Removing Mohan, reinstating Shirani null and void: Sarath N

3 February 2015 10:38 pm - 32     - {{hitsCtrl.values.hits}}

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Commenting on the controversial removal of Mohan Peiris from the post of Chief Justice and the reinstatement of Shirani Bandaranayake as CJ is null and void, former Chief Justice Sarath N Silva said yesterday.


He said the proper procedure had not been followed even in the appointment of Ranil Wickremesinghe as Prime Minister.


Mr. Silva said if each new government set aside the proper procedure on matters of a fundamental character then anarchy would prevail.


“Our supreme law is the Constitution; even the president has to uphold it and is subject to it. It upholds and separates the powers under Article 4. There is a special provision in the Constitution on the independence of the judiciary under Article 107 which provides for the appointment of the Chief Justice and the Judges of the Supreme Court and the Court of Appeal. They have to be appointed under the hand of the President. Removal too is in the same way, but under address to parliament and has to be preceded by an impeachment motion, then will proceed to 78A of the standing orders. There is a very clear procedure and we can’t depart from it whatever our perceptions of the person however fit or unfit they are for the office,” he said.


Mr. Silva said Dr. Bandaranayake was appointed by the President there is no question about it.


“The Court of Appeal ruled that it must be decided on law and not on standing orders and the Supreme Court quite rightly overruled that on the basis that the Court of Appeal has no jurisdiction on parliamentary matters. Her removal was signed by more than 100 MPs, and though it may have had procedural flaws, it was an official act of parliament and the president receiving his mandate from parliament removed her. It is a valid removal and it stands thereafter whether we like it or not. That Chief Justice did not challenge her removal, nor did she contest the appointment of the new Chief Justice. The correct action was to bring a writ of quo warrantor and contest his holding the office, which she did not do,” he said.


Responding to questions about the involvement of the Bar Association in effecting the removal of the person holding the office of Chief Justice, Mr. Silva said there must be some limit on the involvement of the Bar in relation to such sensitive matters


“The Bar going up in arms does not validate the removal of the Chief Justice. Only a court can use the words ‘null and void’ on the appointment and removal of judges. Moreover the Executive cannot use the words null and void because it is a matter to be decided by court, and as much as I greatly admire the new President even he can’t say this is right. Upul Jayasuriya has reportedly said he was the one who drafted the impeachment motion against me which never went through, and I have nothing against him. But there must be a limit to the involvement of the Bar in impeaching the apex judicial figure. Warrant of the President comes under the public seal of the republic, and now you can’t say its null and void because then what you are saying is that a sovereign act is null and void,” Mr. Silva said.


He said even Prime Minister Ranil Wickremesinghe was not properly appointed according to procedure as the former Prime Minister has to be removed according to the Constitution before appointing a new one.


“It is under the Constitution that the Prime Minister holds office unless he’s removed by the President. He is the second citizen of the country and his appointment and removal must be specific. You can’t appoint two Prime Ministers nor can you remove one by conduct. It is a simple matter of removal, and the Constitution under Article 81 says that notice of removal must be given in writing before the new Prime Minister is appointed and this was not done. Rule of Law and due process- we have lost track of that and embraced this basic misconception of Rule of Law. Even I have received criticisms for judgments I have made. If it is legally correct then it does not matter if it political or not,” he said.(Jehan Gunasekara)

  Comments - 32

  • k silva Wednesday, 04 February 2015 09:53 AM

    This retiree has caused so much damage to this country. How dare he have the audacity to even speak. His opinions should not be given publicity.

    Sri Lanka Wednesday, 04 February 2015 05:26 AM

    What an achcharu? Can we please get our act together once and for all!!!

    Mevan Wednesday, 04 February 2015 06:02 AM

    How about removing Shirani after subjecting CJ43 to insults by OL qualified foul mouthed MPs. As a former CJ do you agree with that?

    kaiyoom Wednesday, 04 February 2015 06:12 AM

    everyting was messed up by you during your period as cj

    K.Soysa Wednesday, 04 February 2015 06:22 AM

    YOU set the ball rolling by making several weird judgements. And now you are adding oil to the fire. Just keep out.

    lkboy Thursday, 05 February 2015 12:19 PM

    No. read the constitution. This man is confused again.

    aruna Wednesday, 04 February 2015 01:57 PM

    we must take seriously what he is saying.

    R J Das Wednesday, 04 February 2015 02:00 PM

    He is the one who said CBK was appointed as President in her Kitchen by him. What right this man has to talk of law.?

    Tikiri Wednesday, 04 February 2015 10:47 AM

    SNS telling something not worth. No body can trust him

    AVB Wednesday, 04 February 2015 02:24 PM

    What about you Sarath, how many wrongs you have done? Are they debatable?

    Prasanna Wednesday, 04 February 2015 02:30 PM

    One of the most useless man in this society

    Rohan Wednesday, 04 February 2015 07:03 PM

    Question here is with the wrong procedure had followed and not with the individuals who involved.

    N.Wijeratne Wednesday, 04 February 2015 07:11 PM

    Belongs to the MATHAKA NA GROUP.

    SENIOR CITIZEN WHO ILLEGALLY LOST RIGHT TO PENSION Saturday, 07 February 2015 10:55 PM

    KIYANNA KESAY KEEWATH ASANNA SIHI BUDDHIYEN ASIYA YUTHUYI.

    Jaded Thursday, 05 February 2015 06:22 AM

    Sarath! You are null

    Nana Wednesday, 04 February 2015 07:24 PM

    He seems right. He seems only talking about the law. Law is Law whether we like it or not. In these 2 instances, there seem to be ommissions which seem to be mistakes but unlawful according to law.

    Wesley moses Saturday, 07 February 2015 11:43 AM

    F.CJ. Are you off your head Sir, if not keep silent man.

    Saman Wednesday, 04 February 2015 11:12 AM

    It seems that the entire legal sector is n utter mess. Even CJs have no better knowledge of the Law of the Country. When Sarath CJ was in power we know the blunders he did. The last judgement was also biased. How come he says this while the new CJ never highlighted any mistake. He has no seen the whole process as wrong. Better learn the LAW from somebody who has a knowledge. Making mess among societies is sinful. Let us avoid listening to this persons BANA in TV as well.

    Ramesh Thursday, 05 February 2015 07:36 AM

    He is a lier. If is unlawful he should go to court and challenge not in the media

    Aslam Wednesday, 04 February 2015 03:38 PM

    This man still alive? what was done is better for the nation. leave it for the best interest of the people. SN always have different ideas.

    Sanjaya Jayawardene Wednesday, 04 February 2015 11:49 AM

    He is the person who politicized the system. Do your meditation and mind your own business.

    sheriff Thursday, 05 February 2015 10:05 AM

    THIS BLUFFER MAN HAS NO RIGHT TO COMMENT ON THESE TOPICS

    SHERIFF Thursday, 05 February 2015 10:07 AM

    HE IS ANOTHER MOHAN PERIS

    Darlin Silva Wednesday, 04 February 2015 12:09 PM

    What about your infamous verdict on that scandalous "Helping Hambantota" case. You justified misappropriation or temporary misappropriation public funds and helped ruin the economy of this country. Refund of rupees eighty three million by Rajapaksa to the government consolidated fund was a tacit acceptance by Rajapaksa that he had ttemporarily misappropriated that amount of public funds. Was it not a punishable offence. According to government financial regulations it is an offence. Your legal acumen may interpret it otherwise.

    Korale mahaththaya Wednesday, 04 February 2015 12:12 PM

    Shut up you are a selfish man. lots of bad things happened when you were in the office. your opinions null and avoid now. are you still going to parliament grounds during night he he.

    ssivarajah Wednesday, 04 February 2015 04:01 PM

    Thanks and no thanks Sir . Is your address still Angoda

    akoon Tuesday, 10 February 2015 10:16 AM

    This is the ideal person to talk about the law and justice. How can a C.J. can apologize the public about the incorrect decisions he made. If there is a law the judgement should be based on that but not according to the C.J.s personal point of view. Apologize again for bringing the judicial system to disrepute.

    Aba Jayasekera Sunday, 08 February 2015 03:56 PM

    We look to the Law for justice. But if the Law does not bring about Justice as in the cases cited by SNS we have to ignore the Law and see how best to bring about Justice

    frank hilary Thursday, 05 February 2015 10:57 AM

    Sarath is an absolute bluff.

    PGLP Wednesday, 04 February 2015 04:34 PM

    He seems to be confused.

    Jim K Wednesday, 04 February 2015 01:11 PM

    Why, you have forgotten the past.dont talk like a Idiot

    Prem Nath Wednesday, 04 February 2015 01:21 PM

    Man on a POGO stick.


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