I guess messing up your judicial system is like getting locked out of your house. You sometimes have to break your own window to get back in.
The new Sri Lankan government dealt with the problem of a highly dodgy Chief Justice (Mohan Peiris, number 44) by saying that his appointment was illegal and re-installing the old Chief Justice (Shirani Bandaranayake, number 43). This part is probably fair enough. The whole impeachment of the Chief Justice was basically a kangaroo court and it seems that Parliament never actually passed an impeachment resolution.
Explaining the Constitutional background of the reappointment of Chief Justice 43rd, Senior Counsel Saliya Pieris told Ada Derana that Dr. Shirani Bandaranayake was impeached by the former Government without a request from the Parliament.
He added “the motion passed in Parliament in Jan 2013 did not contain an address for removal which is a mandatory requirement as per the Constitution. The motion merely reproduced the earlier resolution seeking to appoint a select committee to inquire.
This lapse was never rectified, even though an objection was raised in the House. Never was there an address seeking removal sent to the former President.
So the removal of Dr. Bandaranayake as CJ 43 was void from the beginning as the President cannot remove a Judge without such an address seeking removal. (Ada Derana)
The best overall report on this is Dharisha Bastians in the FT. While this may actually be legally sound, it’s still a bad situation to be in and the government would have much preferred that Mohan Peiris just resigned. Mr. Peiris, however, got the job by being shameless and didn’t seem like he was going to acquire the sensation anytime soon. He was reported to have been angling for a diplomatic post as an incentive to quit. Given his personality this was perhaps the only good option left.
This is where, however, it gets interesting. CJ Bandaranayake will resign, likely tomorrow. The thing is that Bandaranayake was, by most reports, not a great judge. Before joining the court, she had never served as a judge or practiced law (she was a PhD in law who taught at the University Of Colombo). She is actually not the CJ that either the new government or the lawyers seem to want. She does, however, seem to have some basic sense (which is why Mahinda impeached her) and she’s stepping down.
It now seems that she’ll be replaced by Justice Kanagasabapathy J. Sripavan, a current sitting Justice, as Chief Justice 45.
This is all necessary because none of the grand Constitutional changes the government is planning can proceed with a functioning legal system. It is, however, not great because it’s set a precedent of governments interfering pretty directly with the Judiciary. Mahinda messed with the judiciary for his own purposes, but even fixing that damage involved messing with the system some more. It’s not ideal, but for now the legal crisis seems to have passed.