Photo courtesy The Malaysian Insider / AFP PHOTO/ Ishara S. KODIKARA
By Luwie Ganeshathasan and Sanjayan Rajasingham
The declaration that Mohan Peiris’s appointment as Chief Justice was void ab initio (invalid from the beginning), and the subsequent reinstatement of Dr. Shirani Bandaranayake, raises many questions. What was the legal basis for these acts? Was the proper procedure followed in deciding that a legal basis existed? Or was this a case of the new government mirroring the old, using force to remove an inconvenient judicial officer? Now that the tumult surrounding these events has died down, we can engage in a thoughtful and sober analysis of these questions. This piece attempts to do so, beginning with the legal basis of the reinstatement.
The Reinstatement: The Legal Basis
The Removal of Dr. Bandaranayake and Article 107(2)
According to the government, President Sirisena reinstated Dr. Bandaranayake because her removal did not meet the necessary constitutional conditions. Article 107 (2) of the Constitution sets out the two conditions for the removal of a judge of the Superior Courts.[i] One is a resolution by Parliament (also called an address by Parliament) supported by a majority of its membership, to the President, seeking the removal of the judge in question on the ground of proved misbehavior or incapacity. Thus this resolution is meant to have a fixed substantive content.
The other requirement, found in the proviso, is that prior notice must be given that the above resolution is to be put before Parliament. Such notice must be signed by at least one third of the membership of Parliament and set out the details of the alleged misbehavior or incapacity. This was given in Parliament on the 12th of November 2012 where it resolved to appoint a Select Committee of Parliament to “investigate” the allegations of misbehavior.[ii]
The heart of the matter concerns the second requirement. It was to be met by a resolution passed on the 11th of January 2013. However, the resolution passed on that day did not meet the constitutional requirements. Its operative paragraph, instead of seeking the removal of Dr. Bandaranayake, resolved to appoint yet another Select Committee. That is, it was identical to that of the resolution of the 12th of November. The paragraph reads as follows:
“Therefore we, the aforementioned Members of Parliament resolve that a Select Committee of Parliament be appointed in terms of Article 107 (3) of the Constitution read with the provisions of Article 107 (2) and Standing Order 78 A of Parliament enabling the submission of a resolution to His Excellency the President for the removal of the Hon. (Dr.) (Mrs.) Upatissa Atapattu Bandaranayake Wasala Mudiyanse Ralahamilage Shirani Anshumala Bandaranayake from the office of the Chief Justice of the Democratic Socialist Republic of Sri Lanka in the event the Select Committee reports to Parliament that one or more of the charges that have been levelled have been proved after the aforesaid charges of misconduct have been investigated.[iii] (emphasis added)
This operative paragraph clearly does not seek the removal of the Chief Justice nor does it speak of proved misbehavior or incapacity. Rather, it resolves to appoint a Select Committee to investigate charges. As such, it does not meet the requirements of Article 107 (2). Some might argue that it does mention the submission of a resolution to the President for the removal of Dr. Bandaranayake from office. But the paragraph itself does not request such removal. It merely says that Parliament will be enabled to seek such removal, in the event that the charges against Dr. Bandaranayake are proved. It sees a resolution seeking removal as a future possibility, rather than as the motion’s present purpose.
The Constitution is clear that no judge can be removed by the President unless and until he receives a resolution seeking the removal of the Chief Justice on the grounds of proved misbehavior or incapacity. Thus, if a President orders the removal of a judge without having first received such a resolution, he is acting without legal authority, and his act has no legal effect.
President Rajapaksa’s order to remove Dr. Bandaranayake was just such an act, as it was made without the necessary resolution. Thus, Dr. Bandaranayake’s removal was void from the beginning. As a result, there was no vacancy in the Supreme Court when Mr. Rajapaksa sought to appoint Mr. Peiris as Chief Justice.[iv] As an appointment cannot be made without a vacancy, Mr. Peiris’s appointment at the time was also invalid. This, so the argument goes, is why he was never the Chief Justice of Sri Lanka. He may have acted as such, but that is irrelevant to the legal validity of his appointment.
The Speaker’s Ruling
This argument is not new. It was raised in the public domain before[v] and brought to the attention of the Speaker of Parliament before the passage of the resolution.[vi] He considered the matter and ruled that the motion found on the Order Paper of Parliament, notwithstanding the content of the operative paragraph, exhibited the requisite intention to seek the removal of Dr. Bandaranayake.[vii] Some argue that any procedural error regarding Dr. Bandaranayake’s removal was cured as a result.
In response, it must first be said that those arguing that the Speaker’s ruling cured any procedural error are confusing procedure with substance. The argument for the invalidity of Dr. Bandaranayake’s removal is not based on a procedural flaw in the resolution. Parliament made no procedural mistakes – it passed a valid resolution on the 11th of January. The problem lies with the substantive content of the resolution – it was not one that sought the removal of Dr. Bandaranayake.
Those who nonetheless insist that the Speaker’s ruling is sufficient are making an astonishing claim. They are essentially arguing that the Speaker can declare that a resolution contains Y, even if the unambiguous words of the resolution indicate that it contains X. There is no indication in either the Standing Orders of Parliament, or in the Constitution, that the Speaker may do this, and it is doubtful that tradition would allow for it. Indeed, allowing a ruling by the Speaker to alter the meaning of a resolution without altering its textual content leads to insoluble problems. After all, how does one interpret a resolution which says X, was passed as X, but was ruled to mean Y?
In any event, the above objection is irrelevant to the main issue, namely, “What was the content of the resolution that the President received, and did it meet the requirements of Article 107 (2)?” During the debate in Parliament, the Speaker made his ruling and then called for a vote on Item No. 1 – that is, for a vote on the resolution with the operative paragraph quoted above.[viii] It was this resolution, which did not meet the requirements of Article 107 (2), which was passed. It was this resolution which Mr. Rajapaksa received. Such a resolution could not enable him to remove Dr. Bandaranayake and therefore any subsequent order for her removal, made when he had no authority to do so, was void.
Questions of Procedure: Who Decides?
The above argument has significant authority and persuasive value. However even if so, which organ of government had the right to declare that Dr. Bandaranayake’s removal was void? Was it the Executive? Mr. Sirisena certainly thought so – he wrote two letters of the 28th of January– one informing Mr. Peiris that his appointment was invalid, and another informing Dr. Bandaranayake that her removal was void and inviting her to resume duties as Chief Justice. But did he have the legal power to do so? Or was he acting illegally, acting where another organ of government – the legislature or the judiciary – should have acted?
Did Mr. Sirisena have a legal obligation to use the legislature to effect the reinstatement? If so, he appears to have had two possible options: seeking an impeachment motion under Article 107 (2) and (3), or seeking a further resolution by Parliament wherein it accepted that it did not pass the resolution it was required to pass.
An impeachment under Article 107 may have run into difficulties as it assumes a valid appointment, whereas the question in issue is whether Mr. Peiris was in fact validly appointed. Inquiring into misbehavior or incapacity, that is into impeachable offences, seems meaningless when the question is the logically prior one of whether Mr. Peiris ever held an impeachable office.
Moreover it seems problematic to suggest that there was a legal obligation for the President to seek a further resolution. Parliament passed a resolution on the 11th of January 2013 which did not seek the removal of Dr. Bandaranayake, but resolved instead to appoint a Select Committee. If so, it would be useless for Parliament to repeat itself, to clarify that it did not do something. Regardless of whether this would make the process look better, there was no legal obligation for Parliament to speak twice.
Did Mr. Sirisena have a legal obligation to refer the matter to the judiciary? The President could have referred it to the Supreme Court under Article 129, which allows him to consult the Court on issues of national importance.[ix] Another possibility would have been a challenge of Mr. Peiris’s appointment by a citizen.[x]
As far as Article 129 is concerned, it provides that the President “may” consult the Court – that is he may do so at his discretion, however he has no legal obligation to do so. Moreover under Article 129 the Court issues an “opinion” rather than an order, judgment or grant of relief. As such, even after consultation it would be for the President to take steps to implement the order – the Court would not do so. Moreover, it is likely that the Court would have refused to tender any opinion on the matter. This is because recent judgments interpreted the Parliament (Powers and Privileges) Act of 1953 in a manner that prevents courts from adjudicating on expressions of opinion by Parliament. As a resolution of Parliament is arguably a means of conveying its opinion, this jurisprudence might have prevented any review of the resolution.[xi]
A challenge by a citizen may have yielded results – though a larger, or even a full Bench of the Supreme Court would have had to overrule those judgments which could prevent review of Parliamentary resolutions. Further, if Mr. Peiris, as Chief Justice, decided to constitute the Bench to hear the matter, allegations of bias could taint the Court’s decision.
In our view, neither of the above routes are obvious solutions, nor are they problem-free. Moreover, there is nothing to suggest that there was a strict legal obligation to choose either. Before deciding whether the Executive should have chosen one of the above avenues based on other considerations, we wish to examine Mr. Sirisena’s decision to reinstate Dr. Bandaranayake via the Executive.
The starting point of the argument in favour of his decision is that he had no legal obligation to refer the matter to the other arms of government. It then suggests that, if one accepts that Dr. Bandaranayake was never constitutionally removed from office, there was no legal impediment to her functioning as Chief Justice. It was only an administrative decision by the previous Executive that kept her away. Mr. Sirisena, in sending two letters on the 28th of January did not appoint her, or remove Mr. Peiris. He merely recognized that an administrative impediment prevented her from performing her functions, and removed it.
Some might argue that this argument is one which would justify an owner of a piece of land using brute force to evict a squatter. This would be an illegal act because even if the squatter is acting illegally, the owner can only evict him after obtaining a declaration of the same from a court. He cannot decide and act on the illegality himself. Similarly, it is said, the President ought to have followed the right procedure to correct this error.
The issue here is that, first, unlike in relation to squatters on land, there is no obvious procedure available for reviewing the appointments of judges. Second, the example is not analogous. The situation is better captured by the following: A, without C’s consent, orders B to occupy a piece of land owned by C. If B does so, he is acting illegally. In such an instance, would it be illegal for A to withdraw his order to B, to tell B to leave C’s land? Similarly, it is argued, if the Executive made an administrative decision contrary to law (the removal of Dr. Bandaranayake, and the appointment of Mr. Peiris), why would it be illegal for him to retract it?
The Limits of Legality
There is little doubt that Dr. Bandaranayake’s removal, and thus Mr. Peiris’s appointment, were invalid in law. The question is, which organ of government ought to have determined that this was so. A narrow analysis of the different options suggests that the legality of Mr. Sirisena’s actions is unclear at best.
However, this analysis is incomplete. A decision to remove the head of the judicial branch is a far-reaching one which must be evaluated holistically. Compliance with strict legal provisions alone is insufficient. The decision’s validity must also be examined in the light of broader principles such as the rule of law and the separation of powers. Further, and more fundamentally, we must move beyond narrow legality and recognize that an act can be legal, and yet be wrong and even harmful. Any conclusion can only be reached after such a holistic analysis. We hope to undertake such analysis through an examination of these other issues in the second part of this piece.
Luwie Ganeshathasan, LLB, Faculty of Law, University of Colombo; Attorney-at-Law and and Sanjayan Rajasingham, Undergraduate, Faculty of Law, University of Colombo
[i] Article 107(2) reads: “Every such Judge shall hold office during good behaviour 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 : provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.”
See also Parliament Secretariat, “Standing Orders of the Democratic Socialist Republic of Sri Lanka” (26 February 1993) Standing Order 78A(7)
[ii] This is in accordance with Standing Order 78A. See Order Paper of Parliament (6 November 2012) 21 available at <http://www.parliament.lk/uploads/documents/orderpapers/PUBDOC4144_document.pdf> accessed 15 Febraury 2015
[iii] Parliamentary Debates (Hansard) vol 214 col 526 (11 January 2013) available at <http://www.parliament.lk/uploads/documents/orderpapers/PUBDOC4315_document.pdf > accessed 15 February 2015
[iv] Article 119(1) allows for a Chief Justice and a maximum of ten other judges. If Dr. Bandaranayake was not validly removed at the time of Mr. Peiris’ purported appointment, then there was no vacancy on the Bench, and in particular in the office of the Chief Justice, at the time of such purported appointment. Therefore, his appointment was invalid.
[v] Dharisha Bastians, “The end game” Daily Mirror FT (17 January 2013) < http://www.ft.lk/2013/01/17/the-end-game/> accessed 15 February 2013
[vi] Parliamentary Debates (Hansard) vol 214 col 648 (11 January 2013) available at <http://www.parliament.lk/uploads/documents/orderpapers/PUBDOC4315_document.pdf > accessed 15 February 2015
[vii] Parliamentary Debates (Hansard) vol 214 cols 650-651(11 January 2013) available at <http://www.parliament.lk/uploads/documents/orderpapers/PUBDOC4315_document.pdf > accessed 15 February 2015
[viii] Parliamentary Debates (Hansard) vol 214 col 651(11 January 2013) available at <http://www.parliament.lk/uploads/documents/orderpapers/PUBDOC4315_document.pdf > accessed 15 February 2015
[ix] Article 129(1) reads : “If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.”
[x] For an example if the defect in appointment of a judge was outside the process of Parliament (i.e. the executive appointed a judge who beyond the age of retirement) a citizen could have challenged such an appointment via a writ of quo warranto per Article 140 or through a Fundamental Rights application.
[xi] We do not wish to set out the legal argument on this point in detail. In short, in Attorney General v Hon (Dr) Shirani Bandaranayake [SC Appeal 67/2014] the Supreme Court interpreted the protection of Parliamentary debates and proceedings from the scrutiny of courts found in s.3 of the Parliament (Powers and Privileges) Act very broadly. That is, quoting Prebble v Television New Zealand Ltd  UKPC 4 it held that the courts could not scrutinise “…what is said or done within the walls of Parliament in the performance of its legislative functions and protection of tis established privileges.” This would preclude the Court pronouncing on whether Parliament followed the appropriate constitutional procedure to remove Dr. Bandaranayake. Moreover, the Court would likely hold that any opinion on whether the resolution passed by Parliament on the 11th of January 2013 was one for the removal of Dr. Bandaranayake, was an inquiry into the proceedings of Parliament, on the basis that a resolution of Parliament was an expression of its opinion and thus beyond the purview of Court (see Lok Sabha Secretariat, “Motions And Resolutions In Parliament” New Delhi (April 2014) 10 available at <http://188.8.131.52/LssNew/Motions%20and%20Resolutions.pdf > accessed 15 February 2015). We disagree with the overbroad interpretation of the Act in question but that is the law as it stands, and as such, would be the basis of an opinion under Article 129.