Farcical ‘independence’ pirouette by partisan BASL contenders | Daily News

Farcical ‘independence’ pirouette by partisan BASL contenders

BASL elections will be held this week
BASL elections will be held this week

The Bar Association of Sri Lanka (BASL) holds elections for office bearers annually, but this year’s poll they say, has generated an unusual degree of interest.

This writer does not intend to delve into the contentious issues of who is better than whom in the matter of electing a suitable individual to lead the Bar Association in the years to come. That is a matter for the voters.

However, particularly as a lawyer, I do feel it is best the record be set straight on at least some of the contentious issues that have generated debate and discourse in this BASL election cycle.

Says one candidate up for election, Saliya Peiris, that he is not partisan and that he has stood up for the independence of the judiciary by repudiating the 20th Amendment to the Constitution, etc, etc.

Now, having political affiliations is not necessarily a disqualification for the BASL presidency, even though the BASL is an independent professional body. Innumerable past presidents have had obvious political affiliations including the Founder President H.W. Jayewardene who was the brother of the powerful former President J.R. Jayewardene, the then almighty leader of the UNP. The former was no apolitical brother; he was dyed-in-wool UNP, and was known as his brother’s right hand man.

Politically identified

OMP - a flawed mechanism

A former BASL President known to all as Bacon Abeyakoon was identified with the SLFP. This was at a time the Bar was under attack literally with the then JVP-led terror campaign at its peak — with ramifications that led to the murder of lawyers who filed habeas corpus applications.

Then, a President of the Bar Association Upul Jayasuriya was appointed as Chairman BOI — in one of the most obvious of political appointments, while he was still in office as the President of BASL. Nobody with any verbose desire for the ‘independence of the Bar Association’, least of all Saliya Peiris the current candidate, let out so much as a whimper about the independence of the Bar being compromised at that time. It is true that Jayasuriya was in the last days of his tenure as President of the BASL when he took up the BOI appointment, but appearances matter, and there is no way anyone can say with a straight face that Upul Jayasuriya was an ‘Independent President of the Bar’ considering that he took up the BOI political appointment anyway, having being BASL President for close to two years.

It does not matter. As stated earlier with reference to Bacon Abeyakoon and the late HWJ, etc, people from all sides of the political aisle have been politically identified with one camp or the other, and still been BASL Presidents — and why should Upul Jayasuriya or anybody else have to be any different?

What does matter is the startling — but also hilarious — hypocrisy regarding these matters. Why are people such as Saliya Peiris, who said nothing about the independence of the Bar being “compromised” when Upul Jayasuriya took up the BOI appointment, now saying that the Bar has to be independent? Saliya Peiris says he always stood for the independence of the Bar and by extension, the Judiciary. Is that how he did it — by maintaining radio silence?

Strange conditions

Saliya Peiris is now a born-again independent, because he wants to allege at least by implication, that his main opponent in the contest is somehow not independent. The hypocrisy inherent in this allegation is mind-boggling. Of all the people on earth, Saliya Peiris says he is independent, and his opponent is not?

Of course Saliya Peiris is independent if blatantly being pro-UNP (and now by default being blatantly pro-SJB) is independent. Do not be too taken aback by this aside. There are thousands out there who think if they are UNP/SJB, they are independent; that those two conditions are somehow coterminous. If anybody on the other hand is anything other than pro-UNP/SJB, they try to label him or her as partisan, and definitely not independent.

They think, with straight faces no less, that being transparently UNP/SJB they can call themselves independent, because the UNP and SJB, according to them, stands for independence. With such a definition of independence, it won’t be long before Tigers claim they are by definition herbivorous, ergo noble, “because a Tiger after all devours carnivorous animals, noh?”

All of Saliya Peiris’s appointments including to the Office on Missing Persons (OMP) post, were political appointments. Who so? Even though he says the Constitutional Council appointed him, he does not say that this Constitutional Council was also a partisan instrument. It was packed with NGO persons, whose opinions in the newspapers are there for all to see. Those jottings are blatantly partisan UNP, so what does that make the now defunct Constitutional Council, other than blatantly partisan UNP?

But even if that is not accepted by Saliya Peiris, how could he say he is independent, or has always stood for the independence of the Judiciary, when he did not so much as say ‘boo’ when one fine day there were three Chief Justices in the country, within the span of 24 hours?

That was in 2015 or thereabout. Mohan Peiris, the then Chief Justice was ousted with one stroke of a pen without even an appearance of due process, or non-partisan process, not even a constitutionally mandated impeachment — however partisan that process could be. Saliya Peiris says in a recent interview that he has always stood up for the independence of the Judiciary, because he opposed the impeachment of the then Chief Justice Shiranee Bandaranayake. But the same Justice Shiranee Bandaranayake was reappointed as Chief Justice in 2015, and then removed within 24 hours without any due process, not even an impeachment. This occasioned even Shiranee Bandaranayake — bless her — to say that at least the Rajapaksa Government afforded her some sort of hearing and due process, whereas the UNP sacked her without so much as a by your leave. Yes, she is on record saying that.

Where was Saliya Peiris when all this happened? Hiding under a rock, singing odes to the independence of the Bar and the judiciary? This guy “always” stood for the independence of the Bar and the judiciary, he says? I mean, is this bloke for real?

The less said about the Office on Missing Persons Peiris headed, the better. No less a person than Manohara de Silva, President’s Counsel says the following about the OMP. “The opposition to the OMP was because of a very curious clause in it. This clause dictates that in the event a missing person was located, that person’s status as missing can only be changed at the discretion of that person. This means, if the person concerned does not want to be ‘found’, then his status would remain as ‘missing’. In turn, the officer(s) accused for his ‘disappearance’ would remain under the suspicion of having caused his disappearance. As long as the allegation stands, the Resolution 30/1 seeks to deny that officer from due promotions and other career advancements. He could even be expelled from the Services on these grounds.”

OMP vagaries

The OMP was created in order to fulfill the obligations of Sri Lanka under terms of Resolution 30/1 of the UNHRC which this country co-sponsored against its own interests. Sri Lanka has now withdrawn from this Resolution. Peiris backed, nay promoted all of these measures from the OMP’s office that Manohara de Silva very reasonably — with factual backing — condemns.

These are obvious travesties of justice, that a person can ‘opt to go missing’, even when he is found, while those who are said to have abducted him are being hounded for no reason.

Saliya Peiris promoted these questionable processes and practices. Why? Because he is demonstrably a political lackey of the former Government, a fact that is so painfully obvious from all of the foregoing regarding his so-called ‘positions’ on the independence of the Judiciary, etc. Saliya Peiris said nothing when Suhada Gamalath, an upstanding officer with an unimpeachable record in the AG’s Department revealed he had been threatened at Temple Trees and asked to prosecute politicians when he did not have any material to do so. Peiris said nothing about this and other glaring instances of prostitution of legal process by the previous Government — but he says with glee that he opposed the 20th Amendment.

Need anybody have to guess where he is coming from? For Peiris to even suggest that he is remotely independent takes some audacity. He is partisan UNP/SJB to the core, period. That may be ok. There were others who were hardcore UNP or hardcore SLFP previously, who were at the helm of the BASL.

What is hilarious is when somebody as blatantly — nay abjectly — partisan as Saliya Peiris parades himself as being independent. His hypocrisy is good for a few laughs, but it is also a gratuitous insult to the people’s intelligence.