By Rajan Philips –
I have heard a story about a little known University Lecturer in Mathematics and a well-known Queen’s Counsel Lawyer in Colombo. The lecturer did not agree with a circular put out by his university administration regarding the terms of employment of university teachers. Being a man of logical mind, he thought that the circular was illogical, wrong, and unjust. Being also a principled man, he wanted to challenge it whereas all his colleagues went about their business of teaching unconcerned about the circular. So our mathematical man took his anxiety to another level and got a referral to the Queen’s Counsel of this story. At the appointed time, the little known lecturer walked into the intimidating palatial house of the lawyer in the heart of Colombo, and was then led by the house valet into the even more intimidating chamber of the great QC. The lecturer stated his problem, the learned lawyer read aloud the relevant law, and gave his considered opinion. “It does not quite follow”, deadpanned the mathematician. The meeting did not go much longer after that impertinent contradiction.
I was thinking of this story after reading the recent Supreme Court ruling setting aside the rulings last year by another bench of the Supreme Court and the Court of Appeal on the legality and the constitutionality of the impeachment of Chief Justice Shirani Bandaranayake. The new ruling can be read as long and learned answers to two technical questions: (1) Did the Court of Appeal err in holding that the writ jurisdiction of that Court embodied in Article 140 of the Constitution extends to proceedings of Parliament, or a Committee of Parliament? (2) Did the Court of Appeal err in holding that the words “any Court of first instance, or tribunal, or other institution, or any other person” in Article 140 of the Constitution extend to Parliament, or a Committee of Parliament? It has now been held that either way the Court of Appeal erred in its ruling in January, 2013.
The real question
So the Attorney General has got the answers he wanted for the record, technically speaking. But there seems to be no place where one can find an answer to the real question, the straightforward moral question: Did parliament and its committee err in impeaching Chief Justice Shirani Bandaranayake in the way it was done?
The doctrine of the separation of powers, the relative superiority of institutions within the separated compartments, and the horizontal and vertical expansions of the authority of the courts over time and space, are all interesting and important topics for forensic, judicial, as well as political reflection and opinionating. But the fundamental question is what recourse does a member of a society – be she or he a doctor, proctor, coolie, clerk, or judge, have when that person is wronged not by just any institution of the state, but directly by parliament itself?
In all the 38 or so citations rallied back and forth by everyone involved in dealing with the two questions, there was one that seemed to address this fundamental question by stipulating the requirements of natural justice as: “(i) the right to be heard by an unbiased tribunal, (ii) the right to have notice of charges of misconduct, and (iii) the right to be heard in answer to these charges.” Ordinary people have been reassured that courts in Sri Lanka and elsewhere have over time expanded these rights not only in judicial matters, but also in administrative matters; and not only in the public realm, but also in the private realm. But the irony is that while these rights may have expanded horizontally, there apparently is no evidence that they have expanded vertically. But is there room for a vertical dimension, or hierarchy, in the constitutional arrangement for the separation of powers? If there is relative superiority, how would one explain many of the celebrated rulings of the US and the Indian Supreme Courts? Why go outside, just go back in time to the colonial era Bracegirdle case that was cited not this year but in the Court rulings last year that have now been overturned.
As I wrote last year, the Bracegirdle episode was one dramatic manifestation of more than a century old tension between the judiciary and the executive in colonial Ceylon when there was no legislature worthy of note or comment (not that there is one now!). We have been told of the origins of the six mandatory writs in England and their transference to Sri Lanka under colonial rule with the recognition “by the local courts” of the “prerogative powers of the British Crown”. This recognition was apparently enshrined in the Courts Ordinance No. 1 of 1889, Section 42 of which “may safely be regarded as the predecessor to Article 140 of the present Constitution”, and seems to have provided the ground for concluding that the writ jurisdiction of the Court of Appeal does not extend to Parliament. But since when did parliament become the successor to the crown, British or otherwise?
What is more, the Bracegirdle case presents a different and more accurate narrative of the same history. In historical terms, Sri Lanka’s presidency and parliament are upstarts in comparison to the Supreme Court which has been in continuous existence since the beginning of British rule in the island. The apex court established its independence from the outset and was in the forefront of precipitating incremental constitutional changes throughout the colonial period, notably through conflicts between the Governor and the Chief Justice. In 1937, when Governor Stubbs detained British planter Bracegirdle for the treason of joining the LSSP, the Supreme Court, comprised of three British judges and all appointees of Stubbs, granted the LSSP’s Habeas Corpus application, declaring the Governor’s order illegal and ordering the release of Bracegirdle. In his judgment, Chief Justice Sir Sydney Abrahams (an English Jew from Birmingham and older brother of the 1924 100 metres Olympic champion, Harold Abrahams, of Chariots of Fire fame) cited from a 1918 English court ruling: “jurisdiction of the judges … is the only refuge of the subject against the unlawful acts of the Executive, the higher officials, or more frequently subordinate officials,” and that “… it will always remain the duty of … judges to protect those people.”
No Jekyll, only Hydes
It was this dictum that the Court of Appeal took heed of for its now overturned ruling, to go beyond the letter of the constitution, seek meaning in its spirit, and provide refuge to the beleaguered Chief Justice. If it is quibbled that the above-quoted dictum makes no mention of the legislature and therefore is not extendable to Sri Lanka’s parliament, the political rejoinder to such pettifogging would be that no one could have foreseen Sri Lanka’s legislature becoming such a cuckoo land as it is today. In all fairness, JR Jayewardene, or Dr. Jekyll in him, really wanted to make it impossible for politicians to gang up on judges and tried to do that in the constitution, literally by overwriting the impeachment provisions. There was alas the split side in him, Mr. Hyde, who led the ganging up on judges and subverted the spirit of Dr. Jekyll’s constitution. Post JRJ, there is no Jekyll of consequence in politics and public life, only Hydes and heaps of them.
It is a matter of record that AJ Wilson, the constitutional scholar and presidential adviser, admonished President Jayewardene and senior UNP leaders that despite their enthusiasm to safeguard the INDEPENDENCE OF THE JUDICIARY, by literally enshrining it in capital letters in the preamble to the Constitution and devoting a quarter of the body of the Constitution to matters dealing with the judiciary, their overkill efforts had placed the Supreme Court “right in the centre of the political maelstrom.” His specific concern was about the ill-advised and without-parallel involvement of the Supreme Court in the process for the impeachment of the President. According to Wilson, his concerns were raised after the fact, with the constitution already in place, and the best response he got from the confused architects of the constitution was the hope that things will not come to such a pass (or impasse) as the incumbent president in such a situation would voluntarily retire than precipitate a full blown constitutional crisis.
It is fair to say that Wilson could never have imagined that 35 years after his warnings, the constitutional table would be turned in a totally different way, dragging the legislature into a judicial maelstrom. And we can say with certainty that Wilson, or anyone else, did not take a numerical approach to understand whatever thinking that took place in writing the impeachment provisions of the 1978 Constitution. The theory that two out of the three organs of state power are required by design to act together to impeach the third does not hold much water for the legislature which can be dissolved by the President at her or his whim any time after one year after a parliamentary election. We know how the executive and the judiciary double-teamed (as in basketball) to eviscerate parliament, such as allowing cross-overs from opposition to government without losing membership of their original opposition party, and we know too how all three organs have ganged up to undermine the sovereignty of the people through the business of urgent bills and undemocratic constitutional amendments.
Homage to a Judge
The January 2013 rulings of the Supreme Court and the Court of Appeal were not concerned about the relative supremacy of parliament vis-à-vis the judiciary. In fact, they were overly deferential to the ‘other place’, parliament, and its processes. What they were exercised about was whether the requirements of natural justice were being met in the impeachment process that the parliamentary select committee was known to be following. They were concerned about the rights of the Chief Justice as a person to a fair impeachment hearing. The two courts sent out pleading signals for parliament and the Select Committee to change course. Now it has been determined that the courts exceeded their authority and acted erroneously even in sending harmless signals – harmless because they had no effect on parliament, the Select Committee, or the Executive President.
Sri Lanka has had no tradition of impeachment until the 1978 Constitution. Whereas the Americans reluctantly infected themselves with the English tradition of impeachment, Sri Lanka was spared that infection till 1978. The Soulbury Constitution and the 1972 Constitution spoke to the political goodness of our legislators and simply affirmed the inviolability of a judge’s tenure except by a special resolution of parliament in truly exceptional circumstances. In contrast, the 1978 Constitution spoke to the crookedness of our legislators and gave them new ideas about how to play the impeachment game just for the heck of it. So when they play the game for the heck of it, who will protect the affected party? That is the question. Who else, but the courts is by far the only answer that we can think of.
Even in the US where there is an established tradition of impeachment, there is well argued opinion notably among Supreme Court Judges that the Courts should have the power to review impeachment cases where the legislature (the Senate in the US) may have removed an impeached person “summarily without a hearing, or through some arbitrary process, such as ‘a coin toss’.” The impeachment of Chief Justice Shirani Bandaranayake was not a hypothetical ‘coin toss,’ but a real life injustice. As I wrote at that time, the Supreme Court and the Court of Appeal judges went out of their way, in January 2013, to call that process for what it was. They will be remembered for their courage even if their rulings have been overturned for the record books.
One of them Justice Sundaram Sriskandarajah, the President of the Court of Appeal is no more. He passed away in January this year after falling ill in September 2013. He was an old boy of Manipay Hindu College and Colombo Hindu College, two institutions that shared a distinguished and quietly munificent supporter and benefactor in the late S. Nadesan Q.C., perhaps the greatest constitutional lawyer Sri Lanka has seen. There is a touch of poignancy in making this connection because it was Nadesan who first exposed the contradictions in the impeachment provisions of the Constitution. Justice Sriskandarajah played his part in trying to show a legal and practical way out to those who were hell-bent on playing the impeachment game even if for the heck of it. The unassuming decent man played his part quietly but forthrightly, without making waves, without looking for favours, and without fearing consequences. He may have been isolated and overlooked for the promotions that were due to him, but he has left behind a proud legacy for his family and friends. Not many people in Lanka’s contemporary political and public life are capable of leaving such a legacy for their families and friends, notwithstanding the power, the pelf and the promotions they accumulate.