To be or not to be (the Chief Justice)!

January 31, 2015

A Daniel come to judgment! Yea! A Daniel! O wise young judge, how I do
honour thee! Merchant of Venice-Shakespeare

Some years back I was a member of the

official bar in the famed south sea islands of Fiji. This was when that
beautiful country of roughly 18,000 square km was, despite simmering
tensions between the indigenous Fijians and the immigrant Indians, a sturdy
democracy, with an excellent legal system and a judiciary of high repute.
If my memory serves me well, I believe the population of the entire group of
islands then was about four to five hundred thousand, more or less. The
judicial structure was three tiered, with the Magistrates Courts possessed of
both criminal and civil jurisdiction as the base, the High Courts hearing
bigger matters as well as holding appellate jurisdiction, and at the apex the
Supreme Court.
Being a tiny country in comparison to other jurisdictions, Fiji had
traditionally relied on professionals from other common law systems to fill
vacancies in its judicial and quasi-judicial structure. For many years they
were mainly from the UK, Australia and New Zealand. Later, professionals
from other commonwealth countries such as Sri Lanka, Malta, Papua New
Guinea and even Nigeria were also recruited.
However, Fiji continued to maintain high judicial standards, a clear
illustration of which would be provided by the Fiji Law Reports which were
then published regularly. In quality and substance, many of the judgments
reported in those compilations could stand alongside judicial
pronouncements of courts in much larger countries.

The judges were unfailingly courteous but yet very correct in every way. I
was particularly struck by their commitment to the avoidance of any
suggestion of a conflict of interest in a matter before them, often
disqualifying themselves from hearing matters in which they may have
even the slightest conflict of interest.
Naturally this often led to delays, it being rather difficult to reconstitute
benches in such a small jurisdiction. But the cardinal principle that justice
must not only be done but must also be seen to be done, over-rides other
considerations. In that jurisdiction judging was a serious business indeed.

Times have changed

About this time there was a much-respected judge of our superior courts in
Sri Lanka who had reached the age of retirement. He was well known to me.
On one of my visits home I suggested to him that he consider applying for a
judgeship in the Supreme Court of Fiji.
He was interested, and I suggested that he gave me an application to be
handed over to the Chief Justice there. This he declined, taking up the

position that since he had reached high judicial office in Sri Lanka, it would
be improper for him to apply for a similar post in another country and that
the correct thing to do was to invite him.
Obviously times have now changed. Such correctness, when the
assignment overseas promises a larger pay in a hard currency, will seem
painfully old-fashioned today. In the years since, several of those wielding
judicial powers in this country have compromised for far less. And when the
judicial centre cannot hold, things do fall apart.
Basis, principles and philosophy of judging
The unravelling saga of the controversial Chief Justice Mohan Peiris has
brought into focus in a most troubling manner the basis, the principles and
the philosophy of judging.
More than an executive president, more than a legislator, more than any
administrator, it is the judges who define the spirit of democracy, give
meaning to our freedoms and set the tone for the rule of law. Their burden
is heavy. As succinctly described in our Constitution, the judicial power of
the people shall be exercised by Parliament through Courts. When the
judges are errant, the judicial power of the people is betrayed sorely.
A judge not only adjudicates on conflicts in the nature of man versus man
but also between man and the State. The State is not some divine being
beyond our scrutiny. It is made up of real men who like everybody else may
sometimes commit crime, break laws, abuse powers, take and give bribes
and inducements, subvert justice, act foolishly or deviously.
Acting under the cover of State power they may well be promoting hidden
political and personal agendas. We the people look to the courts for
protection not only from transgressions of fellow men but also from those in
control of the State apparatus.
In countries with traditionally strong judiciaries, the selecting of a judge,
especially to the superior courts is a complex and value based process. To
the higher judiciary, there is no tradition of canvassing. It is not an
appointment given to a loyalist or friend. Not only learning and experience
but even personal qualities such as an independent spirit, impartiality, fair
mindedness coupled with openness to new ideas are essential qualities for
a good judge.
The rise of Mohan Peiris
It is no secret that Mohan Peiris was closely associated with Gotabaya

Rajapaksa, the Defence Secretary, prior to his appointment as Attorney

General. It has been reported that he was a member or an advisor to the
arms procurement unit of the armed forces which functioned then.
At the time Mohan Peiris was a private lawyer and was entitled to be
aligned to whoever he wished to. But after the war ended, there
commenced a series of beneficial appointments which, if nothing else,
suggests high favour on the part of the Rajapaksa family towards Peiris.
First, he was appointed Attorney General from outside, overlooking several
capable and senior officers in the Department. This office is defined as a
quasi-judicial position, meaning it is almost or nearly a judicial position. We
need not go into the various important functions of the Attorney General
here, but suffice it to say that good governance demands an independent
and unbiased Attorney General.
It is a reality in this country that many of those in politics have businesses
or have committed acts that may come under the review of the Attorney
General. An obvious political appointee can only degrade the value of such
an office in the eyes of the public.
Upon his retirement from the post of Attorney General, the Rajapaksas gave
him another plum job, this time as the head of a large Governmentcontrolled bank. He was very much a trusted insider in a Government fast
becoming a family show.
Soon after the 2009 presidential elections the Rajapaksas decided that not
only should the Government of this country be a family show, but that it
should be made into an epic. The result was the 18th Amendment to the
Constitution, a matter which was not canvassed before the voter at the
elections just concluded. It is suggested by some that the idea of the 18th
Amendment came from persons then aspiring for greater things.
Selection of Mohan Peiris as CJ
Then in 2013 the sitting Chief Justice Shirani Bandaranayake was
impeached in circumstances which were controversial, to put it mildly. Who
would now fill the vacancy of the Chief Justice so roughly created? Of course
Mohan Peiris!
Questions about the process that led to the selection of Mohan Peiris, who
was not a member of the Judiciary at the time, who else were considered,
what tipped the decision in his favour remain unanswered. In fact many
apologists respond blandly that such appointments are a personal

prerogative of the President and he can do no wrong.

We do not know whether Gotabaya Rajapaksa, the then all-powerful
Defence Secretary, had a role in the selection. If he had, that would be most
unfortunate because his life experiences and training are a world apart from
the deep learning, intellectual integrity, independent thinking and liberal
attitudes that are prerequisites for a good judge. That is not a position
reached by showing loyalty, taking sides, currying favour or canvassing.
A blemished appointment can dull the glitter of high office. The written as
well as unwritten codes of conduct and the high standards demanded of
such an elevated position may have no meaning to a mere careerist viewed
as unworthy by his peers.
It is well known that Mohan Peiriss wife, a lawyer herself, continued to
practice even after her husband became Chief Justice. The Chief Justice is
the Head of the Judiciary; appointments, promotions and removals of all
original court judges come under him. In many aspects of their professional
life he has powers over the lawyers too. It does not require much
imagination to comprehend the unfair advantages that a spouse of a judge
enjoys with regard to her/his legal practice. People in much lower situations
have made greater sacrifices on account of public office held by a spouse.
Diminishing and politicising the Judiciary
Once ensconced in office Mohan Peiris missed no opportunity to pose
alongside the Rajapakse family and their cohorts at public and even private
gatherings. It is said that the Chief Justice was a guest at the Rajapaksa
residence in the Deep South when they celebrated the Sinhala New Year, an
occasion traditionally reserved for relatives and close associates of the
family.
Opening of malls and halls by a member of the Rajapaksa family was
considered an occasion enough for the Chief Justice to participate, ignoring
the fact that these concern the investment of public money and potentially
matters that could come before court. He went even further, inviting the
Secretary Defence to address a judicial conference, a blatant denial of all
they stand for.
Having gone so far down the path of diminishing and politicising the
Judiciary, it is no surprise that Mohan Peiris was with the losing candidate
Mahinda Rajapaksa late in the night of 8 January when the results of the
presidential elections were coming in. He seems to have closed the book on

all judicial ethics, at least as applicable to him. That mid-night visit by the
Chief Justice was an unbelievable act of impropriety on the part of a judge.
Suffice it to say that a judge is not a creature of his appointing authority.
Through the centuries, judges, honourable and true, have endeavoured to
give meaning to the concepts of impartiality and integrity. Some judges
have paid a heavy price for their principled stand.
When a judge sits on the bench he does not exercise a power given by a
Rajapaksa. He is exercising the judicial power of the 21 million people of
this country. It is not the blemished career of one man that matters. Let not
the sovereignty and the judicial powers of that 21 million be compromised
for a petty career of one man.
(The writer is an Attorney-at-Law and a freelance writer.)
Posted by Thavam