Removing Mohan, reinstating Shirani null and void: Sarath N Silva
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.