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.
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.
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.
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