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.
Judiciary
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.
Conclusion
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.
2 comments:
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..!
'a bad and dangerous precedent' Absolutely true. All talk of good governance fails if 'means' are allowed to justify the 'ends'.
Post a Comment