Sunday Times 2
Has justice been served?
The new regime finally lost patience with the obdurate Mohan Peiris and used what appears to be a clumsy ploy – capitalising on a procedural infirmity in the dismissal of Justice Shirani Bandaranayaka — to restore legitimacy to the Ladyship and, simultaneously, to erase Mohan Peiris’s name from the roll of Chief Justices of Sri Lanka. The Government strategy, ill-considered though it may have been, enabled the appointment of Justice K. Sripavan to that exalted seat, a choice which, in any event, should have superseded that of Shirani Bandaranayaka. Her Ladyship’s rights have been restored, an undesirable removed and the best man for the job finally appointed. So, seemingly, justice has been served all round.
Purists would say, and are saying — and I concur that one should strive for the ideal — that the totally justifiable removal of Peiris should have been undertaken according to procedure, a process which the Rajapaksa regime contemptuously violated, in the case of Shirani Bandaranayka. But “two wrongs do not make a right” — a hackneyed cliché but absolutely apt.
Lawyers and civic rights activists taking part in a protest march, calling on the Government to remove Mohan Peiris as Chief Justice:
There is an overarching irony in this entire drama. We have former Rajapaksa accomplices, now members of the “Yahapalanaya” brigade, who earlier participated enthusiastically in Shirani Bandaranayaka’s ouster, pointing out the very obvious injustice of that action and justifying Peiris’s neutralisation. Others now in the Opposition, blithely ignoring their obscene conduct in the disgraceful Bandaranayaka episode, are screaming out at the injustice meted out to Peiris. This is the kind of situation possible only in a cesspit that is politics in Sri Lanka. It is also a reflection of the degree of desecration of the Judiciary in this country, a process which may be said to have had its genesis in the Felix Dias Bandaranaike era, with each successive government making significant contributions and, finally, reaching a new nadir under the Rajapaksa jackboot.
On the other side there is the nauseatingly sanctimonious Peiris who, despite his deplorable conduct which has brought an august position to disrepute as no other incumbent has done, in complete obliviousness of his own ignoble conduct, mouthing noble sentiments in a widely circulated press statement.
“Maintaining the dignity and decorum associated with the office of the Chief Justice and ensuring its respectability and propriety is my prime concern. As the pinnacle of our juridical administration, it should be preciously safeguarded in its pristine purity ”
This statement from a man whose conduct, from the outset, compromised both positions that he held— that of Attorney General and Chief Justice — is preposterous and delusional. Consider the embarrassment he caused to both the Judiciary and his position, by the patently contradictory statements he made regarding Prageeth Ekneligoda’s disappearance; one, or perhaps both statements were untrue and he knew them to be untrue. Consider also, his withdrawal of the case against Gamini Kaththiriarachchi, former Deputy Minister, after the latter had pleaded guilty to murder and unlawful assembly, his cleansing of Duminda Silva, MP, of charges of rape of a minor, his prior advisory appointments to Mahinda Rajapksa and the then Cabinet, the Board appointments he held, through political patronage, in corporates owned and managed by the State and the Chairmanship of Seylan Bank. Consider, as well, his involvements with personal events in the life of the then First Family. Had he possessed the moral consciousness of an amoeba, he would not have accepted the position of Chief Justice.
Finally, consider his inexplicable and unacceptable presence at Temple Trees- after Rajapaksa had conceded defeat in the Presidential election – in circumstances which are now being investigated as a prelude to an attempt to subvert the electoral process, enabling Mahinda Rajapaksa to continue in power illegally, despite defeat in a democratic election.
Notwithstanding all of the above, this man also had the gall, in his press statement, to place himself alongside the late Neville Samarakoon, who truly graced the Chair of Chief Justice of the country, with his fierce independence and custodianship of the integrity of that position, despite being an appointee of the then President, J.R. Jayewardene. As for Peiris, a man with such a confused moral compass is, clearly, totally unsuitable for the position of Chief Justice, or any other position in which moral rectitude is a prerequisite. Peiris, with his reprehensible conduct, engineered his own fate.
Compare Peiris with Ajith Nivard Cabraal, former Central Bank Governor, who, much like Peiris and like no other predecessor in the same position, compromised the integrity of that seat with his involvement in the politics of the previous regime. However, Cabraal had better sense and resigned no sooner the Presidential election results were announced. His act, prudent as it was, was also tacit acknowledgement of his contravention of the protocols and conventions which should have guided his conduct as Central Bank Governor, and the consequent untenability of his continuance as such, under the new regime.
I do not think there is any question of the validity of the need for Peiris’s removal. It is not possible for the Judiciary to function effectively with an unabashed political lackey as the Chief Justice. Having said that, it is my view that the new regime needs to seriously review the “modus operandi”, it employed, in the context of the pre-election good governance pledge to the country, the future integrity of the Judiciary and the relationship of the executive to it, although what is done is finished. The technicality instrumental in Peiris’ removal seems logical but in the public displays which preceded it there was an ugliness, which also carried the promise of future vigilante action and the employment of para-legal strategies, when faced with complicated legal problems. In the context of ethical and legal constraints, the Gordian Knot conundrum cannot be solved with a sword strike.
The BASL, from the time of Shirani Bandaranayaka’s removal, has been steadfast in its opposition to that action and the appointment of Peiris to her position. In this context, one should also not forget the position of that eminent lawyer, the late SL Gunesekera, who fiercely criticised the appointment of the lady but, with equal vigour and tenacity, condemned her dismissal and, till the end of his life, refused to recognise Peiris as the Chief Justice and did not ever appear before him. If there is to be a role model for honesty and integrity of personal and professional conduct at the Bar, there cannot be a better example than that gentleman.
The BASL cannot be unaware of the possible consequence of the campaign it mounted on behalf of Bandaranayaka and against Peiris. It is also reported that on the same day as the demonstration against Peiris at Hulftsdorp, there had been a similar protest by a group of BASL members outside Court no ; 5 in the same premises, against a magistrate, in an attempt to force him to drop disciplinary proceedings against a lawyer. This type of action immediately raises the spectre of mob-rule against the Judiciary, mounted by its own members. Unless this body regulates and disciplines itself, the very actions which restored justice to the wronged, applied indiscriminately, will violate the basic principles of judicial integrity which it seeks to uphold. Generally, mob-rule is a reaction, either to the inability or to the reluctance of the established order, to provide justice and redress in the case of genuine grievances. If successful, it becomes an easier road to travel than the conventional track, along which the wheels grind slowly. Whatever the circumstances, such action must not be permitted to find a resonance in other spheres.
Maithripala Sirisena’s victory was the consequence of a civic awakening to the depredations of Rajapaksa governance and the hope the voters have reposed in the reformist platform of the new regime. Given its wide-ranging promises of transparency and accountability, the new order will be watched far more closely than the Rajapaksa regime was. The latter had anaesthetized the public conscience and bludgeoned it into submission with the stench and weight of its entrenched corruption and evil of two decades. But the citizenry is now awakened and is baying for justice on all fronts. If the new regime is to deliver on its 100 day programme and continue its journey beyond the 23rd of April, in whatever political avatar is possible, it cannot afford to become impaled on any more moral dilemmas, such as ‘le affaire’ Peiris- Bandaranayaka.