AFP PHOTO/ Ishara S. KODIKARA, via The Malaysian Insider
By Luwie Ganeshathasan and Sanjayan Rajasingham. Read Part I here.
A Broader Analysis
The legality of Mr. Sirisena’s 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. Bandaranayake’s 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. Peiris’s 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?”
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. Bandaranayake’s 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. Sirisena’s 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. Peiris’s 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. Bandaranayake’s own ouster two years ago. These impressions will remain in our society’s 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 Court’s 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 Rajapaksa’s Private Member’s 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 Parliament’s 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-from-process-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  2 SLR 311; Premachandra v Jayawickrema  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-from-process-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 petitioner’s lawyers” The Sunday Times (10th February 2013) <http://www.sundaytimes.lk/130210/news/full-bench-must-hear-fr-case-against-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.
[ix] “The Constitution of the Republic of Sri Lanka: The Judiciary” <http://www.priu.gov.lk/Cons/2000ConstitutionBill/Constitution_Chapter18.pdf> 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.”