19 November, 2018

Blog

Goodbye To The First Ever Lady Chief Justice Of Sri Lanka

By Upul Jayasuriya

Upul Jayasuriya -BASL President

Upul Jayasuriya -BASL President

My Lady the Chief Justice and other judges of the Supreme Court. President Court of Appeal and other Judges of the Court of Appeal. Learned High Court Judges and other Judicial officers. It is with overwhelming pleasure I rise today on behalf of the un-official Bar to convey our deepest gratitude to your ladyship for a battle that you fought at great sacrifice that put two years of your life in to hibernation with much anguish and pain.

It is with pleasure and pride in the Profession that, I warmly welcome Your Ladyship’s return to your rightful place as the Chief Justice.

It is common knowledge that, the unwavering stand of the Bar was that, the purported removal of Your Ladyship was unconstitutional, unlawful, null and void and of no force or effect in Law and that, any purported appointment done placing reliance on Your Ladyship’s purported removal, was also necessarily, unconstitutional, unlawful, null and void and of no force or effect in Law.

The Bar has always urged the Government to take the necessary corrective action and we are relieved and happy that, at long last, justice has prevailed and the illegality has been rectified, with Your Ladyship resuming your rightful and lawful position as Chief Justice.

The Bar always fought for this day and the Bar has been vindicated.

Your Ladyship has endured this extremely difficult period with immense courage and unfailing dignity and all Your Ladyships’ actions and words during this period, despite immense pressure being brought to bear on Your Ladyship, have kept in mind the paramount need to protect the dignity of the Judiciary.

CJ Shirani

We respectfully commend Your Ladyship for your fortitude and your wisdom.

It should also be noted that, during this interim period, the Bar has, in the interests of litigants and the continued functioning of the system of Administration of Justice, rendered the necessary cooperation to this Court and we look forward to continued cooperation and good relations between the Bench and the Bar, without which neither the Bench or the Bar can function.

We are surprised and taken aback with the decision of your Ladyship to retire with immediate effect. It is a magnanimous decision of your Lady ship that would raise the eyebrows and anxiety of many.

Since Your Ladyship has many-more years to serve this Court and our Country as Chief Justice, we can only assume that Your Ladyship has taken this decision because, perhaps, in these last two years, Your Ladyship has found much contentment, peace of mind and happiness in life outside Hulftsdorp and that Your Ladyship wishes to continue to enjoy such chosen journey, which are truly of the highest value and which outshine any of the more mundane and temporary trappings of power or prestige.

We respect Your Ladyships’ decision and wish Your Ladyship good health and all success in the future.

Two years ago your ladyship was restrained by arbitrary action. The entire legal profession stood by you. Every day of your life that you were kept away and restrained from discharging your functions of your office of Chief Justice The Bar stood by you. Two years ago Over 3000 members, the largest ever gathering of our fraternity met and resolved to take up your cause with determination. This gathering was presided by my predecessor Mr. Wijedasa Rajapakshe PC on a resolution that was moved by me.

Years passed by, We did not change our stance. Customarily you were invited as the Chief Justice to grace the my convocation in 2013 after you were restrained in the discharge of your functions as the Chief Justice. Since that day there were many a battles that we fought for a principle and not for an individual or a personality.

During this journey and the struggles the Bench and the Bar both had to make sacrifices. Among them Late Justice Sri Skandaraja’s name has to be inscribed in golden lettering, remembered and revered. The Executive wrath had no bounds or confines on him. He was called to pay the supreme sacrifices for what he thought was right. Let no Judge in the future be faced with the torture and agony that he went through for his forthrightness. That’s not all, Justice Anil Gunaratne was the other judge who had to face the same egocentric arrogance of the Executive. He was overlooked thrice for the same sin of having quashed the Select Committee findings.

I too was called upon to pay the price. I thought to myself that “only when we are no longer afraid do we begin to Live”

Permit me to quote Nelson Mandela,’ I learnt that the courage is not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear’

It has been the continued assertion of the Bar that your Ladyship fearlessly continued in office as the dejure Chief Justice. The hopes of the Bar and the aspirations have realized today.

My Lady, permit me to convey to you the greetings from Law Asia, International Bar Association and the Commonwealth Association of Lawyers Judges and Educationists on your admirable patience and the gracious manner in which you conducted you self during the most difficult two years of your life.

On this momentous occasion, it is my duty to convey the appreciation of the Bar to the Executive and the Government headed by the Prime Minister for the courage displayed in rectifying a grave error and the miscarriage of Justice committed two years ago. I also take this opportunity to place our appreciation to a large group of very senior Presidents Counsels, Mr. Faiz Musthapha PC, Mr. K. Kanagishwaran PC, Mr. NRM Daluwatte PC, Romesh De Silva PC, Mr. Shibly Aziz PC, Mr. IKRAM Mohamed PC, Mr. Upali Gunaratna PC, Mr. Riencey Arasakularatne PC and Dr. Sunil Cooray, Mr. Geoff Alagaratnam PC and Mr. Prasanna Jayawardena PC, who advise the BASL and the government to take this course of action that has made our dream come true. Permit me to take this opportunity to thank every member of the Executive Committee for the unstinted support that was extended unanimously to steer through in troubled waters. The members of the Bar Council too stood behind me in support of what we achieved.

It is my incumbent duty to assert that in our 40 year history, the Bar has always stood firm in matters of principles and not by people or individuals. We have had no inhibitions.

I recall the day when Judges Houses were pelted with stones. I too was in the Bar Council when we resolved to Condemned such actions inspired by the then all powerful executive.

I recall the day when your Ladyship was first appointed as a Judge of the Supreme Court. That was 18 years ago. The Bar decided to fight it with all vigour and filed four applications against your appointment. Late Mr. RKW Gunesekere led the group of Lawyers. I too appeared in one of those applications as a Junior.

When Attorney Wijedasa Liyanarchchi and Kanchana Abeypala were assassinated we stood up and condemned it.

When Lawyers were hounded out by an oppressive government we stood by the victims and fought against such aggression.

When thousands of youth were incarcerated in 1989 we considered it our duty to take up such cause.

When the fury and the rage of the executive was focused on the Judiciary in the recent past, we took up the cause of the oppressed and carried the flag ahead and declared war against those responsible. It is we who placed the issue of Rule of Law before the peoples court. We never rested until sanity was restored. Today we are able to look back with pride when Democracy is being restored.

We marched towards independence of Judiciary. It is a triumph of the values that we stood for. If we lose our struggle for Judicial Independence and professional integrity, if we cannot defend our right to practice our profession with dignity whilst ensuring the safety of the Judiciary on the basis of the highest principles on which the legal profession is founded, then every one of us including those of whom we represent in our pursuit for Justice will be at risk. These values are precious and priceless.

The 17th amendment to the Constitution of Sri Lanka was to put our country in that right direction. In a rare unanimous vote Parliament set the record straight and appointed a constitutional council to select and recommend appointments to the executive to fill the vacancies to the Apex Courts. Tragically the 18th amendment reversed this trend.

Your Ladyship too will have to share the responsibility for the introduction of the 18th Amendment with no referendum by the people.

The Executive usurped the powers of the constitutional Council to make these appointments once again frustrating the long established traditions of the legal profession, judicial system and the hopes of a Nation.

The Executive persisted and sought to act in breach of these salutary principles, and perverted the course of Justice with invidious pressures on the Judicial Independence.

Be it the Career Judiciary; be it the Attorney General’s Department, be it the private Bar, if merit, seniority and eminence is to be ignored at the alter of political patronage in making appointments to the Apex Court we might bid farewell to the independence of the Judiciary, the Rule of Law, the Law books and Judicial Precedents. This was the basis in which some appointments were made to the Apex Court since the 18th amendment.

The Bar Association of Sri Lanka is proud to announce that our proposal to the government to appoint an independent panel consisting of the His Lordship The Chief Justice, The President of the Court of Appeal, Hon. The Attorney General and the President of the Bar Association of Sri Lanka to recommend the possible appointees to the Apex Court has been accepted by the Government.

The same proposal was made to the Executive nearly 4 months ago to which we did not even receive a response.

We would also propose that any form of canvassing by those who seek such appointments should be made a disqualification.

The people in Sri Lanka believe that a well-informed public, Rule of Law and a vibrant Judiciary to be the core of our democracy and the back bone of a nation.

Our forefathers fought the colonial rulers and won the democratic rights for our people.

All the democratic institutions that we cherished have collapsed around us.

We have to build them afresh.

It is our call today. I can justifiably be proud that at least we have saved the Judiciary from this autocracy and begun a new journey seeking light at the end of the tunnel.

After a long journey of hatred, revulsion, abhorrence and turbulence we have now reached a phase of tranquility, serenity and harmony.

We have reached the distant dawn. The people have afforded this new lease of life. They have paid for it. And We owe it to them.

My lords, It is now your turn. We need to gather strength, stamina and activism with sincerity. Be there no color, strings or self imposed pressures for greener pastures. Permit me to quote from the prophetic words of Edmund Burke.

“danger of People crushed by law, have no hope for what is right but for might. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose, will always be dangerous”
The citizen’s respect for law, esteem and admiration for the courts and for the judges who preside over them is the very essence of the Independence of the Judiciary. Confidence in these institutions and in the men who administer them is “sine quo non”, if this respect is to be maintained.

This essential co-relationship between “public respect” and the “rule of law” needs to be recognized to maintain the dignity and respect of Courts.

Permit me to quote Caroline Keneddy, from what she observed:

‘The bedrock of our Democracy is the Rule of Law and that means we have to have an Independent Judiciary, Judges who can make decisions independent of the political winds that are blowing.’

We have conquered, we have survived. It is now our turn to nurture and safeguard it from the evil forces that may infiltrate the process that is sought to be preserved.

This will be the last time I bow out to your Ladyship the 43rd Chief Justice. The First ever Lady Chief Justice of Sri Lanka.

I wish your Ladyship a full and a happy full filling life beyond the Bench.

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Latest comments

  • 11
    13

    Cha ,What a smile. The Trillium Smile!

    • 12
      13

      She stood up for what is right for the country, even belatedly and that is what matters. She can go with her head held high.

    • 2
      0

      Another sad chapter in our country’s history is over .Let us never forget the past as we look to the future with hope.Sri Lanka has prevailed over injustice.

    • 0
      5

      the man who politicised the BASL, thank god your time at the helm is over

  • 22
    6

    quote
    Your Ladyship too will have to share the responsibility for the introduction of the 18th Amendment with no referendum by the people.
    unquote

    Let this be an indelible reminder to the Judiciary that their Prime Duty is to the People and not to either the Executive or Parliament or the Government.

    Well said Upul

    Kind Regards,
    OTC

    • 5
      4

      Wish you all the best on your retirement, your Ladyship the 43rd CJ.
      Maybe at last, you could have realized it was all too much, you cannot stop things going down the gurgler if you didn’t stand up for independence of the judiciary. For that we respect you. Until that time, your judgment might have blurred because of your association with your guru GLP and your predecessor. All in all you had to pay a high price. And, I am sure a few lessons were there to be learnt to all. There were several high points, but 18th was the law point and, it boomeranged.

      Although the Bad fought a long battle, it was ultimately the people of this county who brought dignity at the end. They are watching,

      Not only is the justice done, but it should be seen as done too to those who matters most, that is people. I am not a fan of MP, the 44CJ or 43rd defect(?), he deserve what he gets, but the process adopted to get the position null and void seems bit controversial. The legal luminaries seem to have endorsed this process, could have challenged the parliament Address then, if it was not respected supreme court decision. The unity which we saw now could have been forged and fought then. It was a real shame, MR representing this profession on his own led it rotten, but what would you expect if someone hasn’t earn it but owned it via politic.

      While in outstation officially, the notorious defacto was ousted, and he might come back and submit a travel claim. He would have been banned from practicing in his profession even as a proctor or lawyer under ethical grounds for being in the company of a presidential candidate at a time of electing a leader of the country for which he was the CJ, by his professional body and hence made him to be unfit to hold this position. It would have been much better than engaging with him in a deal making- to be appointed as a high commissioner.

  • 8
    6

    Lady I wish you all the best.

    You have sufficient cause to celebrate the strength of your convictions, and your endurance. At the same time be mindful that your concurrence with the passing into law of the 18th Amendment caused much grief to Mother Lanka.

    Your decision to retire was a good one.

    Here’s to wishing you Happy Retirement!

    • 1
      0

      At the way this dignified lady and her family was treated by the Rajapaksa regime and their goons, I didn’t think she would have the stomach to experience that again. There were fireworks in the parliament complex attended by the regime on the day the Speaker announced the decision to impeach, and there were milk rice being cooked and distributed outside her official residence. She was also prevented from speaking to the assembled media and her son shouted at by the police to drive the family away.

  • 11
    6

    Dear Upul Jayasuriya -BASL President,

    “It is with overwhelming pleasure I rise today on behalf of the un-official Bar to convey our deepest gratitude to your ladyship for a battle that you fought at great sacrifice that put two years of your life in to hibernation with much anguish and pain.”

    Well stated. Thank you for what you have dome and your efforts in the face of Meamulana MaRa adversity.

    Thank you, Lady Chief Justice, Shirani Bandaranayake for what you stood for, Justice and the Constitution, in the Democratic Socialist Republic of SRi Lanka from the intrusions of the Medamulana Mahinda Rajapaksa Family dynasty and Dictatorship.

    Thank you again, Lady Justice.

  • 11
    4

    @Amarasiri:

    “‘Thank you, Lady Chief Justice, Shirani Bandaranayake for what you stood for, “

    Yes of course. She certainly stood for the 18th Amendment.

    • 6
      5

      “Yes of course. She certainly stood for the 18th Amendment”

      Did she?

      Who approved in the Parliament? The List?

      Musical Chairs?

  • 2
    9

    Thank you lady for against the tyrant.pleSe enjoy your retirement.I hope the new govt.appoints her as an ambassador to UN or another country of her choice.GOOD LUCK.MADAM

    • 1
      0

      I think so too. This lady has tremendous professional skills as evidenced by the fight she put with the tyrants in power and as it happens, she did win. But I secretly hope she would be in the team prosecuting the Rajapakse regime on charges of corruption.

  • 4
    2

    I don’t understand: ”on behalf of the un-official Bar”

  • 14
    8

    It is remarkable.
    Well articulated.
    I personally appreciate Mr. Upul Jayasuriya’s profound words very much.

    I came to know you when you served as a Chairman of Tractor Corporation.
    I then understood the calibre and competency of your professional character.

    Not only Dr. Shirani Bandaranayke’s courage but also you and your professional colleagues collective force unbelievably lead your correct mission to the end to reach the destination of true justice.

    Your words about Dr. Shirani bandaranayake are impeccable and solid.

    Challenge is the profound test in one’s life to glorify one’s character.

    Dr. Shirani Bandaranyake’s character and the name and along with her outstanding reputation as our first and foremost female Chief Justice will remain in our history for ever and ever.

    General Sarath Fonseka’s and Dr. Shirani Bandaranayake’s characters were decorated with solid reputaion by Mahinda Rajapaksa.

    For that service we thank Mahinda Rajapaksa.

    Thanks Mr. Upul Jayasuriya for your profound words again.
    Wish you all the very best.

  • 13
    7

    No mention of her sordid proprty deals or funny bank accoubts then.

    • 14
      5

      “No mention of her sordid proprty deals or funny bank accoubts then.”
      Not until Mara comes back as President again. Till the, will be swept under the carpet. Maybe, by then she will have more cover-up to do because her husband will go to town with his jillmarts now that his wife is ‘powerful’ again. Silly Lanka Jayawewa!

      • 2
        0

        ‘Not until Mara comes back as President again.’ Perish the thought. Get back to the cloud cuckoo land you appear coming from if this is in your wildest of dreams. It’s not enough he ruined a decent honest woman simply because she damaged his warped ego by questioning his corrupt activities, he similarly took away the Emirates efficient management of SriLankan Airways because they did not bend to his ego, and installed his unqualified relative at the head and drove it to destruction.

  • 9
    3

    The usual sickening flattery and fawning for which Sri Lankans are famous. You can read about some of her innocent exploits here.

    http://en.wikipedia.org/wiki/Shirani_Bandaranayake

  • 3
    6

    Congratulations! Finally the lady justice won! Lawyers for the rule of law won! Most seiner judge won! Now it is time to re-establish rule of law and good governance through judicial system. People will come back to courts seeking justice. From the next amendment the entire SC should be dissolved and must appoint judges on merit and seniority removing the other bias judges to preserve the integrity of the judicial system.

    Now I am sure the lady justice will ask her pension rights and areas for the last two years. What is the situation of the salaries drawn by the previous CJ? If his appointment is illegal, he is not eligible to receive any salary or other benefits. As these are public money, will the new government order the former CJ to pay them back?

    What is the situation of judgments delivered by illegally appointed CJ? Are they valid or need rehearing?

    If there were no vacancy, former CJ deems not appointed according to the law and can he come to the private bar and practice as a lawyer without President’s approval?

    • 4
      1

      Saman I second your comments. Upul has very succinctly and eloquently expressed the feelings of a vast majority of right thinking people of this country!

  • 6
    1

    The late SL Gunasekera put it correctly that CJ 43 is not “lily white ” but sending her off the way it was done by MR’s government is unacceptable. However 2 wrongs do not make it right. Mohan Peiris is the worst CJ we had and he was worse than Sarath Silva. The latter admits that his judgement in the Hambantota case was wrong. For this he should be ……….. I do not have words to describe, I think he should commit suicide for what he did. What Mohan Peiris did and capable of doing to the new government is worse than Sarath Silva
    But he could have been sent off in a better way. Legal luminaries would have been able to find a more dignified way and not the way MR did

  • 1
    1

    Now that the dust has settled on this sordid saga unique in the annals of judiciary anywhere, the legal fraternity must gird itself in their duty to the people.
    They must, in collusion with the necessary political authority, devise means of reducing the backlog of more than 65,000 cases clogging the courts of law of the nation and grant relief to the litigants from these burdens which make their lives a misery.
    In every court, most of the morning session is taken up with “calling cases” which means giving further dates for cases scheduled to be heard on that day.
    Finally, only one or two cases are heard. The frustration of litigants is terrible. Lawyers collect fees for this postponement of cases. Property cases especially, go on for years. The indigent cannot therefore, afford justice – which in effect, is only for those who have the means.
    Lawyers should also appear and advise persons under arrest, before and during interrogation, in police stations and elsewhere.

    There should be a panel of lawyers appointed by the state, to appear and advise persons who cannot afford a lawyer, and are in custody.

    • 2
      1

      Laws delays should be addressed by BASL and the new government. This is where we feel justice is not done to the common man. A close relative had a land case It took 16 years for him to get a decision. In this particular case she tells me none of the lawyers who appeared for her or her defendant requested postponements. The learned judges also did not postpone the case. She tells me if the case was heard continuously day after day it would have taken less than 10 days to complete the case. In that instance court takes up the case for about 30 minutes and then postpones the case to take up other cases. May be he wants to be fair by all litigants
      There is something wrong in the whole system. I think we need to open many more courts so that back log can be wiped off.

      • 2
        0

        16 years is nothing.. I have a land case at the Nikaweratiya courts that has taken 31 years… it was a case initiated by my dad who passed away 27 years ago.. the time and monies spent are enormous… Further we havent been able to cultivate a 70 acre land for that many years..depriving us of income, laborers of wages, govt of taxes… and more.. finally the case would end after an amicable settlement in 3-4 months… Wonder why the Preceding judges couldnt come to a decision.. MANY judges presided over this case .. I used to travel more than 160 kilometers (one way) on days of court hearings for a 2 minutes stint.. for the court to postpone without even looking into the case. sigh…

        JUSTICE DELAYED IS JUSTICE DENIED…

  • 1
    1

    “Many many thanks to outgoing Lady Chief Justice, Dr. Shirani B. I am very much appreciated that you commenced the truthful struggle as a Lady, against the powerful Mahin Rajapakshe regime which crushed the Democracy of the people in Sri Lanka for a period of a decade. However the struggle born from you, and came to the people’s stage through the incumbent President of Sri Lanka Maithreepala Sirisena and ultimately it achieved the goal by the votes of the people. After this now the reality of struggle mooted by Lady Chief Justice re- created the law and good governance by re assuming her duties from 28.01.2015 and the corrupted Chief Justice 44-removed from the post of Chief Justice. Well done.
    Jayakumar.

  • 0
    0

    Aia.

    In the first place,the so-called 44CJ was appointed illegally after a flawed Impeachment of the 43CJ. So,the question of the removal of the so-called 44CJ IS NOT AN ISSUE.When,Hon:SB was not in the chambers until Jan:29th 2015 it does not necessarily follow that she was not the CJ! 44CJ is still to be appointed! Mohan Pieris was an Interloper; He is another example of a Mountain stream flowing into Mud,due to his association with MARA.

  • 1
    1

    Pity, Venerable Rathne, Venerable Sobitha, Abiththaya Champika and Mr Azath Sally didn’t get a guernsey for giving the opportunity for the BASL Boss to make this kick ass Farewell Speech for this One day Wonder..

  • 3
    0

    Dear bar president

    You have forgotten to mention justice salam who is also one of real victim and h hew was not promoted due to the only reason that he was with COURT OF APPEAL pressident however it has to be compensated without any compromising

    Thank you for your brilliant effort for justice

  • 0
    1

    President of the Bar Association, Jayasuriya knew that CJ Bandaranayake was permitted to return to office only for a day but he deliberately suppressed the information from the membership, media and the public.

    Visit the following for the truth behind the talk.

    https://medium.com/@watchdog4sj/bar-association-why-hide-truth-c0df841ba90f

  • 0
    1

    I have no sympathy for either Shirani or Mohan. Both are political appointees as we were so accustomed to see in so many spheres during the Rajapksa era and probably even before. Shirani was a MR appointee who subsequently refused to “play ball” and was therefore dismissed. There are legal arguments justifying the procedures adopted to dismiss her and counter arguments for it being not according to legal procedures. I am not a lawyer and I don’t know who is correct. It is however true to say that the Bar Association objected to the way she was dismissed and did not accept Mohan as CJ for a long time and then they did as “they had no choice, because without a CJ, judicial processes would come to a halt”: and I can see the logic in it. It is also relevant to note that in the impeachment process, both MS and Rajitha spoke against Shirani and voted for impeachment. The very same persons are now saying the subsequent processes adopted after impeachment were flawed!

    Clearly pressure was brought on Mohan to resign without being sacked and clearly he refused.Some reports say that he was willing to go if he was given a diplomatic post and apparently he was offered one in Rome. If he did ask for a post, it doesn’t speak highly of him. If he did ask, and was offered Rome, why did he not accept it? Did he demand something else or was it always that he never asked but was offered a diplomatic post as this was thought to be enough incentive for him to resign. If he was offered (without demanding) and he refused on a matter of principle. hats off to him.

    This placed the MS regime in a difficult position because in their minds, he was in essence an MR “yes man” who was willing to serve his Master. The procedure ultimately used to dismiss him doesn’t on the face of it, seem legal, unless of course their interpretation of the procedure by which Shirani was dismissed was correct and she was always the CJ. This is the salient point -who decides whether the process used to dismiss SB was legal or not? We have our own opinions but in the end, it is a Legal issue.

    The whole thing shows what depths Sri Lanka has sunk to in the sphere of Law and Order. The Judiciary was a proud Institution which stood above Party Politics and presided impartially over legal matters ensuring that the rule of law was maintained. Ever since former CJ Sarath Silva, this has been compromised and the Ruling Power sees the Judiciary as a “bit of a nuisance” limiting their Power. They seem to say,”who the hell do they think they are, these judges? They do not represent the People, WE do, Parliament is supreme”. “If we find they are interfering or applying brakes on what WE, the representatives of the People want to do, we will make sure that the top appointees fully understand what we expect from them”. This is precisely the way Dictators and corrupt governments in all parts of the World view things.

    As for what the MS Regime has achieved, whether by due Legal process or not, and that is debatable, they have now a CJ with Integrity and Capability. The fact that he is a Tamil is neither here nor there.

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