A question of justice

Editorial-May 17, 2015

There has been a mixed reaction to the recent Supreme Court interim order staying the arrest of former Defence Secretary Gotabhaya Rajapaksa. The Rajapaksa faction of the UPFA is over the moon; it is praising the apex court to high heaven. Minister Sajith Premadasa has said the judiciary is now independent and the government accepts all its decisions. However, Prime Minister Ranil Wickremesinghe has not taken kindly to the SC order preventing Gotabhaya’s arrest.

The Prime Minister wants to know how come a two-judge bench has issued an interim order. Expressing his disappointment over the fact that the respondents including him cannot file answers until Oct. 06, he has said he will consult the Attorney General and even take up the matter with some foreign organisations.

We don’t intend to get involved in a clash of titans. Let the learned judges and lawgivers sort it out. Who wants to find himself or herself in the same predicament as the proverbial monkey which foolishly placed itself between two elephants engaged in a fierce battle and had all its bones crushed like papadam?

However, if the legality of the interim order at issue can be called into question because it was issued by only two judges instead of three why can’t the judgments delivered by the Supreme Court with Mohan Peiris as the Chief Justice also be challenged? The apex court during the latter part of the Rajapaksa government was, according to President Maithripala Sirisena and Prime Minister Wickremesinghe, headed by an outsider (Peiris) who had been functioning in the Chief Justice’s post which had not fallen vacant.

No sooner had the present government been formed than Chief Justice Peiris was hounded out of his job on the grounds that the impeachment of his predecessor Shirani Bandaranayke was not legal and she had never ceased to be the CJ. It is being argued by the proponents of that controversial move that Peiris’ ouster has not affected the judgments delivered by the Supreme Court under his tenure because Article 119 (2) of the Constitution says: "The Supreme Court shall have power to act notwithstanding any vacancy in its membership, and no act or proceeding of the Court shall be, or shall be deemed to be invalid by reason only of such vacancy or any defect in the appointment of a Judge." But, it is doubtful whether this constitutional provision is applicable to a situation where a total outsider carries out the duties and functions of the Chief Justice unlawfully.

The government says it will seek a review of the SC interim order preventing Gotabhaya’s arrest. If so, is it possible for others who got SC orders they did not like during the tenure of CJ Peiris to do likewise? It is surprising why nobody has already done so.

CJ Peiris must have signed numerous documents other than judgments and the validity of those papers can also be challenged. There have been instances where those who joined the public service without required qualifications were brought to justice upon being found out. Needless to say that what Peiris is alleged to have done is far more serious. Besides, Peiris drew the CJ’s salary and enjoyed perks such as his official car plus fuel, various allowances, personal security and an official residence. What action will be taken against him for having caused public funds to be spent in that manner?

Does the government fear that action against him on such grounds might lead to a legal wrangle where his ouster will be taken up in courts and, therefore, does not want to open up a can of worms?

However, there is the possibility of a future government taking up the issue of the removal of Peiris and the subsequent reinstatement of Bandaranayake. The Rajapaksas acted as if they thought they would never lose power, but they have been proved wrong. Likewise, the present government will not be in power till the end of time. It is possible that what the incumbent president has been doing will also be challenged legally and/or judicially. The problem is far from over; like a rubber ball being kept under water it is bound to surface sooner or later.