By Kshenuka Senewiratne -
21 January 2013
Ms. Navanethem Pillay,
United Nations High Commissioner for Human Rights,
Office of the High Commissioner for Human Rights,
Dear High Commissioner,
The Government of Sri Lanka notes, with deep regret and concern, your statement delivered at the OHCHR Press Briefing on 18th January 2013 where reference has been made to Sri Lanka. At the outset, I wish to reject categorically the contents of this statement, as it lacks any semblance of objectivity, steeped as it is in bias, marred by erroneous facts and further compounded by the inappropriate tenor of its language, all of which are indicative of unequal and invidious treatment of Sri Lanka.
To me this is reminiscent of the action taken by Mr Hanny Megally following the visit of the OHCHR team to Sri Lanka in September 2012, when he deviated from the accepted practice, by de-briefing third parties, even before briefing you, in your capacity as High Commissioner, or the Permanent Representative of the country concerned. It may also be recalled that when the latter pointed out the impropriety of this unacceptable conduct of Mr. Megally at that juncture, you accepted our Representative’s submission. However, your action in resorting to unwarranted comments with a series of innuendos on an issue which is entirely a domestic matter for Sri Lanka, and that too without first engaging with our Permanent Representative or the delegation of Sri Lanka in Geneva, demonstrates yet again the deviation from established procedure, amounting to blatant interference in an issue of a sovereign country.
With regard to the impeachment of the former Chief Justice, the Government of Sri Lanka as a sovereign country has followed the due procedure that is set out in the Constitution of our country. This procedure is indeed in conformity with principles which govern disciplinary proceedings against judges contained in the Basic Principles on the Independence of the Judiciary endorsed by the UNGA in 1985.
I wish to point out that it was following submission of the motion signed by 117 (out of 225) Members of Parliament, that the Speaker constituted a Parliamentary Select Committee to examine the issues involved in the allegations made against the former Chief Justice. Subsequently, the Report of the Select Committee was submitted and the matter was debated for two days in Parliament, with the active engagement of Opposition political parties. Thereafter, once the resolution to impeach the former Chief Justice was passed in Parliament with a majority of 106 votes (155 voting for and 49 against) the required address was made as our law requires to H.E. the President. It was only thereafter that the former Chief Justice was dismissed from office. Following this constitutional act, the former Chief Justice withdrew from her Chambers and official residence on her own accord. Your contention regarding the removal of the former Chief Justice from her Chambers and residence is, therefore, erroneous. It may also be noted that Sri Lanka prides itself on a Parliamentary democratic tradition and a judiciary of the highest standard. Moreover, the Constitution of the country enshrines adequate safeguards to ensure the independence of these vital arms of a functioning democracy, which are upheld by the Government of Sri Lanka.
The content of your statement sadly demonstrates that neither you nor your office has the understanding of the provisions of Sri Lanka’s Constitution, and the related procedures for the removal of judges of the superior courts. These provisions have been applied on several occasions in the past. For your information I annex a copy of the speech made by the Minister of External Affairs, Professor G.L. Peiris, on 10th January 2013 in the Parliament of Sri Lanka which sets out the legal framework within which the impeachment process was carried out and responds to opposing views on its legality.
Your assertion that “Sri Lanka has a long history of abuse of executive power” is offensive to this nation, and is clearly beyond your mandate. In this regard, you have transgressed the basic norms which should be observed by a discerning international civil servant, by bringing into question the constitutional governance of a sovereign State.
With regard to your reference to the new Chief Justice Hon Mohan Peiris, you are undoubtedly aware that he has been a member of the Sri Lanka delegation to the Human Rights Council sessions, originally in his official capacity as the Attorney General of the country, to handle legal issues required for our engagement in Geneva, which is not an uncommon practice amongst States. Subsequent to Hon Peiris relinquishing the office of Attorney General, based on his experience and expertise in the field, he was appointed Legal Adviser to the Cabinet of Ministers and therefore continued to serve in the Sri Lanka delegations to Geneva. It was by virtue of the offices he held at the time, which has direct relevance to the issues at hand, that Hon. Peiris served on the Sri Lankan delegation to the Human Rights Council Sessions.
It is most unfortunate that you have chosen to raise concerns about the independence and impartiality of the new Chief Justice just as he commences his term in this high office. In my view, this is reflective of the complete bias and negative mindset manifested and nurtured by parties inimical to Sri Lanka and with vested interests. By such an allegation, you have sought inexcusably to undermine the Office of Chief Justice. Further, this position articulated by you is a prejudgement on your part, which has been a sustained practice adopted by you, in relation to Sri Lanka. Regrettably, this cavalier statement brings into question the standards of impartiality and equality expected of the UN System.
With regard to the allegations of death threats and acts of intimidation against lawyers, you may wish to note that any complaints received in this regard by the law enforcement authorities are being and will be investigated. The Government of Sri Lanka is fully committed to upholding the rule of law and has been continuously taking steps to achieve this objective.
I wish to state that Sri Lanka has engaged with the UN System consistently and transparently, and therefore expects reciprocity from your office. No doubt you would appreciate that it is imperative to base this engagement on the fundamental right of States to be treated equally. A statement of this palpably biased nature could hurt the engagement between Sri Lanka and the UN System.
I look forward to our continued engagement in keeping with the principals I have set out in this letter.