4 December, 2020

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Chief Justice’s Impeachment Hearing Violates Due Process – ICJ

By International Commission of Jurists

Chief Justice Bandaranayake

The impeachment process against Chief Justice Shirani Bandaranayake ignores international standards and practice, says the ICJ.

The ICJ urges the government of Sri Lanka to take immediate steps to uphold the independence of the judiciary and adhere to international standards and practice on the removal of judges.

Today, the Chief Justice and her team of lawyers walked out of the impeachment hearing in protest over the denial of a fair hearing.

Protests supporting and opposing the impeachment process erupted on Tuesday 4 December 2012 as the Chief Justice appeared before the Parliamentary Select Committee for the second time.

Over two hundred judges, several hundred lawyers, trade union leaders and a large number of religious dignitaries assembled to show their support for the Chief Justice.

Opposition members of parliament publicaly called on the Government to adhere to principles of fair trial and due process in the impeachment process.

Reportedly the Chief Justice has been denied the right to cross-examine potential witnesses and has not been provided full disclosure of the allegations against her.

The Parliamentary Select Committee has also denied the request for a public hearing and prohibited observers from attending.

“Parliament is pushing ahead with an impeachment process that fails to adhere to fundamental principles of due process and fair trial,” said Sam Zarifi, ICJ Asia Pacific Director. “The Chief Justice’s impeachment is part of a relentless campaign waged by the Rajapaksa Government to weaken the judiciary. An independent judiciary is the principle check on the exercise of executive and legislative powers – vital to the functioning of a healthy democracy.”

As recalled by the United Nations Special Rapporteur on the independence of judges and lawyers in a statement last month, international standards require that judges be removed only in exceptional circumstances involving incapacity or gross misconduct.

A cornerstone of judicial independence is that tenure of judges be secure.

“Any process for removal must comply with all of the guarantees of due process and fair trial afforded under international law, notably the right to an independent and impartial hearing,” Zarifi added.

The United Nations Human Rights Committee, in its 2003 concluding observations on Sri Lanka, expressed concern that the procedure for removing judges under Article 107 and the complementary Standing Orders of Parliament was not compatible with Article 14 of the International Covenant on Civil and Political Rights.

The Parliamentary Select Committee, presiding over the impeachment hearings is composed exclusively of members of parliament, the majority of which are drawn from the Government coalition.  No members of the judiciary are permitted to sit on the Select Committee.

Comparatively 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 South Africa, a judge may only be removed after a hearing by the Judicial Service Commission, a body composed of members of the judiciary.

In Canada, all removal proceedings are conducted by the Judicial Council, a body composed of 38 chief and associate chief justices of the superior courts and chaired by the Chief Justice of Canada.

The United Nations Special Rapporteur on the independence of judges and lawyers warned against the misuse of disciplinary proceedings as a reprisals mechanism against independent judges.

The timing of the impeachment motion raises questions.  The impeachment motion was initiated just days after the Chief Justice ruled against the Government on a controversial bill – the Divi Neguma Bill – before Parliament.

If the bill passed, the Minister of Economic Development (who is also the President’s brother Basil Rajapakse) would have had control over a fund of 80 billion Sri Lankan rupees (611 million USD).

Attacks on the judiciary have been escalating 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, the ICJ condemned the physical assault on the secretary of the Judicial Service Commission, Manjula Tillekaratne.

In early November, the ICJ issued a report, Sri Lanka’s Crisis of Impunity, documenting how the erosion of state accountability and judicial independence, has led to a crisis of impunity in Sri Lanka.

The ICJ calls on the Government of Sri Lanka to take active measures to promote the independence of the judiciary and rule of law by adhering to international standards and practice in impeachment hearings.

Contact:

Sam Zarifi, ICJ Asia-Pacific Regional Director, (Bangkok), t:+66(0) 807819002; email: sam.zarifi@icj.org

Sheila Varadan, ICJ Legal Advisor, South Asia Programme (Bangkok), t: +66 857200723; email: sheila.varadan@icj.org

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Latest comments

  • 0
    0

    Its is appreciated and welcome move by I.C.J at this juncture. by Hook or Crook G.O.S.L wanted C.J to be removed from the post. This type of incident took placed in Pakistan when Musaaraf was the President.Now,here as well. Our humble request is to I.C.J is appoint C.J.Mrs.Shiranee Bandaranayeke to the highest position of it.

  • 0
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    Sri Lanka’s ranking in most of the international indices like the world bank doing business report, world economic forum competitiveness report, heritage foundation economic freedom index, transperency international corruption index etc have fallen during the rajapakse time.

    kangaroo court he wants to have for the highest authority of the judiciary is significant that will drag Sri Lanka’s ratings further!

    masses have to wake up as its only going to be peoples power that will stop this!

  • 0
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    There is no doubt MR will remove CJ and install one of his puppets in the seat. Unless phenomenal pressure is mounted against MR locally and by International Community (US, UK, France, India, Japan, Germany, AND UN, ICJ, etc in particular) achieving his goal is a mater of time.

    If and when he install MR judiciary that will be the END OF THE FREEDOM AND DEMOCRACY in SL.

    This is the greatest danger both Sinhala, Tamil and Muslim people in SL have ever faced.

  • 0
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    People in Sri Lanka appreciate ICJ for helping CJ and Judiciary.

    Similarly other International organisations and Sri Lankan diaspora should come to help CJ.

    Now everybody could see openly how the President’s Low level cheap tactics,deceiving others using bribes as top Govt. posts to achieve HIS dirty ambitions.
    He is the Producer, the director and the executor of this whole CJ drama, now pretending to be a don’t know BABY. When he was in both Kazakhstan and USA every minute he was calling the Govt. PSC members and asking about the progress of the impeachment.

    Now he knows the noose is getting tight and it’s time to PACKUP THE BAGS TO GET READY TO GO.

    Both CJ, SC and the Bar Association has to communicate and cordinate with the international Legal Counsil, UN, CW, UK, USA and Asian Legal counsil
    to stop MARA from proceeding any further in this Impeachment and bring to justice all the 117 PIN PADI COOLIES WHO SIGNED THE MOTION.

    ALSO THEY SHOULD BRING A LAWSUIT AGAINST PRESIDENT FOR DEFORMATION OF CHARACTER , FALSE ALLEGATION AND HUMILIATION OF CHARACTER NOT ONLY THE CJ BUT THE WHOLOE JUDICIARY SYSTEM AND BRINGING DOWN THE RESPECT OF SRI LANKA AGAINST THE WORLD.

    It is time for Judiciary service commission, SC and the Bar association to resume to write the new constitution and to work on uniting the PEOPLES FRONT,RELIGIOUS, TRADE,FUTA, TEACHERS, STUDENTS and all other organizarions TO FORM A UNITED FRONT5 TO TOPPLE THE GOVERNMRN.

    IT IS TIME FOR LAW ABIDING, HONEST, EDUCATED PROFESSIONALS TO OCCUPY THE PARLIAMENT.
    PREDIDENT SHOULD RESIGN AND GO WITHOUT WAITING FOR AUSPICIOUS TIME TO BE CHASED WITH BUCKETS OF COW DUNG.

  • 0
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    Govt is rushing through with an action which will have wide ranging ramifications. The opposition is powerless. The Govt benches are packed with stooges and hypocrites who have no independent opinion other than to share the crumbs left on the Rajapakse table.

    Those who value democracy, justice and truth should unite on this issue and take to the streets and before the international bodies. The opposition which has no say in the governace of the country should boycott parliment and have no part in the illegitimate actions of the regime. It is better to rally the people and take the fight to the Govt than sitting in parliment which is absolutely on no use.

  • 0
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    a another bribe ready, await,prominent lawyers invitation to the palace for epicurean meal.

  • 0
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    Another bribe ready, await! prominent lawyers for an invitation to the palace for a Epicurean meal. chand.

  • 0
    0

    In numerology a particular date is auspicious for a person and one who believes in numerology chooses that date for doing important jobs.
    However that date is also when the downfall of him comes.
    MaRa does not realise it.

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