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After Mohan Peiris Became Chief Justice No one Believes the Sri Lankan Supreme Court will act with Independence Any more

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By

Prof.Rajiva Wijesinha M.P.

Enemies of the President’s Promise 24

Sneezy 5

Tamara’s success in averting a resolution against us at the Human Rights Council in Geneva in September 2011 was not however to be repeated the following year. She had no say in the massive delegation that was sent, and the strategy to be followed. Though by then I had met her and liked her, even though she had also called asking me to be present at the sessions in March, I refused when the President first asked me, and was able to cite another commitment. But I did suggest to the President that he send Jeevan and Javid Yusuf, who had been a long-standing member of the SLFP and had served as our ambassador in Saudi Arabia at one stage. They both went, and the former established a close friendship with Tamara.

When the President asked again I could not refuse. Jeevan told me that he had suggested taking the draft of the LLRC Action Plan to Geneva, but been told it was not ready. While I was in Geneva I asked Mohan whether I could look at the draft, but he told me it was confidential. I asked then if he would show it to me in his presence, whereupon he said that he was doing it with the Foreign Ministry, and I should ask the Foreign Minister. I did so, whereupon G L Peiris said, ‘What draft?’

I could only deduce that Gotabhaya had told them not to bother, and GL had assumed that this was the President’s view too. Mohan however undoubtedly knew the real situation, and therefore continued to deceive the President about progress while, as with the LLRC interim recommendations, ignoring his instructions. So three months after the LLRC had reported, we had evidently done nothing to take matters forward.

After the resolution was passed, the President entrusted formulation of a plan to his Secretary, who invited Mrs Wijayatilaka, who had been doing yeoman service on the Human Rights Action Plan Task Force that I convened, to assist. The President had also indicated that Civil Society representatives should be asked to contribute, and Jeevan and a couple of others were accordingly invited to one of the first meetings.

When Mohan came in and saw them, he walked out immediately. He had it seems objected, and though they stayed for that meeting, they were not invited for any others. When I asked Lalith Weeratunge about this, he told me that it had been decided the plan should be drafted only by government officials. Mohan it should be noted was not in fact an official, since he had retired by now as Attorney General, but I suppose his leading role was in terms of his most recent appointment, that of Legal Advisor to the Cabinet, clearly a consolation prize since he had not been made Chief Justice as he had hoped. But his authority was such that, contrary to the President’s instructions, Jeevan and the others were left out after that. Lalith assured me though that they would be invited to serve on the Task Force to implement the plan.

Within a couple of months Lalith’s committee had produced a draft which he showed me, saying that he would be putting it to Cabinet the next day. He anticipated no difficulty about having it adopted. I thought it pretty good, and recognized Mrs Wijayatilaka’s footprints all over it, in particular in the inclusion of Key Performance Indicators, a pet requirement of hers while at the Ministry of Policy and Plan Implementation. I rang her then to congratulate her on her work, only to be told that she had no idea the draft they had been produced had been accepted and would be going to Cabinet.

After the adoption of the Plan by Cabinet, Mohan in Geneva in September spoke about it and the Task Force that had been appointed to implement it. But that body too did not meet. At a meeting of the Human Rights Action Plan Task Force, at which we also discussed the links between the two plans, I asked Mohan who was on the Task Force, and he replied that it was the members of the committee that had drafted the Plan. I told him that then it was very strange that Mrs Wijayatilaka – who had not been able to attend this particular meeting – had not been to any meetings.

For the first time in my relationship with him, the mask slipped, and I saw surprise and a trace of anger on his face. But he swiftly recovered. His excuse was that the government officials responsible for action had been asked to put forward their suggestions, and the committee would only be convened after that was done.

In fact it was never convened while Mohan remained in charge. But in January 2013 he moved on to higher things, when the incumbent Chief Justice was impeached. She had delivered some judgments which upset the government, and in particular Basil, and in addition she had engaged in some financial transactions which were inappropriate for the Chief Justice sitting in judgment on related cases. Also, her husband, who had been appointed Chairman of the National Savings Bank, allegedly after she had requested some position for him, had taken decisions which were improper.

Though there were precedents for what she had done, I do not think she was a fit person to be Chief Justice. Indeed, in the previous year, when she had not been at all cooperative with regard to taking the Human Rights Action Plan forward, I had suggested to the President that there should be clear guidelines for judges, to ensure consistency of judgments (there had been some absurd anomalies with regard to cases about statutory rape), and also the maintenance of records. But it seemed to me that the manner in which she was impeached was a clear travesty of justice, and I refused, along with four others on the government side including two Senior Ministers from the old Communist parties, to vote to remove her.

Mohan had been the principal adviser to the government on the process, and had hoped to be made Chief Justice. This had been his ambition earlier, and he had been disappointed to be passed over when the previous Chief Justice had retired. However, after the lady had been removed, the President first offered the post to C R de Silva, Mohan’s predecessor as Attorney General, who had then chaired the LLRC. He had however refused, and so Mohan became Chief Justice.

The day after he was appointed, Lalith Weeratunge called Dhara WijAyatilaka, who had known nothing of what was happening to her Action Plan over the preceding six months, and asked her to take charge of implementing it. She did, and proved a breath of fresh air. But the appointment was not publicized, and I had to tell those concerned about the plan, including the UN Resident Coordinator and the ICRC head of delegation, about her. They were both mightily impressed when they met her, and one of them indeed told me that for the first time they were hearing things from the government that they had sorely missed.

But movement was perforce slow, for she lacked authority. Technically she was only Vice-Chair of the Task Force, while Lalith Weeratunge was its Chair. Though he was helpful, he was extremely busy, so urgent matters were often postponed. Thus, before she took over, information was not readily available about what had been done, with the website housed within that of the President’s Information Unit, and rarely updated. Mrs Wijayatilaka changed this, but a couple of months later the site seemed again to be stuck. It transpired that she had decided the old arrangement would not do, and she needed her own website, but this took time to be launched because she had to wait for a date from Lalith. Not being tolerant of the inadequacies of others, she did not meanwhile use the old website, having got exasperated with those who maintained it.

More seriously, since she was only a Secretary to a Ministry, and a comparatively minor one at that, she had no formal authority over other Ministries. Though, given her seniority, her peers cooperated, action was often slower than she would have liked, and than was needed. I did, in resigning as Convenor of the Task Force on the Human Rights Plan, suggest to Minister Mahinda Samarasinghe that he tell the President that there should be a Ministry of Human Rights which should be responsible for that Plan as well as the LLRC one – and in case it was thought he wanted that Ministry, he should advise the President to take charge of it himself, with Mrs Wijayatilaka as his Secretary. But the Minister was diffident, and though I subsequently made the suggestion direct myself, it fell on deaf years.

This was particularly sad, because Mrs Wijayatilaka’s work needed support as well as greater publicity. Given the very positive reactions of all who met her, I was reminded of the laconic comment of the American Ambassador about those who were front of house for the government. I had met her in the waiting room of the Secretary of Defence, and she had complained that there was no clear commitment on the part of government to the LLRC Action Plan. I did point out that the Americans had created an opening for those in government, such as Minister Wimal Weerawansa, who did not like the Action Plan, to attack it on one side since the Americans had attacked it on the other. After all, since it was likely the Americans would say, even if we fulfilled all the recommendations, that more should be done, it made sense for those who certainly did not want more to criticize what there was, to forestall greater demands.

But I did tell her that, instead of taking seriously what other Ministers said, she should go by the pronouncements of the official government spokesmen on this subject, who had all been positive. She asked who these were, and I said GL and Mohan Pieris, to which her response was that neither had any credibility any longer.

I was upset by this, but later I realized that she did indeed have a point. In 2013 I hoped that we might see a change in Mohan, and indeed Mahinda Samarasinghe remarked that, now that he had got what he wanted, he might deliver on some of the ideals he so convincingly expressed. But while he has tidied up some elements in the administration of the courts, it is clear that he sees his role as essentially a political one, and we cannot expect any contribution from him to advance the two Action Plans in which he was involved, or to persuade those he still advises to work in their spirit rather than with increasing authoritarianism.


And perhaps the saddest aspect to the elevation of this quondam idealist is that nobody any longer believes that the Supreme Court of Sri Lanka will act with independence and uphold law and order and justice.

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