By Colombo Telegraph –

For the first time in its history, the country has two Chief Justices, which further damages the Judiciary, says former Chief Justice Sarath N. Silva. “I don’t accept either” said Sarath N. Silva when asked whether he thinks there are two Chief Justices at the moment and who is he willing to accept as Head of the Judiciary? “I believe there should be an entirely new person. I supported the Government on the question that the Chief Justice should answer and the Courts proceedings were hasty. My perception is that in this situation the Government should have considered the most senior person in the Supreme Court. This is why I say I don’t recognise either. If the Government wants Mohan Pieris as the Chief Justice and if it is hell bent of getting him, let them get him. But at least give a breathing period till the judicial system can settle down.” he further said.

Sarath N. Silva made above remarks in an interview with Daily FT journalist Chamitha Kuruppu.

Sarath N. Silva said;”With due respect to him, more than anything else, Mohan Pieris was seen as a Government spokesperson, especially at international forums and especially in matters relating to the United Nations Human Rights Council. This is a very serious situation. A Government spokesman will naturally have to oppose any allegations of human rights violations. There is nothing wrong in getting former Attorney General Mohan Pieris to defend the Government’s stand. He has been doing this since he was the Attorney General, which I believe is not correct. That should have been a diplomatic exercise, not an Attorney General’s exercise.”

We reproduce below the interview in full;

Q: How would you describe the present situation with regard to the country’s judicial system?

A: I see this as a turbulent period. This is something we have never experienced before. For the first time in the history of this country, we have two Chief Justices. The person who was purportedly removed also claims to be the Chief Justice. There is also a new appointee made hot on the heels by the President.

This whole process has been fast tracked from both sides. The Government also fast tracked this process. They lost no time in presenting the motion of impeachment and taking action. On the other hand, the lawyers and other public who supported the Chief justice also fast tracked. They went immediately to Courts. It is like a battle of two fronts.

I have absolutely no stake in this business but what I see as an independent observer is that both sides want to overtake the other. The Courts made a request for Parliament to stop, but Parliament went on regardless, as a result of which this whole thing got fast tracked.

There are certain charges that were presented. That was a matter of discipline. There has to be an inquiry. All these facts are documented. The Government need not fight shy of an inquiry. If the documents make out the charges they are supposed to make out, then there should be no need for an expeditious process.

On the other hand, it is the duty of the Chief Justice to explain. You can’t continue to hold office when there are such questionable matters. I am not saying for a moment that she is guilty of everything what is said. But I have perused that there are certain things that should be necessarily answered.
Under the system as it prevails this answering should have taken place in the Select Committee. We can’t change the procedure now. This procedure has been there from 1984. Now at this moment the Government can’t remove the Standing Orders and enact a new law because that law won’t have retrospective effect. Therefore that is also not a feasible solution. In my view, with great respect to the Courts, what was said in the Courts is not feasible. You can’t now enact a law and then start this same procedure; it is impossible. Normally it would be prospective; it applies to the future.

There were two distinct positions; Courts saying that there should be a law and Parliament saying that we can continue. The outcome is that we are in a situation of having two Chief Justices, which is a sad thing for the Judiciary and for the independence of the Judiciary. I believe that even at this late stage some remedial action should be taken.

Q: What are your views on the appointment of Mohan Pieris as the Chief Justice?

A: This is a hasty appointment. Appointing a person from outside as the Chief Justice cannot be accepted. With due respect to Mohan Pieris, he was a person who was in the Attorney General’s Department for about 15 years, then retired under a retirement scheme. When he retired he was a Senior State Counsel of the Attorney General’s Department. When someone retires under that scheme he should not assume public office. But somehow he was appointed Attorney General by the President.

At that time there was no Constitutional Council. So his appointment was challenged immediately by persons and case was pending. Then they enacted the 18th Amendment, which regularised this appointment. So the 18th Amendment really helped Mohan Pieris and the then Chief Justice Asoka Silva because his appointment was also made without the approval of the Constitutional Council. It is in such circumstances that Mohan Pieris continued as the Attorney General.

With due respect to him, more than anything else, Mohan Pieris was seen as a Government spokesperson, especially at international forums and especially in matters relating to the United Nations Human Rights Council. This is a very serious situation. A Government spokesman will naturally have to oppose any allegations of human rights violations. There is nothing wrong in getting former Attorney General Mohan Pieris to defend the Government’s stand. He has been doing this since he was the Attorney General, which I believe is not correct. That should have been a diplomatic exercise, not an Attorney General’s exercise.

Now the general perception is that Mohan Pieris is a person who defends the Government. In that situation, when the Government promptly appoint him as the Chief Justice, the perception is that the Government is now expecting him to continue defending them. I am not saying these are essentially the facts, but this is the perception. However, an ordinary person will pursue this as an effort on the part of the Government to install the person who is favourable to them, especially in respect of alleged violations of human rights at the helm of the Judiciary.

Now that perception is very difficult to erase. We have in our system a cardinal principal of law that ‘justice will not only be done, but must be seen to be done’. These perceptions are very important. When you get a person who has been defending you against allegations of human rights as the person who is now going to decide on that, the perception is that the Government is having its man as the final arbiter. That is the serious thing I am concerned about.

These challenges and counter challenges will go on. But from the Government’s point of view, some serious action must be taken if it is going to redeem its position in the international arena. I saw the Canadian Prime Minister himself has made certain observations. Now these are alarm bells that the Government should be concerned about. You can’t be in war with the international community all the time.

Q: A new Chief Justice has already been appointed. How can the Government rectify this?

A: That is exactly why I said the Government has fast tracked this. I don’t approve that. The rectification is the most difficult situation. Mohan Pieris has rushed to accept this appointment. That is not a wise thing to do. On Tuesday I saw these ugly scenes on television when Dr. Shirani Bandaranayake was not allowed to leave her residence. That is something that is not meted out even to the lowest level of employee. You have to give some time to leave with some respectability.
This Government must stop dealing with the former Chief Justice in this shabby manner. I think it is necessary to speak to her even at this stage and find out a dignified exit for her, which I hope should be voluntary. Then of course recreate these whole steps.

Now there is a Court order and the Government can’t just ignore that. I don’t agree with some of the findings of the Courts but we are duty bound as citizens to honour the verdicts of the Courts. Finally we have to accept the order of the Courts.

Q: Do you also think there are two Chief Justices at the moment? Who are you willing to accept as Head of the Judiciary?

A: I don’t accept either. I believe there should be an entirely new person. I supported the Government on the question that the Chief Justice should answer and the Courts proceedings were hasty. My perception is that in this situation the Government should have considered the most senior person in the Supreme Court. This is why I say I don’t recognise either.

If the Government wants Mohan Pieris as the Chief Justice and if it is hell bent of getting him, let them get him. But at least give a breathing period till the judicial system can settle down.

Q: Who are these suitable people who are fit to be the Chief Justice?

A: There are very senior judges. Justice Shirani Thilakawardena, who was an experienced officer in the Attorney General’s Department. She was a High Court Judge for a long period, Judge of the Court of Appeal, President of the Court of Appeal, and Judge of the Supreme Court for several years. So is the record of Amarathunga, who is there for just for a few months. So is the record of Saleem Marsoof, if we go by seniority. They are highly competent and highly educated persons. So is the record of Siripala. So we have people from all races. With this wide array they should have followed the seniority principal. Then no one can find fault.

There are incidents where they appointed the Attorney General to the position. That is how I came in. I came in a situation of a normal retirement. But today the ideal situation would have been to take the most senior person so that each one would have had one year or a few months. Then the Judiciary would have started flowing in its normal streams without causing these ripples, which have become whirlpools.

Q: Are you saying the Government still has the possibility to appoint a more suitable person for the post of Chief Justice?

A: Now what is going to happen is that they are going to file action in defence of this. This is where they question the authority of the person holding office. That is a remedy that is available.
Earlier there was no remedy against Parliament but there is remedy against the holder of the office. Now they are on a fairly safe track. In that proceeding at least some settlement can be entered into and then the verdicts of the Court can also be honoured. Then we can regularise this process.
Someone has to take a step back. The former Chief Justice also should realise that she cannot go on claiming to be the Chief Justice. With this kind of public exposure, now she cannot grace that office.

Q: Do you accept the manner in which the legal fraternity was involved in this entire struggle?

A: They are being quite emotional. May be they are well-intentioned. They want to uphold the independence of the Judiciary. I have no problem about that. But sometimes they are also taking hasty action. You must reflect on the broader picture.

I have been reflecting on the broader picture and I have been subject to heavy criticism. Some are saying that I am trying to accept office from the Government. I will never accept any office. Not from the Government, nor from the private sector, and not from anybody. However, I feel that a settlement should be arrived at within the framework of the law. If the settlement comes through Courts, then it is an excellent situation.

Now they are filing cases. They will keep on filing cases. In one of these cases there should be some settlement and Court will make an appropriate order on that. Then the ideal situation is that the appointment be made based on seniority. Let Mohan Pieris also come to the Supreme Court if he wants, but not as the Chief Justice at this present juncture.

Q: Are you saying Mohan Pieris should not have accepted this appointment?

A: Yes, he should not have accepted this appointment. You must give time for the former Chief Justice to leave. You don’t rush into office like that.

The former Chief Justice has to clear her chambers. She is not a person who retired under normal circumstances. Dr. Bandaranayake had no time to wind up. There must have been judgements to be signed. My ideal choice is that Dr. Bandaranayake should hold office and take leave and an acting person could have carried out the duties until things settle down. Later on Mohan Pieris or someone, on deep reflection, should assume this office. Instead of that, what have been done is entirely wrong.

Q: You were involved in this process from the beginning. People didn’t only question your involvement, but they also criticised the fact that you adopted different stances on various instances. Your comments?

A: At the beginning I was opposed to the impeachment process. Then I met the President after a long time. I told him and made a request not to do this. Then the President said there are serious charges against Dr. Bandaranayake. Then I told him that they should talk to Dr. Bandaranayake and I left at that. After meeting the President, addressing the media I said that the general perception is that the impeachment motion seems to be a result of the Z score judgement and Divi Neguma Bill. That was my reservation.  But when the charges came I found that Dr. Banadaranayake had some matters to answer. These are documented. So her explanation must come. She must answer. She must take a positive stance whether she is prepared to answer this or otherwise if she has a doubt on that to come to some adjustment.

I was not in favour of collateral proceedings in the Judiciary at that time. I felt that there cannot be proceedings in both places. Then there was bound to be a clash. That was the principal stand I took at that time. And that went on. Events overtook everything else. So hurriedly this was passed. And then I felt it was time for reflection. This was the time I felt the Government had acted hastily, imposing this whole thing on former Chief Justice Dr. Bandaranayake. She took some precipitous actions.
In appointing Mohan Pieris as the Chief Justice, the Government took even more precipitous action. That I don’t endorse at all. As and when an issue arises, I respond. I strongly believe that some kind of solution must be evolved, so that finally there should be a settlement – not only a political one, but also a judicial settlement.

Q: This entire process has caused a lot of damage to the judicial system in the country. How would you describe the future of the judicial system?

A: The immediate future is disturbed. Public perception is badly damaged. This is why I say there should not only be a political solution. So far there has only been a political solution. There should be a legal and judicial solution. Everybody must take a step back and allow wiser counsel to prevail. My ideal suggestion is that a breathing period should be given, so that the former Chief Justice can wind up her affairs but not function as Chief Justice.