Columns
Phantom of the Supreme Court
It is in his pathetic attempt to portray himself as the victim of injustice a man terribly wronged; it is in his audacious bid to raise himself to the heights of a former Chief Justice, the much respected Neville Samarakoon; and it is in his bare faced bizarre avowal that the maintenance of the dignity and decorum of the office of Chief Justice were his prime concerns that Mohan Peiris surpassed himself last week to reveal his inherent extraordinary genius to find in fathomless depths a deeper still to sink.
Almost calling upon the storming heavens to deliver the justice he was now impotent to execute, Mohan Peiris, in a statement issued two days after he was declared by the Government as the Chief Justice that never was, presented himself as ‘a man more sinned against than sinning’.
If Mohan Peiris had hoped his pitiful statement would attract rivers of sympathy and cause a surging tide of public opinion to flow in his direction; to swell in outrage at the scandalous wrong done to him and to move the throne of Heaven to rumble in fury over the perfidious assault on his innocence, he couldn’t have been more disappointed nor more forlorn. Enough tears had been shed by the nation two years ago over his controversial appointment by the then President Rajapaksa that there were none to let fall now.
FLASHBACK TO 15th JANUARY 2013: Mohan Peiris going through the motions of purportedly taking oaths as Chief Justice before President Rajapaksa in what is now determined to have been a totally farcical swearing in ceremony devoid of any legal force or validity
Instead it was met with volleys of mocking laughter; with howls of jeers and derision; and even the blindfolded lady with the scales atop Hulftsdorp Hill may have been forgiven had she evinced a sneering turn of the lip over the fulsome self-praise of impeccable conduct and moral rectitude, the Phantom of the Supreme Court had chosen to pour over himself by the bucket.
Mohan Peiris was appointed the Attorney General in 2008 by President Rajapaksa and served in that post till 2011. During his tenure as AG he withdrew murder charges filed against the former deputy minister, Chandana Kathriarachchi, reducing the offence to one of unlawful assembly. He withdrew the charge of rape against the Government MP, Duminda Silva, who is presently facing charges of murdering Bharatha Lakshman and who has been named by drug boss Wele Sudha as being a key player in the drugs trade.
He also represented Sri Lanka in the UN Committee Against Terror in 2011. At this venue he disclosed that the Lankan Government had information that the missing journalist Prageeth Ekneligoda was alive and residing in a foreign country. Upon returning to Lanka, he was summoned by the Homagama Magistrates court and when cross examined on the matter, Mohan Peiris admitted that he had lied at an international forum.
But under the Rajapaksa regime, these were not black marks and soon in that same year he was appointed as a senior Legal Officer to the cabinet and became a close advisor to President Rajapaksa. If that did not suffice, he was further appointed by the Government as the Chairman of the Seylan Bank in April 2012.
That was the position when in 2012 the Chief Justice Shirani Bandaranayke made, in President Rajapaksa’s unforgiving eye, the terrible error of delivering the ‘wrong’ judgment in the Divinaguma Bill — presented in Parliament by President Rajapaksa’s brother, Basil — which was referred to the Supreme Court to determine its compatibility with the Constitution. This was to set in motion a train of events that were to ultimately lead to impeachment proceedings being brought against her.
In January 2013, the Government declared that Shirani Bandaranayke had been impeached and removed her from office. President Rajapaksa approached many, including the onetime Attorney General — the respected late C.R. de Silva who declined. President Rajapaksa then turned to his official legal advisor, Mohan Peiris, who, like Barkis, was willing.
Two weeks ago on January 28, the new Maithripala Sirisena Government announced that the purported appointment of Mohan Peiris as Chief Justice in January 2013 was null and void and thus the 43rd Chief Justice Shirani Bandaranayke would be reassuming her duties that same day thus erasing in one deft stroke the blot on the legal landscape.
And why was Mohan Peiris’ appointment null and void? According to the reason given by Ranil Wickremesinghe to parliament last week, Shirani Bandaranayke had not been legally impeached by Parliament and as such no vacancy had occurred on the Supreme Court Bench for the position of Chief Justice which constitutionally only one can hold at any given time.
A solitary gem of truth sparkling in Mohan Peiris’ statement issued after he was given the brush off is when he states: “I have not retired, resigned or vacated my office of Chief Justice.” That is correct and reflects the Government’s position. He never retired, resigned or vacated the office of Chief Justice for he was never Chief Justice; and, as such, there was no office of Chief Justice for him to retire, resign or vacate from.
This then is the crux of Ranil’s argument regarding the entangled affair. But the question is not whether it is right or wrong but whether the Government has the right to usurp the functions of the courts and or Parliament and give a judicial decision on it its own? True the Government received the powerful backing of the Bar Association but does the opinion of lawyers, even if it’s unanimous, come adorned with the binding force of final judgments when expressed from the bar and not from the bench?
This was the position taken up by MEP MP Dinesh Gunewardena who questioned the Government’s right to adjudicate and pass decrees that may perhaps create precedents for future governments to invoke. And he is right to raise the point for when governments attempt to take that course, the danger exist that it may well be on a slippery slope to anarchy, when a nation is not ruled by laws interpreted and determined by competent courts but by government fiat.
On January 30, Prime Minister Wickremesinghe rose in Parliament to give effective reply to the point of order raised by Mr. Gunewardena. Wickremesinghe’s argument to justify the decision taken to render Mohan Peiris as an apparition that had haunted the top floor of the apex court and squatted on the seat of the Chief Justice’s Office and ostensibly delivered legal judgments without being vested with an iota of legal authority to do so, was that the proper procedure as laid down in the Constitution to impeach Chief Justice Shirani Bandaranayke had not been followed since the resolution Parliament had voted upon was one that called for the appointment of a select committee to probe and not impeachment to remove.
The basis of his findings is as follows. On November 6, 2012, a resolution was placed before Parliament to impeach Shirani Bandaranayke as the Chief Justice. The resolution also called for the appointment of select committee to inquire into 14 charges levelled against her. On November 14, a select committee was appointed under Standing Orders 78A.
Although Standing Order 78 A(6) says that a report including the findings of the select committee along with the evidence should be presented to parliament, the select committee only presented the findings on December 8 and not the evidence. Therefore standing order 78 A (6) has been violated.
The resolution was then placed on the agenda for January 10 and 11, 2013. This was the same as the resolution that was placed on the agenda on November 6, 2012 which had called for the appointment of a parliamentary select committee. Thus it was apparent that what was called for in the said resolution was not one calling for the impeachment of the Chief Justice but one calling for the appointment of a select committee to inquire and report to Parliament where at least one or more of the charges against the Chief Justice had been proved or not; and if proved to also present the evidence that led to a decision of guilty.
Therefore the resolution that was passed on January 11, 2013 with 155 MPs voting for and 49 against it was not an address of parliament recommending to the president to remove a judge. It was simply for the appointment of a select committee. If the correct procedure had been followed the next step should have been for the Speaker to write to the president in accordance with section 78 A (7) of the Standing Orders notifying him of the resolution recommending the removal of the chief justice. In the letter sent to the President, the Speaker states that this resolution was passed in terms of article 107 of the constitution and 78 A (2) of the standing orders. But he makes no reference to the Standing Orders 78 A (7), rendering the whole procedure flawed and making the act of impeachment invalid from the start, or void ab initio.
After outlining the above, the Prime Minister said that having received the Speaker’s letter which made no mention of Standing Order 76A (7) the President’s Secretariat had to determine if the resolution was an impeachment. The President’s advisers had to instruct the President and he had two options. One was to decide whether, if it was not based on a proper impeachment, to send it back to Parliament for amendments. The second option was to amend the Standing Orders.
The meaning of Wickremesinghe’s explanation is clear: that when the President Office received the Speaker’s letter containing the resolution it seemed for that moment that the adviser to the President had himself the need to sit in the office of the Chief Justice which had fallen vacant and make a ‘ quasi judicial’ decision as to whether the resolution was an impeachment that passed muster or whether the resolution was one calling for the appointment of a select committee to probe the allegations against Shirani Bandaranayke.
After dispensing with the considered legal position that existed in January 2013 which rendered the purported impeachment of Shirani Bandaranayke null and void and therefore also rendered null and void the purported appointment of Mohan Peiris as the Chief Justice, the Prime Minister proceeded to disclose matters that occurred after the election was held this year on January 8 which further made the continuance of Mohan Peiris to occupy the chief Justice chair untenable,
COUNT ONE. The Prime Minister revealed again that when he went to Temple Trees at 4 am on election night to discuss the smooth transition of power with the former President, he was surprised to find Mohan Peiris present in the hallways of the president’s residence. At a time when the election results were still in the process of being announced and the counting of the votes was still in progress, this was indeed conduct unbecoming of a man who considered himself to be the country’s chief justice to be seen hanging out with one of the presidential candidates.When Ranil had asked him what he was doing in the wee hours of the night at Temple Trees, Mohan Peiris had replied that he had come there to give advice, and had exited the room. But it is not the role or duty of the chief justice, even an illegally appointed one, to offer advice to the Government. That duty belongs to the Attorney General whose job description holds him to be the chief legal officer of the Government. It later came to light that Mohan Peiris had been there even before 2,30 am, as the Attorney General, who had arrived at that time, was to tell Ranil later.
COUNT TWO. After the night of darkness had fallen on the Rajapaksa regime and family, Mohan Peiris had later phoned Ranil and had expressed his wish to extend his support to the support to Maithripala’s new government as the Chief Justice and had asked Ranil for an appointment to discuss the matter further. “He told me that he was willing to rule in favour of the government regarding any case brought before the Supreme Court,” Wickremesinghe told Parliament.
COUNT THREE. Prime Minister Ranil Wickremesinghe also disclosed to Parliament that he and the President met with CJ Mohan Peiris at Temple Trees on January 19, to resolve the unfinished issues. Once again Mohan Peiris, charged as he ostensibly was then to hold the supreme impartial majesty of the law, the supreme guardian of the nation’s constitution, the head of the apex court of final appeal, tells the President that if he is allowed to remain as the Chief Justice, he would rule in favour of the government with regard to any case that was brought before the Supreme Court. When Ranil Wickremesinghe informed him that the Bar Association had conveyed to him their unanimous agreement for the removal of Mohan Peiris as Chief Justice, Mohan Peiris then tells Ranil and the President that he will resign as chief justice if they gave him a diplomatic posting. Later the President’s Secretary had informed the President and himself that Mohan Peiris had denied that he requested for a diplomatic posting, Wickremesinghe told Parliament revealing details of the scandalous and sordid affair which has since shocked the nation outraged to hear of the grime that had oozed from the fountain of justice.
In the statement issued by Mohan Peiris on January 30 after his removal as Chief Justice, he has not made any reference to any of the above three instances neither has he sought to deny upto now, eight days after they were made by Wickremesinghe, the most damaging one of them all: that he told President Maithripala that he would give any judgment the government wished him to give if he was allowed to remain as Chief Justice.
If he denies it, even at this late stage, he will be calling the Prime Minister a bare faced liar. If he does not deny it, he will not be able to blame the people if they call him a blackguard, a scoundrel of the worst order who was ready to barter his soul and the independence of the country’s judiciary in exchange for a few perks as the bewigged bounder on the Supreme bench. And the nation will thank the Government not only for refusing his offer to be an obedient tail wagging poodle at Hulftsdorp but also for getting rid of him and thus doing a great right even if it meant doing a little wrong.
And as for Mohan Peiris personally, all is not lost. Being an ardent Catholic, he can gain solace that though his God may have judged him, He hasn’t totally forsaken him. For the general law which debars Supreme Court judges from reverting to legal practice upon ceasing to hold office will not apply to him. Never having been the Chief Justice or even a Supreme Court judge, he is free to return to his legal practice and take up the briefs of his old clients whose cases he had astutely advanced in so many ways.