The Island Editorial

Justitia in distress

21 February 2017

President Maithripala Sirisena finds himself in an unenviable position, trying as he does his best to justify the appointment of a member of the private bar as a High Court judge at the expense of many deserving District Court judges. He says he has only acted on a Bar Association of Sri Lanka (BASL) recommendation and the proper process was followed in making the controversial appointment. But, the Judicial Services Association (JSA), on the warpath, would have none of it. Worse, the BASL is reported to have officially written to the JSA that it never recommended the appointment of the judge concerned. Who is telling us the truth?

Former President Mahinda Rajapaksa has, in a strongly-worded statement, published in this newspaper yesterday, taken up cudgels for the judiciary and flayed President Sirisena for the appointment at issue. Pointing out that there have been instances where outstanding members of the private bar were brought in as Supreme Court judges, he has mentioned the names of Neville Samarakoon and Mark Fernando. (President Chandrika Kumaratunga appointed Dr. Shirani Bandaranayake a Supreme Court judge.) Rajapaksa has admitted that he also appointed one Supreme Court judge from the private bar. (He is also guilty of what he is blaming President Sirisena for!) The independence of the judiciary will be compromised if lawyers are allowed to have judges appointed, he has said, calling for the reversal of the presidential decision.

Rajapaksa’s arguments are, doubtlessly, very compelling. It is popularly said in this country that bale thiyanakota mole ne, mole thiyanakota bale ne—‘when one has power, one has no brains; when one has brains, one has no power’. If only he had the same concern for the independence of the judiciary while he was ensconced in power! One may ask what moral right he has to champion the rights of judges, having meddled with the judiciary and abused his power and parliamentary majority to get rid of Chief Justice (CJ) Bandaranayake.

It may be recalled that Rajapaksa as President unashamedly stooped so low as to manipulate Parliament to get rid of CJ Bandaranayake in the most despicable manner. He was furious that she had refused to toe the government line on the Divineguma Bill, crafted to grant more powers to his brother cum ‘super minister’ Basil. It is not being argued that Bandaranayake was blameless; the draconian 18th Amendment, which did away with the presidential term limit besides paving the way for the executive president granting himself more powers, passed muster with the Supreme Court on her watch. But, the fact remains that she shouldn’t have been hounded out of her job savagely.

Interestingly, President Sirisena has recently gone public as saying he himself voted for the 18th Amendment as, otherwise, he would have had to leave the Rajapaksa government much earlier. In other words, he has admitted that he is ready to act out of expediency rather than principle to safeguard his interests. He also voted for the wrongful impeachment of CJ Bandaranayake! So much for his commitment to good governance!

President Sirisena and Prime Minister Ranil Wickremesinghe came to power, promising a break from the Rajapaksa style of governance. But, they have not made good on that pledge. President Sirisena does not seem to have learnt from the fallout of his questionable action at the insistence of the BASL in 2015; no sooner had he been inaugurated than he got rid of the then Chief Justice Mohan Peiris.

President Sirisena, by arbitrarily nullifying with retrospective effect, a parliamentary resolution which removed CJ Bandaranayake from office, violated the much-flaunted Latimer House (Commonwealth) Principles to ensure healthy relations among the three branches of government—the Executive, the Legislature and the Judiciary—through separation of powers. He should have consulted the Supreme Court on the issue and the nullification of the resolution at issue should have been left to Parliament itself.

Before the last presidential and parliamentary elections, President Sirisena and Prime Minister Wickremesinghe wept buckets for the judiciary and vowed to liberate it from the clutches of Rajapaksa. Now, we have Rajapaksa shedding crocodile tears for the judiciary and trying to save it from the Sirisena-Wickremesinghe administration!