles.

Temple Trees had become an UPFA command centre on election night, running an “operations room” that was collecting and aggregating results pouring in from different counting centres around the island.

When Prime Minister Ranil Wickremesinghe accosted the Chief Justice inside the former President’s official residence at 5a.m. on 9 January, he claimed he had dropped by to “offer” a legal opinion. Legal opinions are proffered to the Government by the Attorney General’s Department. Chief Justice Peiris’ only job would be to rule on the legality and constitutionality of arguments made, by state attorneys or other lawyers before his court.

Attorney General Yuvanjana Wijeyatilake was also reportedly summoned to Temple Trees at 3 a.m. on election night. While being privy to the discussion between politician and state attorney, was Mohan Pieris attempting to hold court and issue a ruling at Temple Trees, and why?

As details continue to emerge about the events at Temple Trees in the wee hours of 9 January, the facts appear to cast Chief Justice Peiris in a particularly bad light. Some reports, now under investigation by the CID, claim Peiris and another senior minister present that morning had been arguing that President Rajapaksa was constitutionally empowered to complete the two years left in his second term, despite calling the snap election in November 2014.

Nearly two weeks after the startling revelations, Chief Justice Peiris has finally agreed to step down and avoid an ugly confrontation with the legal fraternity and the new administration that would have been inevitable if he dug in his heels.

Over the past 10 days, Mohan Peiris has suffered indignities and humiliation that no other head of the Judiciary could have ever dreamed was possible. It was bad enough that the unofficial Bar was publicly calling for his resignation over his political involvement on election night, which the Bar Association noted had never been denied by the Chief Justice. But earlier this week, the Attorney General’s Department, an office Peiris had once headed, was forced to “uninvited” the Chief Justice to a reception and conference to mark its 130th anniversary. The Attorney General also ordered the CID to proceed with the investigation into the Temple Trees coup attempt, the complaint about which directly implicates Mohan Peiris, the highest ranked judge in the land.
Initial deadlock

Still, initial meetings between Pieris and senior lawyers reportedly ended in deadlock, with the Chief Justice insisting that if the new regime required his exit, they would have to go through the constitutional mechanism available – another impeachment.

With the new administration unlikely to go the path of the Rajapaksa regime with regard to Peiris’ removal, a second impeachment in as many years would have been a lengthy process.

During Shirani Bandaranayake’s ouster, the Opposition insisted that the Government adhere to the Latimer House principles set out by the Commonwealth regarding the discipline of senior judges.

Under the circumstances, President Sirisena and Prime Minister Wickremesinghe would have been compelled to invite Commonwealth judges to preside over the investigation into Peiris’ conduct and adjudicate on his fitness to remain in office.

Perhaps the relentless attention on the allegedly attempted coup on election night softened his position. Peiris, a Catholic, then insisted on being allowed to participate in the visit of Pope Francis last week.

Pieris had headed the Finance Committee for the Papal Visit, coming up with the ingenious co-branded credit card to fund the Pope’s apostolic tour of Sri Lanka. There was an unspoken agreement that following the Papal visit, Chief Justice Peiris would step down with dignity.

One week later, following several meetings between senior lawyers, Prime Minister Wickremesinghe and the Chief Justice, a decision has been made that Peiris will step down by the end of the week. Given the circumstances of his installation and his predecessor’s controversial removal, this return to the status quo was to become remarkably simple.

On 11 January 2013, Parliament met to debate and vote on the impeachment of Shirani Bandaranayake. Three days earlier, after Bandaranayake and Opposition legislators had decided to boycott the Parliamentary Select Committee set up to determine if the charges brought against her held merit, Government members on the panel submitted its report to Parliament finding her guilty on several charges.

In 24 hours, the tribunal of UPFA legislators had summoned witnesses and obtained testimony without cross examination late into the night inside the Parliamentary complex. But lack of due process and impartiality were not the only problems with the Rajapaksa impeachment. In its unbecoming haste to rid themselves of a major thorn in their side in the Judiciary, the previous regime made a fatal mistake.

When Parliament convened on 11 January 2013, it was a second motion of impeachment, calling on Parliament to set up a PSC to investigate 14 charges against Chief Justice Bandaranayake that had been tabled.

It was this document that 225 legislators were to debate and vote on, in effect, whether to appoint a second tribunal of MPs to try the Chief Justice. The trouble was that the same motion had been tabled and passed in Parliament already, one month previously and the PSC headed by Minister Anura Priyadarshana Yapa had been set up accordingly.

To oust a Chief Justice, the Constitution of Sri Lanka stipulates that Parliament must pass an Address to the President, seeking the removal of the Chief Justice, on the basis of the findings of the PSC against her.

Procedural flaw
The Opposition realised the Government error early into the proceedings, but alerted Speaker Chamal Rajapaksa only later that evening, when the debate was well underway. Opposition MPs suddenly pointed out that the House would be voting to set up a second tribunal to investigate the charges against the Chief Justice. It was the Opposition’s final trump card to stall the illegal impeachment of Bandaranayake.

Government parliamentarians – a two-thirds majority in the House – had already decided to override the Supreme Court and Appeals Court judgments quashing the PSC and its findings against Bandaranayake.

Taken aback, Speaker Rajapaksa suspended sittings while he retired to his office to decide on the issue. By this time, Defence Secretary Gotabaya Rajapaksa had arrived in Parliament. It is more than likely that the Speaker conferred with his sibling before returning to the House to insist that the vote could go ahead despite the flawed motion.

For the ruling family, Bandaranayake’s defiance had become a personal affair. Her judgments directly affected Economic Development Minister Basil Rajapaksa and it was a slight the family was finding difficult to bear.

Delaying the proceedings was not an option. The paperwork was a necessary inconvenience and like the conduct of its post-impeachment Chief Justice, a matter to be glossed over or ignored as long as the regime remained powerful. Defence Secretary Rajapaksa would play a major role in the impeachment drama, in all probability playing the most influential role in picking Bandaranayake’s successor. The Rajapaksa administration was determined that it would never be crossed by the Judiciary again.

As per instructions by the defence establishment a fireworks display had been organised by the naval outposts on the Diyawanna. The display would start as soon as the results of the vote were announced. Ugly scenes would also unfold outside the official residence of the Chief Justice at Wijerama Mawatha Colombo, where members of the panel of parliamentarians that “tried” Bandaranayake and found her guilty would also make an appearance during the night.
Two years later, the Rajapaksa administration’s inordinate haste to remove Bandaranayake would become the key to her reinstatement.
Ultimate talisman

Lawyers argue that since Parliament never voted on a resolution to impeach her based on the PSC findings of her guilt, no vacancy was ever created to be filled by Peiris. As she said when she left her official residence on 12 January 2013, Shirani Bandaranayake would be deemed to have never vacated the office she held and has therefore remained the de jure or lawful Chief Justice of Sri Lanka.

The procedural flaw in her removal from office, after the regime did everything it could to retroactively nullify the Supreme Court verdicts against the impeachment and the cases filed upon its basis against the appointment of Peiris, would be Bandaranayake’s ultimate talisman against her sacking.
President Sirisena was amenable to the ouster of Chief Justice Peiris quite soon after assuming office, Daily FT learns. In fact, a letter drafted to reinstate Bandaranayake got President Sirisena’s nod of approval long before Prime Minister Wickremesinghe could be brought around to agreeing to Peiris’ exit and Bandaranayake’s re-entry.

Wickremesinghe remains unconvinced that Shirani Bandaranayake is “lily white.” Prior to her defiance of the Rajapaksa regime, CJ 43 attested to the constitutionality of the 18th Amendment and other pieces of arbitrary legislation by the previous regime. Her husband’s decision to accept a position at the head of a State-owned bank also remains a major blight upon her record.

It is most likely therefore, that Chief Justice No. 43 will be reinstated and will serve very briefly at the helm of the Supreme Court before stepping down and making way for a new successor. She will leave office this time, accorded every felicitation due to her and with her pension and service record intact.
In the final days of the presidential election campaign, the Bar Association assisted in the filing of a spate of cases against the ruling party and its election violations. They took their grievances to the lower Judiciary, district and magistrate courts that were still some distance away from the Supreme Court’s sphere of influence.

Attempts were made to influence lower court judges regarding these cases, but many defied instructions. A desire to restore dignity and honour to a broken and besieged system appeared to have seized sections of the Judiciary in the last days before the poll.

Making things right
The reinstatement of Shirani Bandaranayake had been included in the new President’s election pledges, not only because it was seen to be crucial to the restoration of judicial independence, but because senior members of the legal fraternity, formed the bedrock of his campaign for the presidency.
The impeachment of Shirani Bandaranayake was a dark day for the legal fraternity. Two years ago, it galvanised them into action against a Government that had shown its autocratic, undemocratic face with her sacking. At the time, few believed Shirani Bandaranayake’s sacking would remain a hot button issue once her removal was effected. The troubles of the upper Judiciary were deemed high-brow and of little impact or concern to the ordinary citizen.
Mohan Peiris’ reign altered that perception, when ordinary citizens, the victims of a city beautification drive, torture or police brutality could no longer be assured of redress from the country’s apex court.

But perhaps more importantly, the impeachment was a turning point in the Rajapaksa regime’s trajectory. When President Rajapaksa ordered his MPs to ignore the verdicts of the country’s highest courts, override the Constitution and proceed with Bandaranayake’s sacking, he exposed the true face of his regime.
All republican and democratic pretensions ended there, when his Government moved to remove by hook or by crook, the most senior judge in the land because she had dared to cross him.

The exposure stunned the country and rallied forces against the regime that had been mere spectators until then. Before Weliweriya, before Aluthgama, it was the Shirani Bandaranayake impeachment. Each of these one of a thousand cuts that would lead to the slow but certain death of the Rajapaksa regime on 8 January.

Bandaranayake’s sacking and the Mohan Peiris’ sacking would be ‘emblematic’ of abuse of power and the determination of the Rajapaksa administration to bend every democratic institution to its will. The correction of this anomaly therefore, is crucial to the restoration of democracy and the rule of law, the new administration is promising within 100 days.

Restoring the independence of the country’s judicial system will also be key as the new Government pushes forward with its constitutional reforms and strives to restore independence to the public service and other arms of the state.

The legal fraternity that rallied against the impeachment, would ultimately lend its best and its brightest to the Sirisena campaign to ensure the defeat of Mahinda Rajapaksa. The impeachment of Shirani Bandaranayake, it could be said in retrospect, had marked the beginning of his end


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