Whether anyone likes or dislikes Mohan Pieris is irrelevant. If due process was alleged to be denied to CJ 43 Shirani Bandaranaike, was due process applied to CJ 44 Mohan Pieris.
This is the question and the response must be based on principled facts. If entities like UNHRC and BASL took up the case of CJ Shirani Bandaranaike, why did they not do the same for Mohan Pieris?
CJ Mohan Pieris was unceremoniously removed as 44th Chief Justice of Sri Lanka on January, 28, 2015 by the Ranil-Sirisena led yahapalana Government. His position as CJ 44 was virtually deleted and he was replaced with CJ Sri Pavan who was appointed as CJ 44.
If Shirani Bandaranaike was CJ 43 while CJ Mohan Pieris was sworn in as CJ 44 (January 2013-January 2015), how can Sri Pavan be made CJ44 thus erasing the judicial decisions served by Mohan Pieris as Chief Justice?
The BASL needs to respond and the UNHRC needs to answer why they are adopting biased attitudes to human rights of one and ignoring the human rights of another!
CJ Shirani Bandaranaike
CJ 43 appointed on May, 18, 2011.
Impeachment motion in November 2012.
CJ 43 impeached on January, 11, 2013
CJ Mohan Pieris.
CJ 44 appointed on January 15, 2013
(Government change on January, 9, 2015) – group of lawyers protest at Hulftsdorp demanding Mohan Pieris to step down as CJ and gave him 48 hours to do so.
January, 17, 2015– BASL called for the resignation of Chief Justice Mohan Pieris.
Mohan Pieris was not allowed into his chambers – that ended his position as Chief Justice.
January, 22, 2015– CID grills CJ Mohan Peiris over a complaint filed by Mangala Samaraweera. The first time a sitting CJ is questioned by the police.
January, 28, 2015 President Sirisena’s Secretary informs CJ 44 by letter quoting ab initio claiming Mohan Pieris’s position as CJ was considered null and void ‘as it was never valid from the beginning.
January, 28, 2015– BASL organises protest against CJ Mohan Peiris.
CJ 43 Shirani Bandaranaike gets reinstated in a media frenzy but only for a day and she is made to resign the same day (did she become CJ45 with reinstatement – who can answer?)
January, 30, 2015 Justice K. Sripavan is appointed Chief Justice 44 and not CJ45 (as Mohan Pieris was CJ44).
January, 31, 2015 – CJ Mohan Peiris issues statement “I have not retired, resigned or vacated my office of Chief Justice, but, due to exertions by external forces reinforced by an extra judicial chain of events, find myself displaced from office by an unconstitutional process having functioned continuously in my appointment for over two years”.
No Constitutional provisions or Parliamentary Standing Orders were applied for the removal of CJ Mohan Pieris.
Can a President remove a CJ via a letter?
Can lawyers stop a CJ entering his chambers and remove him/her as CJ?
Removal of a Chief Justice requires to apply provision of the Constitution and follow Parliamentary Standing Orders.
1. Articles 107 (2) and 107 (3) of the Constitution sets the procedure to be adopted to remove a Chief Justice, President of the Court of Appeal or any other Judge of the Supreme Court and Court of Appeal on ‘grounds of proved misbehaviour or incapacity”?
2. Resolution presented to Speaker or placed on Order Paper of Parliament signed by 1/3 of total members in Parliament and appointing of Select Committee of not less than seven members to investigate and report to Parliament regarding the allegations.
3. Select Committee given one month to deliberate.
4. Select Committee requires to hand over to the CJ a copy of their deliberations and CJ must supply a written statement in defense.
5. Opportunity for CJ to appear before Select Committee to give version.
6. Decision of Select Committee presented to President by the Speaker on behalf of Parliament.
Were these six steps followed for the removal of CJ Shirani Bandaranaike – Yes
117 MPs handed over a petition on November, 1, 2012 (Standing Orders of Parliament and Constitution was upheld)
Eleven-Member Select Committee appointed on November, 14, 2012.
Deliberation of Select Committee handed on December, 8, 2012 (before one month)
Parliament debated January 10 and 11, 2013 – Resolution passed by 155 votes in favour and 49 against
CJ 43 Shirani Bandaranaike was impeached on January, 11, 2013.
Were these six steps followed for the removal of CJ Mohan Pieris – No.
The question is why not and how legally valid is the removal of CJ Mohan Pieris.
Why did the BASL defend CJ Shirani Bandaranaike and not CJ Mohan Pieris?
Shouldn’t the BASL be upholding principles/facts and the law and not their dislike for Mohan Pieris?
Evidently, the bias was the same internationally.
While the human rights of CJ Shirani Bandaranaike were important to the UNHRC, the human rights of CJ Mohan Pieris was not.
January, 18, 2013 – UNHRC head Navi Pillay “further eroded the rule of law in the country and could also set back efforts for accountability and reconciliation”
November, 15, 2012 Commonwealth Secretary General Kamalesh Sharma issued three separate statements denouncing the impeachment “The dismissal of the Chief Justice will be widely seen as running counter to the independence of the judiciary, which is a core Commonwealth value.”
January, 18, 2013 European Union– High Representative of the Union for Foreign Affairs and Security Policy Catherine Ashton “the independence of the judicial branch cannot be made subject to actions by any other branch of Government”
January, 11, 2013 Canada– Foreign Minister John Baird “highly politicised, lacking basic transparency and respect for the guarantees of due process and fair trial”
January, 11, 2013 United Kingdom– The Foreign and Commonwealth Office “respect democratic principles”
November, 2, 2012 The United States Department of State“ guarantee due process, and to ensure that all investigations are conducted transparently and in accordance with the rule of law”.
January, 15, 2013 State Department spokesperson Victoria Nuland expressed concern about the impeachment’s impact on the democratic process, saying “we were concerned about the perception of reprisals against somebody for independent thinking and action”
December, 6, 2012 International Commission of Jurists (ICJ) stated that the impeachment process ignored “international standards and practice”.
On January, 15, 2013 ICJ issued a statement which condemned Mohan Peiris’ appointment as Chief Justice, describing it as a “further assault on the independence of the judiciary” and called for Bandaranayake’s re-instatement.
On January, 23, 2013 – 44 senior Judges and Jurists from around the globe wrote an open letter to President Rajapaksa which condemned Bandaranayake’s removal, urged her re-instatement, saying that the impeachment was “in contravention of the Constitution, international human rights law and standards, including the right to a fair hearing, and the rule of law”.
Leaving aside the intrusive and interfering nature of demands upon a sovereign Government, the more important question is why these same entities did not issue similar statements for the unceremonious removal of CJ Mohan Pieris that sent lawyers protesting and not allowing the CJ to sit in his chambers and the President issuing a letter removing the CJ without adopting any due process whatsoever.
What is the justification BASL and UNHRC et al have for this?
The same question is posed to Sri Lanka’s media, “professionals”, civil society and other self-claimed ‘human rights activists’, political commentators who kept mum about the unceremonial removal of CJ Mohan Pieris but went to town over removal of CJ Shirani Bandaranaike. All this only highlights and showcases all their bias.
The unanswered questions
If the ‘human rights’ of Shirani Bandaranaike was denied – what about the human rights of Mohan Pieris?
If local and international media/individuals/organisations clamored to denounce the removal of CJ Shirani Bandaranaike – why did they not do the same for CJ Mohan Pieris
What is the legal position of CJ Mohan Pieris’s January, 31, 2015 statement that he has not resigned, retired or vacated his position as Chief Justice” and the appointment of CJ Sri Pavan as CJ 44 and his judgements thereafter?
If due process was followed to impeach Shirani Bandaranaike why was it not followed to remove Mohan Pieris?
Can a President remove a CJ via a letter?
If ‘void ab initio’ is applied for the removal of CJ Mohan Pieris what about the legal validity of every judgement made by CJ 44 Mohan Pieris from January, 15, 2013 to January, 28, 2015) – BASL needs to respond.
If Shirani Bandaranaike was reinstated as CJ (even if it was for a day as she resigned) – did she become CJ45?
How can there be 2 CJ’s on historical records?
CJ 43 is Shirani Bandaranayake
CJ 44 – Mohan Peiris and Sripavan (we have 2 CJs) – this cannot be!
CJ 45 – Priyasath Dep
CJ 46 – Nalin Perera
CJ 47 – Jayantha Jayasuriya (sitting)
We may not know the law like lawyers which is why the BASL requires to respond with legal arguments as to the legal validity behind the removal of Mohan Pieris, the legal position of CJ 44 and appointments thereafter given the controversies that have ensued and the legal validity of judgements by Mohan Pieris if we are to remove his role as Chief Justice from history books and the obvious bias of the BASL in their treatment of two Chief Justices while the UNHRC and international bodies must explain why the human rights of one is not as important as the human rights of another. What hypocrisy!