Shirani Bandaranayake

The Honourable Justice Shirani Bandaranayake
43rd Chief Justice of Sri Lanka
In office 28 January 2015 – 29 January 2015
Appointed by	Maithripala Sirisena
Preceded by	Mohan Peiris
Succeeded by	K. Sripavan
In office 18 May 2011 – 13 January 2013
Appointed by	Mahinda Rajapaksa
Preceded by	Asoka de Silva
Succeeded by	Mohan Peiris
Puisne Justice of the Supreme Court of Sri Lanka
In office 30 October 1996 – 18 May 2011
Appointed by	Chandrika Kumaratunga
Personal details
Born	Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake April 1958 (age 57) Kurunegala, North Western Province, Dominion of Ceylon (Now Sri Lanka)
Spouse(s)	Pradeep Kariyawasam
Children	Shaveen Bandaranayake Kariyawasam
Alma mater	Anuradhapura Central College University of Colombo SOAS, University of London
Profession	Academic, Lawyer
Religion	Buddhist

Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake (known as Shirani Bandaranayake; born April 1958) served as the 43rd^[1] Chief Justice of Sri Lanka.^[2] Although a qualified lawyer, she has never practiced law. After university Bandaranayake entered academia, holding a number of senior positions at the University of Colombo, including Associate Professor of Law and the Dean of the Faculty of Law at the University of Colombo. She was first appointed to the Supreme Court of Sri Lanka in 1996, becoming Sri Lanka's first female Supreme Court Judge.^[3] Bandaranayake was appointed chief justice in May 2011 following the mandatory retirement of Asoka de Silva. Bandaranayake was controversially impeached by Parliament and then removed from office by President Mahinda Rajapaksa in January 2013.^[4][5] and on 28 January 2015 the government of Sri Lanka, had removed all obstacles for Bandaranayake to hold her position as the 43rd Chief Justice by the President Maithripala Sirisena, on the ground that her 2013 impeachment was unlawful and as such the appointment of Mohan Peiris, her successor, was void Ab initio. This paved the way for Bandaranayake to resume duties on 28 January 2015.^[6] She retired from the position just after one day of her reappointment on 29 January 2015 claiming support for a free and fair Judiciary in Sri Lanka.

Early life, education and family

Bandaranayake was born in April 1958 in Kurunegala.^[7][8] She is the daughter of Flora and Wilson Bandaranayake, both of whom were teachers.^[7][9] Bandaranayake has a sister, Renuka, who is an engineering graduate from Moratuwa university now living in Perth, Australia.^[7] When Bandaranayake was young her father changed jobs on a number of occasions and as result she studied at a number of schools: Ginigathhena Maha Vidyalaya (1962–65), Hettimulla Bandaranayake Vidyalaya (1965), Tholangamuwa Vidyalaya (1965–70), Tholangamuwa Central College (1970–72).^[9] She then studied at Anuradhapura Central College where she passed her GCE Advanced Levels in 1976.^[7] She then entered the University of Colombo's Faculty of Law, graduating in December 1980 with an upper second Bachelor of Laws honours degree.^[7][8] She obtained a Master of Philosophy degree from the University of Colombo in October 1983.^[7][10] In the same year she was awarded the Commonwealth Open Scholarship and the Chevening Scholarship in 1989. She qualified as an attorney at law in September 1983.^[7][10] In March 1986, she obtained a PhD from SOAS, University of London, becoming the first woman in Sri Lanka to obtain this degree in Law from a foreign university.^[7][8] She was also awarded the Fulbright-Hays Fellowship in 1996 and the British Council Assert Award in 1993 and 1994.^[10]

Bandaranayake is married to a former corporate executive Pradeep Kariyawasam.^[7][10] Shaveen is their only child.^[7][10]

Chief Justice Shirani Bandaranayake, her husband Pradeep Kariyawasam and son.

Academic career

Bandaranayake became a visiting lecturer at the University of Colombo's Faculty of Law in 1981.^[7][10] She held several positions in the department before being appointed Head of the Department of Law in 1987 and also served on the Judicial Service Commission of Sri Lanka.^[7][10] She served as acting dean of the faculty several times before being appointed dean in 1992.^[7][10] In 1993 she became Associate Professor of Law "on merit".^[7][10] She acted as vice-chancellor on a number of occasions.^[7][10]

Legal career

After her admission to the bar, Bandaranayake worked as an attorney-at-law of the Supreme Court of Sri Lanka.^[8] She was controversially appointed to the Supreme Court on 30 October 1996 by President Chandrika Kumaratunga on the recommendation of Mr G. L. Peiris, then Minister of Justice and Constitutional Affairs.^[8][10] She was the first female justice of the Supreme Court.^[8] Bandaranayake had never served as a judge and she had never practiced law. Her appointment to the Supreme Court led to protests from lawyers and judges. She soon became the most senior Supreme Court Judge.

Bandaranayake served as acting chief justice on 11 occasions. In 2011 President Mahinda Rajapaksa appointed Bandaranayake as Chief Justice, succeeding Asoka de Silva who retired on 17 May 2011. She took her oaths before President Rajapaksa on 18 May 2011.^[8][10]

Impeachment

An impeachment motion against Bandaranayake signed by 117 UPFA MPs was handed to Speaker Chamal Rajapaksa on 1 November 2012.^[11][12] Speaker Chamal Rajapaksa revealed the 14 charges against Bandaranayake on 6 November 2012 which included failing to disclose financial interests, abuse of power and disregarding the constitution.^[13] Bandaranayake has denied the charges and refused to resign from her position.^[14]

An eleven-member parliamentary select committee (PSC) consisting of seven ruling party MPs including Mr.Rajitha Senaratne, Mr. Anura Priyadarshana Yapa, Mr.Susil Premjayante and four opposition MPs was appointed to investigate in to the impeachment charges.^[15] Impeachment hearings were held on 23 November 2012, 4 December 2012 and 6 December 2012 when Bandaranayake walked out of the hearing.^[16][17][18] The opposition MPs withdrew from the PSC on 7 December 2012.^[19][20] The PSC's report was presented to Parliament on 8 December 2012.^[21] The PSC found that three of five charges against Bandaranayake had been proven and this was enough to remove her from office.^[22][23] She was found guilty of impropriety in a property transaction (1st charge), having undeclared bank accounts (4th charge) and conflict of interest in a legal case involving her husband (5th charge).^[24][25] She was found guilty on the 2nd and 3rd charges and the remaining nine charges were disregarded by the PSC as they were enough to remove her from office.^[26] Opposition MPs rejected the PSC report, saying "This was not an inquiry it was an inquisition".^[27] The PSC's report will now be sent to President Rajapaksa and then Parliament will vote on the impeachment motion in the new year.^[28]

The Supreme Court ruled on 1 January 2013 that the PSC had no power to investigate allegations against the chief justice and the impeachment was therefore unconstitutional while she was still in the office because she was dismissed from her position on 13th January 2013.^[29][30] Bandaranayake appealed against the PSC and on 7 January 2013 the Court of Appeal quashed the PSC's findings.^[31][32]

The impeachment motion against Bandaranayake was debated by Parliament on 10 and 11 January 2013.^[33] The motion was passed by Parliament with 155 MPs voting for and 49 MPs voting against it.^[34] Bandaranayake was removed from office on 13 January 2013 after President Mahinda Rajapaksa ratified the impeachment motion passed by Parliament.^[35][36] Bandaranayake was replaced as chief justice by former Attorney General Mohan Peiris.^[37] and later on 28 January 2015

She was reinstated into her office of the Chief Justice by President Maithripala Sirisena after issuing marching orders on her successor, provided that her impeachment was illegal.

Legal grounds for reinstatement

What transpired on 28 January 2015 was due to a procedural impropriety on the part of the Parliament, Which Subsequently became a legal and impediment to validity of the Executive order by President Mahinda Rajapaksa. This was rectified by his successor, President Maithripala Sirisena.

on 6 November 2013, 116 members of Parliament tabled a motion that sought to set up a Parliamentary Select Committee to investigate on 14 charges that had been brought against her. Accordingly, the PSC was set up and had several sittings. They concluded their inquiry, finding her guilty of 3 of the 14 charges^[38] and reported to the Speaker recommending the removal of Dr. Bandaranayake from the Office of the Chief Justice. The Parliament debated the findings on the 9 and 10 January 2013 and decided to vote for the impeachment on 11 January 2013.

Due to an error on the part of the government, instead of an address of parliament to the president empowering him to remove the Chief Justice, Parliament on 11 January 2013, voted on a motion of impeachment, that sought to set up a Parliamentary Select Committee to investigate 14 charges that had been brought against her, the problem was, that motion had already been voted upon on 6 November 2012.

It was this same motion that had been included on the Order Paper two months earlier, when the UPFA controlled Parliament was preparing to impeachment her.

On the 11 January M. A. Sumanthiran MP, raised the matter and the Speaker adjourned the House for 10 mins to seek clarification.^[39] In blatant disregard to Parliamentary Procedure he noted that the original motion seeking to set up a PSC 'would suffice' and proceeded with the vote.

Mahinda Rajapaksa ratified the impeachment motion passed by Parliament.

However, in accordance with Article 107[2] of the constitution of Sri Lanka, if a judge is found guilty, Parliament must present an address to the President, requesting him to remove the judge.^[40] On the contrary what Parliament sent President Rajapakse was the motion of impeachment calling for the setting up of a second PSC and it did not empower President Rajapaksa to remove Dr. Bandaranayake according to the terms of the constitution. In essence, President Mahinda Rajapaksa acted without legal authority to remove Bandaranayake, eroding the sacking of its legal validity.

Effectively no vacancy of the office of Chief Justice was created.

Based on this technical problem, on 27 January 2015 President Sirisena informed Mohan Peiris that the 2013 impeachment of Dr. Bandaranayake was unlawful and as such the appointment of Mohan Peiris was void Ab initio. This removed all obstacles for Dr. Bandaranayake to hold her position as the 43rd Chief Justice and paved the way for her to resume duties on 28 January 2015.^[6] She resigned from the post on the following day and was succeeded by K. Sripavan the most senior judge of the Supreme Court.

References

1. Judicial Service Association of Sri Lanka Retrieved 18 June 2011.
2. "Overview". Judicial Service Commission Secretariat. Retrieved 19 October 2013.
3. "Sri Lanka's first female Chief Justice to take oaths on Tuesday". Colombo Page. 15 May 2011. Retrieved 18 May 2011.
4. Magnier, Mark (13 January 2013). "Sri Lankan president dismisses nation's first female chief justice". Los Angeles Times.
5. "Sri Lankan president ratifies chief justice’s dismissal in impeachment standoff with judiciary". The Washington Post/Associated Press. 13 January 2013.
6. http://colombogazette.com/2015/01/28/shirani-is-back-as-cj-mohan-out/
7. "Dr. Shirani Bandaranayake, first woman Chief Justice: A shining example". Sunday Observer (Sri Lanka). 29 May 2011.
8. "Her Lordship! First Woman Chief Justice sworn in". Daily FT. 19 May 2011.
9. Fernando, Upul Joseph (10 October 2012). "Creating a heroine by default". Ceylon Today.
10. "Dr Shirani Bandaranayake new Chief Justice". Daily News (Sri Lanka). 19 May 2011.
11. "Shirani Bandaranayake: Sri Lanka MPs' impeachment bid". BBC News. 2 November 2012.
12. "Impeachment motion against CJ handed over to Speaker". The Daily Mirror (Sri Lanka). 1 November 2012.
13. Haviland, Charles (6 November 2012). "Shirani Bandaranayake: Charges set out as impeachment begins". BBC News.
14. Haviland, Charles (9 November 2012). "Shirani Bandaranayake denies Sri Lanka impropriety charges". BBC News.
15. "CJ decides to stay on and fight". The Sunday Times (Sri Lanka). 11 November 2012.
16. "Further hearings on CJ's impeachment motion on Dec 4". The Sunday Times (Sri Lanka). 23 November 2012.
17. Kelum Bandara; Yohan Perera (5 December 2012). "PSC rejects observers". The Daily Mirror (Sri Lanka).
18. "CJ walks out of PSC, unlikely to return". The Sunday Times (Sri Lanka). 6 December 2012.
19. "Opposition members withdraw from PSC". The Daily Mirror (Sri Lanka). 7 December 2012.
20. "Opposition withdraws from PSC". The Nation (Sri Lanka). 7 December 2012.
21. "PSC report presented". The Daily Mirror (Sri Lanka). 8 December 2012.
22. "Sri Lanka chief judge Bandaranayake found guilty by MPs". BBC News. 8 December 2012.
23. "Three out of five charges against CJ proven". The Daily Mirror (Sri Lanka). 8 December 2012.
24. "Sri Lankan chief justice found guilty on 3 counts". Associated Press/New Jersey Herald. 8 December 2012.
25. Weerakoon, Gagani (8 December 2012). "CJ found guilty of three charges -PSC". Ceylon Today.
26. "Sri Lanka Chief Justice found guilty on 3 charges". Colombo Page. 8 December 2012.
27. Farisz, Hafeel (8 December 2012). "Opp. members of the PSC reject report". The Daily Mirror (Sri Lanka).
28. "Sri Lankan parliament recommends dismissal of chief justice". The Hindu. 8 December 2012.
29. "Court rejects Sri Lanka judge Shirani Bandaranayake inquiry". BBC News. 3 January 2013.
30. Farisz, Hafeel (3 January 2013). "PSC void, SC determines". The Daily Mirror (Sri Lanka).
31. "Court of Appeal quashes PSC report". Uthayan. 8 January 2013.
32. Weeraratne, Chitra (7 January 2013). "Appeal Court quashes PSC findings on CJ". The Island (Sri Lanka).
33. Radhakrishnan, R. K. (10 January 2013). "Two-day debate on impeachment begins". The Hindu.
34. "Sri Lanka’s Parliament votes to impeach chief judge, deepening standoff with judiciary". The Washington Post/Associated Press. 11 January 2013.
35. "Sri Lanka president sacks chief justice Bandaranayake". BBC News. 13 January 2013.
36. "Sri Lanka's first woman Chief Justice sacked". The Hindu/Press Trust of India. 13 January 2013.
37. Shihar Aneez; Ranga Sirilal (15 January 2013). "Sri Lanka president picks ally as chief justice, lawyers protest". Reuters.
38. http://www.nation.lk/edition/latest-top-stories/item/13410-chief-justice-found-guilty.html
39. http://www.thehindu.com/todays-paper/tp-international/twoday-debate-on-impeachment-begins/article4296696.ece
40. http://www.supremecourt.lk/images/stories/supreme_court/constitution17th.pdf

External links

• Supreme Court of Sri Lanka
• ‘I have been justly persecuted, and vilified' - ex CJ