CJ Bandaranayake HOISTED by her own PETARD
One of the arguments thrown in to defend the Chief Justice, Dr.
Shirani Bandaranayake, claims that nowhere in the world does Parliament
/ legislature sits as accuser, judge, juror and executioner. It is
argued that this is a violation of Baron de Montesquieu's political
theory of separation of power where the legislature, executive and the
judiciary are compartmentalised to prevent one dominating the other.
A large crowd held a picketing campaign outside the Supreme
Court Complex on December 4 protesting against the attempts made
by the Judiciary to challenge the powers of the legislature and
demanding the protection of people's sovereignty. Picture by
This theory argues, quite correctly, that the concentration of the
powers of all three branches of the state in the hands of one single
centre leads to dictatorship. Concerned about life, liberty and
happiness of individuals the founding fathers of the US Constitution
embraced this principle of separation of power in toto and enshrined it
as one of the pillars of the US Constitution.
The unwritten British constitution operated successfully on these
principles, after taming the monarchical dictatorship, without writing
it down in black and white. In fact, Montesquieu developed his theory of
separation of powers after seeing it in operation in Britain. But in the
context of the impeachment of the CJ Bandaranayake, where the issue of
the separation of powers is hotly debated, it is the precedents set in
the American Constitution, where the separation of powers shines at its
best, that are most relevant.
The central issue in the current controversy over the separation of
powers boils down to this: can Parliament/legislature sit in judgment
over the CJ/judiciary, particularly when the legislature has accused the
CJ of misconduct? How can the accusers be the judges, jurors and
It seems a fair question except that the Parliament has already set
two precedents in exercising its judicial powers despite the claims of
separation of powers: 1. A Parliamentary Select Committee was placed on
the order paper of the House on September 5, 1984, to hear the case
against Chief Justice Neville Samarakoon which completed its proceedings
including passing a determination saying: "We cannot find anything in
the speech and its contents even remotely of being interpreted as proved
misbehaviour (of the Chief Judge).
We are therefore of the view that in the circumstances there exists
no bias whatsoever for the removal of the said Samarakoon; 2. A
Parliamentary Select Committee sat in judgment over the case of Harold
Peiris, the former Editor of the Sunday Observer, on a charge of
violating Parliamentary privilege and fined him Rs. 1,000. Though the
issues are different, the underlying reality in both cases has been the
same: the Parliament has been the accuser, the judge, the juror and the
However, the provisions of Article 4(c) of the Constitution
stipulates that except in matters concerning parliamentary privileges,
the judicial power of the people shall be exercised exclusively through
the Courts. Which can mean that Parliament had no right to sit in
judgment on cases which are outside the prescribed Parliamentary
privileges. So did the hearing of the case of CJ Neville Samarakoon by
Parliament violate Article 4(C)? Here's the rub. As opposed to Article 4
(c), there is written provision in the Constitution for the Parliament
to sit in judgement ONLY over superior court judges when they face
charges of misconduct, as alleged in the case of Chief Justice
Under Article 107 ( 3 ) the Constitution equates the Courts and
Parliament as legally valid instrumentalities for hearing cases against
judges of superior courts ONLY. So does Article 107 (3) stand in
conflict with Article 4(C) which says that the judicial power of the
people shall be exercised exclusively through the Courts? This, of
course, leads to another question. If the judicial power is vested
solely in the judiciary why did the Constitution equate Standing Orders
on par with the law in Article 107 (3)? By including Article 107 did not
the Constitution legalise and validate Parliament as another judicial
entity to hear ONLY the judges of the superior courts?
Dr. Shirani Bandaranayake
And because this power is enshrined in the Constitution, the supreme
law, is there a legal obligation or a necessity to pass an additional
Act of Parliament to make the Standing Orders the "law"? Those who say
"yes" and challenge the powers vested in Parliament through Article 107
in the Constitution must ask how many Acts of Parliament are needed to
legalise and validate the provisions stated categorically in the
The following quote from Article 107 (3) is the most relevant text in
the Constitution that defines the power of Parliament to sit in judgment
over judges of superior courts: "Parliament shall by law OR BY STANDING
ORDERS (emphasis is mine) provide for all matters relating to the
presentation of such an address, including the procedure for the passing
of such resolution, the investigation and proof of the alleged
misconduct or incapacity.............." This clarifies and give
Parliament the power to "provide" (the operative word) either by law OR
BY STANDING ORDERS (no ambiguity here) for (1) all matters relating to
the presentation of such an address, (2) including the procedure for the
passing of such resolution, (3) the investigation and proof of the
alleged misconduct or incapacity" of the judge.
Doesn't this mean that the ONLY exception made in the Constitution,
despite Article 4, is when it declares that the Parliament can act as
judges in judging judges? Article 107(3) also make it mandatory for
Parliament to "provide all matters related to the presentation" of the
impeachment. For instance, in the case of Samarakoon CJ the PSC fully
exercised the powers vested in Article 107 (3) and acted as judges in
judging the allegations made against CJ Samarakoon. That Parliamentary
Select Committee did not say that they did not have the powers to judge
judges. Nor did the PSC appointed to hear the case of the current CJ
challenge the legality of its creation, existence or authority and
refuse to accept the appointment as members of the PSC. On the contrary,
the previous PSC (Samarakoon), asserting that "the Parliament is
supreme", merely asked for an interpretation of the Constitution from
the Supreme Court to clarify any doubts that may arise from 107.
The legal team of CJ, Dr. Shirani Bandaranayake, too is asking for an
interpretation of this provision from the Supreme Court. The question
before the Supreme Court is simply this: if Article 107 places
Parliament unambiguously on par with the courts, and gives the powers of
hearing the cases of misconduct of superior court judges ONLY to
Parliament, can the Courts grab the powers vested in Parliament and hand
it over to courts which would, no doubt, favour the CJ who is in the
middle of controversial case?
Wouldn't a new interpretation of this existing law, especially after
being operative in two previous cases, give an unfair advantage to the
CJ who is facing allegations of her misconduct? Second, in the current
heat of the tensions, arising mainly from the power struggle between the
judiciary and legislature, will not the judiciary be tempted to grab
power from Parliament and hand it over to the judiciary, especially
because (1) the judges hearing the case will be appointed by the Chief
Justice and (2) the judiciary has been conditioned, at least to some
extent, by the pressures of the prevailing politicized ambience to act
in favour of the CJ?
The legal manoeuvres in the Supreme Court is to influence the
judiciary to interpret the law to mean that the Parliament has no right
to act as judges. On the surface of it there seems to be a justification
based on the principles of separation of powers. But despite Article 4
(c), which confirms the separation of powers, the framers of the
Constitution have deliberately and consciously written Article 107(3)
equating Parliament with the courts and handing over judicial powers to
Parliament ONLY to hear cases of superior courts judges. The salient
point to note here is that Parliament has not been given the total
judicial powers turning it into a parallel or alternative body of
judges. The separation of powers enshrined in Article 4 ensures that.
The Constitution is very specific in saying that it is ONLY in case of
hearing superior court judges that the Parliament can act as an
Parliamentary Select Committee
It must be reiterated that the supreme law stated in the Constitution
gives total judicial powers to the judiciary with two exceptions: 1.
Parliament to decide on its own house rules which are contained in
Standing Orders and 2. in judging impeachment cases of the judges in
superior courts. The second exception is, indeed, significant because it
overrides the solid principles of the separation of powers governing the
Constitution. Coming as it does from the supreme law declared in the
Constitution there can be no doubt about it. Only a questionable
interpretation tilted in favour of the judiciary yearning to stage a
legal coup can grab the powers vested in the Parliament by the
Constitution and hand it over to the courts.
If there is any doubt about the legislature acting as the judiciary,
particularly when the separation of powers is enshrined in the
constitution, it can be clarified with the precedents set under the
provisions of the American Constitution. Despite the categorical
separation of powers in theory in practice the Constitution has set
precedents where the legislature crossed its boundaries and acquired
powers of judiciary ONLY for limited purposes of impeaching judges and
The example that is most relevant to the case of CJ is the trial of
President Bill Clinton by the House of Representatives and the Senate.
The following time-line, culled from a website, outlines the process in
which President Bill Clinton was tried by the Senate. First the House of
Representatives debated whether he should be tried or not and then
approved the two articles of impeachment.
On December 18, 1998, the House of Representatives engaged in a
fierce, daylong debate whether to impeach President Clinton or not. On
December 19, 1998, after 13 1/2 hours of debate over two days, the House
of Representatives approved two articles of impeachment, charging
President Clinton with lying under oath to a federal grand jury and
obstructing justice. The trial of Clinton went to the Senate.
On January 7, 1999 trial of President Bill Clinton began in the
Senate, with the senators sitting as jurors.
On January 8, 1999, the Senate unanimously agreed on a process for
continuing the trial. January 25, 1999, the Senators heard arguments
about dismissing the charges against President Clinton and then
deliberated in secret.
January 27, 1999, in 56-44 votes, the Senate refuses to dismiss the
charges against President Clinton and agrees to seek depositions from
Monica Lewinsky, Vernon Jordan and Sidney Blum.
January 28, 1999, in a party-line vote, the Senate OKs a Republican
plan for the impeachment trial's deposition phase, and sets February 12
as a target date for the trial's end.
The rest, of course, is history.
As shown above, the cases of Chief Justice Neville Samarakoon, Harold
Peiris and Bill Clinton demonstrate amply and clearly that the
impeachment of CJ Bandaranayake by Parliament has been done within
legally valid principles, precedents and parameters. In fact, when CJ
appeared before the Parliamentary Select Committee she too acknowledged
and conceded by her presence that she recognises the PSC as a legally
valid instrument to hear her case. She walked out questioning not the
validity or the legality of the PSC but procedures adopted by the PSC.
It is the Parliamentarians who had not appeared before the Courts --
and is not likely to appear before Courts -- on the ground that
Parliament is supreme and they are not subject to the law of the courts
on this issue. The counsel representing the Parliamentarians are also
bound to question the authority of the court to summon them.
The courts of course, can deliver an ex-parte judgment. But it will
be a futile exercise. Who is going to enforce their judgments? The writ
of the judges will not run beyond the borders of the paper on which they
write their judgment against the Parliament. Whereas the joint power of
the Parliament and the Executive can be enforced to the letter. This is
not a value judgment. This is only a recognition of the reality -- and
reality is 9/10ths of the law.
Faced with this reality the latest moves of the Chief Justice is to
strike back with political moves of her own. First she realised that the
black-coated "coconut crackos" have no political or legal force. After
that she used her powers to summon her troops (magistrates/judges in the
courts ) to show her strength. But that didn't take her anywhere either.
When she summoned the heads of courts she knew that she was making use
of the judiciary as a political tool, partly as a show of strength and
partly as a move to challenge Parliament.
In other words, she was stepping out of the legal domain -- her
legitimate grounds -- to flex her political muscle. She showed her
absolute disrespect for the judiciary when she used it to advance her
politics disregarding how it would affect the interests of the people
who had taken their cases to all the courts, not knowing that the
magistrates/judges had closed shop without prior notice.
When the courts closed the doors to the people, acceding to her
request, she was denying the basic justice due to the sovereign people
about whom her "coconut crackos" in black coat talk so much about.
Without inconveniencing the public and disrupting the daily operations
of the judicial system she could have achieved the same objective by
addressing a communiqué to all the judges which would be more in keeping
with the dignity of her office. But her ill-advised move smacks of
politicizing the judiciary to serve her political needs. It raised the
obvious question: are the courts there to serve the CJ or the people? If
it is argued that the Executive is using the Legislature against her
then it can be argued that the CJ is using her courts as a political
platform to hit back.
In any case, it is a defeat for the CJ because in lining up the
judges behind her, she has tarnished the image of the independence of
the judiciary and removed whatever legitimacy the courts had in hearing
her case at any level. How can the tainted judiciary adjudicate in cases
related to the state when they have openly declared that they are for
the CJ? Of course, not all judges are with the CJ. Nevertheless, her
action projects the judiciary as a tool of the CJ. The black-coated
"coconut crackos" can crack all the coconuts in Sri Lanka if they want
to. But judges are demeaning their own status and exposing themselves as
willing tools of the CJ when they participate in a session summoned by
the CJ which they know is a deliberate attempt by her apparatchiks, with
the consent of the CJ, to politicize her case.
With her knowledge of the law she also should know that the
legitimate forum for her is to take up her case in the courts and there
are several cases pending in courts. To arbitrarily deprive the
sovereign people of their day in court is a denial of justice. Justice
delayed, as they say, is justice denied. Her ordering the judges of the
lower courts to appear before her -- a working day for the courts -- is
an act of tying the judges, hand and foot, to serve her political needs.
Only other person who had tied a public servant is Mervyn Silva. Has she
come down to that level?
Besides, she has a battery of lawyers to defend her. Which lawyer
will take class action claiming costs from the judiciary for the losses
incurred by the sovereign people because of her arbitrary decision to do
a Mervyn Silva?
Morality can cut both ways. The morality she applies to her accusers
must apply to her with twice the force because she is expected to be
In her fight back she has taken the extreme political move of walking
out of the PSC. She has the right to do so because the procedures
adopted militated against all accepted norms of justice. That apart, it
looks as if she had blundered because it has opened the door for the PSC
to deliver their judgment the day she quit. She had given the upper hand
to the PSC because there was no point in holding hearings without her.
She has also deprived herself of the opportunity of cross-examining
As lawyer V. K. Choksy stated, quite correctly, "if the Chief Justice
was not guilty to the charges framed against her what she should have
done was to participate in the PSC proceedings rather than boycotting
it. Her walking away from the investigation process had denied the
people from getting to know whether she is not guilty of the charges
levelled against her in the impeachment motion against her."
All this makes her look as if she had reached a critical stage where
she has no defence and, therefore, decided to attack as the best form of
defence. It was the wrong move to make especially after she had been
handed the financial documents. She was asking for it and this was the
time for her to challenge the evidence handed to her using whatever
tactics available to gain time for perusal. But for her to cut and run
at this critical stage makes it dicey for her.
She should have waited at least till the courts delivered their
verdict. In quitting she has handed over the next move to the PSC. She
has handed over all her rights on a platter to Parliament. By her action
she has declared that Parliament is supreme and she has no option but to
accept its verdict.