High Excellency President Mahinda Rajapakse
Honorable Speaker of the Parliament Chamal Rajapakse
Sri Jayawardenepura Kotte
Sri Lanka
January 23, 2013
Concerning the removal of Chief Justice Dr. Shirani Bandaranayake
Your Excellencies,
The International Commission of Jurists and the undersigned senior judges and eminent jurists from around the world condemn the recent removal of Chief Justice and urge you to act immediately to restore the independence of the judiciary by reinstating the legal Chief Justice, Dr. Shirani Bandaranayake. We are gravely concerned that recent actions to remove the Chief Justice have been taken in contravention of the Constitution, international human rights law and standards, including the right to a fair hearing, and the rule of law.
Judicial independence and the separation of powers are the bedrock of the rule of law. International standards such as the United Nations Basic Principles on the Independence of the Judiciary stress that judicial independence is a fundamental requirement in promoting human rights and preserving rule of law. The United Nations General Assembly in Resolution 65/213 of 1 April 2011 reaffirmed that an independent and impartial judiciary is essential for the protection of human rights, the rule of law, good governance and democracy.
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. Members of the judiciary must never be subject to removal on the basis of judicial decisions rendered in the legitimate exercise of their professional functions.
The United Nations Special Rapporteur on the Independence of Judges and Lawyers and the United Nations Human Rights Committee have raised concerns that the procedure for removing judges under Article 107 of the 1978 Constitution and the complementary Standing Orders do not adequately guarantee the right to a fair trial rights and due process under Article 14 of the International Covenant on Civil and Political Rights.
Sri Lanka’s actions further violate the core values of the Commonwealth of Nations enunciated in the Singapore Declaration 1971, the Harare Declaration 1991 and the Latimer House Principles on the Three Branches of Government 2003. The Latimer House Principles call on member States to uphold the rule of law by protecting judicial independence and maintaining mutual respect and cooperation between Parliament and the Judiciary.
Finally, Sri Lanka’s actions run against the regionally applicable standards set out in the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region.
The threats to the separation of powers, independence of the judiciary and rule of law in the impeachment case in Sri Lanka are revealed by the following sequence of events:
On 1 November 2012, a resolution signed by 117 Members of Parliament was presented to the Speaker of the House, Chamal Rajapakse, to initiate impeachment proceedings against the Chief Justice. The resolution contained fourteen allegations relating to misconduct and non-disclosure of financial assets.
On 14 November 2012, a Parliamentary Select Committee was established pursuant to Parliamentary Standing Orders 78A and Article 107(3) of the 1978 Constitution to investigate the charges. The Parliamentary Select Committee was composed of seven Cabinet Ministers and four members from the opposition political parties.
On 22 November 2012, the Supreme Court of Sri Lanka requested Parliament to suspend the impeachment proceedings until the Court could decide on the constitutionality of Parliamentary Standing Orders 78A. Parliament disregarded the Supreme Court’s request and the Chief Justice appeared before the Parliamentary Select Committee for the first time on 23 November 2012.
On 6 December 2012, Chief Justice Bandaranayake walked out of the impeachment hearing in protest over the denial of a fair hearing. The Chief Justice was not provided timely and full disclosure of the evidence in relation to the charges; was not given adequate time to respond to the charges; was denied the right of crossexamination; and was treated in a derogatory and disrespectful manner by Members of Parliament and denied the right to a public hearing. On the same day, the four opposition Members withdrew from the Parliamentary Select Committee.
On 7 December 2012, the seven remaining members of the Parliamentary Select Committee concluded their investigation on the first five charges, finding the Chief Justice guilty on three charges.
On 1 January 2013, a three-member panel of the Supreme Court ruled that the impeachment procedure set out in Standing Orders 78A was not constitutionally valid, holding that such procedures could only be established ‘by law’ enacted by Parliament.
On 7 January 2013, the Court of Appeal, relying on the judgment of the Supreme Court, issued a writ quashing the findings of the Parliamentary Select Committee on the basis the Committee lacked authority to make such a finding.
On 11 January 2013, in utter defiance of the Supreme Court judgment and the Court of Appeal order, Parliament passed a motion with 155 votes, to impeach Chief Justice Dr. Shirani Bandaranayake.
On 13 January 2013, President Mahinda Rajapakse signed a decree removing the Chief Justice from her post and delivered the document to her official residence in the morning.
On 15 January 2013, President Mahinda Rajapakse nominated three candidates to replace Chief Justice Bandaranayake. Former Attorney-General Mohan Peiris was approved by the Parliamentary Council and sworn in as Chief Justice. Prior to his appointment, Mohan Peiris served as the legal advisor to President Rajapakse and was widely known for defending the conduct of the Sri Lankan government and consistently blocking efforts to hold State officials accountable for gross human rights violations.
On the same day, Chief Justice Bandaranayake issued a public statement strongly denying all of the charges against her and asserting her status as the legal Chief Justice of Sri Lanka. 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…” Attacks against the judiciary have escalated to the point of physical violence 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 2012, four individuals assaulted the Judicial Service Commission Secretary Manjula Tillekaratne in broad daylight.
The undersigned jurists urge your High Excellency President Mahinda Rajapakse and Honorable Speaker Chamal Rajapakse to act immediately to restore the independence of the judiciary by reinstating the legal Chief Justice Dr. Shirani Bandaranayake and enacting a law in Parliament to govern the impeachment process. Such a law must comply with Sri Lanka’s obligations under international human rights law and standards.
Yours Sincerely
Justice Md. Abdul Matin
Former judge at the Appellate Division of the Supreme Court, Bangladesh
Justice Md. Abdur Rashid Former Judge at the Supreme Court, Bangladesh
Justice Ajit Prakash Shah Former Chief Justice of the Delhi High Court, India
Justice Bharat Raj Uprety Former Justice at the Supreme Court, Nepal
Justice C. Baardman Judge at the Court of Appeal of The Hague, the Netherlands
Justice Dragana Boljevic Judge at the High Court of Belgrade, Serbia
President of Judges’ Association of Serbia and Secretary General of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)
Justice E.D. Bonga-Sigmond Judge at the Court of Amsterdam, the Netherlands
Justice Gerrard Boot Judge at the Court of Amsterdam, the Netherlands Board member of Judges for Judges
Justice Azhar Cachalia Judge at the Supreme Court of Appeal, South Africa
Justice Moses Hungwe Chinhengo Former judge at the High Court, Zimbabwe and Botswana
Justice Anaclet C. Chipeta Judge at the High Court, Malawi
Justice Fernando Cruz Castro Judge at the Constitutional Chamber of the Supreme Court, Costa Rica
Justice E. de Rooij Judge at the Court of Amsterdam, the Netherlands
Justice Radmila Dicic Acting President of the Belgrade Court of Appeal and Judge of the Supreme Court, Serbia
Justice Rodolfo Gonzalez Judge at the Constitutional Chamber of the Supreme Court, El Salvador
Justice Augusto J. Ibáñez Guzmán Former President of the Supreme Court, Colombia
Justice Åsne Julsrud Judge at the District Court of Drammen, Norway
Justice Maclean Kamwambe Judge at the High Court, Malawi
Justice Kalthoum Kennou Investigative judge at the Tribunal of Tozeur, Tunisia
Justice César Landa Former President of the Constitutional Court, Peru
Justice Ketil Lund Former Judge at the Supreme Court, Norway
Justice Qinisile Mabuza Judge at the High Court, Swaziland
Justice D. Madise Judge at the High Court, Malawi
Justice Mbufto Mamba Judge at the High Court, Swaziland
Justice José Antonio Martín Pallín Emeritus Judge at the Supreme Court, Spain
Justice Thomas Masuku Former Judge at the High Court, Swaziland
Justice Florentín Meléndez Judge at the Constitutional Chamber of the Supreme Court, El Salvador
Justice Egbert Myjer Former judge at the European Court of Human Rights
Justice Reynato Puno Former Chief Justice, Supreme Court of the Philippines
Justice M.D. Ruizeveld Senior judge at the Court of Amsterdam, the Netherlands
Justice Jolien Schukking Judge at the Court of Utrecht, the Netherlands Board member of Judges for Judges
Justice R.C. Stam Judge at the Administrative High Court for Trade and Industry, the Netherlands
Justice F.M.P.M. Strengers Senior judge at the Court of Amsterdam, the Netherlands
Justice Philippe Texier Judge at the Social Division of the Court de Cassation, France
Justice Stefan Trechsel Judge at the Trial Chamber III, International Criminal Tribunal for the Former Yugoslavia
Justice Tamara Trotman Judge at the Court of Rotterdam, the Netherlands Vice-President of Judges for Judges
Justice N.L.J.M. Tuijn Deputy Chief Justice, Judge at the Court of Appeals of Den Bosch, the Netherlands
Justice Vilenas Vadapalas Judge at the General Court, European Union
Justice E.J. van der Molen Judge at the Court of Noord-Holland, the Netherlands
Justice Gerritjan van Oven Judge at the Court of Appeals of The Hague, the Netherlands President of Judges for Judges
Justice T.N.I. van Voorst Vader Judge at the Court of Amsterdam, the Netherlands
Justice T. Wolters Judge at the Court of Appeal of Leeuwarden, the Netherlands
Antonio Cluny Assistant Prosecutor-General at the Audit Court, Portugal President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés) Commonwealth Magistrates’ and Judges’ Association
Asma Jahangir Advocate at the Supreme Court, Pakistan Chair of the Human Rights Commission,
Pakistan
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