The UN Human Rights Committee in a View expressed under article 5 (4) of the Optional Protocol to the Convention on Civil and Political Rights held that the Judicial Service Commission (JSC) has violated the rights of Mr. Soratha Bandaranayake who was dismissed on 7th November 2000. The UNHRC held that by this dismissal the rights of Mr. Bandaranayake under article 14 (1) and 25 (c) guaranteeing his rights for a fair hearing and access to public service have been violated. The committee stated that Sri Lanka is under an obligation to provide the author with an effective remedy including, appropriate compensation and requested Sri Lanka to inform the committee of the measures taken to give effect to the committees view within 180 days.
This decision was made on 24th July 2008 regarding Communication No. 1376/2005 filed on January 2005. The concluding portion of the View is given below:
7.1 The Committee observes that article 25 (c) of the Covenant confers a right to access, on general terms of equality, to public service, and recalls its jurisprudence that, to ensure access on general terms of equality, not only the criteria but also the procedures for appointment, promotion, suspension and dismissal must be objective and reasonable. A procedure is not objective or reasonable if it does not respect the requirements of basic procedural fairness. The Committee also considers that the right of ec1ual access to public service includes the right not to be arbitrarily dismissed from public service 0 The Committee notes the authors claim that the procedure leading to his dismissal was neither objective nor reasonable. Despite numerous requests, he did not receive a copy of the proceedings from his first hearing before the JSC on 18 November 1998; this is confirmed in the Supreme Court decision of 6 September 2004, and is not contested by the State party. Nor did he receive the findings of the Committee of Inquiry, on the basis of which he was dismissed by the JSC. The decision of the Court of Appeal confirms that these documents were never provided to him, in accordance with the express provision of Rule 18 of the JSC rules.
7.2 According to Rule 18 of the JSC rules, (C)opies of reports or reasons for findings relating to the inquiry or of confidential office orders or minutes, will not, however, be issued. The Committee notes that there is no justification in the JSC rules themselves nor any explanations offered by the courts or the State party, for the failure to provide judicial officers with the reasoning for the findings of the Committee of Inquiry against them. It also notes that the only reasoning provided to the author for his dismissal was set out in the dismissal letter of 7 November 2000, in which the JSC invoked the Committee of Inquirys finding that he had been found guilty of the charges against him, without any explanation. The JSC also took cognizance of incidents of alleged past misconduct, for which the author had already been exonerated. It is relevant to note that the State party itself has not provided a copy of the Committee of Inquirys findings. The Committee finds that the JSCs failure to provide the author with all of the documentation necessary to ensure that he had a fair hearing, in particular its failure to inform him of the reasoning behind the Committee of Inquiry s guilty verdict, on the basis of which he was ultimately dismissed, in their combination, amounts to a dismissal procedure which did not respect the requirements of basic procedural fairness and thus was unreasonable and arbitrary. For these reasons, the Committee finds that the conduct of the dismissal procedure was conducted neither objectively nor reasonably and it failed to respect the authors right of access, on general terms of equality, to public service in his country. Consequently, there has been a violation of article 25 (c) of the Covenant.
7.3 The Committee recalls its general comment on article 14, that a dismissal of a judge in violation of article 25 (c) of the Covenant, may amount to a violation of this guarantee, read in conjunction with article 14, paragraph 1 providing for the independence of the judiciary. As set out in the same general comment, the Committee recalls that judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. For the reasons set out in paragraph 7.2 above, the dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary. For this reason the Committee concludes that the authors rights under article 25 (c) in conjunction with article 14, paragraph 1, have been violated.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article25 (c), in conjunction with 14, paragraph 1, of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including, appropriate compensation.
10. Bearing in mind that, by becoming a party to the Optional Protocol, Sri Lanka has recognised the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive, within 180 days, information from the State party about the measures taken to give effect to the Committees Views. The State party is requested also to give wide publicity to the Committees Views.
