26 November, 2020

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The Tale Of Two CJs

By Dharisha Bastians

Dharisha Bastians

Dharisha Bastians

“In my country, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly-appointed legitimate Chief Justice” – Shirani Bandaranayake, 15 January 2013

Eventually, it all ended the way it began.

The high domed, iconic red roofs of the Superior Court Complex shimmering in the scorching sun. A gathering of black coats outside the gates at noon. Activists and demonstrators, their protest ended, chatting in small groups. Journalists, cameras poised, standing by the gates endlessly waiting for the footage of the day.

Dressed in a simple grey Kandyan sari, Shirani Bandaranayake returned to Hulftsdorp Hill to resume duties as the lawful Chief Justice of Sri Lanka last afternoon. Received with a bouquet of flowers, Bandaranayake was escorted into the premises by Attorney at Law and TNA Parliamentarian M.A. Sumanthiran and Bar Association President Upul Jayasuriya. Present on the scene were several other key activist lawyers including Dr. Jayampathy Wickremaratne PC and attorney at law J.C. Weliamuna.

For the legal fraternity, it has been a two year struggle to reinstate her. Her reinstatement, even symbolically, is seen to be the culmination of a battle waged with all the power they could muster against her illegal sacking in 2013. The Rajapaksa state overrode every constitutional roadblock, every moral and ethical argument against the impeachment of Bandaranayake two years ago.

Creating history, the previous regime moved STF troops into the Supreme Court premises overnight and barricaded the gates to prevent Shirani Bandaranayake, who had declared herself to be the lawful Chief Justice of Sri Lanka, from returning to her office inside the Superior Court Complex on 15 January 2013. Instead, under armed guard, Mohan Pieris – the regime’s special choice for Chief Justice – was driven into the premises and ensconced in the chair. For the legal community, the lights went out in the upper judiciary on 15 January 2013. That grave injustice was undone yesterday, with Bandaranayake’s reinstatement. Few lawyers would publicly attest to her being the most upstanding of judicial officers. But legally, the contention was and is, that Shirani Bandaranayake was not removed in accordance with the laws of the land and in blatant disregard of the rulings of the country’s two highest courts. Her restoration to office, to be accorded a dignified exit with her benefits and service record intact, has remained a priority for sections of the legal fraternity who worked tirelessly on the Sirisena presidential campaign.

ShiraniEarlier in the day, President Maithripala Sirisena had issued two letters. One letter was dispatched to de facto Chief Justice Mohan Pieris. The other was issued to de jure Chief Justice Shirani Bandaranayake.

In the letter to Pieris, President Sirisena said that his purported appointment had no legal validity and was therefore void. The letter said, there was no vacancy created for the position of Chief Justice because Shirani Bandaranayake was not removed in accordance with the terms of the constitutional provisions by an address of Parliament. Pieris was therefore asked to take note that he was not the lawful Chief Justice of Sri Lanka.

The second letter to Bandaranayake was a copy of the first. It also included a covering letter, signed by President Sirisena, informing the ousted Chief Justice that Pieris had been informed that his appointment was void. The letter asked her to kindly resume duties as lawful Chief Justice of Sri Lanka. Copies of the letters were also issued to the Supreme Court Registrar.

Looking back

The entire premise is technical, legalistic and difficult to comprehend. But it begins with the debate in Parliament on 11 January 2013, at which the UPFA was hoping to impeach Chief Justice Bandaranayake after the Select Committee probing her ‘misconduct’ had arrived at its conclusions and found her guilty on three counts three days previously. To understand the circumstances surrounding Pieris’ ouster and Bandaranayake’s reinstatement yesterday, it becomes essential to look back.

Based on what was witnessed in Parliament on that fateful day, this column reported the following on 17 January 2013, in an article entitled ‘The End Game‘:

“The eagerness with which the resolution was being drafted, however, was not reflected in the manner in which the Government went about its legislative business on that crucial day, with the UPFA having failed to include the vote on the resolution of impeachment in the Order Paper or Parliament agenda for the day, including in its stead the motion of impeachment against Bandaranayake that was tabled in Parliament and included in the order paper on 6 November.

“Waiting for the last possible moment to strike, the combined Opposition – sans the JVP-led DNA, which boycotted the entire debate saying it was an unconstitutional farce – charged at 6:30 p.m. that a vote could not be taken because the resolution and vote was not part of the agenda for the day.

“TNA MP M.A. Sumanthiran told the Speaker that if Parliament was debating on the motion of impeachment, the next thing on the agenda would be for the Speaker to once again appoint a select committee to probe the charges contained in the motion. The furore resulted in an exasperated Speaker suspending the session for 10 minutes at 7 p.m. in order to study precedents and give a ruling on the issue.

“Irritated at the last minute hiccup, Speaker Rajapaksa asked senior UNP Parliamentarian and former Speaker Joseph Michael Perera why the Opposition had decided to bring this issue up at this late stage. Perera shot back that it was up to the Opposition to raise matters whenever they wished.

“The suspension lasted longer than the prescribed 10 minutes, but the Speaker returned to the Chair at 7:30 p.m. with the inevitable ruling that the motion was sufficient notice on the agenda for the vote to be taken. Opposition legislators railed against the ruling later saying that the motion of impeachment contained 14 charges against Bandaranayake, whereas the Select Committee found her guilty only of three and a proper resolution of impeachment put up for voting would have contained all that information including the findings of the PSC.

“But the UPFA majority Parliament had its way and the vote was taken, irrevocably relegating Shirani Bandaranayake to defeat, despite her consistent victories before the law, which found the process to be profoundly flawed and constitutionally unsound.”

Two years later, lawyers contend that the former President did not have the power to remove the Chief Justice, because in accordance with Article 107 of the Constitution, President Rajapaksa did not receive an address by Parliament – a prerequisite to the constitutional removal of a sitting Supreme Court judge.

What transpired yesterday was fundamentally an Executive error by President Mahinda Rajapaksa, undone and rectified by his successor, Maithripala Sirisena, on a procedural point.

Parliament voted on 11 January 2013, on a motion of impeachment, that sought to set up a Parliamentary Select Committee to investigate 14 charges that had been brought against her. The trouble was, that motion had already been voted upon on 6 November 2012, and several sittings by the PSC headed by Anura Priyadarshana Yapa had already been held. Chief Justice Bandaranayake had hired lawyers and appeared before the Committee herself before refusing to attend any more sittings after ruling party MPs on the committee verbally abused and insulted her.

It was this same motion that had been included on the Order Paper two months later, when the UPFA controlled Parliament was preparing to vote on her impeachment.

The error was pointed out. But Speaker Chamal Rajapaksa ruled at 7:30 PM on 11 January, that the motion of impeachment ‘would suffice’ in blatant disregard of parliamentary procedure. But there was a tragic flaw in the process as yesterday’s developments have now made clear. The Constitution also requires that after an accused judge is found guilty, Parliament must present an address to the President, requesting him to remove the senior judge.

Had the Rajapaksa regime remained in power, the correction of this anomaly would never have been possible. But state power has changed hands. And the Sirisena administration moved to fulfill a campaign promise by reinstating her, exploiting a legal loophole in the way she was sacked from office.

Had Parliament voted on the correct resolution of impeachment, issuing an address of Parliament to President Rajapaksa requesting him to remove the Chief Justice from office, Bandaranayake’s removal would have been in accordance with Article 107 (2) of the Constitution. The resolution sent to him by Parliament, on the contrary – the motion of impeachment calling for the setting up of a second PSC – did not empower President Rajapaksa to remove Bandaranayake according to the terms of the constitution. In essence, President Mahinda Rajapaksa acted without legal authority to remove Bandaranayake, eroding the sacking of its legal validity, explains Attorney at Law, M.A. Sumanthiran.

Essentially, President Rajapaksa had removed Shirani Bandaranayake without a request by Parliament – as constitutionally mandated.

President Sirisena’s reinstatement of Shirani Bandaranayake therefore was quite simple.

No vacancy

Since President Rajapaksa did not remove her in accordance with constitutional provisions made in that regard, he had no power to appoint a successor, since no vacancy had ever been created. President Sirisena, in his letter to Pieris informed him that his appointment had been unlawful, since the removal of Bandaranayake had no force in law.

Ultimately, it was the Rajapaksa regime’s tearing hurry to sack her and conclude their vengeance plan against the judge that had dared to cross them, that ensured Mohan Pieiris could be ousted on a technicality two years later.

With this procedural option available to the Government, it is unclear why it has engaged in a series of negotiations with Pieris over the past two weeks. Bar Association President Attorney at Law Upul Jayasuriya claims that despite Pieris’ appointment being illegal, for two years he served as ‘de facto’ Chief Justice. Under the circumstances, there had been hope that Pieris could be offered a dignified exit, Jayasuriya said.

At the very beginning of the discussions, Pieris told the Government representatives that he would be retiring in August 2016, when he turned 65 years. But when the Government insisted that he step down immediately, Pieris backed down somewhat, and said he would retire in August this year. Subsequently, Justice Minister Wijedasa Rajapaksa claimed that the Chief Justice had even been offered a diplomatic posting to Rome to step down from office. Pieris had initially been accepting of the terms. But suddenly, presumably because Cabinet Spokesman Rajitha Senaratne made a premature revelation or some sections of the defeated administration were applying some pressure on the Chief Justice to remain in office, Pieris stood his ground. He appointed a dubious spokesman to issue statements on his behalf, insisting that he had not resigned from office. There were concerns in some sections of the Government that Pieris was also being asked to remain where he was for a specific reasons. Speculation is rife that an election petition could be filed, which requires hearing by five judges of the Supreme Court, including the Chief Justice. As corruption scandals engulf sections of the previous regime, concerns were also running high that a Pieris led Supreme Court could scuttle judicial processes to hold ex-regime officials accountable.

It was on this basis, and the unceasing agitation of the legal community led by the Bar Association of Sri Lanka, that the new administration moved to cut off the head of the snake.

Shirani Bandaranayake will sit in the Chief Justice’s chair only for 24 hours. Today, she will retire from office and a ceremonial sitting will be held at the Supreme Court for the legal fraternity to give her a traditional farewell. In a letter informing the Government of her retirement, Bandaranayake notes that under the circumstances, she cannot function in the office. With effect from 29 January 2015 therefore, Sri Lanka’s 43rd Chief Justice, the first woman to hold the position will retire from office.

Sri Lanka’s most senior Supreme Court Justice, K. Sripavan is tipped to be appointed Chief Justice once Bandaranayake officially retires.

The ethical conundrums related to the Mohan Pieiris ouster persist. Confusion reigns about the legal basis of his removal. The move was neither undemocratic nor legally flawed, yet there remains something ugly and unwholesome about it. The Government wanted to create a shock to the system, but it would perhaps have better served its own purposes by explaining the provisions and rationale to the public in depth beforehand. Political strategists would argue that it had to be done, to ensure the legitimacy of the new regime would not be called into question by a puppet judge still heeding the orders of his old masters. The new regime has an election to face in three months time and constitutional reforms to put in place before then. A Supreme Court holding a brief for the former political rulers could also be potentially devastating to the reforms process.

This ouster was certainly the most expedient route. But it was not the new administration’s finest hour. The controversial Pieris had offered up on a platter several unshakable grounds on which he could have been constitutionally impeached. Impeachment, however messy, however lengthy and however tedious, may have been the more democratic, ethically sound option.

Still, there was no STF or armed guard in the Supreme Court yesterday. Pieris was not listed to appear in cases before the Court, therefore he was not in the premises when the ‘transition’ took place. Firecrackers and fireworks displays are not lighting up Colombo’s skies to celebrate his departure. There are no mobs being transported to the gates of his official residence, to cook milk-rice and scream slurs. Police have not been mobilised to prevent Pieris from addressing the media, even though he has failed to do so yet.

None of these courtesies were granted to Shirani Bandaranayake two years ago. While mobs of people, joined by several ministers of the previous regime celebrated the vote in Parliament on 11 January 2013 on Wijerama Mawatha, Bandaranayake and her family were holed up indoors, afraid to step outside. Stripped of her pension and benefits, life has not been easy for the controversially ousted Chief Justice these past two years.

There is therefore, no cause to weep for Pieris, whose appointment has been shadowed in controversy and scandal since his first day in office. In fact, the newly restored Supreme Court, under Justice Sripavan, must strive to remedy the terrible injustices perpetrated during his tenure in office. It is PTA prisoner Ganesan Nimalaruban, the Slave Island evictees and the victims of the Welikada Prison riot for whom these tears must be saved. These were the true victims of the Mohan Pieris years.

The battle to protect Shirani Bandaranayake from impeachment and subsequently, the legal wars waged against the manner of her removal, will go down in the annals of Sri Lankan political history, as a pivotal moment. The regime was gravely wounded by her sacking in 2013. It created a domestic and international outcry. Morally, her removal was indefensible.

State media, in an editorial published the day after Parliament voted on the flawed motion, expressed the following sentiment:

“There is no doubt therefore that the current impeachment is something that is soon to be relegated to the limbo of essentially forgotten things, despite the fondest wishes of the haters and the saboteurs.”

The contribution of the legal fraternity to the ultimate defeat of the Rajapaksa administration earlier this month, was irrefutable proof that the impeachment of Bandaranayake was an unforgotten injustice.

Yesterday, when Bandaranayake stepped out of the same red jeep that had driven her away from her official residence two years ago, the mood was not jubilant. It was sober. It was composed. There was no raucous merry-making or gloating. As far as the legal fraternity was concerned, Shirani Bandaranayake had remained the lawful chief justice of Sri Lanka. After a long war for restitution, they were merely walking her back to her office.

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Latest comments

  • 16
    3

    Chamal Rajapakse as the Speaker of the house also has to take some blame. He should also resign from his position for giving a wrong decision.

    • 1
      0

      Chamal Rajapakse did not make the decision, he simply announced the decision, albeit unconstitutional.

      The day we allowed the Executive to interfere with the Judiciary, we lost the safeguard enshrined in our Constitution i.e. The Separation of Powers. Sadly, this interference had happened before, but as expected ended disastrously.

      During JR’s time, Chief Justice Neville Samarakoon was impeached. The UNP sacked 8 Supreme Court Judges and replaced them with those they believed were politically on their side. Similarly, the SLFP appointed Jaya Pathirana as a Supreme Court Judge.

      It is not unconstitutional to impeach a Chief Justice, but only for proven misbehaviour, misconduct or incapacity. The onus is on the accusers to prove. In the case of Shirani Bandaranayake although the cards were stacked against her, without the mandatory debate, the Parliamentary Select Committee’s distorted findings, without any cross-examination, found her guilty on only three counts against the fourteen charged. Like football hooligans her whole distinguished persona was crumbled by the sycophants hurling abusive insults at her.

      It made a grotesque display of absolute power and the government went downhill from then on. The Presidency acting like a ‘Control Freak’ trying to centralise every aspect of governence under its direct control. The senior positions in the Army,Navy, Air Force, Police, the Attorney General and the Chief Justice were all appointed by the Executive President Mahinda Rajapakse. I am amzed we lasted this long.

  • 11
    1

    If Mohan Peiris’ appointment is VOID, what happens to the cases he chaired and verdicts and opinions given??

    • 5
      0

      Technically all the cases heard by Mohan Peries also should be proclaimed invalid. The judgement given by him will also have to reviewed. Let’s not forget even the validity of Rajapkse contesting a third term was at his assent. therefore that judgement too should be declared null and void. Which means the election is illegal and Sirisena’s current position should become untenable.

    • 0
      4

      This was clearly explained by Mr. Upul Jayasuriya yesterday.

  • 17
    5

    The new Sri Lankan govt is demonstrating that Sri Lanka is not just miracle of Asia but Miracle of the World .I hope
    ….this is just the beginning

  • 8
    3

    I am happy that this sordid saga is over.

    What now happens to the cases where the pretending chief justice presided? Are those decisions invalid or does the signature of the second judge who would have signed with him make those decisions legal?

    I suppose given the fact he was Attorney General (as opposed to a Supreme Court judge) when made CJ, his signatures on judgements as CJ cannot even be argued as those of another Supreme Court judge. What then is the status of those judgements?

  • 11
    5

    This was the legal fraternity’s finest hour.
    A great wrong was rectified.
    I have yet hope that our lawyers will safeguard the rights and privileges of all citizens – and not continue to live on ‘dates’.
    The new CJ owes nothing to any man.
    He must steer the Court in the direction of justice for all.

  • 3
    4

    Look at that first picture. Black suited vultures all; Waiting for the next wounded victim to fall so that they can dig into his wallet.

  • 7
    1

    “In my country, where the rule of law is the underlying threshold upon which basic liberties exist, I still am the duly-appointed legitimate Chief Justice” – Shirani Bandaranayake, 15 January 2013

    Huh! Where was her ‘rule of law’ when she dallied and danced with the RajaPassas and openly welcomed Baby after his bogus law degree. Also, the nefarious Trillium deal and her husbands jillmart with EPF funds.
    Lily White? My bloody foot. This woman does not deserve no praise nomore. Now it will worse and her court verdicts will be heavily biased towards M3 and his band of merry men (and women). Same story, same shXX.

  • 2
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 4
    1

    “This ouster was certainly the most expedient route. But it was not the new administration’s finest hour. The controversial Pieris had offered up on a platter several unshakable grounds on which he could have been constitutionally impeached. Impeachment, however messy, however lengthy and however tedious, may have been the more democratic, ethically sound option.”

    Bravo!. This is the kind of impartial view that we very much need in this country. Maybe you, madam, would make a great Chief Justice.

  • 1
    1

    Ah but this sordid affair is not over, not by any means.

    Mohan Pieris must now consider what he needs to do. He has been slighted and the previous offer of a diplomatic post now out of the question. The wounded rat can challenge the decision of MS quoting any number of clauses in the constitution that he is the rightful CJ.

    If he was not the rightful CJ does he have to return the wages paid. Is he entitled to the pension of a CJ. How about the cars. Was he entitled to entitlements that he really was not entitled to in the first place. Who will reimburse the perks that he enjoyed as CJ.

    This case has a long way to play yet.

  • 4
    2

    Even Dr.G.L.Peiris is answerable on the impeachment of Dr.(Mrs) Shirani Bandaranayake. Justice will be done if Wimal Weerawansa, Dillon Perera, Yapa and Chamal Rajapakse are charged in a court of law.

  • 4
    3

    Justice shamelessly denied, has been delivered. The judicial system has been cleansed of a stinking stain. May CJ Bandaranayake enjoy her retirement and the benefits that are her due. May this saga be a lesson to all governments and our judicial system. The less said about Mohan Pieris and his shameless tenure as CJ, the better.

    Dr.Rajasingham Narendran

  • 4
    1

    I think all the politicians make a mockery of due process of law. While I’am not in favor of Mohan Peiris’s appointment as the Chief Justice, It is my belief that the government failed to see the complete picture when removing him. I’m no constitutional lawyer But, If we analyze this situation using a a common sense approach – It is the argument of the government that the proper procedure was not followed to remove Shirani Bandaranayake from her position, hence the appointment of Mohan is null and void. However, if Mohan Peiris can show beyond any reasonable doubt that he was asked to resign in written or verbal form ( by either the executive (President, Prime minister or one of the cabinet ministers), or even a government officer, it goes to show the acceptance of his appointment by the relevant authorities, and such actions make the following argument (About not following the proper procedure to remove Shirani) of the government irrelevant.

    • 4
      1

      Perfect logic.

  • 2
    3

    To the credit of MS it must be granted that he offered Mohan Pieris a dignified exit, and from all accounts agreed to by the latter: Resign and take up a diplomatic posting.

    However, it would appear that Pieris was at the last moment pushed into reneging on this understanding by “unknown forces” and that is a mystery which needs unraveling.

    The poor man has now been cut adrift. Some would say he got his comeuppance… Man proposes but God disposes!

  • 2
    3

    Fake and Genuine are the Tale of Two CJs.
    Mohan Peiris is Fake.
    Dr.Shirani bandaranayake is Genuine.

    Mahinda Rajapaksa completely destroy our Judiciary.
    He is the man who totally pulverised the reputation and dignity of our Honourable Judiciary.

    Please do not let politicians to change and destroy our respected Judiciary system again.

    Hope our Next CJ will be appointed without any racial discrimination and religious prejudice.

  • 3
    2

    When the Mohan P PC was in the unofficial bar, he was the counsel for a senior professional in the appeal against the imprisonment of the said professional on charges of child molestation. When Mohan P PC became the AG, the State Counsel informed the CA that AG’s Department would not challenge the appeal. So the case file was closed and the senior professional was back in the practice.

  • 0
    4

    A Class Act by the President, Legal fraternity and those who worked out the strategy. The best part is that Shirani will resign from her position today. It is almost like a plot from a movie. Becket comes to my mind.

    1- Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals. (Martin Luther King, Jr.)

    2- Injustice, Anywhere, Everywhere Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. (Martin Luther King, Jr.)

    Proud to be a Sri Lankan.

  • 4
    3

    What Dharisha Bastians doing here is what Dayan has been doing all these time.

    This is what exactly Dayan Jeyathilake has been doing in Old Royal Government. The wrongful explanation.

    Impeaching is not just ethically sound, that is the only one to remove the Sri Lankan Chief Justice. Not paper reporter report that there is loop hole in the appointment procedure and then the EP remove the CJ is not in the Lankan Constitution. If the appointment procedure is wrong then the Sriskandarajah’s left over should have been continues. A count should have declared is was wrong and it should have directed the EP to fix it, with powers vested with EP. You don’t declare in thr house kitchen that there is loophole and go to Hulsdrop Hill to drag the CJ from his chair.

    I accept that “Kaluthai punnukku puluthi marunthu”(medicine for the Donkey’s wound is the dirt that it rolls into). Mokan Pieris may deserve it. But that is not the legal verdict. This is the road warrior, the rowdy new King is wrestling the terrorist old King. Then Dharisha Bastians is replacing Dayan with lame excuses and loophole stories. Did this Road Warrior new King said anything about the loophole during Old Royal Government’s impeachment time? He voted for that.

    Last time, when Shiraniee was leaving, the Sinhala Intellectuals wanted a Tamil Sacrifice and took Sriskandadaraja’s life. Now, when Mokan Pieris is leaving, they are sacrificing Sripavan. “These learned Tamil fools are playing the role of “Kurankukku puththi Sonna Thukkanankuruvi”.(Baya Waver that advised the monkey)

  • 3
    1

    Can you believe all this technical BS about timing of the parlimentary votes and how it is intricately related to standard deviations from Article 107 of the constitution?! Rajapaksa was Executive President at the time, and so he used his Executive War-Time Powers to impeach a CJ who he felt was opening up too much land-rights for possible terrorists too soon after the war. How much more is the disadvantaged majority to be bluffed?!!!

  • 2
    2

    As a judicial officer that hailed from a good family background, Mohan Peiris disgraced the family, alma mater St. Joseph’s College and the legal fraternity by serving as a puppet and bootlicker of a ferocious, undemocratic and unethical regime!

    • 6
      0

      And did this lady do by engaging in shady property transactions?

      • 3
        0

        Not only she but her shady husband ALSO.

  • 1
    0

    Mallaiyuran.

    My Ghosh! Are you comparing Dharisha Bastians to Dayan? You mean between a clear mountain spring to Mud?

    Besides,there are no Sinhala Intellectuals or Tamil intellectuals; Intellectuals are Intellectuals!

  • 0
    0

    Ramona Therese Fernando:
    You say EP used his “Executive War-Time Powers to impeach a CJ” If so why was the necessity for a Parliamentry Select Committee. Why didn’t he do it straight away without using the Parliament.

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