"We cannot rewrite history, but we can right history," said Justice John C. Hayes III last week in a South Carolina Court in the US, while retroactively vacating the guilty verdicts against nine African Americans for sitting at an all-white lunch counter in a popular restaurant in Rock Hill, South Carolina, on January 31, 1961. They were 18-year-old high school students then and went to jail, refusing bail, and inspiring other Civil Rights activists of that era. Now in their seventies they had to wait for 54 years to have history righted. By that standard, the righting of judicial history in Sri Lanka took just two years to be accomplished. Even two months ago, no one could have imagined such a swift reversal of the vulgar and highhanded impeachment of Chief Justice Shirani Bandaranayake in January 2013. What took place on Wednesday and Thursday was a necessary course correction, which necessarily took an unusual detour.
Mohan Pieris, the hitherto ‘de facto’ Chief Justice, was sent home packing on the technicality that he had been appointed to a non-vacant position by virtue of the procedural flaw in the then government’s impeachment resolution. In other words, the Rajapaksa government had not technically impeached the Chief Justice, even though it crowed it did so disregarding procedural objections, and bullied Dr. Bandaranayake to vacate her office and her official residence. Quite properly, the ‘de jure’ Chief Justice returned to the Supreme Court just for one day and retired, enabling the government to appoint Justice K. Sripavan as the new Chief Justice. History has been righted. The proposed constitutional changes should make sure that the judiciary is never again monkeyed with by the Head of State and/or Head of Government, as it has been since 1978.
The High Noon drama could have been avoided if Mohan Pieris had gracefully walked away from a position that he had disgracefully come to occupy. Pieris should have vacated his position just as the Governor of the Central Bank and the Secretaries to the Ministries of Defence and Finance vacated theirs after the January 8 election. He should have known that the reinstatement of Shirani Bandaranayake was an undertaking in the opposition manifesto (Paragraph #94) at the election, and he dug his hole deeper by attending a controversial meeting at Temple Trees with the outgoing president in the wee hours of January 9 morning, while vote counting was still going on. What additional signal did he need after the mighty national snub of not being called upon to deliver the oath of office to the newly elected President? He had the gall to ask for a diplomatic posting, but got clever by half and did not take it when he was offered one. In the end, he had no place left to go except his private home.
He is the master of his own misfortune, but as a Catholic he should know there is still life after trespasses both in this world and the next. He could use the upcoming Lent Season for a religious retreat, sing ‘God of Mercy and Compassion’ in atonement, rediscover his moral moorings in the Bible, and start bandying the message of his reformation to others as Felix Dias did after 1977.
That said, the government could have managed the inevitable surgery at the apex of the judiciary with some solemnity and earnestness through timely statements in parliament. The back and forth in the media between Pieris and government ministers was not an edifying instance of good governance. Parliament and not media scrums should be the first and the main forum for messaging. The general media can and will broadcast what transpires in parliament, but there is no point in persisting with the parody of cabinet briefings bypassing parliament that became a feature during the Old Regime. Nor is it necessary for cabinet ministers to offer broadsides on matters way outside their portfolios. They should be disciplined to mind and speak to their portfolios and files only.
Unlike the High Noon at Hultsdorp, the Central Bank came in for a quiet reallocation from the responsibilities of the Finance Minister to those of the Prime Minister, by way of a gazette notification. This is a significant departure from normal practice which should have warranted a statement by the Prime Minister in parliament. Not surprisingly, no one in parliament raised any concern about this. The matter has received some publicity thanks to Dr. WA Wijeywardena, a former Central Bank Deputy Governor, writing about it in one of his weekly articles. While calling the move "legally and operationally unworkable", Dr. Wijewardena, to my mind, is being charitable in also arguing that the new move could be "a step toward the bank’s independence." He does not give much credence to the litigation involving the new Finance Minister and the Central Bank’s implication in it, as being a plausible reason for listing the Central Bank under the Prime Minister instead of the Finance Minister. But no one knows the government’s real reason for this departure from normal practice, and the Prime Minister and the government have not helped the cause of good governance by doing things opaquely by gazette notification without a transparent explanation in parliament.
It was apparent during the election campaign that the topic of good governance was not just a Colombo fad, but one that resonated well in the villages and outstations. When people outside Colombo began using expressions like yahapalanaya, they were not parroting in the vernacular what the Colombo elites are accused of picking up from UN texts and Wikipedia accounts about good governance, but were giving verbal expression to their experience of bad governance under the Old Regime. The people do not know the text book attributes of good governance but they sure know what they want from a new government after experiencing under the Old Regime everything they do not want to see in any government. Needless to say, most of what the Old Regime did was in contravention of the norms of good governance, and while exposing the misdoings of the Old Regime the new administration must also demonstrate how it is doing things differently. At Hultsdorp, the government did what it had to do. In regard to the Central Bank, the government owes an explanation to parliament and through it to the people.
