Shirani Bandaranayake is back!

[sashimaalTop contributor]

@colombogazette: Shirani is back as CJ, Mohan out:

Dr Shirani Bandaranayake resumed duties as the country’s Chief Justice today, following marching orders issued on Mohan Peiris by President Maithripala Sirisena.

Mohan Peiris was appointed as the country’s 44th Chief Justice after former President Mahinda Rajapakse impeached Bandaranayake and removed her from office.

In a letter sent to Peiris last evening, President Sirisena said Peiris would not continue to be recognized as the island’s Chief Justice as there had been flaws in Bandaranayake’s impeachment making it illegal to remove her from office, sources said.

Bandaranayake had also received a letter from President Sirisena referring to her improper removal from office by the former President and her recognition as the legal Chief Justice of the country.

Bandaranayake who received a grand welcome by lawyers upon her arrival at the Supreme Court complex is however expected to sit in as the Chief Justice only for a day, lawyers present at Colombo’s Supreme Court complex told reporters.

She is expected to hand over her resignation to President Sirisena tomorrow, paving way for a new Chief Justice to be appointed, lawyers added.(Colombo Gazette)

http://t.co/nkaZCTEs5h/s/N1BC via @colombogazette #srilanka #lka #change

m.twitter.com/colombogazette

[sashimaalTop contributor]

She will be resigning tomorrow !

[pee ratioActive Member]

not my words but writing by freind.

"It appears that the President has written to CJ Mohan Pieris saying that the removal of Shirani Bandaranayake as CJ "by the previous government" was illegal and that he should therefore vacate his post.
Now, Shiran Bandaranayake was impeached by Parliament. During the impeachment proceedings, DEW Gunasekera, Tissa Vitharana and Rajiva Wijesinha abstained, saying that although they considered Shirani B guilty of the charges for which she was being impeached, they did not agree with how the impeachment was carried out. All other members of the then governing parliamentary group voted to impeach, including, as far as I know, Rajitha Senaratne, MKDS Gunawardena, Naveen Dissanayake, Patali Champika Ranawaka, Rishad Bathiudeen, Rauff Hakeem, Nandimithra Ekanayake, Faizer Mustapha and Duminda Dissanayake, who are ministers in the new government.
As far as I know, Maithripala Sisirisena, as part of that parliamentary group, did not object to the proceedings and voted to impeach her.
He was also part of the previous government, being a member of cabinet.
So how can he now say it that her removal was illegal?"

howzat ? out or not out ?

or just another day in paradise.

[Ethical TraderTop contributor]

What "procedure" is this? It appears that we are shifting from "yahapalanaya" principle. I think My3 should have followed the procedure as per the constitution. Unless CJ44 tendered his resignation voluntarily this procedure is flawed.

[slstockVeteran]

Clarification from the president is needed.

1) The procedure to oust the previous CJ ( Shirani B) was not right from what I understand. I feel injustice was done to her.

2) But if the present CJ ( Mohan P) was sworn in as 44 th, then am not sure how a president can ask him to leave without an impeachment, volunteer resignation, or without quoting some exact clause from constitution

In any case this procedure maybe to clear Shirani B and let her resign dignified.
But this event is rather confusing and am not sure legal unless clarified.

[කිත්සිරි ද සිල්වාTop contributor]

If the previous CJ's removal is illegal ( that I believe the Supreme Court has to rule on that and not the parliament ) then technically the 44th placement is illegal.

Therefore, no impeachment is needed but just marching orders only.

The interesting question now is, what will happened to the judgements that he had dished out during his tenure as the 44th CJ ?

Will all they be missed trials now ?

Opening up another pandora box ?

[slstockVeteran]

Then before the supreme court rules that .. how can 44th be dismissed .

What month this is turning out to be.

If the previous CJ's removal is illegal ( that I believe the Supreme Court has to rule on that and not the parliament ) then technically the 44th placement is illegal.

[කිත්සිරි ද සිල්වාTop contributor]

Technically there is no 44th CJ, simply because the SB's removal has no Supreme Court approval.

Once SB leaves the position ( as stated in the report ) only the legitimate 44th CJ can be appointed.

Then before  the supreme court rules that .. how can 44th be dismissed .

What month this is turning out to be.

If the previous CJ's removal is illegal ( that I believe the Supreme Court has to rule on that and not the parliament ) then technically the 44th placement is illegal.

[sashimaalTop contributor]

The new Sri Lankan government has temporarily reinstated the chief justice whose impeachment two years ago was condemned internationally as an arbitrary political move, the country's bar association leader said Wednesday.

The government recognized Shirani Bandaranayke as the legitimate chief justice because her sacking by the previous government was deemed illegal but she will resign after being given an honorable farewell, bar association President Upul Jayasuriya said.

Bandaranayake will retire after attending a farewell ceremony on Thursday. Neither Bandaranayake nor the government explained why she is quitting in a day, which allows the government to appoint a new chief justice.

Earlier, lawyers and activists demonstrated near the Supreme Court demanding the sitting Chief Justice Mohan Peiris resign.

Bandaranayake was impeached by former President Mahinda Rajapaksa's government, which accused her of misusing power and amassing wealth. The impeachment was condemned as an act of revenge because she refused to give consent to a government bill.

Rajapaksa appointed his aide Peiris as her successor.

The demonstrators demanding his resignation say he undermined the judiciary's independence and integrity by being partial to Rajapaksa and cite an investigation into his involvement in an alleged coup plot soon after this month's presidential election.

Gunaratna Wanninayake, the convener of the activist group Lawyers' Collective, said Peiris "is not fit to be the chief justice as he has been involved in politics and took part in foreign trips with politicians and visited their homes."

Besides, his presence at Rajapaksa's official residence on the day of election "has also raised serious doubts about his independence and it has also damaged his reputation as a judge."

Police have questioned Peiris over his presence at Rajapaksa's official residence when results of the Jan. 8 election were being announced. A complaint from the new government alleges Rajapaksa discussed with his guests ways he could illegally stay in power when early voting results indicated he was losing.

Rajapaksa was widely credited for leaving office peacefully after he lost, but the subsequent coup allegation has raised doubts about what really happened. Rajapaksa has denied the allegation.

Sri Lanka's new Foreign Minister Mangala Samaraweera complained last week that Rajapaksa and the others conspired to impose a state of emergency to stay in office illegally, but that the attorney general and the military and police chiefs opposed the move.

http://abcnews.go.com/International/wireStory/lawyers-activists-demand-sri-lankan-chief-justice-resign-28539623

[xmartTop contributor]

this is not my field. but as a general person, i feel this is bad for "yahapalana" concept. president use his executive powers to dismiss chief justice Mohan Peris and Reinstatement of Shirani Bandaraneiyke, reinstatement of Gen. fonseka.. etc.. without a proper and transparent investigation on their cases. what if, they are guilty?

there must be transparent and fair trials to all that. all i can see is, use of executive powers to entertain supporters. where is the justice for Mohan Peris?

[yellow knifeTop contributor]

coming colours no good... I decided to keep silent

Budu Ammo Mama Ahuweth Naha
Danneth Naha
Dakketh Naha

naduth hamuduruwange baduth hamuduruwange

[sashimaalTop contributor]

Where were you for the last 10 years??

coming colours no good... I decided to keep silent

Budu Ammo Mama Ahuweth Naha
Danneth Naha
Dakketh Naha

naduth hamuduruwange baduth hamuduruwange

[yellow knifeTop contributor]

giya 10yathe ehema thamai....

[sashimaalTop contributor]

CJ 43 Shirani Bandaranayake’s reinstatement has a legal basis due to a serious loophole in the legal process adopted by the previous governor when impeaching Dr. Bandaranayake, senior lawyer Saliya Pieris explained.

“Dr. Shirani Bandaranayake was removed by former President Mahinda Rajapaksa without a request from Parliament. 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,” Pieris stated following the reinstatement of Dr. Bandaranayake.

“This lapse was never rectified, even though an objection was raised in the House. Never was there an address seeking removal sent to Mahinda Rajapaksa. So the removal of Dr. Shirani Bandaranayake as CJ 43 was void from the beginning as the President cannot remove a Judge without such an address seeking removal. Since the removal is void there was no vacancy to fill. Hence the purported appointment of Mr. Mohan Peiris is void from the beginning,” he added.

“Today, the President having reviewed everything has decided to reverse this illegality and informed Mr. Peiris of the same and at the same time he has invited Dr. Bandaranayake to resume duties as the CJ. Accordingly Dr. Bandaranayake resumed duties as Chief Justice in her Chambers. In the eyes of the law Mr. Peiris was only the de facto CJ and not the CJ in law. This is the position taken by the BASL all along. As for his orders and judgments they continue to be valid in terms of Article 119(2) of the Constitution,” he also stated.

http://asianmirror.lk/news/item/6728-legal-basis-of-cj-44-removal-and-cj-43-reinstatement

[poor boyActive Member]

Coming colurs not good ,

Kella geta gan kiwwalu.

Every thing Ok,

Sat on President Chair, appointed PM from own party, Appointed Opposition Leader from Own party. appointed Chief Ministers from minority party.

Den Aluth CJ enna kiyanna kiyanna kiwwa, Parana kellata yanna keewa.

Sonduru Angadaayakayata monwa hithenwada danne ne me wage welawata.

[balapasTop contributor]

The move was illegal according to moderate lawyers I talked to. Certainly a weird move. Apparently Ranil does not like Shirani, she tried to be genuine only the last couple of years. She is given a chance to resign. Real bummer would be if there is a court case for this. Uncertainty for few days

[RPPATop contributor]

How about this,

State announces that "procedures followed to remove Shirani Bandranayake from the post of CJ and to appoint Mohan Pieris is void & no force in law"

Ada Derana

[කිත්සිරි ද සිල්වාTop contributor]

The legal basis for today's reinstatement of Shirani Bandaranayake (CJ 43).

The president can only remove a judge once he receives an address of parliament asking him to do so (article 107(2) of the constitution). This is essentially a resolution requesting that he remove that judge (which also states the relevant reasons for asking for such removal). If the president does not receive such a resolution, he has no legal authority to issue an order to remove any judge.

The resolution passed in parliament in January 2013 was not an address of parliament requesting that CJ43 be removed. Instead, parliament merely reproduced and passed the earlier resolution which had started the impeachment process off. That is, it "re-passed" the older resolution where parliament had initially asked for a select committee to look into her conduct. Thus, it never passed the resolution it needed to pass. This fault was never corrected, even though an objection was raised against it at the time.

Since the president didn't receive an address from parliament, he had no legal authority to remove CJ 43. As a result, whatever order he issued to remove her, was void. That is *legally* the order had no effect. If the order for removal had no legal effect, then there was no removal. If there was no removal, then there was no vacancy to fill when Mohan Peiris was asked to take office as CJ. As such, his "appointment" was also without effect.

Today the president informed Mr. Peiris that his appointment was without legal effect. He then told CJ43 to come back, since legally she was never removed anyway. Since Mr. Peiris was never actually appointed (from a legal point of view), there was no need for him to resign in order for Shirani Bandaranayake to take office again.

Quoted above is extracts taken from a prominent professional in the field.

[xmartTop contributor]

thank you kithsiri,

this will raise further problems. as an example, were all the orders and trials given by Mohan peris void too?

[කිත්සිරි ද සිල්වාTop contributor]

I have already posed this to an expert on the field and awaiting his response.
Let's see what he got to say.

thank you kithsiri,

this will raise further problems. as an example, were all the orders and trials given by Mohan peris void too?

[poor boyActive Member]

things happening today remind me our great dramatist Henry Jayasena's Hunwataye Kathawa Drama. Azdak was his role. Removal of CJ etc reminds me how Azdak ruled in the drama.

Now I realize how much bad things can happen when an opposition is not there to protest. we lost our perpetual opposition veteran dr bahu also. today he was also seen with people at aluth kade.

we badly need an opposition.

though I am not an admirer of mohan peris , the way he is resisting to hooliganism earned lot of respect in side me. the CJ s must be like this,not to succumbed to pressure from presidentds , priminister, thugs , hooligans etc. today he passed the test.
this is not to give a character certificate for him but to show how bankrupt the govt procedure used to expel him.

[කිත්සිරි ද සිල්වාTop contributor]

According to the constitution, the judgments passed by the Supreme Court stands valid, according to my contact, despite MP's issue.

According to article 119 ( 2) of the constitution. " The supreme court shall have power to act notwithstanding any vacancy in its membership, and no act or proceeding of the court shall be, or shall be deemed to be invalid by reason only of any such vacancy or any defect in the appointment of the judge ".

[balapasTop contributor]

අගවිනිසුරු ඉවත් කළ ක්‍රමය අනුමත කළ නොහැකියි. - සරත් එන් ද සිල්වා

http://lankadaily.com/latestnews/item/4547-2015-01-29-02-25-21

Looks like the first major blunder of the MY3 GOVT. Not a yahapalana move.

[chinwiTop contributor]

OK. Lets accept appointment of former CJ was not done correctly - as described above [ quoted by කිත්සිරි ද සිල්වා]

What is the procedure to give  such a verdict and who should decide that ? By a panel of judges ? Supreme court ? By the President ?

As far as we know, no one has given such a verdict. But, HE has acted ?


මොහාන් පීරිස් මහත්තය පත් කල ක්‍රමය මේ විස්තර කිරීම අනුව වැරදියි කියමු.
නමුත් එය වැරදිද නැද්ද කියල තීරණය කරන්නත් ඕන නීත්‍යනුකූල ක්‍රමයකට නේද​?
එම නිත්‍යනුකූල තත්ත්වය තීරණය කළ කෙනෙක් නෑ. නමුත් ඒ කරුණ මත ජනපතිතුමා නියෝග දීල ?  

ය හ පා .....    ෂ් ........

[කිත්සිරි ද සිල්වාTop contributor]

Legally speaking, MP's appointment is illegal and therefore it is NO Appointment.

The President has the power to show anyone the door, who is illegally occupying a such a seat.

So, the question of "who should decide, etc etc" needs no answer.

MP was illegally occupying the position and the President unseated him and seated the rightful person using his vested power.

OK. Lets accept appointment of former CJ was not done correctly - as described above [ quoted by කිත්සිරි ද සිල්වා]

What is the procedure to give  such a verdict and who should decide that ? By a panel of judges ? Supreme court ? By the President ?

As far as we know, no one has given such a verdict. But, HE has acted ?


මොහාන් පීරිස් මහත්තය පත් කල ක්‍රමය මේ විස්තර කිරීම අනුව වැරදියි කියමු.
නමුත් එය වැරදිද නැද්ද කියල තීරණය කරන්නත් ඕන නීත්‍යනුකූල ක්‍රමයකට නේද​?
එම නිත්‍යනුකූල තත්ත්වය තීරණය කළ කෙනෙක් නෑ. නමුත් ඒ කරුණ මත ජනපතිතුමා නියෝග දීල ?  

ය හ පා .....    ෂ් ........