A statement by Asian jurists on the impeachment of the Chief Justice and the collapse of rule of law in Sri Lanka

A statement by Asian Jurists on the Impeachment of the Chief Justice, Dr. Shirani Bandaranayake, and about the threatened rule of law in Sri Lanka while attending a consultation , held from 9-11 April 2013, in Bangkok, expressed their alarm.

Jurists from 12 Asian countries, Sri Lanka, India, Bangladesh, Burma, Pakistan, Nepal, Indonesia, Thailand, Philippines, Vietnam, South Korea and Hong Kong attended the meeting.

We are seriously alarmed by the rapid collapse of the rule of law in Sri Lanka and the loss of the core values of the separation of powers; the supremacy of law; the independence of judges, prosecutors and lawyers; and the diminishing possibilities of fair trial and of democracy, due to the extension of unbridled powers of the executive presidential system that has crippled all public institutions in Sri Lanka.

The impeachment of the Chief Justice without adhering to universally accepted norms relating to removal of a judge from a superior court, is glaring manifestation of the capacity and the will of the executive to crush the independence of the judiciary.

The failure to afford a fair inquiry by an impartial body on the allegations levelled against the Chief Justice, clearly underlines the absence of bona fides on the part of the government. The removal of the Chief Justice is undeniably a political act, carried out to achieve political ambitions of the government, at the risk of seriously damaging the over 200-year-old institution in Sri Lanka, its judiciary. The damage done by this abrupt and ruthless assault on the independence of judiciary will have lasting impact upon the independence of the judges as well as on the rule of law in Sri Lanka.

The impeachment of the Chief Justice is followed by the appointment of, Mr. Mohan Peiris, a person whose close association with the president’s family and businesses is quite well known. No universally accepted independent and transparent processes were adhered to in the appointment process. Peiris’ past record as the Attorney General of Sri Lanka is tainted with serious allegations of political bias and lack of independence in office. While at the office of the Attorney General, Peiris failed to uphold the norms and standards upon which the tradition of the department of the Attorney General is built. Many of his decisions as the Attorney General had come under severe public criticism. Peiris represented the Government of Sri Lanka in international forums, only to throw the weight of his office to defend the appalling human rights record of Sri Lanka that came under repeated international criticism for years, due to manifold forms of serious abuses of human rights.

The crisis of the Sri Lankan judicial system as a whole, is the result of a prolonged constitutional crisis, beginning with the misconceived notion of the supremacy of the parliament as opposed to the supremacy of law. By way of constitutional changes through the 1978 Constitution, fundamental notions of the rule of law and democracy has been displaced in favour of the absolute and arbitrary power of the executive president. The president is above the law and is able to change any aspect of the constitution without public consultation, by mere manipulation of parliamentary majority. The Sri Lankan parliament under the present system is completely under the clutches of the executive president. The parliament has ceased to become a forum, where the legislature is subject to parliamentary debate, and instead has become a place where presidential directives are thumb printed. In the same manner, the ‘absolute power model’ enshrined in the constitution undermines judicial independence.

Sri Lanka has constitutionally rejected the rule of law and democracy. Therefore, there is a fundamental constitutional crisis of legitimacy in the country that has crippled the very structure of the state and that of governance. This situation is incompatible with the fundamental notions of democracy and the core values enshrined in the Latimer House Principles of the Commonwealth.

The crisis of democracy and that of the rule of law, adversely affects all the rights of the citizens. The courts are no longer in a position to protect the dignity and the rights of the individual. The courts are placed in conditions at which they are compelled to defend the state at whatever risk of repression that may be caused to the rights of individuals, including the property rights of the citizens.

The crisis of the rule of law has understandably led to a paralysis of the criminal justice system in Sri Lanka. The Sri Lankan policing system is highly politicised and therefore is failing to be an effective mechanism for investigation and prevention of crime. Across the country, there are large numbers of complaints regarding the failure of the police to investigate even serious crimes. The loss of protection for property and person from crimes is one of the major problems facing the citizens of Sri Lanka today.

Among the crimes that are never investigated includes serious human rights abuses. Enforced disappearances, extra judicial executions, torture and illtreatment, crimes relating to personal integrity as well as those involving private and public property are neglected and a culture of impunity is prevailing. Attacks on judges and lawyers and upon the media are not investigated. The government is not embarrassed to face criticism relating to encouragement of impunity in the country. The government is in fact making all efforts to create the false impression that no amount of pressure will lead to any from of credible investigations into human rights abuses in Sri Lanka.

Under these conditions, the role played by the judiciary is been diminished along with serious negations of the professional freedom of lawyers to undertake their job. Lawyers who approach their profession seriously and pursue the interest of their clients according to the law and insist on redress for the grievances of their clients are exposed to serious dangers.

  • The following is a non-exhaustive list of concerns, lawyers face in Sri Lanka. They include:
  • threat of disenrollment;
  • of contempt of court actions;
  • attempted abduction;
  • absence of investigations on complaints;
  • fabricated criminal charges;
  • arrest and custodial torture;
  • close surveillance by state agencies by breaching privacy and privilege of communications (the names of 135 lawyers in Sri Lanka has been referred by the executive to the National Intelligence Bureau and the State Intelligence Service);
  • lawyers who are employed in state as well as private sectors restricted from exercising professional freedom;
  • organised vilification campaigns by state and non-state actors;
  • intimidation of judges by transferring them repeatedly or promoting judges tainted with corruption overlooking seniority.

Lawyers who dare to challenge this smothering of professional freedom risk the loss of practice and income.

Challenging the stifling of independence of judges and lawyers in Sri Lanka, we express our solidarity to the people of Sri Lanka, upon whom the task has fallen, to struggle to protect the rule of law and democracy in Sri Lanka. It is in the struggle of the people of Sri Lanka that the future of their liberty entirely rests.

Under these circumstances, the denial of active support to the people of Sri Lanka would amount to complacence on the part of the international community. We call upon the international community, including the United Nations, to act on the basis of their obligation under international law, to extend active solidarity to the people of Sri Lanka. It is the duty of the United Nations to act within their mandate and in terms of the recently passed resolution on Sri Lanka concerning reconciliation and accountability, to act firmly, so as not to allow the present crisis to degenerate further. It is also the duty of all the member states to support the United Nations in this endeavour.

In this context, the lawyers at the meeting endorsed the call by the International Bar Association to the Commonwealth to: “… assess the seriousness of the situation with which the Sri Lankan authorities take the recommendations, monitor the urgency with which they are acted upon, and consider with great care:

(i) whether they are respecting its core values and principle, including the respect for separation of powers, the rule of law, good governance and human rights enshrined in its Charter;

(ii) whether the Commonwealth’s reputation would be more enhanced or tarnished if Sri Lanka were to host the forthcoming Commonwealth Heads of Government Meeting and act as its Chair-in-Office for the next two years.”

117 Members of Parliament who were members of the ruling alliance had voted for the impeachment motion against the Chief Justice of Sri Lanka.

The background to the filing was some judgements given by the Supreme Court bench of which the Chief Justice was the head declaring some Bills submitted to them by the government were in conflict with the Constitution. These judgements have been seen by almost everyone as the reason behind the impeachment.

The lawyers for the Chief Justice have already issued a letter where the Chief Justice has denied the charges.

The provisions under the Constitution and the Standing Orders do not provide for a just and fair inquiry by an impartial tribunal. This is the crux of the objections taken against the impeachment process.

The UN Rapporteur for the independence of lawyers and judges and many international authorities have expressed serious concern about the impeachment issue and requested the government to reconsider the matter.

The United Nations Special Rapporteur, Gabriela Knaul, while expressing serious concerns about reported intimidation and attacks against judges and judicial officers, warned that they might form part of a pattern of attacks, threats reprisals and interference in the independence of the justice system in Sri Lanka.

“I urge the Sri Lanka Government to take immediate and adequate measures to ensure the physical and mental integrity of members of the judiciary and to allow them to perform their professional duties without
any restrictions, improper influences, pressures, threats or interferences, in line with the country’s
international human rights obligations,” Ms. Knaul said.

According to reports received by the independent human rights expert, most cases of attacks and interference against the judiciary in Sri Lanka are not genuinely investigated, and perpetrators are not held to account.

“The irremovability of judges is one of the main pillars guaranteeing the independence of the judiciary and only in exceptional circumstances may this principle be transgressed,” the Special Rapporteur underscored,

Expressing her uneasiness with the procedure of impeachment of the Chief Justice of the Supreme Court, Dr. Bandaranayake, launched before the Parliament on 1 November 2012, she said that “Judges may be dismissed only on serious grounds of misconduct or incompetence, after a procedure that complies with due process and fair trial guarantees and that also provides for an independent review of the
decision”. “The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”

In her view, the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is
therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.

“I urge the authorities to reconsider the impeachment of Chief Justice Bandaranayake and ensure that any disciplinary procedure that she might have to undergo is in full compliance with the fundamental principles of due process and fair trial,” the UN Special Rapporteur added.

Gabriela Knaul took up her functions as UN Special Rapporteur on the independence of judges and lawyers on 1 August 2009. In that capacity, she acts independently from any Government or organization. Ms. Knaul has a long-standing experience as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems.

OHCHR Country Page – Sri Lanka: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/LKIndex.aspx
Check the UN Basic Principles on the Independence of the
Judiciary: http://www2.ohchr.org/english/law/indjudiciary.htm