by “Shades of Grey” Column in “Ceylon Today”
The tug o’ war between the Parliament and Executive climaxed and reached the predicted end on Tuesday, with the appointment of Mohan Peiris as Sri Lanka’s 44th Chief Justice.
Peiris counts, among his somewhat dangerous credentials, a close affiliation with the incumbent government – specially in his capacity as legal advisor to President Mahinda Rajapaksa and the Cabinet of Ministers, in addition to his role as official government apologist during the crucial United Nations Human Rights Committee (UNHRC) sessions in Geneva last year.
He was also the chosen man to head the Attorney General’s Department during a crucial period of time, 2009-2011 with human rights abuses and cases involving politicians were piling up at the Department.
Historically, the Attorney General’s Department was an institution that appeared on behalf of the Crown and defended the Crown. Later, it evolved into a body that watched the interest of the State and prosecuted on behalf of the State. This however, did not envisage a function as a government proxy but indeed included a duty to further criminal justice.
In this context– that is to further the cause of the government– there can hardly be a candidate better than Peiris. The swiftness with which the appointment was made bears testimony to President Rajapaksa’s confidence in this appointment and Peiris’ suitability. The new Chief Justice appears to meet the criteria stipulated by the President, for a Chief Justice of his choice.
If Peiris’ proximity to the government is a dangerous sign and one that raises concerns about ethical requirements such as impartiality and the absence of conflicting interests, the appointment is a clear indication that such outdated concepts as ‘professional ethics’ are of no use to a system that only rewards affiliations of the political kind.
Undermining the judiciary
For the government and its sympathizers, the final outcome of the tussle between the Legislature (with the Executive throwing full weight behind it) and the Judiciary is about ‘defeating’ the Judiciary. As some of the government campaigners openly claimed, “the Judiciary and with it, the legal profession, have been ‘put in their correct place’ “by the PSC and the process of impeaching Justice Bandaranayke. It also reinforced the supremacy of the Legislature in no uncertain terms.
The aggressive government campaigners have pre-judged Dr. Shirani Bandaranayke unsuitable to head the judiciary through a process that continues to be questioned, not just locally, but also internationally. What is important to reiterate is that, this is not about an individual by the name of Shirani Bandaranayke, but about an entire system. It is about desecrating an institution the public have so far trusted and looked up to when injustice occurred. The same certainly cannot be said about the Legislature given the clear erosion of public faith in both Parliament and parliamentarians.
As the battle intensified, there were many side shows, and one such was the media blitz involving Bandaranayke’s predecessor who began offering free advice on matters all constitutional and legal via State television. Silva’s own term as Chief Justice was tainted by allegations of moral turpitude and controversies of both the personal and professional kind.
He had many television appearances to pontificate that the Judiciary should not take on the Parliament, with a surfeit of free advice about the prudence of accepting the supremacy of Parliament. Silva certainly rendered commendable service to intellectualize the ugly impeachment battle which, in the eyes of many, had little to do with having genuine grounds to impeach the Chief Justice albeit a need to politically victimize a judge whose verdicts did not find favour with the administration.
The process questions continue to irk the establishment. There is now, what they call ‘due process established’, and it is easy, in the absence of any precedents. These precedents include the placement of individual signatures on blank sheets for an impeachment motion that did not contain any charges against the CJ, gathered hastily on the day she delivered the judgment on the Divi Neguma Bill and held it unconstitutional.
Besides the process issues, a fact that had continuously been referred to during the past two months is the two prior attempts to impeach former Chief Justices. To understand the importance of Peiris’ appointment, it is important to see the attempts made to impeach Chief Justices in independent Sri Lanka.
The first to face an impeachment was Neville Samarakoon, a legal mastermind who was handpicked by President J.R. Jayewardene for the post. The public soon came to understand that Samarakoon was flexing his judicial muscles and functioning with independence that irked Jayewardene. Second was Sarath N. Silva, a former Attorney General himself and the choice of President Chandrika Kumaratunga. His tenure is remembered mostly for the controversies and populist judgments he delivered during the final months of his career. The third of course is Dr. Shirani Bandaranayke, also chosen as head of the judiciary by President Mahinda Rajapaksa, overlooking two other senior judges.
Besides the fate of facing impeachments, there is one fact common to all three of them. They were not the senior most or considered the ideal candidates for the position, and were appointed by the political masters of their times, overlooking more deserving others. If there were process flaws, then these appointments were inappropriate from the beginning. All three of them faced charges when certain acts were interpreted as being ‘too independent’ and did not please the administrations of the day. Unlike others, Bandaranayke ended up paying the ultimate price.
The government continues to argue the point that it is only the Legislature that can truly exercise people’s sovereignty due to being an elected body, unlike the Judiciary. The argument also has been that unlike the Judiciary, Parliament derives exclusive powers to decide the course, and the Judiciary does not enjoy similar powers. There is little acknowledgement that not being elected itself allows the Judiciary to function in an independent manner and to avoid conflict of interest. It enables the Judiciary to make decisions in the interest of the public without being beholden to the voters or any other interest group.
With the appointment of Mohan Peiris as CJ, fresh concerns have arisen about the independence of the judiciary and what it would become, in the hands of his political masters. Peiris is viewed as an unrepentant sympathizer of the administration cum apologist with his affiliations unconcealed. It is difficult to assume, going by the past record, that he would be in a position to exercise independence to any degree. Certainly with this appointment, Rajapaksa would have made his worthy predecessors who too had political appointees heading the judiciary, simply blush in shame.
The ‘chosen one’
Various names were touted towards the end of the ugly tussle for the top post, but the legal fraternity with a sense of doom was certain about Justice Shirani Thilakawardene not being a choice. She was not a choice then when her namesake was appointed as Chief Justice, and she is not among the favourites of the administration (despite giving evidence before the PSC to establish the CJ’s alleged conflict of interest in the Trillium Residences matter), largely due to her outspoken and independent judicial conduct. It needed to be someone like Peiris, and he needed no convincing about his eminent suitability.
In the meantime, the International Commission of Jurists (ICJ) in a statement yesterday has raised valid questions about the future of the rule of law and accountability in Sri Lanka, following this appointment. Among the key concerns are Peiris’ multiple roles played out in the past decade, defending the conduct of the Sri Lankan Government.
“During his tenure as Attorney-General and the government’s top legal advisor, Mohan Peiris consistently blocked efforts to hold the government responsible for serious human rights violations and disregarded international law and standards,” Sam Zarifi, ICJ’s Asia Director, said in a statement.
Even if the government is willing to brush these embarrassments aside, the international human rights community identifies the new CJ as a transgressor of the law– and human rights. Among the most shameful moments of his career was the time when he defended the Sri Lankan Government during the UN Committee Against Torture (CAT) and infamously claimed that political cartoonist, Prageeeth Ekneligoda had fled Sri Lanka and was alive, only to retract the same in court, last year.
Peiris’ various appointments too have been equally controversial. He served as Attorney General from 2009 to 2011, and was appointed overlooking seniors. Subsequently, he began serving both the President and his Cabinet as legal advisor. He must have pleased his master only too well, going by the implicit faith the President appears to have in him, to the extent of brushing aside any opposition to install him as the country’s Chief Justice.
With this appointment, President Rajapaksa for his part has achieved two things. He has taken over the judiciary by appointing a professional government apologist as his chief justice– a clear indication of what he intends doing with the island’s judicial system– and secondly, removed any doubts about his own respect for the rule of law or the concept of an independent judiciary. Any misconceptions in this regard should no longer persist; not after Mohan Peiris’ appointment.
The new Chief Justice has claimed that the country had a good system of justice and the judiciary was functional. To boot, he requested all people in his induction speech, to respect the law. It is not clear whether this law is ‘Peiris’ law’ or the “President’s law’ – or a combination of both. There had been Chief Justices who were political appointees, before him. Neville Samaraakoon, Sarath N. Silva and Dr. Shirani Bandaranayke all fall into that category. The concerns were about attempts to undermine the judiciary and the absence of due process than the career of one individual. This fact, the government did not wish to acknowledge any time.
With the appointment of Mohan Peiris, without regret, the people can find comfort in the thought that here is someone, selected for his blind loyalty to the administration and its head, and therefore would not cause any problems to this already invincible government. There will be no need to worry hereafter about a Chief Justice who might have stances or disagree with the political establishment. This will be a perfect union.
Finally, here is a Chief Justice of the President, by the President and for the President.COURTESY:CEYLON TODAY