FOR IMMEDIATE RELEASE
AHRC-FAT-042-2012
November 15, 2012
An article from The Colombo Telegraph forwarded by the Asian Human Rights Commission
Sri Lanka: Impeachment Of CJ: Government Must Adhere To International Standards Of Due Process Says ICJ
The impeachment process against Sri Lankan Chief Justice Shirani Bandaranayake must follow international standards of
due process says the International Commission of Jurists.
"Many people in Sri Lanka have called the impeachment proceedings against Chief Justice Bandaranayake a politically
motivated attack on the independence of the judiciary," said Sam Zarifi, Asia Director of the (ICJ). "If the government
wants to dispel any such notion, it must adhere to international standards of due process in the impeachment
proceedings."
The proceedings come in the wake of the Supreme Court ruling on a controversial bill, the Divi Neguma bill, before
Parliament.
The bill seeks to establish a centralized development authority by amalgamating three provincial development agencies.
If the bill passes, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would
have control over a fund of 80 billion Sri Lankan rupees (611 million USD).
In early September, the Chief Justice, leading a bench of three Supreme Court Justices, issued a ruling, directing
Parliament to obtain the consent of each of the elected Provincial Councils before passing the bill.
Following the ruling, all of the provincial councils, except the Northern province, endorsed the Divi Neguma bill. The
Tamil-majority Northern Province, until recently the stronghold of the insurgent armed Liberation Tigers of Tamil Eelam,
has still not held elections for the Provincial Council.
However, the appointed Governor of the Northern Province endorsed the bill on the basis that no provincial council had
been elected or established in the Northern province.
The Tamil National Alliance (a political alliance of minority Sri Lankan Tamils) filed a petition before the Supreme
Court challenging the authority of the Northern Province Governor to approve the Divi Neguma Bill in the absence of an
elected provincial council.
On 1 November 2012, the Chief Justice handed the decision on the Divi Neguma bill to the Speaker of the House. On the
same day, the Government coalition, the United People’s Freedom Alliance presented a motion to initiate impeachment
proceedings in Parliament.
The Speaker of Parliament then postponed the tabling of the impeachment motion until the announcement of the decision on
the Divi Neguma bill.
"The timing of the impeachment motion, just as the Supreme Court had challenged the government, certainly has raised
some eyebrows," said Zarifi. "And all this comes against the backdrop of increasing tensions between the between the
judiciary and the Government, which have escalated to the point of physical violence in the past few months," Zarifi
said.
In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a
mob to pelt stones and set fire to part of the Mannar courhouse.
In early October, the secretary of the Judicial Service Commission, Manjula Tillekaratne was assaulted by four
unidentified persons in broad daylight.
The ICJ issued a report earlier this month, Sri Lanka’s Crisis of Impunity, documenting the recent attacks on judicial
officers and judges, explaining how the systemic erosion of accountability has led to a crisis of impunity in Sri Lanka.
Fourteen charges
The impeachment motion against Chief Justice Bandaranayake sets out 14 charges. Allegations include failing to follow
Constitutional provisions by handing a Court decision to the Secretary of Parliament instead of the Speaker of
Parliament; not declaring all of her bank accounts to the auditor general; and misusing her position.
Opposition leaders have called on the Speaker of Parliament to allow observers from the International Commission of
Jurists and other international organizations to attend the proceedings.
"The fact that members of parliament believe it is necessary to have international observers indicates the strong
perception that this impeachment motion is politically motivated," Zarifi added. Under the UN Basic Principles on the
independence of the judiciary, a judge should only be removed for incapacity or serious misconduct.
Exceptional measure
In the region, impeachment is an exceptional measure reserved only for gross misconduct. Only India and Nepal allow for
the impeachment of the Chief Justice and neither country has ever initiated proceedings.
In the two instances where a provincial high court judge was removed in India, allegations involved criminal acts or
egregious acts of corruption.
Where a judge is at risk of being removed, he or she must be accorded the right to be fully informed of the charges; the
right to be represented at the hearing; the right to make a full defense; and the right to be judged by an independence
and impartial tribunal. The removal proceedings must meet international standards on fair trial and due process.
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 Sri Lanka, a seven-member Select Committee, comprising only Parliamentarians, presides over the impeachment hearing.
The Judicial Service Commission does not play a role in the impeachment process and there is no appeal to a judicial
body.
At least twice, the Sri Lankan government has attempted to impeach its Chief Justice. In 1978, the Government attempted
to impeach Chief Justice Samarakoon. The Chief Justice, however, retired before the Committee report could clear him of
the charges after some two years of hearings.
In 2001, the Government initiated impeachment proceedings against Chief Justice Sarath Silva. However, before a
Committee could be constituted President Kumaratunga dissolved Parliament.
Source www.icj.org
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in
Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of
these rights. The Hong Kong-based group was founded in 1984.
ENDS