A tale of two Chief Justices

By Gomin Dayasri

Never before did the choice of the candidate become so pivotal as when the present Chief Justice was appointed; reason - no previous Chief Justice was removed by impeachment.The bona fides of the removal are questionable if the selection of the successor is controversial. Removal can be justified but intention may not be to cleanse the judiciary but rather to install a favorite son. If so, both the removal and appointment could be construed as politically motivated. It should not be so in the interest of justice.

When the appointing authority alleges the predecessor had wronged; the selection of the successor must be made with great circumspection as it is open to wider scrutiny - to ensure the person selected has no alignments to the appointing authority. The safest nursery to search was from the Supreme Court –a logical choice and a historically accepted site. No aspersions can be cast if the selection is made from the judiciary.

The present Chief Justice held several posts as an appointee of the present regime. In the early days of the present administration he held office as the Legal Consultant to the Defense Ministry.

At the time of elevation he was the Legal Consultant to the Cabinet. Holding such a post makes him close to the executive. Previously his appointment to the post of Attorney General was also a political appointment as he was then a practicing private lawyer, different from having risen through the ranks in the department. He was also a Chairman to a bank controlled by the Government (Seylan) and was nominated as the team leader to the delegation representing the government on human rights in Geneva. These offices unlike the post of Chief Justice were not sacred and none complained.

The cumulative face value of a recipient carrying such an impressive array of office is to create the image of being beholden to the government. Does such a beneficiary give an appearance of being obliged to reciprocate to a benefactor, is a disturbing thought? In law, ‘likely appearance of bias’ is as prohibitive as ‘actual’ bias. With that background is there a likelihood of being biased on crucial issues, where the government is an interested party? His proximity to the executive is too close for comfort. It’s the executive that acquires a sad name for making such an appointment. It does ring alarm bells locally and internationally and the impact may be felt in Geneva.

Mohan Pieris - the lawyer - should have had the moral courage to decline the appointment since there would be a challenge on the ground that there is a likelihood of partiality to a government under which he held many prestigious offices. Often it is the thirst that clouds objectivity of true justice. Mohan Pieris given the occasion may write valued judgments and be a worthy member of the judiciary, but there would always be a nagging suspicion due to his close association with the executive. It leaves a bad taste for the entire judiciary, however respectable his performance as a Chief Justice may be; a reading of his past track record makes him look capable of being too obliged to his political masters at and before before the time of his appointment.

A Chief Justice was impeached because it was felt she had not lived up to the standards expected of a person holding such an elevated position. If such is the high ground taken, the next appointee to the post must be filled by a person above suspicion on the issue of impartiality as majority of the cases that come before the Supreme Court concerns the State.

There were justifiable reasons to remove the previous Chief Justice-namely while she was holding office as Chief Justice took over a case reconstituted a fresh bench ousting another long presiding judge in the case and heard it, where she had a stake of a discount. Intentions may not have been dishonorable but yet, that is as objectionable as been the official legal advisor to the Cabinet, immediately upon relinquishing duties as the politically appointed Attorney General and thereafter after a lapse of time being appointed the Chief Justice! In between being the Attorney General and Chief Justice are a series of other offices described above.

No doubt his range of experience acquired in several offices is impressive and would stand in good stead; but in the case of Chief Justice this could be more a disqualification considering the appointments to high office was acquired from the same pipe lines.

The redeeming features are his dignified personality, unflappable nature and urbane eloquence together with the confidence and reliance placed by the executive in him, gives space to be independent if he has the strength of character. The executive may not misinterpret acts of independence as a basis for hostility because of excessive confidence in the holder. If so, there is virtue. Time will tell much.

Shirani Bandaranayake was the attorney for her sister and acted against a court order in the case she presided and paid a cheque under her signature for a transaction where a considerable discount was in the bargain, while continuing to hear the case. The court order stated that the best price should be realized from the sale. Therefore the discount, if correct as the ex parte evidence shows, disturbs the order. She did not present her position, foolishly.

After hearing the case for so long she cannot be heard to say she did not know the previous order, against which she acted. It was an unwise decision to quit the case as she might have had a legitimate explanation. She did not respond to the damaging material presented in evidence against her. Many mistakes were made by her advisors for which, sadly, she has to take the rap. Allowing the case to go ex parte was a dreadful mistake on her part, even if she knew a fair trial was not in the offing, as future analysts on reading the evidence may have exculpated her, if that material was on the record. Then again, no proper inquiry was afforded to her.

Furthermore as Chief Justice she should not have permitted her husband to accept favors of high office from the executive while she held judicial office.

As chairperson of the Judicial Service Commission (JSC) issuing a statement to the media complaining against the executive for interference with the judiciary (probably correct) and again for not providing adequate security (incorrect because security sought was provided for the judiciary) is deliberately sending damning messages to the international community against Sri Lanka at a time we are in peril. The JSC as a arm of the state was obliged to take those issues with the executive and the security initially before going public. It was shameful and irresponsible conduct on the part of the JSC over which she presides that triggered subsequent events.

Mohan Pieris is possibly the most decorated government-sponsored professional in this regime. If there was criticism that the former Chief Justice allowed her husband to accept a favored political office from the executive: the President too has made a flawed selection to appoint a political favorite who held the most prestigious political offices in recent times. Blame the appointer more than the appointee. In high places, basics should be learnt better!

Personally I supported the impeachment of the previous Chief Justice and objected to the appointment of the present Chief Justice - both to maintain the purity of the administration of justice. To enhance our judicial system it is sheer cowardice to be intimidated by the mirage of white vans or contempt of court actions. To maintain the independence of the judiciary many sacrifices must be made but it is worth the effort.

The former Chief Justice was given dead rope to hang herself by her advisors. They let her down badly after promising much. If only she sorted her problem in the initial stages by entering into discussion with the President and The Leader of the Opposition jointly, the country would have been spared the agony. If left alone, she would have taken a more enlightened course. Conduct of the legal fraternity indeed is bewildering and does not bring honor to them.

Impeachment should be made a prohibited word in our lexicon; we have wasted sufficient unconstructive hours over it. Justice needs to be rebooted; instead would it be crushed under an iron heel?

ගෝමින් දයාසිරි

Sunday Island

2013-01-20