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A Tale of Two Chief Justices From Process To Principles - Part II
A Tale of Two Chief Justices From Process To Principles - Part II
to Principles Part II
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
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.
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[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