A Tale of Two Chief Justices: From Process

to Principles Part II

By Luwie Ganeshathasan and Sanjayan

Rajasingham. Read Part I here.
A Broader Analysis- 03/03/2015
The legality of Mr. Sirisenas decision to reinstate Dr. Shirani Bandaranayake
through executive order was questionable, though not strictly illegal.[i] This
is largely because it stemmed from a unique situation. This involved the
initial removal of Dr. Bandaranayake tainted by doubtful legality and an
unfair process followed by an invalid appointment, and no obvious route
to review that appointment.[ii] A simple legal or not based on the law
proper[iii] would not do justice to these facts.
Nonetheless, as we noted before, our previous analysis was narrowly
limited to express provisions of the constitution. A holistic analysis must
move beyond mere legality and examine broader principles, political
realities, optics, and the effect of a decision on our democratic fabric. These

were relevant in relation to Dr. Bandaranayakes ouster, and they are

relevant here.
Principles, Realities and Optics
The rule of law and the separation of powers
The rule of law and the separation of powers are fundamental to our
Constitution.[iv] The former is to do with the consistency, predictability and
transparency of governmental decisions. It abhors arbitrariness and
overreach by the organs of government that is by the Executive, the
Legislature or the Judiciary. The latter doctrine allocates power between
these organs to develop a system of checks and balances that prevents any
one organ from overpowering the others. The notions that government
should function within a clearly defined framework, and that each organ has
a role in ensuring that other organs act within this framework, are essential
to democratic governance. The appointment and removal of the head of the
Judiciary is a significant matter which must not be divorced from these
principles.
Theoretically, any one of the three organs could have reviewed and
reversed Mr. Peiriss alleged appointment. In the light of the above we must
ask, if the rule of law and separation of powers are meant to govern our
State, which option whether a legislative resolution, judicial review or
executive correction would have best promoted these fundamental
principles?
Political Realities
In a political vacuum, one could argue that judicial review or a
Parliamentary resolution were better options than executive correction as

far as the rule of law and the separation of powers are concerned. In theory,
an appeal to the judiciary allows for an impartial, transparent and public
process where the non-political arm of government would decide the
question promoting the rule of law and the separation of powers. A
Parliamentary resolution, even if superfluous,[v] would give the appearance
of consultative decision-making by two arms of government in the process
of removing a member of the third arm. This would be more in line with the
separation of powers. However, if broader considerations are relevant, we
must also consider political realities. This includes the reality that the
integrity of some of the options available to Mr. Sirisena may have been, in
some sense, compromised.
In particular, judicial review had enormous potential for bias. The Supreme
Court, rather than the functionally separate Court of Appeal, would have
heard any challenge against Dr. Bandaranayakes removal. Therefore, as in
a previous instance,[vi] it would be Mr. Peiris who either decided which
judges were to hear the challenge, or heard the challenge himself.[vii] In
other words, he would be intimately involved in deciding a matter that
would ultimately determine whether he was the Chief Justice or not. Any
evaluation of Mr. Sirisenas decision must keep factors such as these in
mind. A blind appeal to form, when the forms available may be broken, is
not meaningful analysis.
Optics and Image
On the other hand, we cannot ignore how the reinstatement was carried
out. It went far beyond the mere issuance of letters by Mr. Sirisena on the
28th of January. Some members of the Bar protested against Mr. Peiris
entering the superior courts complex on the 12th of January. The
government attempted to secure Mr. Peiriss resignation in exchange for a
diplomatic posting an attempt which implied that it considered him the

legal Chief Justice. It was only when this failed that the defect in his
appointment was raised making the defect seem like mere pretense,
like political expedience in legal dress. Finally, as protestors roamed
Hulftsdorp, Dr. Bandaranayake was rushed back into office on a day Mr.
Peiris was not in court.
Even if the reinstatement itself was legal, the optics was deeply
problematic. The images beamed around the country spoke of political
expedience and strong-arm tactics. There were no police officers or Special
Task Force present on the day, but there were still faint echoes of the
events surrounding Dr. Bandaranayakes own ouster two years ago. These
impressions will remain in our societys political consciousness long after
the political realities or legal arguments have been forgotten. They are also
what future politicians will exploit,
The Best of the Bad Options?
In the light of the above, we believe that judicial review was the least
favourable of the options, given the reality of bias. A Parliamentary
resolution recognizing that a resolution to remove Dr. Bandaranayake was
never passed, would have been ideal. It could be argued that this was hard
to secure, however. First, it would require most of the 150 or so MPs who
passed the first, flawed resolution, to accept that it was flawed. Second,
because certain MPs had a vested interest in ensuring Mr. Peiris remained
at the helm so as to stymie corruption investigations. In the absence of firm
evidence, we are unconvinced by this, and would argue that a
Parliamentary resolution was a viable option. However, even assuming it
was not and that Executive correction was the only meaningful avenue we
are of the view that such correction ought to have been carried out
differently.
For instance a prior public statement by Mr. Sirisena explaining his decision

and clarifying his reasons for choosing executive correction over the other
options, could have offset much of the negative imaging and publicity
around the reinstatement. The manner in which the removal was finally
effected caused systemic harm to our democracy. The images surrounding
the reinstatement spoke of arbitrariness because it came without prior
warning as soon as negotiations failed. It suggested unchecked executive
authority which could, if needed, remove the Chief Justice. Moreover, the
pictures of crowds and protestors, coupled with the ouster of Mr. Peiris,
suggested that it was strong-arm tactics, rather than the application of the
law, which led to his removal.
Images and optics are important in a democracy. They influence how a
society sees power and authority. They normalize conduct and create
precedent. The reinstatement seems to be accepted by most.
However, if it normalizes arbitrary action and undermines the notion that
rulers must be accountable, act according to law, and use power
responsibly then it must be viewed critically. If it enfeebles democratic
sensibilities, makes the judiciary appear beholden to the Executive, creates
a negative precedent and communicates to the government that its
wrongful acts will escape censure then our society will be weaker for it.
The Way Forward
How can we move forward from a questionable reinstatement?
The first step is the strengthening of the judiciary and the restoration of its
independence. The Supreme Courts judgments in the 1990s and 2000s
particularly in Fundamental Rights cases demonstrate its zeal in
protecting the rights of citizens and its relative independence. One of the
main reasons for the erosion of this independence was the politicized

process of appointments to the superior courts. Examples of this include

that of Dr. Bandaranayake herself as well as the parachuting in of Mr.
Sarath N. Silva as Chief Justice by President Kumaratunga, overlooking the
senior most judge of the Court and disregarding protests by the Bar
Association and civil society.[viii]
If the government reintroduces the independent commissions that existed
under the 17th Amendment as promised, judicial independence will be on a
firmer footing. However, it should also enact laws to provide for the review
of appointments to the superior courts and the procedure by which such
judges may be removed from office. The provisions in Article 151(4) (b) of
the 2000 draft constitution[ix] and Mr. Wijedasa Rajapaksas Private
Members Bill[x] are a start. They can be strengthened by consultation with
civil society and members of the legal profession.
Second, the notion promoted by many Parliamentarians that Parliament is
supreme must be actively debunked. Sadly, this was even affirmed by
several recent judgments of the Supreme Court, with the result that many
of Parliaments actions are now outside the scope of judicial review. For
instance this mistaken trend would probably have prevented judicial review
of the flawed resolution used to remove Dr. Bandaranayake.
According to the Constitution, which each of our Parliamentarians swore to
uphold and protect,[xi] we the people are sovereign. The Constitution
clearly defines the powers of each organ of government, and nowhere does
it expressly state that any particular organ is supreme most certainly
not Parliament.[xii] Thus, when we vote and elect our representatives, we
do not elect them as supreme and free to do as they please. We elect
them to exercise the powers given to them by the Constitution. Indeed this
suggests that the Constitution, rather than any particular organ of

government, is supreme.
It is our hope that in the months to come, the government will demonstrate
its bona fides by swiftly introducing the reforms mentioned above, along
with broader constitutional reforms and extensive public consultation. On
the other hand, as citizens of Sri Lanka we must remain vigilant. We must
ask whether the reinstatement was merely an unhappy choice between
problematic alternatives, or the first sign of moves to control the judiciary.
We must ensure that the groundswell of support for good governance and
the strengthening of democracy at the January 8th election are sustained.
We must not be too cautious in expressing our disapproval and criticism.
Most importantly, we must not allow politicians to squander this rare
opportunity for meaningful legal and Constitutional reform.
###
[i] Luwie Ganeshathasan and Sanjayan Rajasingham, A Tale of Two Chief
Justices: From Process to Principles Part I
<http://groundviews.org/2015/02/20/a-tale-of-two-chief-justices-fromprocess-to-principles-part-i/> accessed 28 February 2015
[ii] The possibility of a defect in the appointment of a judge was not beyond
the minds of the framers of the Constitution, as evinced by Article 119(2)
which provides that no act or proceeding of the [Supreme] Court shall be,
or shall be deemed to be invalid by reason only of any defect in the
appointment of a Judge. However the framers of the Constitution did not
expressly provide for a mechanism to test the validity of such
appointments.
[iii] This loosely refers to the Constitution, Acts of Parliament and case law.
[iv] Visuvalingam v Livanage [1983] 2 SLR 311; Premachandra v
Jayawickrema [1994] 2 SLR 90

[v] See Luwie Ganeshathasan and Sanjayan Rajasingham, A Tale of Two

Chief Justices: From Process to Principles Part I
<http://groundviews.org/2015/02/20/a-tale-of-two-chief-justices-fromprocess-to-principles-part-i/> accessed 28 February 2015
[vi] See Centre for Policy Alternatives (CPA) v DM Jayaratne, [SC FR
23/2013]. In this case, which was on this very point, counsel for CPA
requested that all judges of the Supreme Court (barring Mr. Peiris) decide
the case, rather than allowing Mr. Peiris to nominate the judges who would
decide the matter. This application was refused and Mr. Peiris, exercising
the powers of the Chief Justice, nominated a bench. See Wasantha
Ramanayake , Full Bench must hear FR case against CJ, say petitioners
lawyers The Sunday Times (10thFebruary 2013)
<http://www.sundaytimes.lk/130210/news/full-bench-must-hear-fr-caseagainst-cj-say-petitioners-lawyers-32574.html> accessed 28 February 2015
[vii] See Article 129 (3) and (4). It provides that the Chief Justice shall be
part of the bench that is to submit an opinion on any matter referred to the
Court by the President unless he decides otherwise. Moreover, unless the
Court decides otherwise, the proceedings of Court in such instances should
be private.
[viii] Editorial A CJ is Appointed The Sunday Times (19 September 1999)
<http://www.sundaytimes.lk/990919/edit.html> accessed 28 February
2015
[ix] The Constitution of the Republic of Sri Lanka: The Judiciary accessed
28 February 2015
[x] Removal of Judges of the Superior Courts Special Provisions Bill tabled

in Parliament by Mr. Wijedasa Rajapakse in 2013

[xi] See Article 63 of the Constitution; Except for the purpose of electing
the Speaker, no Member shall sit or vote in Parliament until he has taken
and subscribed the following oath, or made and subscribed the following
affirmation, before Parliament: I do solemnly declare and affirm that I
swear will uphold and defend the Constitution of the Democratic Socialist
Republic of Sri Lanka.
[xii] In contrast see Article 5 of the 1972 Constitution: The National State
Assembly is the supreme instrument of State power of the Republic. The
National State Assembly exercises (a) the legislative power of the People;
(b) the executive power of the People, including the defence of Sri Lanka,
through the President and the Cabinet of Ministers; and (c) the judicial
power of the People through courts and other institutions created by law
except in the case of matters relating to its powers and privileges, wherein
the judicial power of the People may be exercised directly by the National
State Assembly according to law.
Posted by Thavam