{"id":38266,"date":"2015-02-07T19:17:04","date_gmt":"2015-02-08T00:17:04","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=38266"},"modified":"2015-02-07T19:17:04","modified_gmt":"2015-02-08T00:17:04","slug":"chief-justice-mohan-peiris-being-chased-away-was-for-judiciary-the-darkest-day","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=38266","title":{"rendered":"Chief Justice Mohan Peiris Being Chased Away was for Judiciary the Darkest Day"},"content":{"rendered":"


\nBy<\/p>\n

Udaya Gammanpila<\/strong><\/p>\n

28 January 2015 was the darkest day for the Judiciary of Sri Lanka. Mohan Peiris was the Chief Justice on that day. A group of pro-government lawyers had commenced a protest against the Chief Justice (CJ) in that morning. <\/p>\n

It was led by politico lawyers such as M.A. Sumanthiran MP and Sunil Watawela WPC. The mastermind of the operation was Upul Jayasuriya, who is the President of the Bar Association of Sri Lanka (BASL) and a strong UNP supporter. He was later rewarded with the Chairman post of the Board of Investment.<\/p>\n

Meanwhile, the President sent a letter to CJ Mohan Peiris, informing him that the removal of former CJ, Shirani Bandaranayake was null and void and as a result his appointment was also null and void. The President sent a similar letter to former CJ Shirani Bandaranayake. <\/p>\n

Soon after receiving the letter, she left her house to the Superior Courts, to resume duties as the CJ. The protesters were ready with garlands and betel leaves, knowing her arrival in advance. She announced there that she would retire on the following day. After her retirement, K. Sripavan was appointed as the Chief Justice.<\/p>\n

The above is not an episode in a mega teledrama telecast recently. Unfortunately, it is a real incident happened in Sri Lanka just a week ago. It is another achievement of the present government within its first 20 days, which gained power promising good governance.<\/p>\n

<\/p>\n

Shirani Bandaranayake was removed from the post of the CJ on 11 January 2013, after following the procedure set out in the Constitution and Parliamentary Standing Orders. Accordingly, a team of parliamentarians who were more than one-third of the total parliamentarians petitioned the Speaker with a list of charges against Bandaranayake. The Speaker appointed a select committee comprising members of both government and opposition, to investigate into the charges detailed in the petition.<\/p>\n

The committee held an inquiry into the charges. Judges of the Supreme Court also decided to give evidence before thecommittee. Bandaranayake defended herself with the support of eminent lawyers of the country. In the end of the process, the committee tabled a report before Parliament, recommending her removal from the post of CJ. After debating the report, a vote was taken to decide the fate of the CJ. When 155 parliamentarians voted for the impeachment motion, only 49 parliamentarians voted against. Although a simple majority (113) is sufficient for the removal of a judge, there was more than two-thirds majority (150) for the impeachment motion. Hence, the Speaker informed the President that the impeachment motion was constitutionally adopted by Parliament.<\/p>\n

Three allegations<\/strong><\/p>\n

There were three allegations against this process. The first allegation was levelled by the lawyers. They were of the view that the investigation should have been conducted by retired judges, instead of politicians. It is a mere proposal to change the existing law. However, everybody is bound to follow the existing law, despite its alleged weaknesses. <\/p>\n

The second allegation was levelled by the Opposition. They alleged that the parliamentary committee was in an unnecessary hurry to complete the investigation by holding inquiry for prolonged hours and in consecutive days. They decided to withdraw from the committee to mark their protest. However, such speedy proceedings can be seen in judiciary as well.<\/p>\n

Third allegation was about a technical issue. The UNP parliamentarians argued that the impeachment motion was not presented properly to Parliament. Nevertheless, the Speaker, in his capacity as the ultimate authority of the parliamentary proceedings, ruled the objection out. Accordingly, the Speaker informed the President that the impeachment motion was duly passed by Parliament.<\/p>\n

Hence, Shirani was expelled from the post of Chief Justice by following the proper legal procedure. Thereafter, Mohan Peiris was appointed as the CJ. Let us now examine the manner in how CJ Peiris was removed by the so called crusaders for good governance.<\/p>\n

The CJ is the fourth citizen of the nation. He is the first non-political citizen. Unfortunately, he was denied the rights enjoyed by an underworld thug, who has been accused of murder. Just because the President has seen a homicide, he cannot order to hang the murderer. What he can do is to complain to the police. Police has to carry out investigations to collect evidence. <\/p>\n

The Attorney General has to indict the accused. The jury would decide whether the accused was guilty or not. Finally, the judge decides the punishment. However, as the President felt that Mohan Peiris was guilty, he was expelled from the post of the CJ. It can only be compared with hanging a person who is a murderer in the President’s opinion.<\/p>\n

The President had chosen a very interesting method to expel the CJ. He travelled back to two years and determined that Shirani’s removal was null and void and thereby Mohan’s appointment was also null and void. However, the Constitution has not empowered the President to determine the validity of the parliamentary procedure adopted for the removal of a judge.<\/p>\n

The Speaker is the authority to determine and certify that Parliament has followed the due procedure. His ruling cannot be questioned in any court of law. Hence, the President has grabbed the parliamentary powers by determining the validity of the removal of a judge. President Sirisena came to power promising to abolish the Executive Presidency.<\/p>\n

Unfortunately, he has exercised powers which have never been used by any other President as it belonged to Parliament. When President Jayewardene wanted to remove CJ Neville Samarakone, it was assigned to Parliament. Similarly, when President Rajapaksa wanted to remove CJ Shirani Bandaranayake, it was assigned to Parliament. However, when President Sirisena wanted to remove CJ Mohan Peiris, it was done by himself. This was the biggest blow to the good governance pledged by President Sirisena during his presidential campaign.<\/p>\n


\nReversing convictions<\/strong><\/p>\n

President Sirisena was a speaker at the debate for impeaching CJ Bandaranayake. After making a speech justifying the removal he voted for the motion. Minister Champika Ranawaka also voted for the motion after making a convincing speech. Minister Rajitha Senaratne went beyond speaking and voting. He was a member of the select committee which investigated the allegations against the CJ. They have been forced by the UNP to reverse their convinced and legal decision.<\/p>\n

The government was compelled to remove the CJ as a response to the protests organized by a set of lawyers from 12 January. The President of the BASL had told the media that the decision to reinstate Shirani Bandaranayake was taken at a discussion held by a group of lawyers with the Prime Minister on 25 January. Accordingly, the President has removed the CJ in response to protests organized by the lawyers. <\/p>\n

This is a decision that devastates the dignity and independence of the Judiciary. In future, judges will be scared to refuse a request mooted by a powerful lawyer to grant bail or grant a further date because they are now in fear of protests to remove him. Hence, judges will have to please and appease leading lawyers for their survival.<\/p>\n

Cabinet Spokesman Minister Rajitha Senaratne told media on 25 January that the CJ agreed with the Prime Minister to resign from his office. According to print media, although Prime Minister offered the CJ the ambassador post of Vietnam, he had demanded the same in Geneva. <\/p>\n

The Prime Minister has no authority to force the CJ to step down by offering diplomatic postings as allurements. In fact, it is good enough to bring a no confidence motion against the Prime Minister.<\/p>\n

Courtesy:Ceylon Today<\/em><\/p>\n

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By Udaya Gammanpila 28 January 2015 was the darkest day for the Judiciary of Sri Lanka. Mohan Peiris was the Chief Justice on that day. A group of pro-government lawyers had commenced a protest against the Chief Justice (CJ) in that morning. It was led by politico lawyers such as M.A. Sumanthiran MP and Sunil …<\/p>\n

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