Your switching allegiance to Ranil and singing the praises of the 17th Amendment and the CFA and thereafter switching allegiance to Mahinda, all in the name of Good Governance, was not only amusing, it also damaged your credibility beyond repair, it seemed.
by Elmore Perera
Founder of CIMOGG & Past President, OPA
Dear Professor Peiris,
(September 26, Colombo, Sri Lanka Guardian) Soon after the ending of the Sinhala youth uprising, on 19th October 1989, then President Premadasa appointed you as a member of the Presidential Commission on Youth Unrest. One of the findings of that Commission was that "The extension of Parliament by its own fiat in 1972, and by a referendum in 1982, would appear to be deeply resented by the youth as a flagrant abuse of accepted democratic principles". This was done with a veneer of legality, by the SLFP-LSSP-CP United Front and the UNP respectively, when they commanded two-thirds majorities in Parliament, to suit their own political agendas, disregarding the long term good of the country.
Having been born and bred with the proverbial silver spoon in your mouth and having authored some thirty-plus books from the ivory tower you were nurtured in, the experience you gained as a member of this Commission, was perhaps a revelation which compelled you to state as follows:
"The most flagrant manifestations of dishonesty in Public Life no longer evoke the slightest response or make the least impression; they are taken for granted, and pass us by. We make no protest, nor do we attempt to assert, by word or conduct, our notions of right and wrong. As a nation we are fast losing the capacity to feel and express outrage, and we are developing instead an infinite capability to reconcile ourselves to any situation."
This statement of yours was reported verbatim in the Sunday Observer of 5th April, 1992. Shortly thereafter I read this out to the Forum of the Organisation of Professional Associations, and stated that this eloquently expressed the hopelessness that I, and many others like me, felt at that time. Present as the representative member for Pedagogy, you turned round and acknowledged the appreciation.
My refusal to compromise with dishonesty in public life resulted in my being compelled to study Law. I had read in your "Essays on Administrative Law" your statements that "The Courts are the only defence of the liberty of the subject against departmental aggression." (at page 308) and "There is no such thing as absolute or untrammelled discretion, the nursery of despotic power in a democracy based on the rule of Law" (at page 309). Having passed all the exams at Law College I was reluctant to enter the legal profession as I was sadly disillusioned with the erosion of the Justice system after the inglorious exit of Chief Justice Neville Samarakoon. This explicit statement of yours indicated that there were still a few public spirited personalities who "walked their talk" and later that year I took my oaths as an Attorney-at-Law of the Supreme Court, to enable me, at the very least, to assert by word and conduct my notions of right and wrong.
Disappointed that your copious writings had very little, if any impact on Society as a whole, your decision to support Chandrika in 1994, together with Lakshman Kadirgamar, gave us visions of exemplary transparent governance. Sadly, the "Tawakkal" and "Hilton Hotel" issues dashed all such hopes.
Your switching allegiance to Ranil and singing the praises of the 17th Amendment and the CFA and thereafter switching allegiance to Mahinda, all in the name of Good Governance, was not only amusing, it also damaged your credibility beyond repair, it seemed. Chandrika is reported to have recently stated that when she proposed to abolish the Executive Presidency (presumably to honour her written undertaking to do so by 15th July 1995) you had said not to and asked her to keep it for one or two years.
On August 4, 2010, waxing eloquent in Parliament you bravely vouched for the honesty and uprightness of Sri Lanka’s Judiciary on the basis that 50% of the judges serving the country at present, including the Chief Justice, had been your students at one time and the majority of these judges were men and women of the highest integrity. Perhaps because you prescribed no remedy to rehabilitate the minority whose shortcomings could have had a disastrous impact on the credibility of the majority, a student of yours felt strongly enough to say that "G.L. Peiris, the Law Professor of decades back is eminently not the same as G.L. Peiris, the expedient politician of the past decade and most certainly of the present".
Justifying the 18th Amendment, which admittedly was crafted by you, knowing very well that the 17th Amendment was implemented with great success for more than three years, you stated that "the 17th Amendment was unworkable while the President couldn’t enforce the Commissions under the Constitutional Council because of (what you describe as) the political deadlock", and that the 18th Amendment was an attempt to clear the decks and remove the deadwood (presumably the 17th Amendment). With a veneer of legality you have designed the 18th Amendment so as to grant the President absolute and untrammelled discretion in making all appointments to the Commissions, the Judiciary and all top posts in the public service to suit his political agenda and that of the two-thirds majority, clearly disregarding the long term good of the country and your own assertion that such discretion was the nursery of despotic power in a democracy based on the rule of Law. Or is it your position that Sri Lanka is no longer a democracy based on the rule of Law?
On October 20, 1983, a nine-judge bench of the Supreme Court headed by Chief Justice Neville Samarakoon in "Visuvalingam v Liyanage" - reported in (1983) 1 SLR 203 to 304 - held that:
"Actions of the Executive are not above the law and certainly can be questioned in a Court of Law. Article 35 of the Constitution provides only for the personal immunity of the President during his tenure of office from proceedings in any Court. The President cannot be summoned to Court to justify his actions. But that is a far cry from saying that the President’s acts cannot be examined by a Court of Law. Though the President is immune from proceedings in Court, a party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by law; the seal of the President by itself will not be sufficient to bear that burden".
On the 6th April, 2006, the Speaker, W.J.M. Lokubandara announced in Parliament that by letter dated 5th April, 2006, the President had urged him to expedite the nomination of the person agreed to by the majority of Members of Parliament other than those of the parties of the Prime Minister and the Leader of the Opposition, so that the Constitutional Council may be activated expeditiously. For acting in accordance with what he perhaps understood to be the President’s wish and refraining to act on this purported written request, the Speaker was later rewarded by the President with an appointment as Governor.
Have you, dear Professor, deliberately or absent-mindedly disregarded your admonition of 1992 and developed an infinite capability to reconcile yourself to any situation? No! You couldn’t have, could you? In any event could you kindly try to recollect the logical reasoning exhibited in your many books? If, as I still choose to believe that you can, you are able to do so, please clarify the following two simple issues for the edification of your students in the Judiciary, and all those who voted for the rejection of the 17th Amendment and will be called on to vote on many more amendments crafted by you, in the near future.
(1) "An Authoritative Precedent" is one which Judges must follow whether they approve of it or not. It is binding on them and excludes their judicial discretion for the future. Every Court is absolutely bound by the decisions of all Courts superior to itself. A co-ordinate Court, not of superior jurisdiction, may however, refuse to follow the earlier decision but cannot overrule it.
The decision of the 9-judge bench in respect of the extent of immunity granted to the President in the 1978 Constitution, referred to above, is an "authoritative precedent" binding on all Courts of subordinate jurisdiction and can only be overruled by an 11-judge bench of the Supreme Court, and may only be disregarded by another 9-judge bench of the Supreme Court. After October 1983, a 9-judge bench has been constituted only on one occasion viz. to hear my petition against Major Montague Jayawickreme, where the question of immunity was not in issue. Therefore any orders made by benches of 7, 5 or 3 judges of the Supreme Court to the effect that Article 35 of the Constitution confers blanket immunity on the acts of the President in making appointments in violation of the specific prohibition prescribed in the Constitution, have all been made per incuriam and are therefore invalid.
(2) Having failed to do so before receiving the President’s letter of 5th April 2006, the Speaker had a clear duty to act immediately on the purported request of the President, to summon a meeting of all M.PP who, in his opinion, were not members of the parties of the Prime Minister or the Leader of the Opposition, and require them to select their representative, unanimously or by majority vote if necessary. In any event, the President could have appointed his nominee and the 5 persons nominated jointly by the Prime Minister and the Leader of the Opposition, so that they, together with the Speaker, Prime Minister and the Leader of the Opposition, could have functioned as the Constitutional Council, with six or more members constituting the quorum. There never was any need to apply the doctrine of necessity to justify making the arbitrary appointments repeatedly made by the President, in violation of the provisions of Articles 41 B (1) and 41 C (1).
Whatever your clarifications may be, you are urged to kindly refrain from crafting any constitutional amendment which would erode our Sovereignty any further or to confer on the President any immunity, except that he may not be directed to be present in Court or subject to punishment personally during his tenure as President. He could be represented by the Attorney General or the numerous President’s Counsel appointed by him, to justify any impugned act of the President.
On the basis of your clarification, confidence in your intellectual honesty and integrity will either be enhanced or shattered.
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