Photo courtesy Asian Tribune

Among the countless blows struck by the Rajapaksa regime against the Rule of Law over the last decade, perhaps the most egregious was the illegal impeachment of Chief Justice Shirani Bandaranayake and her replacement with a lackey of the Brotherhood known as Mohan Peiris. His behaviour in office in the last two years confirmed our worst fears, by not merely reducing the judiciary to an appendage of the executive, but also by never missing a chance to parade shamelessly as the chief consiglieri to the Rajapaksa dons and sons. He was still lurking around in Temple Tress when his boss was finally given the red notice by the people of Sri Lanka, which perhaps exemplifies the way in which he has diminished the office he holds and the institution he heads.

Sri Lankans voted last week not merely to change their government, but also to fundamentally reform the state. The idea and discourse of ‘yaha paalanaya’ took on a life of its own, denoting a deep desire to restore our heritage as South Asia’s oldest democracy, and to reverse the despotic decline represented by the Rajapaksas. As Professor Jayadeva Uyangoda noted in a piece published just before the election,

“In the current political debate, all these elements of governance reform are there, being articulated in a language of protest. This very rich political conversation should continue after January 08. Perhaps, the greatest contribution the present election campaign has thus far made to Sri Lankan politics is the deepening of the democracy conversation, with the active participation of almost all citizens of the country.”

If, as I do, we agree with this assessment, then 8th January was without doubt a ‘constitutional moment’, the full promise of which is yet to be realised. It is the duty of us all as citizens to ensure that the reform process is protected, so that the constitutional moment is actualised. That means that the basic reforms outlined in President Maithripala Sirisena’s programme must be carried out in the manner contemplated, together with others to follow in the short, medium, and long terms. The success of the reform programme could be derailed, or at least delayed and inconvenienced, by a gremlin in the temple of justice.

Moreover, it is now becoming clear that, as Talleyrand said of the Bourbons, the Rajapaksas have learnt nothing and forgotten nothing. Contrition and reflection have not followed the meek departure. They seem determined to attempt a return in the forthcoming general elections, and again no doubt, using the methods they know best, which is to incite fear, hatred, and rank racism among the Sinhalese. This grim eventuality must at all costs be defeated, but the office of the Chief Justice therefore also assumes critical importance in the post-defeat Rajapaksa project as their last high-level hold on the apparatus of the Sri Lankan state.

The new government must be vigilant and decisive in addressing this threat, which means that Mohan Peiris must be removed from office sooner rather than later, and before he has the opportunity to create havoc with the on-going constitutional and political processes. But while there is not the slightest doubt about the substantive justice of removing Peiris from office, the Sirisena-Wickremesinghe administration is morally enjoined by the very nature of its mandate to act in ways that are in accordance with the law, procedurally just, and democratically legitimate. There are three options in this regard.

The first is a voluntary resignation, which so far has not happened, and in the light of the considerations mentioned above, may be unlikely to happen. The second is that the President requests the resignation of the Chief Justice, on the grounds that his very appointment is illegal by virtue of the fact that his predecessor was illegally removed from office. This is however highly problematic from the perspective of the applicable norms and international standards concerning the independence of the judiciary and the security of tenure of judges. However illegitimate Peiris’ position might be, it would be a thoroughly undesirable precedent to set whereby a newly elected President expects the Chief Justice to resign. The third option therefore is impeachment.

As we saw in the case of Chief Justice Bandaranayake, the current procedure that is established by Standing Order 78A for the impeachment of superior court judges seems at first glance to meet general legal standards of legality, rationality, procedural propriety (natural justice), and proportionality, but the major practical problem we have in enforcing that procedure is that our Members of Parliament simply do not seem to possess the moral and intellectual capacity to act in the quasi-judicial role that is required of them by this framework. This was amply demonstrated in relation to Dr Bandaranayake where even the basic elements of the procedure were not followed, and lamentably, she was even subjected to personal abuse by some MPs.

Under the new dispensation, Peiris must be held to account according to a process that meets much higher standards. It must in short be a showcasing of the return of legality to the task of governing Sri Lanka. From this it is clear that, prior to taking any specific action against Peiris, Parliament must first amend Standing Order 78A to ensure that the procedure conforms to general principles of justice and applicable international and Commonwealth standards. In 2003, a team of lawyers, academics, and researchers led by the late Desmond Fernando, P.C., considered how this might be done, and drafted an alternative form for Standing Order 78A, which contemplated two alternative procedures to be followed in impeaching a senior judge. While keeping the existing procedure intact, the alternative proposal envisaged an innovative way of ensuring better standards, that could be availed of by Parliament at its discretion (or more specifically the Select Committee appointed to investigate allegations against a senior judge). In this framework, once the Select Committee is appointed by Parliament, it can then appoint a Committee of Inquiry consisting of three persons, each of whom hold, or have held, office as a judge in the highest court of any Commonwealth country to inquire into the allegations of misbehaviour or incapacity, and report thereon to the Select Committee. The proposal went onto provide detailed rules about the conduct of the inquiry and how the report should then be dealt with by Parliament in accordance with its constitutional role in removing members of the senior judiciary.

There are two main advantages commending this approach. The first is obvious and it is that partisan and often ill-equipped parliamentarians are put at one remove from conducting a rigorous but fair process of enquiry themselves. For example, were Peiris to be subjected to the existing Select Committee process, extreme partisanship and much rancour can be expected to follow, with MPs dividing along party loyalties rather than discharging their constitutional functions dispassionately. The second advantage is that, once disinterested, experienced, and senior Commonwealth judges have concluded their judicial (rather than legislative) enquiry, it nonetheless maintains Parliament’s ultimate constitutional authority in deciding whether or not to sanction an Address of Parliament to the President recommending removal.

For many, what is recommended here could seem like procedural quibbling when less complicated methods would do, at a time when time itself is short. Mohan Peiris must be removed forthwith from the office of Chief Justice, of that there is no doubt, but if ham-handed methods are adopted, then it would represent nothing short of a betrayal of the hope and expectation of the democratic renewal that was generated in last week’s election. Democracy is messy and difficult, but as Churchill said, it is the worst form of government except for all the others. That is the lesson we must learn from Rajapaksa authoritarianism, the excesses of which we must never repeat.

  • georgethebushpig

    Isn’t it an arrestable offence to knowingly engage in an illegal activity? Or at least can’t he be stripped off his legal credentials?

  • Dev

    Not only the removal of the current tainted CJ but future appointments also need to be done properly. The former CJ Shirani Bandaranayake was too a controversial (political) appointment.
    The question remains, should she be re-appointmented or someone else who is not tarnished appointed newly?

    • MHA

      former CJ Bandarnayake acted in a manner unbecoming of a Chief Justice by gathering distrust and suspicion over role in legal issues concerning her husbands business deals. Forget about the process by which she was removed, she acted unbecomingly of a CJ and should not be further considered as CJ material. Her reappointment would be considered nothing short of political.

      • Dev

        I agree with you wholeheartedly. This is why I asked the question whether she should be re-appointed. She was also the one who approved the 18th amendment without a referendum (which the media seems to not mention when mentioning the 18th these days).

  • et

    Wouldn’t opting for impeachment implicitly recognize that the appointment was also valid? There seem to be two objectives which need to be satisfied, one a need to recognise the illegality of his appointment and two, to investigate the illegalities he perpetrated while in office.

    I would opt for a process by which the appointment itself is deemed invalid. Consider seeking a review of the fundamental rights applications challenging his appointment, or the president seeking an opinion of the supreme court on the legality of the appointment as a question of public importance. However, both of these processes depend on the supreme court’s ability to deal with the issues impartially.

    The misuse of office would better be tackled in a political forum, by bringing to light the details of the abuse of power.

  • Sam

    We talk about CJ in SL ia a political appointment.

    In the USA and numerous other countries the Chief Justice is nominated by the President of the United States and confirmed to sit on the Court by the United States Senate. Is it not a political appointment????? Executive normally appoint people they can work with.

    I don’t know the suitability of current CJ. But removing of former CJ is done also according to the existing constitution. Whether the existing procedure is correct or not it’s a another story.

  • Nishan de Mel

    To my knowledge, the CJ Shirani Bandaranayake was not impeached, not only because and inadequately defined process was abused, but because even that was not properly followed. Article 107(2) states as follows: Every such judge shall hold office during good behavior and shall not be removed except by an order of the President made after an address of parliament supported by a majority of the total number of members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity. Such a vote was never taken. Notice of the address, as per standing orders, was given to the speaker, which triggered the select committee process. But I have not found in the Hansard any record of the address then being passed by parliament after the select committee reported.

    The impeachment did not follow the process, and parliament should simply recognise that it is null and void therefore. If the impeachment is null and void, then CJ Shirani Bandaranayake is restored to her seat.