A Tale of Two Chief Justices: From Process

to Principles Part I

By Luwie Ganeshathasan and Sanjayan

Rajasingham by Luwie Ganeshathasan - on 02/20/2015

Introduction
The declaration that Mohan Peiriss 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 requestsuch 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 motions present purpose.
The Constitution is clear that no judge can be removed by the
Presidentunless 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 Rajapaksas order to remove Dr. Bandaranayake was just such an
act, as it was made without the necessary resolution. Thus, Dr.
Bandaranayakes 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. Peiriss 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 Speakers 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. Bandaranayakes removal was cured as a result.
In response, it must first be said that those arguing that the Speakers
ruling cured any procedural error are confusing procedure with substance.
The argument for the invalidity of Dr. Bandaranayakes removal is not
based on aprocedural flaw in the resolution. Parliament made no procedural
mistakes it passed a valid resolution on the 11th of January. The problem
lies with thesubstantive content of the resolution it was not one that
sought the removal of Dr. Bandaranayake.
Those who nonetheless insist that the Speakers 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
itstextual 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. Bandaranayakes 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?
The Legislature
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 animpeachable 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

dosomething. Regardless of whether this would make the process look

better, there was no legal obligation for Parliament to speak twice.
The Judiciary
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.
Peiriss 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 Courts decision.
Executive Correction?
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. Sirisenas 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 Cs 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 Cs 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. Bandaranayakes removal, and thus Mr. Peiriss
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. Sirisenas 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 decisions
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; Attorneyat-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_d
ocument.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_d
ocument.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_d
ocument.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_d
ocument.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_d
ocument.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 [1994] 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://164.100.47.132/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.
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