Jan 10, 2013 | News
Like the ICJ, the Bar Association of Sri Lanka (BASL) issued a statement strongly condemning the impeachment of Chief Justice Bandaranayake.
The BASL called on its members to refrain from attending Court or engaging in any professional duties on 10 and 11 January 2013 in protest of Parliament’s decision to move forward with the impeachment process. The statement is reproduced below:
The Bar Association of Sri Lanka strongly, unequivocally and with no reservations whatsoever condemns the decision to take up for debate the impeachment motion against her Ladyship the Chief Justice Dr. Shirani A. Bandaranayake based on the findings of the Parliamentary Select Committee which was quashed by the Court of Appeal and determined to be unlawful by the Supreme Court. The Bar Association has decided to call for all its members (in 78 Branch Associations) to refrain from attending to any Professional duty in protest on the 10th and 11th of January 2013 to express our deplorable condemnation.
The Bar Association of Sri Lanka further urges H. E. the President of the Republic, Hon. Speaker and the leaders of all political parties representing the Parliament to honour and respect the determination of the Supreme Court which in terms of the Constitution of our country is vested with the sole and the exclusive jurisdiction as regards to Constitutional Interpretation and Determinations.
The Bar Association of Sri Lanka is seriously concerned about the negative and eroding impact that any action of the legislative and executive organs of the government to disrespect and dishonour such determination would have on the Rule of Law in this Country.
Sanjaya Gamag
Secretary
Bar Association of Sri Lanka
On 10 November 2012, the BASL held a Special General Meeting and passed a resolution expressing ‘grave concern about the impeachment and the independence of the Judiciary’ urging the President and Speaker of Parliament to ‘reconsider’ the impeachment or alternatively to adopt a transparent and accountable procedure.
On 15 December 2012, the BASL passed a further three resolutions calling on the President of Sri Lanka to again reconsider the impeachment or alternatively enact a procedure for impeachment which guaranteed the right to a fair trial. The BASL warned that if the rule of law or fair trial rights were not observed in the impeachment process, the Sri Lankan Bar would not welcome a new Chief Justice.
On the same issue: Sri Lanka’s Parliament should reject motion to impeach Chief Justice
Jan 9, 2013 | News
Members of Sri Lanka’s Parliament should reject the impeachment motion to remove Chief Justice Shirani Bandaranayake, that will be put before Parliament on 10-11 January 2013, the ICJ said today.
The ICJ call comes after a three-member panel of the Supreme Court, in a decision issued on 1 January 2013, ruled that the impeachment procedure in Parliament was not constitutionally valid, finding that such procedures could only be established ‘by law’ enacted by Parliament. The Standing Orders governing the current impeachment investigative process are not considered ‘law’ under the Constitution of Sri Lanka.
“The assault on the independence of the Sri Lankan judiciary in recent months has brought Sri Lanka to the brink of a constitutional crisis,” said Sam Zarifi, ICJ’s Asia Director. “If the impeachment motion is passed in Parliament in defiance of decisions of the country’s judiciary, it will signal a massive breakdown in the rule of law and checks and balances.”
The ICJ stresses that in a democratic society operating under the rule of law, the principle of judicial review is paramount and judges have the ultimate authority to determine what the law provides.
Following the Supreme Court decision, the Court of Appeal quashed the findings of the Parliamentary Select Committee on 7 January 2013, claiming the PSC lacked authority to make such a finding.
In response to the Supreme Court decision, President Mahinda Rajapakse announced his intention to create a four-member panel on 7 January 2013 to review the Parliamentary Select Committee Report and comment on its constitutional validity. The identities of the panel members have not been revealed.
“Creating another ad hoc committee on an arbitrary basis to pronounce on the validity of the impeachment process in Parliament – a process already held to be improper by the apex Court – aggravates the insult to the judiciary and deepens the constitutional crisis,” Zarifi said. “Judges are not above the law, and should be subject to impeachment if they have engaged in serious misdeeds, but the faulty process used by the Parliamentary committee violated basic notions of due process and truth-seeking.”
Last month, the Bar Association of Sri Lanka unanimously passed a resolution calling on the President to reconsider the impeachment, warning that if principles of rule of law were disregarded in the removal process, the Bar would not formally welcome the new Chief Justice.
“This current crisis threatens to leave Sri Lanka with little or no means to hold State officials accountable for serious human rights violations,” Zarifi added. “This government has shown itself committed to imposing a climate of impunity in Sri Lanka. The Parliament should stop the country’s sad slide away from the rule of law.”
The ICJ released a 150-page report in early November 2012 focusing on impunity in Sri Lanka and highlighting the recent attacks on the judiciary as a key factor that has led to the erosion of State accountability mechanisms.
The impeachment process against Chief Justice Shirani Bandaranayake has been widely criticized for ignoring international standards and practice.
The ICJ in an earlier statement called on the Government of Sri Lanka to adhere to international standards and practice in the impeachment hearings.
The ICJ reiterates its call on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.
CONTACT:
Sam Zarifi, ICJ Asia-Pacific Regional Director, Bangkok, t:+66 807819002; email: sam.zarifi(at)icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan(at)icj.org
BACKGROUND:
The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill, under which the Minister of Economic Development (who is also the President’s brother, Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD) with minimal accountability.
Attacks on the judiciary have been escalating since July 2012. A Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse. In early October 2012, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.
On 6 November 2012, a motion to initiate impeachment proceedings was brought against Chief Justice Shirani Bandaranayake. The motion contained fourteen charges relating to the non-disclosure of financial assets and improper conduct of a Chief Justice. On 8 November 2012, the Chief Justice’s lawyers responded to four of the fourteen charges, claiming that all operative bank accounts had been disclosed and only those accounts which were closed or held no funds were not declared.
On 6 December 2012, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.
On 8 December 2012, a majority of the Parliamentary Select Committee comprising government representatives found the Chief Justice guilty of four charges out of the fourteen allegations. The Committee’s released its findings despite the Supreme Court’s request in late November 2012 that hearings be delayed until it could determine the constitutionality of the proceeding.
Photo by vikalapa
Jan 8, 2013 | News
The Nepali government should cooperate with any investigation into allegations of torture against Nepal Army Colonel Kumar Lama, recently arrested and charged in the United Kingdom, the ICJ said today.
“The ICJ welcomes the steps taken by the UK to criminally investigate and bring to justice an individual suspected of the serious crime of torture,” said Sam Zarifi, ICJ’s Asia Director. “If the government wants to prevent the future prosecution of conflict-era human rights violations in foreign countries, then it must cooperate with the UK proceedings, and take immediate steps to investigate and prosecute similar violations domestically, in line with Nepal’s own international obligations and the jurisprudence of Nepal’s Supreme Court.”
UK authorities arrested Colonel Lama on January 3rd for his alleged involvement in the torture of detainees while commander of the Gorusinge Battalion barracks in Kapilbastu in 2005.
Colonel Lama is currently serving as UN peacekeeper in the Sudan. At the time of the arrest, he was visiting family members who reside in the UK.
In response to the arrest, senior Nepali government leaders including the Deputy Prime Minister have called for his immediate release, and characterized the arrest as an “attack on national sovereignty.”
The ICJ pointed out that such statements seem to be predicated on a basic misunderstanding of both the UK and Nepal government’s international obligations to investigate and prosecute acts of torture, which are crimes under international law.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, to which both the UK and Nepal are party, expressly provides under article 7 that a State must prosecute or extradite for prosecution a person found under its territorial jurisdiction.
This obligation is an expression of the legal principle of “universal jurisdiction,” under which all States have a duty, not only a right, to prosecute and punish crimes under international law, including torture, and to take effective measures including the adoption of national legislation to exercise jurisdiction over such crimes.
In many countries, including the UK, legislation grants the courts jurisdiction to prosecute certain international crimes, including torture, regardless of where the violations took place.
The UK legislation was passed as part of an effort to comply with international law, including the Geneva Conventions on the laws of war and the Convention Against Torture.
For the UK police to release Colonel Lama without conducting a full investigation, as called for by the government of Nepal, would constitute a violation of the UK’s own international obligations, the ICJ stresses.
“This arrest by the UK police is not a threat to the sovereignty of Nepal; on the contrary, the acceptance of international human rights legal obligations to combat torture constitutes a clear expression of sovereignty by both the UK and Nepal. The UK through its actions this week is rightfully discharging these obligations,” Zarifi said. “Nepali victims have been forced to seek redress outside their own country against perpetrators because of the government of Nepal’s track record of failing to prosecute conflict-era crimes.”
“Decades of experience from around the world demonstrates that the failure to provide truth and justice as a society transitions away from conflict hampers the development of a durable peaceful society. That’s why the Nepali government should do all it can to help thousands of Nepali victims receive truth and justice in Nepal, and wherever perpetrators may be hiding,” Zarifi added.
National courts are generally reluctant to invoke universal jurisdiction to prosecute foreign nationals, and usually only do so when it is clear that national authorities are unable or unwilling to investigate and prosecute the alleged violation.
In Nepal, successive governments have not only failed to show their commitment to prosecute these crimes, but have made systematic efforts to avoid accountability, and rewarded suspected violators with promotions, ministerial appointments and opportunities to participate in UN peacekeeping operations.
The ICJ advised the government of Nepal that the most effective way to prevent the future arrest and prosecution abroad of those alleged to have been responsible for torture and other gross human rights violations is to:
- Show its commitment to the international rule of law by cooperating with any investigation by the UK police into the culpability of Colonel Lama, including allowing police to visit Nepal if such a request is made as part of their investigation;
- Order the prosecution of serious crimes committed during the conflict to move forward, and end attempts to introduce an amnesty for such crimes;
- Introduce transitional justice legislation that is in line with Nepal’s obligations under international law, and precludes the granting of amnesty for serious crimes;
- End politically-motivated withdrawals of human rights cases now before Nepali courts; and
- Criminalize torture, enforced disappearance and other crimes under international law.
Contact:
In Kathmandu, for ICJ, Frederick Rawski: t +977-984-959-7681
In Bangkok, for ICJ Asia-Pacific, Sam Zarifi: t +66-807-819-002
FURTHER READING:
Nepal: ‘toothless’ commissions of inquiry do not address urgent need for accountability – ICJ report
Dec 6, 2012 | News
The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.
The ICJ urges the government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.
Today, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.
Protests supporting and opposing the impeachment process erupted on Tuesday 4 December 2012 as the Chief Justice appeared before the Parliamentary Select Committee for the second time.
Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.
Opposition members of parliament publicaly called on the Government to adhere to principles of fair trial and due process in the impeachment process.
Reportedly the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.
The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.
“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”
As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed only in exceptional circumstances involving incapacity or gross misconduct.
A cornerstone of judicial independence is that tenure of judges be secure.
“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.
The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights.
The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of parliament, the majority of which are drawn from the Government coalition. No members of the judiciary are permitted to sit on the Select Committee.
Comparatively in India, an impeachment hearing is presided over by a three-member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.
In South Africa, a judge may only be removed after a hearing by the Judicial Service Commission, a body composed of members of the judiciary.
In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.
The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.
The timing of the impeachment motion raises questions. The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill – before Parliament.
If the bill passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD).
Attacks on the judiciary have been escalating in recent months. In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the Mannar courthouse.
In early October, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.
In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of state accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.
The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.
Contact:
Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66(0) 807819002; email: sam.zarifi@icj.org
Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan@icj.org
Nov 21, 2012 | News
The ICJ condemned today the execution of Ajmal Amir Kasab and called on India to immediately reinstate a moratorium on the death penalty.
“This is the second execution in South Asia in less than a week, marking a resurgence of capital punishment in the region,” said Sam Zarifi, Asia Director for the ICJ.
The ICJ condemned Pakistan’s execution of soldier Muhammad Hussain on Wednesday 15 November 2012.
Ajmal Kasab was executed by hanging in the early hours on Wednesday morning amid great secrecy.
The execution comes just a day after India voted against a United Nations General Assembly (GA) draft resolution, adopted by the GA’s Third Committee, calling for a moratorium on the use of the death penalty.
Over one hundred United Nations member States supported the draft resolution, an increase from previous United Nations General Assembly Resolutions passed in 2007, 2008 and 2010. The resolution will be taken up by the GA in December.
“India is one of a dwindling number of States voting against the resolution and still retaining the death penalty,” Zarifi added. “The death penalty violates the right to life and the inherent dignity of the person.”
More than 150 of 192 United Nations member States have either abolished the death penalty or do not practice it.
“There is no doubt that Kasab’s crimes were heinous, causing immeasurable suffering, but putting him to death is a significant step backwards for India, ending its eight-year hiatus on executions,” Zarifi said.
CONTACT:
Sheila Varadan, ICJ Legal Advisor, South Asia Programme, t: +66 857200723; email: sheila.varadan(at)icj.org
Sam Zarifi, ICJ Asia-Pacific Regional Director, t: +66 26198477; email: sam.zarifi(at)icj.org
Background:
Ajmal Kasab, a 25-year old Pakistani national, was sentenced to the death for his role in the Mumbai terrorist attack in 2008. The Supreme Court confirmed Ajmal Kasab’s death sentence on 29 August 2012, upholding the judgment of the Bombay High Court on 21 February 2011 and the sentence handed down by a lower court in May 2010.
On 18 September 2012, Kasab sent a four-line handwritten mercy plea to the President of India. The Maharashtra Home Ministry recommended rejecting the mercy plea on 24 September 2012 and Governor of Maharashtra, K Sankaranarayan, advised the same on 29 September 2012. The Union Government rejected the mercy plea on 23 October 2012. The President rejected the mercy plea in early November 2012.
Nov 20, 2012 | News
Indian authorities must immediately drop all charges against two women for their post on Facebook, says the ICJ.
