By Somapala Gunadheera
As a life member of the Bar Association of Sri Lanka (BASL), I am personally interested in the affairs of that outfit. I admire the relentless effort the BASL has made to stand by Justice Shirani Bandaranayke (JSB), through the vicissitudes imposed on her by a contrived process of law. I am glad that the lady has regained the position she was removed from, thanks to the strenuous efforts made by the BASL, among others.
At the same time, I am relieved that JSB has called it a day soon after her reentry. The farsightedness and the humility shown by the lady in doing so, has saved her and the country from another imaginable, unpleasant legal tussle.
However, as a humble student of the law, I find it difficult to agree with the manner in which Mr. Mohan Peiris (MP), who functioned as the Chief Justice for all intents and purposes, ever since the removal of JSB was replaced.
As far as I know, not even the President can remove a judge of a superior court at his will and pleasure by a letter under his name, much less under his Secretary’s.
Article 107 decrees that such removal should be made only on an address of Parliament to that effect. In the case of MP, no such address has been made by Parliament.
Presumably, the Executive was reluctant to consult Parliament on this issue as it was not sure how that body would react to the move under the existing precarious balance of power.
Apparently, that apprehension made the government to take refuge under the argument that MP’s appointment was void ab initio. However, governance by presumption is no part of our Constitution.
MP’s ouster has been realised by a statement signed by the Secretary to the President (SP) to the effect that JSB had not been properly removed and hence the question of a successor did not arise. SP’s letters is undoubtedly an interpretation of the law. Presumably, the SP was conveying the decision of the President. But, the Constitution does not empower the President himself to interpret its provisions.
That power is entrusted by Article 129 of the Constitution to the Supreme Court. As the consultative jurisdiction of that court does not appear to have been invoked in this case, SP’s declaration does not appear to bear legal validity, however logical the argument it contains may be.
Apart from the SP’s declaration being bad in law, it has the potential to cause serious legal problems in time to come. If MP never held the post of CJ as SP claims, what is the validity of decisions he made from that seat? This question is bound to open a can of worms in time to come and the Supreme Court would be hard put to to deal with the quo warrantor applications that are bound to follow. Maybe the SC would have to rehear all such cases which repetition would involve tremendous waste of time, energy and expense.
MP himself has the right to canvass his removal and the amateurish way in which he has been removed will be gratis fodder to his litigation mill. On the other hand MP may not make any move and provide the government with a forum to cure its flaw. He might prefer to pay back in the same coin by relying on the precedent to reseat himself under a change of regime, which some expect to happen sooner than later.
The failure to consult Parliament under Article 107 before the removal of MP was hotly contested by the Opposition at its sitting on the 29th. The PM avoided the issue by saying that there could not be a removal where there had been no proper placement. However, he has promised to discuss the matter and the chances are that the government might not be able to get away easily from an ensuing debate.
One sees two other lawful steps the government could have taken to avoid this debacle.
A. One of them is for the President to seek a determination from the SC, under Article 129 of the Constitution on the validity of the presumption that MP had never been appointed CJ.
B. The other is to make a Revision Application to the SC to reconsider its dismissal of the Court of Appeal decision that the removal of JSB was not in order. It is that stance of the Court of Appeal that the government has taken up now
In the background of the current judicial climate, it is unlikely that the SC would be disposed to disagree with the position that the government has taken up in recalling JSB, in either case. A reference by the SC under Article 129 would not have taken much time as the SC is obliged to make a decision within the time allotted by the President. The advantage of the Revision Application which also may be disposed of in a few weeks is that the court could have given a ruling subsidiary to their main finding that the cases disposed of by MP are res judicata, thereby putting an effective end to this regrettable saga. As the proverbial saying goes, in this instance the Government appears to have burnt its hand with (two) readily available pliers at hand.
Though the storm appears to have blown over for the time being, the chances are that the indiscreet decision taken above may lead to ramifications and complications that could embarrass the government like a Spanish ulcer. It appears to be prudent to seek an opinion under the consultative jurisdiction of the SC on this matter, even at this late stage and put an end to a headache that appears to have originated with a swelling of the cranium.
Courtesy:The Island