The tale of two CJs

Thursday, 29 January 2015 00:35 -     - {{hitsCtrl.values.hits}}

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 Peiris – 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. Earlier in the day, President Maithripala Sirisena had issued two letters. One letter was dispatched to de facto Chief Justice Mohan Peiris. The other was issued to de jure Chief Justice Shirani Bandaranayake. In the letter to Peiris, 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. Peiris 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 Peiris 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 Peiris’ 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.” (Ends) 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, which 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 p.m. 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 fulfil 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 Peiris 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 Peiris 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 Peiris over the past two weeks. Bar Association President Attorney-at-Law Upul Jayasuriya claims that despite Peiris’ appointment being illegal, for two years he served as ‘de facto’ Chief Justice. Under the circumstances, there had been hope that Peiris could be offered a dignified exit, Jayasuriya said. At the very beginning of the discussions, Peiris 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, Peiris backed down somewhat, and said he would retire in August this year. Subsequently, Justice Minister Wijeyadasa Rajapakshe claimed that the Chief Justice had even been offered a diplomatic posting to Rome to step down from office. Peiris 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, Peiris 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 Peiris 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 to be heard 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 Peiris-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, 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 Peiris 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 Peiris 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. Peiris 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 Peiris 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 Peiris, 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 Peiris 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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