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The Ouster of Mohan Peiris



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Nobody will have any objection to Justice K.Sripavan being elevated to the position of Chief Justice. He has been as non-controversial a member of the judiciary as one could wish for. It is our hope that his lordship will be able to bring some calm and quiet to an office that has known nothing but controversy and turbulence over the past 15 years. However, no one can possibly approve of the events that preceded his appointment. Last Thursday was a black day in the history of the judiciary of this country. Ever since President Mahinda Rajapaksa was voted out of office, during the past three weeks there were demonstrations by lawyers and various agitators for the resignation of the chief justice. This reached a highpoint when a group of agitators invaded the chief justice’s official residence on Wednesday night and allegedly threatened him demanding his resignation.


The next day, a large demonstration was organized outside the Supreme Court complex and participating in it were not just lawyers but members of the teachers and nursing trade unions. At the forefront of the agitation were lawyers who were members of the lawyers collective and some lawyers who were closely associated with foreign funded NGOs. The former Chief Justice Shrirani Bandaranayake arrived at the Supreme Court complex while a letter had been sent from the presidential secretariat saying that her removal in January 2013 was null and void. At the same time a letter was issued to the incumbent Chief Justice Mohan Peiris to the effect that he had in fact never been appointed chief justice! These are events we would never have believed possible in this country.


Days before the presidential election, the renowned astrologer P.D.Perera of Nattandiya came on TV and predicted that there will definitely be a change of government because the planetary combination on January 8 was the same as in 1956 when there was a change of government. The change of government in 1956 initiated an era of mob rule in this country when delirious yakkos invaded Parliament and one even sat on the Speaker’s chair and initiated the age of the ‘common man’ in this country. Well, P.D.Perera appears to have been absolutely right. The planetary positions on January 8 certainly seem to have been the same as that of 1956 and a new era of mob rule seems to have started in Sri Lanka. In 1956, a UNP government was defeated by the SLFP-led MEP whereas this time an SLFP-led UPFA government has been defeated by a UNP led coalition. The parallels are uncanny. In 1956 the victorious S.W.R.D.Bandaranaike was famously very gracious and civil to his vanquished opponent Sir John Kotelawala and in this instance too the victor by proxy Ranil Wickremesinghe was gracious and civil towards the vanquished Mahinda Rajapaksa. Despite this, in both instances the victor displayed a cavalier disregard for due process and propriety in fulfilling certain election pledges, resulting in developments that would have far reaching consequences for Sri Lanka.


In 1956, S.W.R.D.Bandaranaike brought in the Official Languages Act making Sinhala the official language in a mighty hurry without the provisions for the reasonable use of Tamil that he had promised all along. Contrary to popular perception, Bandaranaike never had a ‘Sinhala Only’ policy. His policy all along had been for Sinhala to be the official language but with provision for the reasonable use of Tamil. Yet in his headlong rush to fulfill the pledge that brought him into power he left the Tamil language provisions for later and brought the Sinhala as the official language part first and got labeled for posterity as the man who brought in a ‘Sinhala Only’ policy. Likewise, Ranil Wickremesinghe who was advocating the introduction of ‘Latimer House principles’ for the removal of judges has now actually presided over and justified the removal of a chief justice entirely through a combination of mob action and executive fiat! When RW suggested in late 2012 at the height of the impeachment drama surrounding Shirani Bandaranayake, that Sri Lanka should adopt the Latimer House principles for the removal of judges, it was this writer who pointed out that in Britain, the Latimer House principles are applied only to judges of the courts below the Supreme Court. For the judges of Britain’s highest court, it was still the good old single sentence sacking procedure that all countries that followed the British parliamentary system had - where one judge or the entire Supreme Court could be sacked with just resolution passed by a simple majority in parliament. Now RW has taken that further and devised a new way whereby a judge can be kicked out without even a resolution in parliament!


Ranil’s arguments


Let’s take a look at the explanation given to parliament by Prime Minister Wickremesinghe over the removal of Mohan Peiris and the reinstatement of Shirani Bandaranayake. His contention was that the latter was never removed and the former was never appointed CJ. The gist of RW’s arguments in his statement to parliament could be summarised as follows:


a)      On 6 November 2012, a resolution for an address of parliament recommending to the president the removal of Dr Shirani Bandaranayake from the position of chief justice was introduced to the agenda of parliament in accordance with article 107(2) of the constitution.


b)      At the end of that resolution which outlined 14 charges against Dr Shirani Bandaranayake was a passage which requested the appointment of a select committee to look into these charges so that parliament could address a recommendation to the president for the removal of Dr Bandaranayake from the position of chief justice.


c)       On 14 November 2012, it was announced that a select committee had been appointed under Standing Order 78A.


d)      On 8 December 2012, the select committee presented its report to parliament.


e)      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, but what was present were just the findings without the evidence therefore standing order 78 A(6) has been violated.


f)       This subject was once again placed on the agenda of parliament for January 10 and 11, 2013. The resolution placed on the agenda for January 10 and 11 was the same as the resolution that was placed on the agenda on 6 November 2012 calling for the appointment of a parliamentary select  committee.


g)      Therefore it is clear that what was placed on the agenda for the 10 and 11 January 2013 was not a resolution calling on the president to remove the chief justice from office - it was merely a resolution calling for the appointment of a select committee.


h)      The resolution that was passed on 11 January 2013 with 155 MPs for and 49 against was for the appointment of a select committee and not an address of parliament recommending to the president to remove a judge.


i)        If this process had been carried out properly, 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, but this too does not appear to have been done.


j)        In the letter sent by the speaker to the president, he says that this resolution was passed in terms of article 107 of the constitution and 78 A (2) of the standing orders. There is no mention of section 78 A(7) of the standing orders in that letter. Therefore the whole process of removing Shirani Bandaranayake from office was invalid.


That was gist of the argument presented to parliament by Ranil Wickremesinghe justifying the ouster of Mohan Peiris and the reinstatement of Shirani Bandaranayake. Even though RW argued thus, the fact is that the resolution that was placed on the order paper for January 10, 2013 clearly stated what it was meant for. It was titled:  


RESOLUTION AS PER ARTICLE 107(2) OF THE CONSTITUTION FOR A MOTION OF PARLIAMENT TO BE PRESENTED TO HIS EXCELLENCY THE PRESIDENT FOR THE REMOVAL OF THE HON. (DR.) (MRS.) UPATISSA ATAPATTU BANDARANAYAKE WASALA MUDIYANSE RALAHAMILAGE SHIRANI ANSHUMALA BANDARANAYAKE FROM THE OFFICE OF THE CHIEF JUSTICE OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.


Towards the end of the debate on the impeachment motion on January 11, 2013, Lakshman Kiriella raised a point of order saying that the motion they were debating was the same as the one they had on the order paper on 6 November 2012 and wanted to know whether they were having a debate to appoint a select committee. The speaker pointed out that it has been clearly stated in the resolution that this was a motion to recommend to the president the removal of the chief justice. It was Faizer Musthapha who pointed out that the motion to recommend the removal of the chief justice was a part of the address and that therefore there was no need of for a separate address.  Mustapha drew attention to Article 107(2) of the constitution which states that every Judge shall hold office during good behaviour and shall not be removed ‘except by an order of the President’ made after ‘an address of Parliament’. He also pointed out that this motion has been debated for two days and that the Hon. Member is now stating at this late stage that it is not placed in the Order Paper.


"How can you take up that position when you have participated in the Debate for two days?" asked Mustapha, continuing - "How can you take up the position that it is not placed in the Order Paper? You should have taken that up before it was debated. How can you do that now? Why did you participate? I do not see any logic in it and this objection cannot be taken."


Vexatious objection as a point of law


It was clear that this ‘point of order’ that Lakshman Kiriella had raised was just another vexatious objection of the kind that the opposition had kept on raising during the impeachment motion debate. When this debate began on January 10, the opposition MPs began their filibustering with a complaint about them not having received a copy of the report of the select committee. The argument was put forward that leaving it in their pigeon holes was not the same as placing a copy on their tables. Then some people were splitting hairs on whether the mandatory period of one month has lapsed as per the law after the motion had first been tabled in parliament. Central to the argument was what the word ‘tabled’ meant. This argument that the motion being debated on January 10 and 11 was only meant to appoint a select committee was a dilatory tactic no different to any of the other filibustering attempts that the opposition had been making throughout the proceedings.


 At the end of the debate on January 11, 2013, the speaker gave a ruling stating that he has read the standing orders and the relevant constitutional provisions. He stated that the resolution under consideration has been presented under Articles 107(2) and 107(3) of the constitution and Standing Order 78 A. He also said that the purpose of this resolution was to remove Shirani Bandaranayake from the position of chief justice if any of the charges against her are proven. He ruled therefore that the resolution placed on the order paper was sufficient in terms of articles 107(2) and 107(3). The matter was then to put to a vote and 155 voted for the resolution to and only 49 against. Among those who voted for the resolution was Maithripala Sirisena. When the speaker gives a ruling on such a matter, that has to be taken as final. When the speaker certifies that a piece of legislation has been passed by parliament, to the outside world that is final. Even in deciding whether a law has been passed by parliament or not, even the courts do not look beyond the signature of the speaker. So when Prime Minister Ranil Wickremesinghe now says that the resolution that was passed on 11 January 2013 was just a resolution to appoint a select committee despite the specific ruling of the Speaker to the contrary, he is in contempt of parliament. Furthermore, if RW is such a stickler for proper procedure and the correct application of the standing orders of parliament, then he of all people should consider the ruling of the speaker to be sacrosanct.


 President Sirisena and Prime Minister now command a majority in parliament. If they were convinced that there were shortcomings in the impeachment procedure they should have at least presented a resolution in parliament declaring that the removal of Shirani Bandaranayake was not valid and therefore she should reinstated and Mohan Peiris removed. It would have been better still, to file a case in the Supreme Court against the appointment of Mohan Peiris as chief justice. Without doing either of these, what we saw was mob action in the Supreme Court complex with Azath Salley allegedly playing the role of ‘Kalu Lucky’ who earned notoriety during the J.R.Jayewardene era for having stoned the house of a Supreme Court judge. Now Ranil Wickremesinghe has gone even further and actually ousted a duly appointed chief justice with nothing but a letter from the presidential secretariat.


 What is RW really aiming at?


 For such a thing to happen in this day and time, barely three weeks after a new government came into power with a direct mandate to curb the powers of the executive presidency is inconceivable. Quite apart from curbing the powers of the presidency, we see instead that they have been applied far more arbitrarily than they have ever been in the 35 year history of the executive presidential system in this country. It was J.R. Jayewardene who famously said that the only thing that the executive president could not do was to change a man into a woman and vice versa. But now they are coming close. The executive president has been able to render a chief justice who had been in office for two years into someone who has not held the position of chief justice at all! The avowed purpose of the new government was to strengthen the parliament as against the executive presidency. But with a single letter, the new president who was voted into office saying that he was going to abolish the executive presidency, has managed to undermine both the judiciary and the parliament in a way that all former presidents combined could not have dreamt of doing. He has at one and the same time declared invalid a resolution of parliament passed by a two thirds majority and sacked a chief justice with just a letter from the presidential secretariat.


 What is most shocking to most people is that Ranil Wickremesinghe seems to be fully behind this most objectionable of incidents. The question on most people’s minds is why he of all people would do anything that would weaken parliament? It is in Ranil’s interest to see that parliament is strengthened. His behaviour is so unusual that various conspiracy theories come to mind. After the new government came into power, we were hearing less and less about constitutional change and the abolition of the executive presidency. No one was talking about electoral reform. The new president went to his home town in Polonnaruwa for the first time after he was elected and he was talking about reducing the term of office of the presidency. Not a word was said about its abolition or even the reduction of its powers. News coming down the grape vine indicates that President Sirisena had refused to be turned into a ‘scare crow’ (pambaya). But now after last Thursday, even those who wanted the continuation of the executive presidency would now like to see the institution scrapped.


The UNP obviously could not compete with forces like the JHU which were trying  to retain the executive presidency in the hands of President Sirisena for their parochial advantage.  But now with a single master stroke, Ranil has reignited the debate on abolishing the executive presidency.  The whole country has once again been shaken awake and is once again talking of the abuse of presidential power. Perhaps RW needed some momentum to get executive powers transferred from the president to the prime minister as promised within the 100 day period. A prime minister would not have been able to dislodge an incumbent chief justice with such ease.  


Be that as it may, the trend set by the removal of the chief justice is catching on. According to a news item published on Lanka C News, on the same day as the ouster of Mohan Peiris, some of the lawyers who had participated in that coup had also pressurized and shouted at the magistrate in court No: 5 in Hulftsdorp while the court was in session and in full view of the litigants in an attempt to get him to drop disciplinary action against a lawyer. That is what the future holds for Sri Lanka. Readers will probably remember the fracas between Minister Rishard Baithiudeen and the Mannar Magistrate a couple of years back when a Muslim crowd had surrounded the court and demanded what they considered to be justice. Video clips of the incident showed the angry judge storming out of the court and ordering the police to disperse the crowd even if they have to be shot below the knee.


 After the ouster of a chief justice by an organized mob last Thursday, no court and no judge is safe from mob action. The new culture created is such that no judge will be safe any more. Those unhappy with their judgments will hound judges at all levels in their homes and in their courts. Justice Ambepitiya was shot dead because he convicted a drug dealer. Now criminals would not need to go to such lengths. All criminal gang leaders have large followings. All they have to do is to organize demonstrations with varying degrees of violence as appropriate near the courts or near the house of a judge to obtain a judgment to their liking. Such is the ‘yahapalana’ era that is now upon us. Social media wags have already started referring to this not as yahapalanaya but as a YAMA-PALANAYA.


 
 
 
 
 
 
 
 
 
 
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