How do you solve a problem like the

Chief Justice?
January 22, 2015
Two years ago on 15 January, the Rajapaksa Government had to deploy
elite police guards, water cannons and barricades to install Mohan Peiris in
the Chief Justices chair at Hulftsdorp. As police prevented lawyers and
journalists from entering through the main gates of the Supreme Court,
Peiris was driven in through a side entrance and hustled up to the fifth floor
of the superior courts complex. Outside the barred gates, activist lawyers
who had fought hard against the illegal sacking of Chief Justice Shirani
Bandaranayake lit candles in bright sunlight to symbolise the onset of
darkness at noon as Sri Lankas upper judiciary tumbled into the hands of
the incumbent regime.
The intervening years have been hard ones for members of the legal
fraternity.
The Bar Association contemplated a continuous boycott of cases that came
before Peiris, who its members considered to be an usurper of the office. Yet
practical considerations and concerns that such a boycott would not serve
the interests of their clients resulted in a swift change of heart.
Mohan Peiris accepted the appointment as the post-impeachment Chief
Justice after other men including former Attorney General C.R. De Silva
had already refused. The appointment was clouded by the drama and
scandal surrounding Shirani Bandaranayakes ouster. Few wanted any
association with the controversy.
In his two years at the helm of the Judiciary, Chief Justice Peiris has left his
mark.
Outrageous pronouncements from the bench, about prison riots, the human

rights of never-convicted terrorists and illegal evictions that are the price
of development were never included in the court record. But they caused
shock and outrage in legal circles.

A spate of cases filed against his occupation of the Chief Justices office was
ruled on or dismissed by benches appointed by Peiris a respondent in the
cases himself. Every contention, every outcry that the state of affairs was a
violation of a basic principle of natural justice, that no man shall be a judge
in his own case fell on deaf ears.
Peiris was handpicked by a regime that would brook no opposition about its
choices, especially when it served their purposes so well. In the two years
he held office, it would be difficult to pinpoint to a case in which Pieris
presided over that resulted in an adverse judgment for the state. In fact, in
clear cases of state excess such as the Ganesan Nimalaruban prison death,
victims were denied redress, and instead labelled as terrorists based on
prior knowledge.
Throughout his brief tenure, Chief Justice Peiris appeared to care little about
how his close and public associations with the ruling family were affecting
the image of the Judiciary. Sri Lankas Chief Justice unabashedly celebrated
the traditional Sinhalese New Year in 2014 at President Rajapaksas Tangalle
home, Carlton.
Coup connections
Late last year, Peiris broke with tradition again when he participated in a

presidential junket to the Vatican to meet with Pope Francis.

It is January again, and with a new administration in office things have
come full circle.
His conduct over the past two years should have made it much less
surprising, but the news that Peiris had been present at Temple Trees in the
early hours of 9 January still sent shockwaves through political and legal
circles.
Temple Trees had become an UPFA command centre on election night,
running an operations room that was collecting and aggregating results
pouring in from different counting centres around the island.
When Prime Minister Ranil Wickremesinghe accosted the Chief Justice inside
the former Presidents official residence at 5a.m. on 9 January, he claimed
he had dropped by to offer a legal opinion. Legal opinions are proffered to
the Government by the Attorney Generals Department. Chief Justice Peiris
only job would be to rule on the legality and constitutionality of arguments
made, by state attorneys or other lawyers before his court.
Attorney General Yuvanjana Wijeyatilake was also reportedly summoned to
Temple Trees at 3 a.m. on election night. While being privy to the discussion
between politician and state attorney, was Mohan Pieris attempting to hold
court and issue a ruling at Temple Trees, and why?
As details continue to emerge about the events at Temple Trees in the wee
hours of 9 January, the facts appear to cast Chief Justice Peiris in a
particularly bad light. Some reports, now under investigation by the CID,
claim Peiris and another senior minister present that morning had been
arguing that President Rajapaksa was constitutionally empowered to
complete the two years left in his second term, despite calling the snap
election in November 2014.
Nearly two weeks after the startling revelations, Chief Justice Peiris has
finally agreed to step down and avoid an ugly confrontation with the legal
fraternity and the new administration that would have been inevitable if he
dug in his heels.
Over the past 10 days, Mohan Peiris has suffered indignities and humiliation
that no other head of the Judiciary could have ever dreamed was possible.
It was bad enough that the unofficial Bar was publicly calling for his
resignation over his political involvement on election night, which the Bar

Association noted had never been denied by the Chief Justice. But earlier
this week, the Attorney Generals Department, an office Peiris had once
headed, was forced to uninvited the Chief Justice to a reception and
conference to mark its 130th anniversary. The Attorney General also
ordered the CID to proceed with the investigation into the Temple Trees
coup attempt, the complaint about which directly implicates Mohan Peiris,
the highest ranked judge in the land.
Initial deadlock
Still, initial meetings between Pieris and senior lawyers reportedly ended in
deadlock, with the Chief Justice insisting that if the new regime required his
exit, they would have to go through the constitutional mechanism available
another impeachment.
With the new administration unlikely to go the path of the Rajapaksa regime
with regard to Peiris removal, a second impeachment in as many years
would have been a lengthy process.
During Shirani Bandaranayakes ouster, the Opposition insisted that the
Government adhere to the Latimer House principles set out by the
Commonwealth regarding the discipline of senior judges.
Under the circumstances, President Sirisena and Prime Minister
Wickremesinghe would have been compelled to invite Commonwealth
judges to preside over the investigation into Peiris conduct and adjudicate
on his fitness to remain in office.
Perhaps the relentless attention on the allegedly attempted coup on
election night softened his position. Peiris, a Catholic, then insisted on being
allowed to participate in the visit of Pope Francis last week.
Pieris had headed the Finance Committee for the Papal Visit, coming up
with the ingenious co-branded credit card to fund the Popes apostolic tour
of Sri Lanka. There was an unspoken agreement that following the Papal
visit, Chief Justice Peiris would step down with dignity.
One week later, following several meetings between senior lawyers, Prime
Minister Wickremesinghe and the Chief Justice, a decision has been made
that Peiris will step down by the end of the week. Given the circumstances
of his installation and his predecessors controversial removal, this return to
the status quo was to become remarkably simple.
On 11 January 2013, Parliament met to debate and vote on the
impeachment of Shirani Bandaranayake. Three days earlier, after

Bandaranayake and Opposition legislators had decided to boycott the

Parliamentary Select Committee set up to determine if the charges brought
against her held merit, Government members on the panel submitted its
report to Parliament finding her guilty on several charges.
In 24 hours, the tribunal of UPFA legislators had summoned witnesses and
obtained testimony without cross examination late into the night inside the
Parliamentary complex. But lack of due process and impartiality were not
the only problems with the Rajapaksa impeachment. In its unbecoming
haste to rid themselves of a major thorn in their side in the Judiciary, the
previous regime made a fatal mistake.
When Parliament convened on 11 January 2013, it was a second motion of
impeachment, calling on Parliament to set up a PSC to investigate 14
charges against Chief Justice Bandaranayake that had been tabled.
It was this document that 225 legislators were to debate and vote on, in
effect, whether to appoint a second tribunal of MPs to try the Chief Justice.
The trouble was that the same motion had been tabled and passed in
Parliament already, one month previously and the PSC headed by Minister
Anura Priyadarshana Yapa had been set up accordingly.
To oust a Chief Justice, the Constitution of Sri Lanka stipulates that
Parliament must pass an Address to the President, seeking the removal of
the Chief Justice, on the basis of the findings of the PSC against her.

Procedural flaw
The Opposition realised the Government error early into the proceedings,
but alerted Speaker Chamal Rajapaksa only later that evening, when the
debate was well underway. Opposition MPs suddenly pointed out that the
House would be voting to set up a second tribunal to investigate the
charges against the Chief Justice. It was the Oppositions final trump card to
stall the illegal impeachment of Bandaranayake.
Government parliamentarians a two-thirds majority in the House had
already decided to override the Supreme Court and Appeals Court
judgments quashing the PSC and its findings against Bandaranayake.
Taken aback, Speaker Rajapaksa suspended sittings while he retired to his
office to decide on the issue. By this time, Defence Secretary Gotabaya
Rajapaksa had arrived in Parliament. It is more than likely that the Speaker
conferred with his sibling before returning to the House to insist that the
vote could go ahead despite the flawed motion.
For the ruling family, Bandaranayakes defiance had become a personal
affair. Her judgments directly affected Economic Development Minister Basil
Rajapaksa and it was a slight the family was finding difficult to bear.
Delaying the proceedings was not an option. The paperwork was a

necessary inconvenience and like the conduct of its post-impeachment

Chief Justice, a matter to be glossed over or ignored as long as the regime
remained powerful. Defence Secretary Rajapaksa would play a major role in
the impeachment drama, in all probability playing the most influential role
in picking Bandaranayakes successor. The Rajapaksa administration was
determined that it would never be crossed by the Judiciary again.
As per instructions by the defence establishment a fireworks display had
been organised by the naval outposts on the Diyawanna. The display would
start as soon as the results of the vote were announced. Ugly scenes would
also unfold outside the official residence of the Chief Justice at Wijerama
Mawatha Colombo, where members of the panel of parliamentarians that
tried Bandaranayake and found her guilty would also make an
appearance during the night.
Two years later, the Rajapaksa administrations inordinate haste to remove
Bandaranayake would become the key to her reinstatement.
Ultimate talisman
Lawyers argue that since Parliament never voted on a resolution to impeach
her based on the PSC findings of her guilt, no vacancy was ever created to
be filled by Peiris. As she said when she left her official residence on 12
January 2013, Shirani Bandaranayake would be deemed to have never
vacated the office she held and has therefore remained the de jure or lawful
Chief Justice of Sri Lanka.
The procedural flaw in her removal from office, after the regime did
everything it could to retroactively nullify the Supreme Court verdicts
against the impeachment and the cases filed upon its basis against the
appointment of Peiris, would be Bandaranayakes ultimate talisman against
her sacking.
President Sirisena was amenable to the ouster of Chief Justice Peiris quite
soon after assuming office, Daily FT learns. In fact, a letter drafted to
reinstate Bandaranayake got President Sirisenas nod of approval long
before Prime Minister Wickremesinghe could be brought around to agreeing
to Peiris exit and Bandaranayakes re-entry.
Wickremesinghe remains unconvinced that Shirani Bandaranayake is lily
white. Prior to her defiance of the Rajapaksa regime, CJ 43 attested to the
constitutionality of the 18th Amendment and other pieces of arbitrary
legislation by the previous regime. Her husbands decision to accept a

position at the head of a State-owned bank also remains a major blight

upon her record.
It is most likely therefore, that Chief Justice No. 43 will be reinstated and will
serve very briefly at the helm of the Supreme Court before stepping down
and making way for a new successor. She will leave office this time,
accorded every felicitation due to her and with her pension and service
record intact.
In the final days of the presidential election campaign, the Bar Association
assisted in the filing of a spate of cases against the ruling party and its
election violations. They took their grievances to the lower Judiciary, district
and magistrate courts that were still some distance away from the Supreme
Courts sphere of influence.
Attempts were made to influence lower court judges regarding these cases,
but many defied instructions. A desire to restore dignity and honour to a
broken and besieged system appeared to have seized sections of the
Judiciary in the last days before the poll.
Making things right
The reinstatement of Shirani Bandaranayake had been included in the new
Presidents election pledges, not only because it was seen to be crucial to
the restoration of judicial independence, but because senior members of
the legal fraternity, formed the bedrock of his campaign for the presidency.
The impeachment of Shirani Bandaranayake was a dark day for the legal
fraternity. Two years ago, it galvanised them into action against a
Government that had shown its autocratic, undemocratic face with her
sacking. At the time, few believed Shirani Bandaranayakes sacking would
remain a hot button issue once her removal was effected. The troubles of
the upper Judiciary were deemed high-brow and of little impact or concern
to the ordinary citizen.
Mohan Peiris reign altered that perception, when ordinary citizens, the
victims of a city beautification drive, torture or police brutality could no
longer be assured of redress from the countrys apex court.
But perhaps more importantly, the impeachment was a turning point in the
Rajapaksa regimes trajectory. When President Rajapaksa ordered his MPs to
ignore the verdicts of the countrys highest courts, override the Constitution
and proceed with Bandaranayakes sacking, he exposed the true face of his
regime.

All republican and democratic pretensions ended there, when his

Government moved to remove by hook or by crook, the most senior judge
in the land because she had dared to cross him.
The exposure stunned the country and rallied forces against the regime
that had been mere spectators until then. Before Weliweriya, before
Aluthgama, it was the Shirani Bandaranayake impeachment. Each of these
one of a thousand cuts that would lead to the slow but certain death of the
Rajapaksa regime on 8 January.
Bandaranayakes sacking and the Mohan Peiris sacking would be
emblematic of abuse of power and the determination of the Rajapaksa
administration to bend every democratic institution to its will. The
correction of this anomaly therefore, is crucial to the restoration of
democracy and the rule of law, the new administration is promising within
100 days.
Restoring the independence of the countrys judicial system will also be key
as the new Government pushes forward with its constitutional reforms and
strives to restore independence to the public service and other arms of the
state.
The legal fraternity that rallied against the impeachment, would ultimately
lend its best and its brightest to the Sirisena campaign to ensure the defeat
of Mahinda Rajapaksa. The impeachment of Shirani Bandaranayake, it could
be said in retrospect, had marked the beginning of his end.
Posted by Thavam