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Sri Lanka: judges around the world condemn impeachment of Chief Justice Dr Shirani Bandaranayake

Sri Lanka: judges around the world condemn impeachment of Chief Justice Dr Shirani Bandaranayake

23 Jan 2013

Today, senior judges and eminent jurists from around the world joined together, calling on the Government of Sri Lanka to reinstate the legal Chief Justice Dr Shirani Bandaranayake.

An open letter issued by the Centre for the Independence of Judges and Lawyers of the International Commission of Jurists (ICJ) was sent to the Honorable Speaker of Parliament Chamal Rajapakse and H.E. President Mahinda Rajapakse, condemning the removal of Chief Justice Dr Shirani Bandaranayake as unconstitutional and in contravention of international standards on judicial independence.

The letter emphasized that an independent and impartial judiciary is essential for the protection of human rights, the rule of law, good governance and democracy.

It says: “The irremovability of judges is a main pillar of judicial independence. Judges may be removed only in the most exceptional cases involving serious misconduct or incapacity. And in such exceptional circumstances, any removal process must comport with international standards of due process and fair trial, including the right to an independent review of the decision.”

The impeachment process, and subsequent removal of the legal Chief Justice disregarded international standards of judicial independence and minimum guarantees of due process and fair trial.

“The Rajapakse Government has brought Sri Lanka on the path toward authoritarian rule, dismantling the system of checks and balances and eviscerating judicial independence,” said Wilder Tayler, ICJ Secretary General.

The Government’s conduct is a flagrant violation of the core values of the Commonwealth of Nations, notably the Latimer House Principles on the Three Branches of Government 2003.

The Latimer House Principles require the State to uphold the rule of law by protecting judicial independence and maintaining mutual respect and cooperation between Parliament and the Judiciary.

The Commonwealth Magistrates’ and Judges’ Association endorsed the letter.

In recent days, lawyers and advocates, opposing the impeachment have allegedly been sent threatening letters from a group identified as the Patriotic Taskforce.

The group has targeted the lawyers as traitors. Civil society groups have also been targeted in smear campaigns in the media. The Chief Justice has voiced concern for her and her family’s safety, calling on the international media to “…look after the three of us.”

“Sri Lanka must act immediately to guarantee the security of persons who have been the subject of threats or intimidation and must initiate prompt, thorough and impartial investigations into such allegations,” Tayler added.

The ICJ’s Centre for the Independence of Judges and Lawyers and the undersigned jurists urge H.E. President Mahinda Rajapakse and Speaker of Parliament Chamal Rajapakse to act immediately to restore the independence of the judiciary by reinstating the legal Chief justice Dr. Shirani Bandaranayake.

CONTACT:

Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t: +66(0) 807819002; sam.zarifi(at)icj.org

Sheila Varadan, ICJ Legal Advisor, South Asia Programme, (Bangkok), t: +66 857200723; sheila.varadan(at)icj.org

Sri Lanka-ICJ Open letter impeachment Chief Justice-openletters-2012 (full text in pdf)

 

 

Human Rights Council must respond to ongoing failure of Sri Lankan justice system to ensure accountability for human rights violations

Human Rights Council must respond to ongoing failure of Sri Lankan justice system to ensure accountability for human rights violations

25 Feb 2014

The ICJ urges the Human Rights Council to establish an international commission of inquiry to investigate alleged violations of international human rights and humanitarian law in Sri Lanka.

“The Sri Lankan justice system can no longer ensure accountability for human rights violations and war crimes,” said Sam Zarifi, ICJ Asia Pacific Regional Director. “The judiciary has been stripped of its independence and impartiality, and lawyers continue to be intimidated, harassed and subjected to improper interference.”

The ICJ welcomes the UN High Commissioner’s report on Sri Lanka released yesterday.

In the report, Navi Pillay notes with concern that the Government of Sri Lanka has failed to make any significant progress in any of the areas of concern she had highlighted in her oral update to the Human Rights Council in September 2013.

The Government has failed to show any progress towards a credible national investigation process with tangible results, including the prosecution of perpetrators of serious violations of human rights and international humanitarian law; failed to address the serious and ongoing problem of enforced disappearances; failed to set a clear timeline for the disengagement of the military from activities that should be civilian; failed to prosecute a single incident of violence against journalists and human rights defenders; and failed to take measures to address the increasing attacks against religious minorities.

The High Commissioner remarked that ‘national mechanisms [in Sri Lanka] have consistently failed to establish the truth and achieve justice.’

A briefing paper prepared jointly with the International Bar Association published today (see below) explains how ongoing attacks on the judiciary and legal profession have undermined the rule of law and resulted in a general failure of the Sri Lankan justice system to ensure accountability for human rights.

“Judges and lawyers are routinely subjected to intimidation, hindrance, harassment, and improper interference,” Zarifi added.  “In the last 18 months, we are aware of at least 10 incidents against judges and lawyers and to date, no one has been prosecuted for these attacks.”

More than a year after the highly politicized impeachment of the 43rd Chief Justice Dr Shirani Bandaranayake, there continues to be no transparent, independent, impartial and fair procedure for the removal or discipline of judges in Sri Lanka.

Pursuant to its legal obligations under the International Covenant on Civil and Politicial Rights, as elaborated on by the UN Basic Principles on the Independence of the Judiciary, Sri Lanka must take measures to ensure the judiciary is protected from improper influences, inducements, pressures, threats and interferences.

The appointment process for the judiciary must be based on integrity and ability and there must be safeguards against judicial appointments for improper motives.

“The 18th Amendment, which endows President Mahinda Rajapaksa unilateral authority to make judicial appointments has cleared the way for a politicized appointments process, where appointments are made on the basis of loyalty and personal patronage rather than seniority, integrity and proven competence,” said Zarifi.

“What we are left with is a judiciary that is no longer capable of achieving justice and ensuring accountability for human rights violations.”

The High Commissioner concluded that in the absence of a credible national process, ‘the international community has a duty to take further steps, which will advance the right to truth for all in Sri Lanka and create further opportunities for justice, accountability and redress.’

The ICJ supports the recommendations in the High Commissioner’s report and calls on the member States of the Human Rights Council to establish an international independent commission of inquiry to investigate allegations of violations of human rights and humanitarian law in Sri Lanka.

Contact:

Sam Zarifi, ICJ  Asia Pacific Regional Director, (Bangkok); t: +66 807819002; email: sam.zarifi(a)icj.org

Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan(a)icj.org

Background

The United Nations High Commissioner for Human Rights issued its Report pursuant to Human Rights Council Resolution 22/1, which encouraged the Government of Sri Lanka to implement the constructive recommendations of the Lessons Learnt and Reconciliation Commission, to implement the recommendations of the 2013 report of the United Nation High Commissioner for Human Rights on Sri Lanka, as well as conduct an independence and credible investigation into allegations of violations of international human rights and humanitarian law.

At the September 2013 session of the Human Rights Council, the ICJ delivered a statement saying, “We look forward to the presentation of a comprehensive report from the High Commissioner at the 25th session and urge the Council to prepare to take action at that time if the Government continues to fail to take concrete steps to ensure justice and accountability for alleged violations of international human rights law and humanitarian law in Sri Lanka.”

Sri Lanka-Rule of Law undermined-Advocacy-analysis brief-2014 (download Advocacy Note in English pdf)

Sri Lanka-Rule of Law undermined – Advocacy-analysis brief 2014 -Fr (download Advocacy Note in French pdf)

Sri Lanka-Rule of Law undermined – Advocacy-analysis brief 2014-Sp (download Advocacy Note in Spanish pdf)

Sri Lanka-Rule of Law undermined – Advocacy-analysis brief 2014-Ar (download Advocacy Note in Arabic pdf)

ICJ and IBAHRI urge Commonwealth States to make Sri Lanka accountable to Commonwealth values

ICJ and IBAHRI urge Commonwealth States to make Sri Lanka accountable to Commonwealth values

14 Nov 2013

The International Bar Association’s Human Rights Institute (IBAHRI) and the ICJ urge the Commonwealth Heads of States meeting in Colombo this week to make Sri Lanka accountable to Commonwealth values.

The IBAHRI and the ICJ recall that the Commonwealth Charter, passed in March 2012, sets out 16 core values, which include safeguarding the independence of the judiciary, protecting the rule of law, respecting the separation of powers and promoting democratic rule.

But the two organizations point out numerous examples where these values have not been respected by the Government of Sri Lanka.

The IBAHRI and the ICJ were holding a press conference in Bangkok Thailand today after a high-level IBAHRI delegation was blocked from entering Sri Lanka late last week to attend a conference on the rule of law and independence of the legal profession hosted by the Bar Association of Sri Lanka.

Giving a statement remotely, Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers, expressed “serious concerns about acts of reprisals against judges, prosecutors, lawyers and other actors of the judicial system who cooperate, or seek to cooperate, with UN and regional human rights mechanisms.”

“Reprisals against judicial actors and legal professionals are a kind of attack to their institutional and functional independence,” she added.

Earlier this year, the IBAHRI conducted a remote fact-finding mission on the politically motivated impeachment of Chief Justice Banadranayake in January 2013, after being denied entry into Sri Lanka.

The IBAHRI Mission concluded that the Chief Justice’s removal was unlawful, undermined public confidence in the rule of law and threatened to eviscerate the country’s judiciary as an independent guarantor of constitutional rights.

In an open letter signed by 56 eminent jurists and senior judges from around the world, the ICJ also expressed its grave concern over the disregard for international standards on the independence of the judiciary and the removal of judges.

“This weakening of rule of law and independence of the judiciary is accompanied by an equally deteriorating human rights situation,” said Sheila Varadan, ICJ Legal Adviser for South Asia.

The United Nations High Commissioner of Human Rights, Navi Pillay, in her recent visit to Sri Lanka expressed concern over the curtailment or denial of personal freedoms and human rights, the persistent impunity and the failure of rule of law.

“The state of affairs in Sri Lanka sits uneasily with the aspirations set out in the Commonwealth Charter,” said Human Rights Barrister and IBAHRI Sri Lanka Mission Rapporteur, Sadakat Kadri. “The Government of Sri Lanka has spent years undermining the values and principles of the Commonwealth.”

“If the Commonwealth is to remain a relevant and effective international organization, it is paramount that those heads of State who have chosen to attend this week’s summit take measures to make Sri Lanka accountable to the core values and principles of the Commonwealth,” said IBAHRI Senior Programme Lawyer Alex Wilks.

Contact:

Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66857200723; email: sheila.varadan(a)icj.org

Notes:

  • The IBAHRI delegation blocked from entering Sri Lanka included UN Special Rapporteur on the Independence of Judges and Lawyers, Ms Gabriela Knaul, former UN Special Rapporteur on the Independence of Judges and Lawyers and ICJ Commissioner Dato’ Param Cumaraswamy, and IBAHRI senior programme lawyer Alex Wilks, had intended to travel to Colombo to attend a conference on the rule of law and independence of the legal profession hosted by the Bar Association of Sri Lanka. IBAHRI Mission Rapporteur Sadakat Kadri was also unable to enter Sri Lanka as he was denied a visa.
  • The Bar Association of Sri Lanka with the International Bar Association’s Human Rights Institute had planned a conference for 13 November 2013 on ‘Making Commonwealth values a reality: the rule of law and independence of the legal profession’.  The 13 November 2013 conference was cancelled when the Government of Sri Lanka revoked visas for the UN Special Rapporteur and the IBAHRI delegation on 7 November 2013.
  • In March 2013, a delegation of the IBAHRI undertook a remote fact-finding mission to investigate the impeachment proceedings of Chief Justice Bandaranayake, the independence of the legal profession and rule of law in Sri Lanka. The mission was conducted remotely following the cancellation of visas by the Government of Sri Lanka for the IBAHRI delegation. A report was released in April 2013 A Crisis of Legitimacy: The Impeachment of Chief Justice Bandaranayake and the Erosion of the Rule of Law in Sri Lanka.
  • The ICJ released a report, Authority without Accountability: The crisis of impunity in Sri Lanka in November 2012 documenting the systemic erosion of rule of law and accountability mechanisms in Sri Lanka.  The ICJ report described how decades of Emergency rule and legal immunities granted to the President and other government officials weakened the checks and balances in the Sri Lankan government, while political interference has increasingly led to attacks on the independence of the judiciary and rule of law.

 

ICJ and IBAHRI hold event ahead of Commonwealth meeting in Sri Lanka

ICJ and IBAHRI hold event ahead of Commonwealth meeting in Sri Lanka

14 Nov 2013

The International Bar Association Human Rights Institute (IBAHRI) and the ICJ urge Commonwealth Heads of States meeting in Colombo this week to make Sri Lanka accountable to Commonwealth values.

The IBAHRI and the ICJ are holding a press conference in Bangkok, Thailand, this morning after a high-level IBAHRI delegation was blocked from entering Sri Lanka late last week.

You can watch the event here: http://www.ustream.tv/recorded/40754120

 

Further reading:

Sri Lanka-Muttur killings-ICJ-ACF Q&A-briefing paper-2013 (full text in pdf)

ICJ open letter signed by 56 eminent jurists and senior judges from around the world

ICJ report Authority without Accountability: The crisis of impunity in Sri Lanka

ICJ welcomes Human Rights Council resolution on Sri Lanka

ICJ welcomes Human Rights Council resolution on Sri Lanka

21 Mar 2013

A resolution adopted today by the UN Human Rights Council highlights the Sri Lankan Government’s ongoing failure to provide accountability for serious violations of human rights and the laws of war, the ICJ said.

“The ICJ welcomes this resolution as it underscores the international community’s continuing concern about the horrific atrocities committed by all sides to the Sri Lankan conflict,” said Alex Conte, Director of ICJ’s International Law and Protection Programmes. “The UN, as well as the Commonwealth and other international organizations interested in helping the Sri Lankan people, should now press and assist the Sri Lankan Government to show tangible implementation of their oft-repeated promises.”

Twenty-five States supported the resolution, following from a similar resolution adopted by the Council on Sri Lanka last year.

The resolution reiterates the need for the Sri Lankan Government to demonstrate tangible steps to ensure accountability for violations of human rights and the laws of war, especially during the final months of the three-decade long conflict in 2009.

In particular, the resolution calls on the Sri Lankan Government to implement the recommendations of its own Lessons Learnt and Reconciliation Commission (LLRC).

The LLRC was widely criticized by Sri Lankan civil society as well as international observers as falling short of international standards of providing accountability.

“Sri Lanka has a long history of promising justice but delivering impunity, and the LLRC is only the most recent example of that. With this resolution, the international community shows it wants to see concrete action,” Conte added. “Not only has the Sri Lankan Government not addressed the violations of the past, but there are strong indications that the rule of law has significantly deteriorated.”

The resolution notes with concern the ongoing reports of human rights violations being committed with impunity in Sri Lanka, including enforced disappearances, extrajudicial killings and torture.

In October 2012, the ICJ released a 150-page report Authority without Accountability: The Crisis of Impunity in Sri Lanka, documenting the systematic erosion of accountability mechanisms in Sri Lanka.

In recent months, Sri Lanka’s Government has stepped up its assaults on the independent functioning of the judiciary. In particular, the country’s Chief Justice was removed from office after she had challenged the legality of Government efforts to consolidate authority. The heavily politicized impeachment process was declared unconstitutional by the Supreme Court of Sri Lanka and was inconsistent with international human rights law and standards.

“In light of this resolution and the situation in Sri Lanka, the Commonwealth should change its plans to hold the 2013 Commonwealth Heads of Government Meeting in Colombo,” said Conte. “Sri Lanka has demonstrated its rejection of the Commonwealth Principles, notably democracy, the independence of the judiciary and human rights. This will no doubt be further confirmed when the High Commissioner for Human Rights presents her oral update to the Human Rights Council in September this year, just two months ahead of the scheduled Heads of Government Meeting.”

The ICJ has urged the Commonwealth Ministerial Action Group (CMAG), which meets next month, to address the human rights situation in Sri Lanka with the objective of removing its right to host the Heads of Government Meeting.

CONTACT:

Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok); t:+66(0) 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

 

NOTES:

  • The resolution of the Council was adopted by 25 votes in favor, 13 against and 8 abstentions (with Congo, Ecuador, Indonesia, Kuweit, Maldives, Mauritania, Pakistan, Philippines, Qatar, Thailand, Uganda, United Arab Emirates and Venezuela voting against; and Angola, Botswana, Burkina Faso, Ethiopia, Japan, Kazakhstan, Kenya, Malaysia abstaining)
  • The resolution was led by the United States of America and co-sponsored by Austria, Canada, Estonia, Germany, Ireland, Italy, Montenegro, Poland, Romania, Spain, and Switzerland; as well as by the following non-member States of the Council: Belgium, Bulgaria, Croatia, Denmark, Finland, France, Georgia, Greece, Hungary, Iceland, Liechtenstein, Lithuania, Malta, Monaco, Norway, Portugal, Saint Kitss and Nevis, Slovakia, Slovenia, Sweden and the United Kingdom of Great Britain and Northern Ireland.
  • In January 2012, Chief Justice Dr Shirani Bandaranayake was removed in an impeachment process that violated international standards of due process and was declared unconstitutional by the Supreme Court. The impeachment was widely condemned internationally. The ICJ issued a letter supported by fifty-six senior jurists from over thirty countries worldwide.

 

RELATED ARTICLES:

Open letter: Sri Lanka should not host the 2013 Commonwealth Heads of Government Meeting

ICJ calls for International Commission of Inquiry on accountability in Sri Lanka

The International Commission of Jurists welcomes key Human Rights Council resolution on Sri Lanka

Sri Lanka: judges around the world condemn impeachment of Chief Justice Dr Shirani Bandaranayake

 

Sri Lanka should not host the 2013 Commonwealth Heads of Government Meeting

Sri Lanka should not host the 2013 Commonwealth Heads of Government Meeting

12 Feb 2013

commonwealth-of-nations-hiIn an open letter to the Commonwealth Secretary General Kamalesh Sharma, the ICJ is asking to change the venue of the Commonwealth Heads of Government Meeting in November 2013.

Dear Commonwealth Secretary General Kamalesh Sharma,

We, the International Commission of Jurists, enclose an open letter addressed to President Mahinda Rajapakse of Sri Lanka, signed by fifty-six eminent jurists from around the world, condemning the unlawful removal of Chief Justice Bandaranayake and expressing grave concern for the decline of rule of law and independence of the judiciary in Sri Lanka. 

We urge you to follow through on your earlier statements and consider changing the venue of the 2013 Commonwealth Heads of Government Meeting as part of the commitment to advance and strengthen adherence to the Commonwealth’s oft-stated values and Principles pertaining to the rule of law.

Removing the Chief Justice through a process declared unconstitutional by the apex court and in contravention of international standards on the independence of the judiciary goes directly against the core principles enunciated in the Singapore Declaration 1971, the Harare Declaration 1991 and the Latimer House Principles on the Three Branches of Government 2003; it flies in the face of the Commonwealth values of promoting and protecting democracy, the rule of law and the independence of the judiciary.

We recall your statement that ‘The Commonwealth’s Latimer House Principle, which govern the relationship between the three branches of government, are the cornerstone of our association’s values.’  

The unlawful impeachment process marks a serious acceleration of the general and serious decline in respect for human rights and the rule of law in Sri Lanka, as documented recently in our report Authority without Accountability.

These developments are all the more alarming given the ongoing failure of the Sri Lankan government to respond to domestic and international demands for accountability for serious human rights violations in the country.

In the present climate, allowing Sri Lanka to host the Commonwealth Heads of Government meeting in November 2013 would raise serious questions about the Commonwealth’s commitment to democracy, the independence of the judiciary and the rule of law.

Please do not hesitate to contact us if you have any queries or comments. We thank you in advance for your sensitivity to this important matter.

Sincerely

Wilder Tayler

Secretary-General

The International Commission of Jurists

Sri Lanka: appointment of new Chief Justice undermines Rule of Law

Sri Lanka: appointment of new Chief Justice undermines Rule of Law

15 Jan 2013

mohanpeirisThe appointment of former Attorney General Mohan Peiris (photo) as Sri Lanka’s new Chief Justice raises serious concerns about the future of the Rule of Law and accountability in the country, the ICJ said today.

Mohan Peiris has served in a variety of high-level legal posts in the past decade, always playing a key role in defending the conduct of the Sri Lankan government.

He served as Sri Lanka’s Attorney-General from 2009 to 2011. Since then he has served as the legal adviser to President Mahinda Rajapakse and the Cabinet.

“During his tenure as Attorney-General and the government’s top legal advisor Mohan Peiris consistently blocked efforts to hold the government responsible for serious human rights violations and disregarded international law and standards,” said Sam Zarifi, ICJ’s Asia director.

“Mohan Peiris’ appointment as the new Chief Justice, after a politically compromised and procedurally flawed impeachment, adds serious insult to the gross injury already inflicted on Sri Lanka’s long suffering judiciary.”

The International Commission of Jurists, in its recent report on impunity in Sri Lanka, highlighted Mohan Peiris’ lack independence as Attorney-General, noting the alarming number of cases involving prominent politicians that were withdrawn during his tenure.

In November 2011, as Attorney General, Peiris told the UN Committee Against Torture in Geneva that political cartoonist Prageeth Ekneligoda, believed to have been subjected to enforced disappearance in January 2010, had actually left Sri Lanka. In June 2012, Peiris admitted to a court in Colombo that this claim was groundless.

“ICJ condemns this appointment as a further assault on the independence of the judiciary and calls on the Sri Lankan government to reinstate Chief Justice Shirani Bandaranayake. If there are grounds for questioning the Chief Justice’s actions, they should be pursued following due process and a proper impeachment process.”

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

NOTE:

In a statement today (see below), Justice Bandarayanake strongly denied all the charges against her and asserted her status as the legal Chief Justice of Sri Lanka’s supreme court. She said: “The accusations leveled against me are blatant lies.  I am totally innocent of all charges…Since it now appears that there might be violence if I remain in my official residence or my chambers I am compelled to move…”

Sri Lanka-CJ final speech-2012 (full statement, in pdf)

Read also:

ICJ condemns impeachment of Sri Lanka’s Chief Justice

Sri Lanka’s Parliament should reject motion to impeach Chief Justice

Impeachment of Sri Lankan Chief Justice: Government must adhere to international standards of due process

 

ICJ condemns impeachment of Sri Lanka’s Chief Justice

ICJ condemns impeachment of Sri Lanka’s Chief Justice

11 Jan 2013

The ICJ condemned the decision of Sri Lanka’s parliament today to impeach the country’s Chief Justice, Shirani Bandaranayake (photo).

“Parliament’s impeachment motion has defied the rulings of the country’s Supreme Court and Court of Appeal, and thus thrown into chaos the entire system of checks and balances in the country,” said Sam Zarifi, ICJ’s Asia-Pacific director.

“Sri Lanka’s parliament and executive have effectively decapitated the country’s judiciary in pursuit of short term political gain. As an immediate matter, this has precipitated a legal and constitutional crisis of unprecedented dimensions; but just as worrying are the consequences of this action, which severely erodes accountability and the rule of law in a country already suffering from decades of impunity.”

The impeachment decision now goes to President Mahinda Rajapakse, who precipitated this crisis initially. Under Article 107 of the 1978 Constitution of Sri Lanka, a Chief Justice can only be removed by an order of the President after a motion supporting the removal is passed by a simple majority of Parliamentarians.

The impeachment process against Chief Justice Shirani Bandaranayake has been widely criticized for ignoring international standards and practice. 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 1 January 2013, the Supreme Court 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 Bar Association of Sri Lanka has publically vowed that it will not welcome a new Chief Justice and the Lawyers Collective has called on the Supreme Court and the superior judiciary to not recognize the newly appointed Chief Justice.

“President Rajapakse should refuse to appoint a new Chief Justice, and instead call on Parliament to enact a new law – through a transparent and democratic process – to govern the impeachment process. Any such law must comport with international standards on judicial independence and guarantees of due process and fair trial,” Zarifi added.

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

See also previous ICJ press releases:

Sri Lanka’s Parliament should reject motion to impeach Chief Justice

Impeachment of Sri Lankan Chief Justice: Government must adhere to international standards of due process

Sri Lanka: new ICJ report documents ‘Crisis of Impunity’

 

Sri Lanka’s Parliament should reject motion to impeach Chief Justice

Sri Lanka’s Parliament should reject motion to impeach Chief Justice

9 Jan 2013

SLimpeachmentMembers 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

 

 

Sri Lanka: Chief Justice’s impeachment hearing violates due process

Sri Lanka: Chief Justice’s impeachment hearing violates due process

6 Dec 2012

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

UN investigation offers hope to victims in Sri Lanka

UN investigation offers hope to victims in Sri Lanka

27 Mar 2014

The UN Human Rights Council resolution to establish an international investigation into allegations of human rights violations and abuses committed by both sides in Sri Lanka’s civil war gives hope to tens of thousands of victims who continue to be denied truth and justice.

Bar Association of Sri Lanka calls for a two-day strike to protest impeachment motion

Bar Association of Sri Lanka calls for a two-day strike to protest impeachment motion

10 Jan 2013

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

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