02 February 2015

Impeachment of the people by the people with the people

Thanks to the antics of politicians and NGOs with dubious agenda (e.g. BASL, which by the way is made of a large number of tax dodgers) the office of the Chief Justice became fair game for caricature.  
The Chief Justice of a particular country was strolling down a street in deep conversation with his friend who was the Attorney General of the same country.  They suddenly see a man stabbing to death another man.  The two friends move quickly, capture the murderer, borrow a rope from a nearby house and hang him.  All is good.  Justice is served. 

No, the above didn’t happen and will not happen, not in Sri Lanka and not anywhere else.  The dispensing of ‘justice’ and not the murder, that is.  The reason is simple.  There’s a thing called established procedure. There is a thing called ‘innocent until proven guilty’.  Then there’s a thing called ‘binding precedent’.  And then, if we are talking of wrongdoing in general and if the alleged wrongdoer happens to be the Chief Justice, there are other things that come into play, for example, ‘separation of powers’ (i.e. between the Executive, Legislative and Judicial arms of the state).  There is also the dignity of institution and office.

And so we come to the case of Mohan Pieris, his appointment, its legality, the determination of illegality and his ousting.  We submit that all things considered the judiciary, the executive and the legislature, together and separately well and truly impeached the citizens of Sri Lanka over these issues. 

Shirani Bandaranayake was impeached in a controversial manner. The lady’s appointment to the Supreme Court though legal was highly questionable given that she had absolutely no experience in affairs of the court.  Her appointment was protested by the premier professional body of the legal community, the Bar Association (BASL), who charged that it was a political move by the then Executive President, Chandrika Kumaratunga.  After she was made CJ, her husband was appointed as Chairman, National Savings Bank and it was said that the CJ solicited this appointment.  A determination against the Divi Neguma Bill by Bandaranayake was followed by impeachment moves and circumstances point to a politically-motivated witch-hunt.  The Government either organized or gave the nod to a widespread vilification campaign against Bandaranayake.  Her response and tacit approval of protests brought further disrepute to her office since the Supreme Court was literally turned into a thovil maduwa by key members of the BASL, not to mention the politically-motivated agitation by disreputable individuals in the NGO community.   

Mohan Pieris scarred himself by meeting Mahinda Rajapaksa in the early hours of January 9, 2015, i.e. after it was clear that Rajapaksa had lost the election.   His very presence gave credence to allegations of a plot to overturn the result through a coup.  He is said to have agreed to resign if he’s offered a diplomatic posting.  Upul Jayasuriya, President of BASL, claims that Pieris asked for a diplomatic post.  What was the CJ doing negotiating with a politician who is also the head of what is no more than a glorified NGO (funded by USAID, let us not forget)?  
If indeed that request has been made, he has disgraced his office like none of his predecessors have.  That alone makes an open and shut case for impeachment. It is claimed that he promised the new President and the new Prime Minister that he would support them should he be allowed to remain as CJ.  Another case for impeachment.  These, however, remain allegations

It is clear that both Pieris and Bandaranayake have blackened the office of the Chief Justice by numerous acts of omission and commission. 

The Executive
If, as he now claims, the appointment of Pieris was illegal and as implied in the reinstating of Bandaranayake her impeachment was flawed, then Illegality of appointment was established by interpretation by President Maithripala Sirisean who ironically supported the controversial ‘impeachment’ of Bandaranayake which had in the first instance paved the way for Pieris’ appointment.  He owes a clarification.  He offered none.  The promises of ‘good governance’ and ‘compassionate rule’ were severely compromised in the process. 

Ranil Wickremesinghe, the de-facto Chief Executive of the new ‘power-sharing arrangement’, claims that Pieris was in fact with Rajapaksa in the early hours of the morning.  However, considering that Wickremesinghe himself was present, the coup-theory gets shot to pieces unless Wickremesinghe was part of that story.  That Pieris had no business to be there is beside the point.  More serious is the allegation of negotiating the ‘diplomatic-bribe’.  Wickremesinghe himself concedes that such a negotiation had his blessings as well as that of the President.  Negotiating a bribe with the CJ cannot be right.  It is a serious blemish on the promise of good governance and paints both President and Prime Minister in poor light.

The legislative
It was silent.  The very same assembly that recommended that Bandaranayake be impeached offered its silent consent to her reinstatement.  They impeached themselves thereby.  Cabinet Spokesman Rajitha Senaratne openly stated that Pieris had to be removed ‘to get things done’.  He clearly sees nothing wrong in ‘mob justice’.  In general ‘end justifies the means’ seems to have been the operational logic of those who executed the plans to remove Pieris.   The BASL, which is nothing more than a glorified NGO (funded by USAID, let us not forget) and led by a politician with party loyalties, was part of the mob that had the full blessings of key MPs and Ministers. 

The executive, legislature and the judiciary, then, have essentially turned the office of CJ into something like a Chairmanship in a corporation.  If CJs can be appointed and removed in this manner then why talk of separation of powers?  Why talk of Good Governance is about mob justice and convenience, if senior politicians including the President and Prime Minister approve of bribe-offering exercises and have scant respect for due process, if convenience is the name of the game (and to hell with rules and notions such as ‘justice must not only be done but appear to be done’), then it is the people who have been impeached. 

The murderer in our ‘story’ cannot be hanged before a proper trial.  The illegality of Mohan Pieris’ appointment cannot be established without a process that draws from established rules.  As things stand the President (whose stand on the whole issue is nothing more than wishy-washy) interpreted and moved.  Parliament watched.  The judges concerned have played ‘bystander’.  Mohan Pieris was essentially lynched.  And the people cheered!  And that, ladies and gentlemen, is bad and dangerous precedence. 



Buddhika said...

This is probably the best article which explains the state of the judiciary in the country today. A 'backward' extension of this article to cover how Sarath Silva, the predecessor to SB, had paved the way to this sad situation would have made this analysis more complete..!

sajic said...

'a bad and dangerous precedent' Absolutely true. All talk of good governance fails if 'means' are allowed to justify the 'ends'.