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. 

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. 

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Sirisena-Ranil doing a 'Mahinda' on the Chief Justice?

Not too long ago the ‘international community’ was up in arms when Mahinda Rajapaksa moved to oust the then Chief Justice Shirani Bandaranayake.  The Bar Association of Sri Lanka (BASL) lent its vociferous and self-righteous voice to these objections and went as far as desecrating the supposedly sacred high chamber of justice in the country by turning it into a picketing ground. 

Now, in post-Rajapaksa Sri Lanka these objectors are calling for the removal of the ‘Rajapaksa-appointee,’ the incumbent Chief Justice, Mohan Peiris.  One would have thought that those who howled over ‘improper procedure’ in the ousting of Bandaranayake would use ‘proper’ mechanisms for this, for example drawing from the Latimer Principles which were bandied about during Maithripala Sirisena’s presidential campaign.  What we are hearing of, though, are all kinds of behind-the-scenes moves which include negotiations over ‘give and take’, none of which cover either the CJ or the negotiators with glory. 

Mohan Peiris is accused of being part of an alleged coup attempt aimed at overturning the decision of the people.  We have the unprecedented situation of a sitting CJ being questioned by the Police.  One would imagine that this could be followed by the Attorney General instituting legal proceedings against the CJ, a process that would have to take place in the latter’s own house with the accused, in effect, sitting in judgment! 

We have also a bizarre situation where the CJ has appointed a spokesperson who happens to be a lawyer.  ‘Conflict of interest?’ is a question that is so glaring here that it is astounding that the CJ appears to have missed it. 

BASL President and well-known UNP politician Upul Jayasuriya claims that in a meeting with the CJ the latter had ‘agreed to step down if he’s compensated with a diplomatic post’.  If this is true then the office of the Chief Justice has become something that can be bought and sold, up for purchase, amenable to barter etc.   The situation does not paint Jayasuriya in positive light either, one observes, because this self-righteous objector to the eviction of Bandaranayake on grounds of improper procedure has no business to cut deals with the CJ.  There’s no evidence that he was offering the CJ a bribe but he was most certainly requesting him to step-down.  Where he found this ‘mechanism’ in the Latimer Principle one just cannot fathom! 

But then again, Jayasuriya was one among many lawyers who at one time vowed not to appear before Peiris but later happily represented clients before him and in other courts, all of which come under his purview.  Only one of the prominent objectors made good on this promise, the inimitable S.L. Gunesekara who ironically passed away the day Maithripala Sirisena was elected President following a clean-up promise as well as a pledge to institute good governance. 

Thus any argument on the lines of Peiris’ appointment being illegal and amoral and therefore he doesn’t have the right to demand the courtesies warranted by the office just fly out of the window.  That’s no ‘out’ for Jayasuriya.  His moves call to question the entire movement to oppose the impeachment of Bandaranayake.  It was not about the dignity of the justice system, the primacy of the law, separation of powers or any of the lovely things the objectors said they were fighting for. 

If someone said ‘justice stinks’ then Jayasuriya, the යහපාලනය (yahapaalanaya or ‘good governance’) politicians he has represented in this surreptitious move and the Chief Justice himself (assuming he did, as Jayasuriya claims, attempt to cut a deal) have provided ample evidence to justify the proposition. 

Jayasuriya is but a pawn here.  He could not have been acting on his own initiative.  It is the movers and shakers of the new Government that talked of a coup attempt and dragged in Peiris’ name as a suspected accessory after the fact.  They, not Jayasuriya, have to make good on the good-governance promise. They have to and can rehearse the Latimer Principles in any move that seeks to oust the CJ. 

Impeach the man if impeachment is warranted, we say.  Stop this childish hora-police (cops and robbers) game.  Right now you people are tripping over good governance rhetoric and its bad, bad precedence that’s oozing out of your preferred-procedural knees.  If that which came before was ugly, rest assured that you people are giving your predecessors a good run for their money in the ugliness department for this amounts to just one thing: digging a grave for good governance. 

  

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So you want anarchy, do you?

The 1978 Constitution is not made for dictators, contrary to an oft-articulated view.  It is rather made to make dictators in that it confers on the executive near dictatorial power.  The objections however have focused more on incumbent than position or constitutional provision. 

The constitutional document is of course referred to but mostly to acquire the ‘objective’ tag or as make-up to disguise political preference.  In the main it has been about likes and dislikes.  Virtues of democracy and the need to have it affirmed in word and spirit are trotted out.  It’s part of the political game to appear neutral but political preferences are hard to hide in this day and age. 

A good rule of thumb when assessing the democratic worth of constitutions and articles therein is to imagine a beneficiary whose ability and integrity one questions, someone whose ideological bent and politics one abhors.  This is the device I suggested that MPs voting on the 18^th Amendment should use. 

If we assume for argument’s sake that democracy is the best system of governance, the 1978 Constitution is a body blow to the idea.  If one wants Sri Lanka to be a better democracy, then a complete overhauling of the constitution is called for.  Easier said than done of course for it requires a two-thirds majority which is what is enjoyed by the current set of beneficiaries.  It would be myopic to expect them to vote against their interest. On the other hand those who aspire to obtain the same sweeping executive powers would hardly be interested in voting to prune these very same powers they hope to someday enjoy.  This is perhaps why the focus is on person and not post and why the rhetoric seems hollow. 

In this context it is natural to think that knocking off the slightest shard off the executive armor is a necessary step in a ‘democratizing’ process.  The error is that what incumbent loses does not materialize as a corresponding loss in constitutional provision.  J.R. Jayewardene was declared a tyrant.  Few were sorry to see him go at the end of his two terms.  When he was replaced, Premadasa inherited the powers as did Wijetunga, Kumaratunga and Rajapaksa after him.  The losses that accrued to the individual on account of error, ignorance and arrogance, they took to grave and retirement. Successors started afresh. 

Attacking the President is easy.  Taking issue with position is also easy.  Arguing that the incumbent being ousted is ‘first step’ is hogwash.  Belief that a presidential back-off would amount to dent in constitutional provision is patently naïve.  

Today there’s a stand-off of sorts, some would like us to think: Supreme Court vs. Parliament, Judiciary vs. Legislative.   Two process: Impeachment against the Chief Justice and Court Ruling against Parliamentary Select Committee.  Some have called for a change of laws pertaining to impeaching judges of the higher courts.  Some have called for prorogation of Parliament ‘to cool things a bit’.  The ‘callers’ claim it is all about the independence of the judiciary. Some add that it is a democratizing move.  The objection raised by some ministers to moves against the Chief Justice (at least in terms of the impeachment process) have been cheered by the above ‘callers’, notwithstanding the fact that some of these ministers are not exactly ‘people’s representatives’ in that they are in Parliament courtesy the President’s largesse.  Bold of them, yes, but the fact that they don’t have a constituency to speak of should not be forgotten. 

More telling is the identity of the callers.  They are not political neutrals.  They are regime-haters and as such their democratizing credentials are suspect.   Whipping up notions of ‘confusion’ and ‘tension’ even as they call for an executive/legislative ‘back-off’ alone shows much humbuggery.     

It is not a matter of picking between Mahinda Rajapaksa and Mr/Ms Perfect President.  The choice is not between Rajapaksa and A Better Order in the Foreseeable Future.  The choice is not between Executive Presidency and Westminster System (with or without some adjustment). For such choices, there have to be objective conditions such as severe economic, social, political discontent across the board.  There are people who are not exactly cheering this regime, but neither are they inclined to cheer anarchy.  The courts are not people-friendly, in fact that are places where the masses feel utterly displaced and disoriented.  Lawyers are seen as evil necessities by those who for whatever reason are forced to be in court.  Shirani Bandaranayake is not a Sarath Fonseka in this sense.    Those who try to market her as the figurehead of moves at changing regime and democratizing probably assume she’s naïve, which is of course a possibility that cannot be ruled out.  Worse, they assume that their political records are unknown.  It’s a straw-clutching exercise of the politically dispossessed and displaced privileged class that we have seen before, with Sarath Fonseka and before him Sarath N Silva.  No surprises therefore.

Only those whose lives and lifestyles are insured can wave hand at anarchy.  Such situations are made for blood-letting, but the blood that could flow will not be theirs, but that of ordinary people.  If it is a matter of a Constitutional Dictatorship versus Anarchy where a result in the favor of the latter (unlikely as things stand) spawns yet another Constitutional Dictator, the intelligent and responsible choice would be the former. 

[Published in 'The Nation,' January 6, 2013]

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