By W. Siri Ananda
Former Chief Justice Sarath Nanda Silva, in a candid interview with Ceylon Today says the impeachment process was initiated by the President while the 117 signatories were simply rubber stamping it. Silva questions both the removal of Dr. Shirani Bandaranayake (CJ) from the position of Chief Justice and challenges the appointment of Mohan Peiris in her place. He also warns of serious repercussions to the country at the international level, especially at the United Nations Human Rights Council (UNHRC) sessions this March.
Excerpts:
Q: The legality of the appointment of Mohan Peiris as the new Chief Justice (CJ) is being questioned by many, more so, in the context of the superior courts nullifying the Parliamentary Select Committee (PSC) findings. How would you explain the development?
A: It is true that people do not accept the new appointment as being valid. That is why they describe this as a de facto appointment. There are two legal terms – de facto and de jure – which means ‘only in fact’ and ‘only in law.’ The former Chief Justice has a legal claim to still being the legal CJ as the Appeal Court and the Supreme Court have both ruled in her favour. But Dr. Bandaranayake is not de facto. She is not the CJ. She is out. She was removed by the President. Her removal is questionable and so she has a legal claim.
However, the appointment of Mohan Peiris as the CJ is also questionable. But President Mahinda Rajapaksa appointed him. This is a fact. When a person has a right to appoint a person, this does not mean all his appointments are legal.
When the PSC findings are considered illegal, the rest of the decisions and the activities based on the PSC become illegal including its findings. That’s why the validity of the new CJ’s appointment is questionable.
Q: What is your stand on the appointment of the new CJ?
A: I resisted the CJ’s appointment clearly due to the situation I just explained. I realized this situation might arise and publicly said so. This was not to side with or to oppose any person. I simply realized there would be a serious situation which will affect the Judiciary and the country.
There was a ceremonial sitting of the CJ and Bar Association of Sri Lanka (BASL) boycotted the sittings. The CJ being welcomed by the Bar and the Attorney General is a part of the 210-year-old traditions of the Judiciary. When the Bar boycotts the CJ, the degree of his acceptance is reduced. Then a person begins to wonder what the problem is and that’s the worst thing. The ceremonial sitting is to demonstrate full support to the new CJ. When the Bar welcomes it, the people accept the appointee.
Q: What are your views on the recent impeachment process?
A: According to the Constitution, the removal of the CJ, which is a disciplinary process, is done by the President, who is the appointing authority. But that power should be checked. We have a concept called checks and balances. People are talking of separation of power. When all are supreme, there will be a gridlock and nothing can move forward. Once this happened in the US and President Obama could not move forward as the Republican-controlled Congress opposed him. Checks and balances should be finely tuned. The President’s power should be checked by the intervention of the Parliament.
In Sri Lanka, the President is able to manipulate the Parliament. J.R. Jayewardene also did it. The checks on the Presidential powers of removal by Parliament become ineffective because Parliament is controlled by the President. This process is very unreasonable. We have to recognize that
Dr. Shirani Bandaranayake’s impeachment process was initiated by the President. Although 117 MPs signed the impeachment motion, they were not the architects of the process. That’s the reality. They did so because the President wanted them to do so. I have nothing to gain or lose. So I am very straightforward in expressing my views.
I have spoken about our stark realities. When I do that, some people say I am favouring the President or opposing the President.
Q: In your opinion, was the impeachment process unfair only due to the absence of checks and balances on the exercised presidential powers?
A: There are checks on the President’s powers. That was the reason for the former CJ to be subjected to an unfair process. The UNP could not proceed with the impeachment motion against me, because they did not have full control of the Parliament. They had to drop it. The UNP couldn’t proceed with the impeachment motion against the former CJ, Neville Samarakoon, because there were some effective people such as Lalith Athulathmudali who were functioning on their own, although the Parliament of J.R. Jayewardene had full control. With all due respect I must say, powerful personalities like Lalith Athulathmudali, Gamini Dissanayake, the opposition MP Sarath Muttetuwegama are no longer found in the present Parliament. There were powerful political voices then and stance-taking.
Dr. Bandaranayake realized she had no chance in Parliament and that’s why her supporters went to Courts. In short, the process was unreasonable and unfair.
Q: It is said that Dr. Bandaranayake was rudely removed and she was not even allowed to remove her personal belongings. On the other hand, over 10,000 police and security personnel were at the Supreme Court premises on the day the new CJ assumed duties. What are your views?
A: That was one of the ugliest developments of this series of events. People too did not see it as a fair process. I personally told the President to exercise some kind of caution and not to rush with the process of removal. There was a possibility of reaching a settlement. I recommended an acting appointment be made. They did just the opposite. This is the de facto situation.
That kind of physical removing aggravates the public anger and increases the degree of sympathy towards Dr. Bandaranayake.
Q: What are the possible repercussions at the international level?
A: This is a very serious situation though the government appears not to understand. The international image is very important for foreign investment. We can’t be a pariah State. Some countries such as China or Russia can be more repressive than Sri Lanka, but they are powerful enough to ignore international pressure. We are dependent on the international community for trade, aid and other support.
We have to be very careful about our international relations. We received GSP Plus from Europe and additional concessions during President Kumaratunga’s tenure. In 2010, Sri Lanka lost the GSP Plus facility and Ajith Nivard Cabraal said we do not need it, which was not a wise statement. This has affected our exports and employment in the Free Trade Zones (FTZs). The situation will be aggravated due to these negative developments. All the trade benefits we won during the last few years will be lost due to silly issues. We can have a very good human rights record as we do not have a war or Southern violence. The problem is, the government creates problems and solves them in a self-styled matter.
Q: What are the reasons for the current situation?
A: There is a problem of capacity. You have to have a certain vision. At the helm, they don’t have the broad visions that JR and Chandrika had. Popular statements such as ‘Miracle of Asia’ and ‘one million tourists’ are just statements. Those do not bring immediate relief to the people who are suffering immensely due to the present situation. On the other hand, taxes are very high and the production levels are very low. At present, nature is also going against the government.
Q: How will the current crises get reflected at the UNHRC sessions?
A: This time, the UNHRC may pass a more comprehensive resolution, adding on the recent incidents. Then there will be a huge mess and no sensible investor will come to Sri Lanka.
Q: People’s final hope always lies with the Judiciary. Its supremacy was made questionable by the recent events. Don’t you agree that Sri Lanka is now getting categorized as an undemocratic country?
A: Undoubtedly, Sri Lanka falls into that category. That is very unfortunate because in the last 21 years, people had confidence in the Judiciary, because as far as possible, it upheld the rights of the people.
Q: Your own behaviour during the impeachment motion caused you to be labelled as a supporter of President Mahinda Rajapaksa. Where do you actually stand on this issue?
A: In this country, public perception is generated not on the basis of issues. Their thinking is based on the personalities – or individuals. I have been addressing issues. I have advised the President to build public confidence and to help enhance the reputation of the Judiciary. I have no intention of entering politics from any party, but will enjoy my retirement in a peaceful manner.COURTESY:CEYLON TODAY