By Mangala
Samaraweera
(From Colombo Telegraph)
Honorable
Speaker, in a statement issued yesterday by Mohan Pieris in the Island, he said
“maintaining the dignity and decorum associated with the office of the Chief
Justice and ensuring its respectability and propriety is [his] prime concern.
As the pinnacle of our judicial administration, it should be safeguarded in its
pristine purity; now and for the future – in the need to preserve justice as a
wholesome entity.” Like a harlot extolling the virtues of virginity, Mohan
Pieris, who brought international disrespect and condemnation to our judicial
system by his scandalous appointment two years ago, and his conduct since then,
is now shedding tears for the ‘pristine purity’ of the office of the Chief
justice.
Two years
ago, on the night of Monday 14th January 2013, a large contingent of military
personnel occupied the Supreme Court complex, and from the early hours of the
following morning, the Supreme Court was cordoned off, and riot squads,
barricades and water cannons put in place. All this and more to enable Mohan
Pieris to be driven into the courts complex through its “exit” – the most
appropriate entry for a fake judge. Outside the court gates, lawyers who had
challenged the illegal and immoral eviction of Chief Justice Shirani
Bandaranayake lit candles in daylight. It was the beginning of ‘darkness at
noon’.
There are
reasons both substantive and procedural – which others today have gone into in
greater depth – for why Mohan Pieris was not lawfully appointed to the office
of Chief Justice. Since he claims to be an expert of ‘unconstitutional
processes’ then he is well aware of the degree of unconstitutionality that
attended the eviction of the legitimate chief justice from her rightful chair
and by which he, escorted by STF and armed guards, took up that seat and
functioned there, in an manner equally unconstitutional as his ascension. He is
also well aware then of all that he has done to degrade the judiciary, its
dignity, independence, objectivity and reputation for over two years.
Mohan
Pieris recently stated that separation of powers is a fundamental feature of
our Constitution. It is in the spirit of his own words, then that I recommend
that someone who was the Legal Adviser to the Cabinet, Chairman of the Seylan
Bank, Director of Lanka Logistics (the arms purchasing unit of the Ministry of
Defence), Director of Rakna Lanka Security (a security company established by Defence
Secretary Gotabaya Rajapaksa), Legal Adviser in the Ministry of Defence,
Attorney General, government spokesperson before the UN Human Rights Council to
refute allegations of war crimes, and importantly a close and partial ally of
the former President should not also hold the post of ‘de facto’ chief justice.
The
‘dignity’ of the judiciary, which Mohan so nobly talks of, is dependent on its
impartiality and objectivity, as well as its independence from the executive
and legislature. It also requires that the head of that system commands the
respect of the community of lawyers, who in this case have been propelled to be
the champions of restitution for the former chief of justice. Under Mohan
Pieris’ tenure, this illusory dignity and independence was a cobweb of
conflicting interests, and Mohan Pieris was in actuality an appendage of the
state apparatus.
The
Bangalore Principles of Judicial Conduct – the international gold standard –
states that “A judge shall not only be free from inappropriate connections
with, and influence by, the executive and legislative branches of government,
but must also appear to a reasonable observer to be free therefrom”. Did Mohan
Pieris give any thought to the sanctity of his judicial office when, on 14th
April last year, he travelled from Colombo to Tangalle, apparently in the
company of Gotabaya Rajapaksa, to join President Rajapaksa and his immediate
family in celebrating the Sinhala and Hindu New Year, and join in feeding milk
rice to each other at the auspicious time? Did Mohan Pieris think it was part
of his job description to become a member of President Rajapakse’s entourage on
an official visit to Italy and the Vatican in September last year? Did Mohan
Pieris give any thought to the public perception of the Supreme Court when he
begged for a diplomatic appointment from the executive branch of government? Is
driving down to the home of a presidential candidate on election night to
provide him with legal advice (as he claims he did) part of the duties of a
Chief Justice?
I hope the
honourable members of Parliament remember that I have made a complaint to the
CID based on reliable information that Mr. Mohan Pieris was part of the
conspiracy to prevent this government taking office – attempting to impede the
one democratic process most crucial to the proper functioning of our society.
It is clear, from all that can be seen of this man’s outward actions,
transactions and relationships that he has acted in complete violation of the
International standards of Judicial Conduct and therefore cannot be expected to
command the respect and confidence of the international community, or of any
honest Sri Lankan expecting accountability and transparency in a court of law.
Honourable
Members will recall the international backlash that attended the removal of the
43rd Chief Justice Shirani Bandaranayake two years ago. Statements condemning
the move and calling for her reinstatement were made by several Governments,
the UN Special Rapporteur on the Independence of the Judiciary, the
International Commission of Jurists, the International Bar Association and the
Bar Associations of several countries. The Secretary-General of the
Commonwealth, which we currently chair, expressed the “Commonwealth’s profound
collective concern” at what “could be perceived to constitute violations of
core Commonwealth values and principles”.
45 Judges
from all the continents wrote to President Rajapaksa urging him to act
immediately to restore the independence of the judiciary by reinstating the
legal Chief Justice. The UN High Commissioner for Human Rights described the
removal of the Chief Justice “through a flawed process” as a “gross
interference with the independence of the judiciary and a calamitous setback
for the rule of law in Sri Lanka.” She questioned how anyone could have any
confidence in the independence and impartiality of Mohan Peries when handling
allegations of serious human rights violations by the authorities. Cases
against his installation as the Chief Justice were ruled on or dismissed by
benches appointed by Mohan Pieris – a respondent in the cases himself, an
extreme violation of the fundamental principle of natural justice, that ‘no man
shall be a judge in his own case’.
And in the
two years in which Mohan Peries was in power, credibility continued to wane. He
was, after all, the person who informed the UN Committee on Torture that
journalist Ekneligoda was comfortably and safely living in a certain country;
and when called upon by a court of law to disclose which country that was,
replied that “only god knows”. The many victims of Mohan Peries’ tenure
include, but are not limited to, PTA prisoner Ganesan Nimalaruban, the Slave
Island evictees, who were banished in the name of development and the victims
of the Welikada Prison riot.
In a
context where a credible judicial system is needed both for domestic healing
and to prevent international intervention in what should be a domestic process
of reconciliation Mr. Pieris would be a very significant hindrance indeed. It
is a notorious fact that his former juniors operated and conducted a legal practice
from the Chief Justice’s official residence. It is also a notorious fact that
appeals listed in different courts were arbitrarily moved into his own court
when a party happened to be a friend or relative. For example, he directed that
the Supreme Court case where Asia Asset Finance was the appellant, be heard
before a bench of which he was a member, despite being well aware that the
Chairman is his brother in law and his wife is on the board of directors and
are major shareholders of the company.
It is a
notorious fact that in two cases in which supporters of the former government
were brought as suspects before magistrates for assaulting opposition
supporters during the last presidential election campaign, that Mr. Mohan
Pieris called these magistrates and ordered them to grant bail to the suspects.
Even the records of the Committee Against Torture, the treaty body of the
Convention against Torture, would bear testimony to the fact that Mr. Mohan
Peris lied before it and was thereafter called a liar by one its members. This
was judicial corruption at its best. Mohan Peries was without dispute at the
rotten core of the institutional mechanism that stands accused of committing
egregious violations of human rights and crimes against humanity.
Not many of
you may be aware that in November 2013, Mohan Pieries attended a conference of
Chief Justices of the Asian and Pacific Region, convened by the Chief Justice
of the Republic of Turkey and the United Nations, uninvited. The Sri Lankan
judiciary had been deliberately excluded in view of the events of January of
that year. Neither the UN nor the Turkish judiciary recognized Mohan Peries as
the Chief Justice of Sri Lanka. Yet he travelled to Istanbul with his wife,
demanded that he be accommodated in the conference hotel, attended the
conference and participated in the discussions, without being recognized as a
participant. On leaving Istanbul, he demanded that his airfare be reimbursed in
cash. The Istanbul Declaration on Transparency in the Judicial Process, which
was adopted at that conference, does not bear his name, nor does it recognize
Sri Lanka as a participating country. The Bangalore Principles of Judicial
Conduct require judges not to do anything that detracts from the dignity of
judicial office, however what Mohan Peries has done will detract from the
dignity and reputation of our judiciary for many years to come.
As the
Minister of Foreign Affairs, it my duty and responsibility to promote and
safeguard the interests, integrity and sovereignty of Sri Lanka. One of the
principal issues I have been called upon to address upon assuming my office is
the ongoing inquiry being conducted under the auspices of the United Nations
Human Rights Council into war crimes and violations of international human rights
and humanitarian law alleged to have been committed in this country.
If I am to
convince the international community that we in Sri Lanka are quite capable of
dealing with these matters ourselves, through domestic mechanisms, and that
there is no need for our citizens to be brought before international tribunals,
I have to be able to claim, honestly and sincerely, that we have in this
country a judiciary that is competent, independent and impartial; a judiciary
that can rank among the best anywhere in the world. Of course, once we did have
such a judiciary; but that was a long time ago.
An
international inquiry, initiated last year, is now currently nearing
completion. The results of this inquiry could lead to Sri Lankan armed forces
and other civilians appearing before an international tribunal, unless tangible
steps are swiftly taken to restore judicial credibility. It is the previous
administration’s failure to set-up credible domestic mechanisms that has led to
our current difficulties. It is the current government’s position that the most
effective way of beginning the process of healing between communities and
preventing international prosecution, which many feel would be a violation of
sovereignty, would be to institute a credible domestic mechanism as soon as
possible. The challenge today is to ensure that we are able to effectively
enjoy the rights, privileges and benefits of re-entering the community of
civilized nations; and ensure that we, as a country, do not suffer economic
sanctions, ill-dignity and a tarnished reputation because we fear justice or
because we are too short sighted to be able to pursue that justice in a
credible manner ourselves.
Because of
the many regressions we have made, we have a long way yet to go before we can
change perceptions and prove that we as a country can institute a domestic
mechanism that is as effective and as just as any proposed international
mechanism. We hope that under the new Chief Justice, and the reforms we propose
to introduce, that we will be able to raise the judiciary from the depths to
which it has sunk to one that conforms to contemporary international standards
and the essential requirements of a democratic, multi-ethnic, multi-religious
and multi-linguistic state. That is the principal reason for my intervention in
this debate.
No comments:
Post a Comment