Elephant in the room gets spotted

Wednesday 7th April, 2021

Never a dull day in Sri Lanka, where controversies crop up so rapidly that nobody can keep track of them. The latest issue is the government’s contention that the removal of Chief Justice (CJ) Mohan Peiris, in January 2015, was unconstitutional. Justice Minister Ali Sabry himself said so in answer to a question raised by a government MP, in Parliament, on Monday. He promised to take remedial action after consulting Prime Minister Mahinda Rajapaksa. Why has this issue been catapulted to centre stage all of a sudden?

It is being argued in some quarters that the ruling party propagandists engineer controversies, from time to time, to prevent their opponents from flogging an issue hard and long enough to turn public opinion against the government.

It is a supreme irony that Mahinda Rajapaksa, under whose presidency Dr. Shirani Bandaranayake was removed as CJ in 2013 amidst protests and Mohan Peiris appointed to that post, and Maithripala Sirisena, who used his presidential powers in 2015 to defenestrate Peiris and reinstate Bandaranayake as the CJ, are now together in the SLPP coalition. One may recall that Sirisena, as a senior member of the Rajapaksa Cabinet voted for the impeachment of Dr. Bandaranayake, in Parliament.

Opinion is divided on the removal of CJ Bandaranayake. The Rajapaksa government should have refrained from resorting to such a course of action for the sake of democracy, which is underpinned by the principle of separation of powers. Intoxicated with power, it was no respecter of democracy.

The UNP’s arguments against the impeachment of CJ Bandaranayake were compelling; the Parliamentary Select Committee (PSC), which probed her, refused to allow her witnesses and failed to specify what the due process was. Most of all, the UNP said the Rajapaksa government had bungled its impeachment project; the resolution passed in a hurry to impeach the CJ sought and secured parliamentary approval for the appointment of the PSC, which probed her; it did not specifically seek approval for her removal, according to the Order Paper, the then UNP MP Lakshman Kiriella told the House.

But if the impeachment process had been flawed and the removal of CJ Bandaranayake wrong, as argued by the UNP and some legal experts, a proper way to right the wrong would have been for President Sirisena to have Parliament undo what it had done. The yahapalana government, which mustered a two-thirds majority for the 19th Amendment, could have accomplished that task easily. Instead, President Sirisena chose to override Parliament. Sadly, the Bar Association of Sri Lanka egged him on to do what he did, unmindful of the politico-legal consequences of his arbitrary action.

President Sirisena’s line of reasoning was that Dr. Bandaranayake had been removed from office wrongfully in January 2013, and the post of CJ had therefore not fallen vacant. He declared the appointment of Peiris as the CJ null and void ab initio, and reinstated Dr. Bandaranayake, who retired soon afterwards. Sri Lanka had three CJs on three consecutive days—Peiris, Bandaranayake and her successor K. Sripavan!

A person has recently been arrested for posing as a President’s Counsel. But, strangely, the yahapalana government, which claimed that Peiris had functioned as the CJ ‘illegally’ and removed him unceremoniously, stopped short of taking any action against him for having been in that post for two years. If it is true that his appointment was invalid, as Sirisena and the UNP claimed, then it follows therefrom that everything he did as the CJ lacked legality. Peiris drew the CJ’s salary, enjoyed the perks of office, functioned as the Chairman of the Judges’ Institute of Sri Lanka, heard cases, gave judgments and signed vital documents. Why didn’t the yahapalana government take any action against Peiris and/or the person who appointed him CJ? Sirisena and his erstwhile yahapalana chums owe an explanation.

Interestingly, the implication of Justice Minister Sabry’s statement at issue is that Sirisena, as the President, violated the Constitution by removing CJ Peiris. If so, action will have to be taken against Sirisena. The SLPP ought to explain why it is keeping Sirisena within its ranks.

If the current Parliament resolves that the government’s contention that the removal of CJ Peiris, in January 2015, was unconstitutional is valid, then it will follow from such a resolution that the reinstatement of Dr. Bandaranayake as the CJ in January 2015 was not legal, and, worse, doubts may even be cast on the legality of the appointment of her successor as well in that if Peiris had not been removed, his term would not have come to an end in mid-January 2015. It will be interesting to see how legal luminaries look at this issue.

One need not be surprised if the government does not proceed beyond the Justice Minister’s statement on the removal of CJ Peiris. Troubled by many problems including intraparty rivalries and clashes and the prospect of the SLFP breaking away in case of action being taken against Sirisena over his failure in 2019, as the President, to prevent the Easter Sunday attacks, the government obviously does not need another issue to contend with.