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.
“She does, however, seem to have some basic sense (which is why Mahinda impeached her) and she’s stepping down.”
So anyone who is against MR is a good guy? indi, world is not divided in to MR supporters and good guys. Also her husband got accused of fraud and got fired from NSB (like he got fired from many other places previously) just before the whole impeachment discussion came.
And this is not “fair enough”. Two wrongs does not make this right.
If you have been bloody screaming for rule of law and good governance and shit, you follow those things. MS now has the support of SLFP and UNP and TNA and all others. Why not just impeach Mohan Peiris and show how it’s really done. You know, if MR appointed a kangaroo court, why not show him and the rest the correct way to do things. After all isn’t that what good governance is about?
And anyway the bottom line is CJ has been removed through a cabinet paper (this matter is bigger than Shirani and Mohan and for that matter MS or MR). MS has setup a precedence. What if the next President (or the executive PM for that matter) does the same things (find a fault with the process and declare that a certain person is holding his/her position illegally)? After all MR did not not invent the impeachment procedure (Sri Lankan constitution is rather vague about how it should be done), he did what JRJ did.
I wish he was impeached based on all the evidence of misuse of authority. Does he now get off scot free?
Will the new CJ be 45 or 44, if 43 never was? What happens to decrees made by Peries during his (illegal?) tenure?
As I remember, Shirani B is not new to controversy, starting with the time Chandrika parachuted her from academia in to the Justice Dept. Didn’t she also play a role in the passing of the 18th amendment? Relieved that she decided to retire after 24 hrs.
Dismayed and disgusted at Wijedasa Rajapakse’s admitted attempt to take the easy way out by trying to bribe that criminal with a diplomatic posting.
Shammi,
she did play a role in passing 18th. She decided that it can be passed with 2/3 majority without the need of a referendum.
And Shirani had the other problem of her well known federalist ideals when she was a academic. She should never have participated in cases in which that issue came up (which she did).
i agree with sack. MS or rather RW has set a bad precedence.
We all have some opinions over this, but who cares. Legally, supreme court is the highest legal authority, in implementing (in terms of punishing the offenders) & interpreting laws & constitution. Now we have an issue over the interpretation of a legal procedure. Who decides what is the right procedure? This issue involves the chief justice. You have couple of choices:
1. Take it to a court: This is not going to work as it is controlled by CJ. He/She can order the case to be transferred to supreme court and hear the case where he/she will appoint the judg
I do not know the legality of this action: But it looks very ugly.
Assume that we have confusion over the legality of the removal of CJ43 (Shirani). Who can clarify this? The only option you have is to go to court. This is not going to work as it is controlled by CJ. The outcome of the case will determine the job of the CJ. He/She can order the case to be transferred to supreme court (if the case is heard at lower court), appoint the judges, be part of the panel and judge too. (Think of a situation where CJ puts a case: CJ is the plaintiff, CJ is the one sets the judging panal, and CJ is the judge too)
Can we change the law: Any law need to be approved by supreme court, and again CJ is there. (Looks like chicken and egg) For me constitution has not reached to this level.
What should be done if this issue happens again? It could be solved with the entire bench hearing and each giving their own verdict. But legally there is no provision to request it. We need amendments to the constitution allow these things. Additionally, CJ should step down temporarily and the senior most judge should function as acting CJ until the case is completed.