4 December, 2020

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Impeachment And International Obligations

By Kamal Nissanka

Kamal Nissanka

“An independent, effective and competent legal profession is fundamental to the upholding of the rule of law and the independence of judiciary” (Commonwealth Principles-2003)

(a).Bar Association

The Bar Association of Sri Lanka at a Special General Meeting  held on the 15th of December 2012 formally expressed its dissatisfaction about the impeachment process directed at the Chief Justice and further resolved that, in case of the removal of the incumbent Chief justice from office, it would not welcome a “New Chief Justice’. Though there were a few lawyers who seemed to be present at the meeting to vote against the resolution, no recognized legal luminary came forward to oppose the resolution and demand a vote or a secret vote. Members were also given ample time to express their views. The post General Meeting situation is very clear. The government media is now at war with the Bar Association of Sri Lanka and seems to pursue this through mudslinging while some elements seek to  to physically and psychologically intimidate leading members of the legal fraternity. Mr. Wijedasa Rajapakse, Mr Gunarathne Wanninayake and Mr. M.A. Sumanthiran are already attack in this regrettable sinister campaign against lawyers.

There is no doubt that the lawyers as well as judges are an integral part of the Supreme Court. When the head of the Supreme Court is in the dock it is indeed a matter that affects the conscience of both lawyers and judges. Things get worse when uncivilized media and political goons rally round to attack and sling mud on both.  The common feeling among the majority of lawyers is that both the executive and the legislature are now on a collision course with the judiciary, creating an anarchic situation in the administration of justice.  If the parliamentarians decide to disobey court orders, that will generate a chaotic situation in the country and create a constitutional deadlock. The impeachment storm in Sri Lanka winds to an unknown destination.

In this context it is significant to remind the authorities of our commitments towards a few international declarations that incorporate standards regarding removal of judges from office and principles of accountability in relation to the relationship between the three branches of government.

The International Bar Association in 1982 in the Declaration of “Minimum Standards of Judicial Independence” laid down among other things that the power of removal of a judge should preferably be vested in a judicial tribunal. It further declared that “The legislature may be vested with powers of removal of judges preferably upon a recommendation of a judicial commission.”

(b).United Nations

In 1985 the United Nations adopted the” Basic Principles on the Independence of Judiciary “   which provides that states should organize and administer justice in accordance with the Universal Declaration of Human Rights and The International Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights.

In removal of judges, it stated that “judges should be subjected to removal from office only for proved incapacity, conviction of crime or conduct which makes the judge unfits to be a judge. A judge who is sought to be removed must have right to fair hearing.”                                         

According to the 1995 August 19 Beijing “Statement of Principles of the Independence of Judiciary in the LAWASIA Region, “, the removal of judges should take place according to the following conditions –

“If a parliamentary procedure is to be applied for the removal of a judge it should be adopted by the people and if not procedures for the removal of judges must be under the control of the judiciary.”

Where parliamentary procedures for the removal of a judge by vote of the people do not apply and it is proposed to take steps to secure the removal of a judge, there should, in the first instance, be an examination of the reasons suggested for the removal, for the purpose of determining whether formal proceedings should be commenced. Formal proceedings should be commenced only if the preliminary examination indicates that there are adequate reasons for taking them.”

“A judge who is sought to be removed from office must have the right of fair hearing and to conduct of the inquiry in accordance with established standard of judicial conduct”.

(c).Commonwealth Principles

In their Communiqué of December 2003 Commonwealth heads of Governments reaffirmed their commitment to the fundamental principles of the Commonwealth and “endorsed the recommendations of their law ministers on “Commonwealth Principles of the Accountability of and the Relationship between the Three Branches of Government.” They acknowledged that judicial independence and delivery of efficient justice services were important for maintaining the balance of power between the executive, legislature and the judiciary. Their endorsement confirmed the value of the co-operation between commonwealth professional organizations, the commonwealth Secretariat and commonwealths Law Ministers in promotion of the fundamental political values of the commonwealth.

It is important to remind that Sri Lanka is also a party to these “Commonwealth Principles,” sometimes defined as “Latimer House Guidelines”

In these Commonwealth Principles, Paragraph IV is with regard to Independence of judiciary and it reads as follows.

An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country.

To secure these aims;

(a) Judicial appointments should be made on the basis of clearly defined criteria and bypublicly declared process. The process should ensure:

Equality of opportunity for all, who are eligible for judicial office.

Appointment on merit and

That appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;

(b)Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place.

(c ) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;

(d) Interaction, if any between the executive and the judiciary should not compromise judicial independence.

Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly render them unfit to discharge their duties.

Court proceedings should, unless the law or overriding public interest otherwise dictates, be open to the public and be given in timely manner.

An independent and, effective   and competent legal profession is fundamental to the upholding of the rule law and the independence of judiciary.  

(d).Conclusion

In the present conflict ridden atmosphere where both the executive and the legislature are in a tug a war with the judiciary , when the Bar Association of Sri Lanka is faced with continuous attacks from state media  and political goons, it is timely to remind the authorities of their obligations  towards international  covenants  in the field  of rule of law, independent judiciary and  relationship and accountability between the three branches of state.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)

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Latest comments

  • 0
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    Mr. Kamal,

    Isn’t Dr. Rajiva Wijesinghe of eating shit of the MR family of Rajafuckistan, in the name of promoting liberalism? What a shame!

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    After quashing the impeachment motion against the CJ the next step is to impeach Mahinda Rajapassa and his brother Chamal for bringing malicious disrepute on the judiciary, the legislature, the executive office and the the sovereign people of Sri Lanka by running a Kangaroo Court in paliament.
    The Rajapassa reign of immunity and impunity must end!

    • 0
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      Indeed! the Rajapakse brothers must be impeached for systematically destroying and hollowing out ALL Sri Lanka’s governance institutions at local and nation levels and for gross corruption. Given the MAGNITUDE of the Rajapassa family’s corruption, the allegations against the CJ pale into comparison..
      The Rajapassa family has brought disgrace and infamy on the people of Sri Lanka who are ashamed for them and want them out! Their model of development which is building highways for car races at massive cost while education and health suffer, is turning Lanka into a concrete island and environmental catastrophe because they are UNEDUCATED.

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      In order to impeach Rajapassa the MYTH that parliament is supreme perpetuated by the knave Ranil Wickramasinghe and the fool Anura Bandaranaiyake when alive, and the uneducated Rajpassa family must be destroyed.
      In fact is the Diyawenna parliament is not supreme either in formal terms or in substantively. Indeed the parliament of Lanka is a national disgrace – through the cultivation of money politics and the bribing of the moron politicians in the Diya-wenna parliament of scoundrels – of whom dictator Ranil Wickramasinghe who perpetuates the MYTH that the parliament is supreme in order to feel important as opposition leader, like dead leftist Vasudeva Nanayakkara another scoundrel, are prime.

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    The international community has made great advances in the systems of governance, legal systems and human rights after the second world war. Convenants and treaties are in effect to ensure the democratic rights of citizens. Sri Lanka is also a signatory to many convenants and member of the Commonwealth.

    The govt always belittles the international community and claims that as a sovereign nation we can do as we wish. Whereas these standards are proposed to ensure the well being of the people the govt feels these are an obstacle to its corrupt practices. These politicians are the bane of this nation. They are totally responsible for the sad state of the economy and other problems in the country.

    We have a set of uneducated thugs who feel they are superior and above the laws of the land. Unless the system is changed drastically there will be no respite. The change is mainly required with the parliment and executive and not the judiciary.

  • 0
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    To the Judiciary & Lawyers, writing articles issuing statements pinpointing the law is irrelevant to this thuggish regime, very few see the English media blogs like Colombo Telegraph other Newspapers etc.

    Print leaflets in Singhala & Tamil go distribute it to the general public in Colombo & outstations including the North.
    and dont bow down to their pressure many more in the offing be brave.

    Lets rally the entire country behind you fellas.

    • 0
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      Right on, Jim Hardy!

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