By 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)
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.”
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”.
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.
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)