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“President Sirisena is being wrongly advised”

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Former Chief Justice Sarath N Silva says

One of the former Chief Justices Sarath N Silva became a notable icon when he appeared in Dhamma discussions telecast over television channels. This was after his long service in the judiciary.  However, he was also seen on political stages and made certain comments regarding judgments given by him which had relevance to politicians.

On January 08, then President Mahinda Rajapaksa was defeated by present President Maithripala Sirisena. The result was not only the country having a new President, but also a new government, led by Ranil Wickremesinghe.  Accordingly, the heads of government institutes were replaced with new faces. The norm is for the functioning of the Executive, Judiciary and the Legislature independently, but the removal of Chief Justice Mohan Peiris and “re-commencing duty in office” by Chief Justice Shirani Bandaranayake became the talk of the town.

Here, the former Chief Justice expresses his opinion on this and many other issues. He said that the present President Sirisena is a law-abiding person, but “he is being wrongly advised’.  He also added that the previous government had some issues and he doesn’t want to see this ‘Maithripala Government also making the same mistakes.

Here are some excerpts of the interview
Q:- How is your take on the recent happenings of the Judiciary, especially the appointments and removal of Chief Justices?
What we see today is a situation which has never happened in history. There was a firm tradition regarding the office of the chief justice. As I got to know, President Maithripala Sirisena had written to Chief Justice Mohan Peiris and said that “his appointment is null and void.” He was appointed to the post by then President Mahinda Rajapaksa on January 13, 2013. He was duly appointed and was functioning for the past two years. He was paid by the government and provided other privileges. He had given a number of judgments including the one to conduct the 2015 Presidential Election two years before its due time. He was the Chairman of the Judicial Services Council.

President Sirisena has also written to Chief Justice Shirani Bandaranayake and said that her removal is also null and void. The procedure which should be followed according to the Constitution of 1978 was not followed. The Constitution is the supreme law of the land. Article No. 107 of The Constitution, under the title “Independence of the Judiciary,” referrers to the appointment of the chief justice and judges to the superior courts. It says the Chief Justice and others superior judges are appointed ‘by the President by warrant under his hand.’  Mohan Peiris was appointed by the President, publicized and had a ceremonial sitting.  And it was constitutional.

Right after two years, how does one say it is ‘null and void’?
Q: - ‘Null and void’ seems a legal term. How can you define this? How do you see this?
That is my argument. Only a judicial court can declare anything null and void. The President has only Executive Power. I can simply say that goes with the jurisdiction of a court. The President has the power to appoint and that’s all. Then it comes under the judicial power. You do that to protect or vindicate the rights of someone.

Q: - They say the removal of Justice Shirani Bandaranayake by then President Mahinda Rajapaksa is also null and void. Can you comment?
We have to look at this via the article 107.2 and 107.3 of the Constitution and further elaborate the standing orders. An impeachment motion was brought against her and the charges were misconduct and (or) incapacity in the office. It should be signed by more than 75 MPs, and more than 100 had signed. The PSC was set up. Justice Bandaranayake participated in PSC hearings at the same time she went to   the Court of Appeal (CA) and sought a writ of certiorari to squash the proceedings.
However, PSC proceedings found her guilty in a few cases. Meanwhile, CA issued a certiorari. But the PSC went ahead and presented the findings to parliament and the resolution was passed. The Speaker informed President Rajapaksa and the removal took place. When the voting took place, then Leader of the

Opposition Ranil Wickremesinghe raised the objection. As overruled by the Speaker, the vote took place and she was found guilty.
Meanwhile, the Attorney General had sought a judgment on the writ which Justice Bandaranayake got from the CA. The decision was that CA’s earlier judgment was wrong and it said the CA had no power to issue a writ on Parliament.

Q:- But the then Opposition Leader had raised the point that the procedure was not correct and the proper procedure to remove her was not followed.
 But, I do not think that it was enough to say that there was no resolution in Parliament. An impeachment motion was brought in Parliament, an inquiry was held, The PSC had findings and presented them in Parliament. A vote took place and the majority voted in favor of the impeachment. And, present President as a senior minister of the Rajapaksa government, also voted to send her home. How can he then use the Opposition Leader’s claim and try to show that was legal? According to me, that is questionable.

Q: - Have you come across such incidents anywhere in the world?
This could be the first time which I have come across such an incident which a present president says ‘null and void’  to a  thing which was approved by previous president. I think, nowhere in the world has this happened. There is huge uncertainty in the government. I wonder how a government functions in such a situation. For me, it is unthinkable.

Q: - Though it was not taken up for discussion in the country, eyebrows were raised when then the Opposition Leader took oaths as the Prime Minister just after the new President was sworn in. How do you see this?
Well. The procedure followed is wrong. A major crisis was averted as the former Prime Minister and previous Freedom Alliance Government maintained silence and vacated the offices. The right way is first to remove the incumbent prime minister. It is then only that the new Cabinet of Ministers can be appointed. Fortunately, the incumbent Prime Minister very gracefully bowed down.

Q: - Is this President Maithripala Sirisena’s ways of using executive powers?
  You can’t avoid this situation. I have known the present President for a long time. He is a law binding person and I think that he will never try to play on executive powers. He has promised good governance. Good governance means ruling the country according to the law. In the US, this process is known as ‘the due process’ and according to the British System it is known as the ‘rule of the law’. The Supreme Court has ruled that the rule of the law forms the basis of our Constitution. Each and everything must be done according to the law and it applies to all; President, Prime Minister and all minor employees of a Cooperative shop. 

Q: - Can you elaborate the point you are trying to highlight?
It is like this. |A person in power can’t do anything. He is only permitted to do what’s within the frame of law. Any public authority, under the rule of law, will see his/her activities authorized by the law. A police officer can’t do anything just because he wears a uniform. For the general public, like you and me, we can do anything as long as it is not prohibited by law. But, it differs for public authorities. This is a very basic concept which the previous government failed to realize.

Everything that is not authorized for public officials is prohibited. But for normal citizens everything that is not prohibited is permitted. This is a very basic concept which many don’t understand.

Q: - Did you during your judicial career experience the occasions when you felt that this fact wasn’t realized by someone?
Yes. A very good example is my judgment on road blocks and checkpoints, set up in the country. This was what I highlighted. But, I knew that the then Defence Secretary Gotabhaya Rajapaksa didn’t take or didn’t want to accept it. It was very simple. A normal citizen has a right to go anywhere, but how can a public official stop him and ask where you are going?

Q: - Let’s go back to the CJ’s issue. Now where does Justice Mohan Peiris stand? Who is he?
According to the present status, he is no one. That is something else whether I accept it or not. I also don’t mind a pension and due privileges being given to Justice Bandaranayake. It should have been done administratively. But, the question is whether they have followed the right procedure? She had a ceremonial sitting. How can you have a ceremonial sitting within 18 hours? It should be announced by the Registrar and should be informed all President’s Counsel. I was not informed.  A judge has to give six months notice before she/he vacates the office. They are considered as public officials.

The very simple answer to your question is he can’t go before courts and has to suffer in silence. In addition to that, a lot of issues have been created with this and I think, President Maithripala has to rectify them.

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Last modified on Sunday, 01 February 2015 10:20

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