By Tisaranee Gunasekara –

“Yes, I give the Devil benefit of law, for my own safety’s sake!” – Robert Bolt (A Man for all Seasons)

Mohan Pieris had to go. Unfortunately the means used to eject him seem too Rajapaksa-like for comfort.

After they got rid of Shirani Bandaranayake through an illegal-impeachment, the Rajapaksas could have replaced her with another Supreme Court justice or a legal luminary with some degree of independence. Instead they chose Mohan Peiris, a man infamous as a Rajapaksa-cipher. By doing so the Rajapaksas indicated clearly the subservient and partisan role allotted to the judiciary in their Sri Lanka.

Mr. Pieris did not disappoint his masters. He acted not as the Chief Justice of Sri Lanka but as the Rajapaksa Chief Justice. Given this record, his questionable presence in the Temple Trees in the early hours of the morning-after-elections is hardly questionable. As ‘Chief Justice’ he made Sarath N Silva seem a model of probity and rectitude. That is saying quite a lot.

Mr. Pieris could have resigned honourably but he opted not to. Another impeachment with an obviously preordained outcome would have turned the entire procedure into a bad joke.

Perhaps the legal technicality used by the government is a valid one. Still things could have been done in a manner which did not seem so arbitrary, so redolent of abuse of power. At the least, the President could have informed the parliament and the country formally of what he intended to do and why – before it was done. Perhaps parliamentary approval and judicial sanction could have been sought. Such measures may have been nothing more than window-dressings, but their absence bares the excessive use of executive power and of political muscle.

The alleged depredations of Provincial Councillor Azath Salley render the entire saga even uglier. Mr. Pieris has lodged a complaint accusing Mr. Salley of threatening him. That complaint must be investigated speedily and impartially, and if tenable, Mr. Salley must be brought before the law. Mr. Pieris was an execrable chief justice but a system which fails to provide him the protection he is entitled to as a Lankan citizen is no better than him – or his Rajapaksa masters.

Political sins cast very long shadows. The first episode in the ugly drama of the last few days was enacted during the presidency of Chandrika Bandaranaike Kumaratunga. Desiring a more amenable judiciary, she bypassed Justice Mark Fernando and gave the CJ position to her handpicked-favourite, Sarath N Silva. Mr. Fernando had done much to defend the fundamental rights of the citizen against the excesses of the state and the government. He was learned, fearless and impartial. Since there was no way to impugn his impeccable character, it was whispered that his religion (he was a Catholic) made him ‘unsuitable’ to be the Chief Justice and that the Chief Justice should be a Buddhist. Lankan judiciary never recovered from that outrage. (Ironically, a few years later, the JHU used the same ‘religious’ argument to advance the claims of Mahinda Rajapaksa to the premiership, over the far more suitable Lakshman Kadiragarmar).

The new Chief Justice will be the senior-most member of the Supreme Court. That is the only commendable point in this extremely murky saga. That the post of Chief Justice is given according to seniority should be turned into a constitutional provision. Such a provision together with the restoration of independent commissions can hopefully bring to a definitive end the deadly practice of the executive/legislature interfering in the judiciary.

The manner in which Mohan Pieris was ejected must not become another lethal precedent. That danger can be averted only via a new constitutional arrangement which revitalises and strengthens separation of powers.

Premier-Presidentialism

The transition from Rajapaksa familial rule to democratic normalcy is a complex affair due to the very nature of the Rajapaksa project. The Siblings’ goal was to turn the Lankan state into a patrimonial oligarchy. Consequently a conscious effort was made to impose familial dominance on everything, from the military to the judiciary, from the bureaucracy to the economy.

The change Sri Lanka is experiencing is thus more than the standard replacement of one government with another. The National Executive Council (NEC) is a unique experiment born out of the specificity of this conjuncture. In that structure, the JVP and the UNP, the TNA, the SLMC and the JHU are working together with a degree of maturity which would have been unimaginable just a month ago.

This week, the controversial UPFA politician Nishantha Muthuhettigama informed the media that “a Mahinda Rajapaksa era will be born in this country again in three and a half months”[i]. His statement indicates, again, that diehard kith and kin are dreaming/plotting a Mahinda Rajapaksa comeback. Preventing such an outcome is in the interests of not just the former ‘Common Opposition’ but also the post-Rajapaksa SLFP. The new Leader of Opposition too should be brought into the NEC, to render the entity more representative and to increase the isolation of Rajapaksa-diehards within the SLFP/UPFA.

According to media reports the NEC has reached agreement on a constitutional amendment replacing the executive presidency with a dual-executive system. Though details are not available, the new arrangement is likely to veer towards a premier-presidential system rather than a presidential-parliamentary system. A premier-presidential system will mean that the PM and the cabinet are accountable exclusively to the elected parliament. It will also prune many of the presidential powers. The resultant division of executive power between the president and the prime minister in conjunction with the Independent Commissions will restore separation of powers in a more strengthened form and give the Opposition a real say in governance. This new democratic amalgam (including a hybrid electoral system and the Right to Information Act) will create serious systemic impediments to the overweening ambitions of power-hungry political leaders.

Economics enabled Maithripala Sirisena to defeat Mahinda Rajapaksa. Therefore paying attention to economic needs of the ordinary people is essential to prevent a Rajapaksa return to power. So far the new government has acted in a manner which has made people hopeful about significant improvements in their living conditions.

There is a need to make ordinary people, especially among the majority community, understand the degree to which the Rajapaksas abused power and state resources. But the current practice of running hither and thither after rumoured racing cars and sea planes must be replaced with a more orderly and legal effort to uncover Rajapaksa excesses.

Crimes must not go unpunished. But at times like this, the line between justice and revenge can be a very fine one. The new leaders must ensure that their more radical supporters do not overstep that line. Replacing prosecution with persecution would be contrary to ‘good governance’ and intelligent governance.

Zeal for justice must be tempered with doses of mercy, practicality and prudence; enabling the Rajapaksas to don martyrs’ robes will be a bad idea indeed. In the absence of written orders it will be impossible to make legally tenable charges about the alleged coup. But when it comes to the billions the Rajapaksas owe the state for the use of buses, helicopters and media for election purposes – those will be open-and-shut cases indeed.

[i] Ada Derana – News – 26.1.2015