23 October, 2021

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Impeachment Of CJ: Government Must Adhere To International Standards Of Due Process Says ICJ

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 Impunitydocumenting 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.
Fourteen charges
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.
Exceptional measure
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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Source www.icj.org

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    The International Covenant for Civil and Political Rights lays out international standards of due processadopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR)Sri Lanka is a signatory and has ratified this convenant.

    Article 14 of the convenant is as follows

    1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
    2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
    3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
    (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
    (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing;
    (c) To be tried without undue delay;
    (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
    (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
    (g) Not to be compelled to testify against himself or to confess guilt.
    4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
    5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
    6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
    7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

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    Article 151 of the Constitution Bill of 2000 provided provided for an inquiry not by MPs but by 3 sitting or former judges of the Supreme Court or Court of Appeal. In the case of a motion to impeach the CJ, the inquiry would be by 3 sitting or former judges of the highest courts of Commomwealth countries.

    Of course the Bill did not become law. But those provisions were based on agreement reached between all parties at the Select Committee on Constitutional Reform, 1995-1997. What must be remembered is that the 2000 Bill was presented to Parliament by a SLFP-led government of which Mahinda Rajapakse was a Minister.

    151. (3) The Chief Justice and every Judge referred to in paragraph (2) of this Article —
    (a) shall be an attorney-at-law who is a citizen of Sri Lanka and who, in the opinion of the President, has reached eminence in the legal profession, the judiciary or the academic field of law and has maintained high standards of conduct and professional rectitude; and
    (b) shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity.
    (4) A resolution for the presentation of such an address shall not be entertained by the Speaker
    or placed on the Order Paper of Parliament — unless
    (a) notice of such resolution is signed by not less than one-third of the total number of Members
    of Parliament and sets out full particulars of the alleged misbehaviour or incapacity; and
    (b) an inquiry has been held –
    (i) in the case of the Chief Justice by a committee consisting of three persons each of whom hold, or have held, office as a judge in the highest court of any Commonwealth country;
    (ii) in the case of any other judge referred to in paragraph (2) of this Article, by a committee consisting of three persons who hold, or have held, office as a Judge of the Supreme Court or the
    Court of Appeal created and established by the Constitution, the 1978 Constitution or any other law,and appointed by the Speaker to inquire into allegations of misbehaviour or incapacity made
    against the Chief Justice or such Judge, as the case may be, and such committee has found that the allegation of misbehaviour or incapacity has been established against such Judge.
    (5) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address including the procedure for the passing of such resolution, the holding of inquiries by a committee appointed as provided for in sub-paragraph (b) of paragraph
    (4) of this Article for the investigation and proof of the alleged misbehaviour and incapacity and the right of the Chief Justice or such Judge to appear before and be heard by such committee in
    person or by representative.

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    Can you expect this regime to adhere to international standards? It has already got the state media to try the Chief Justice and find her guilty. Meanwhile, the mud slinging campaign by the state media continues unabated. Can’t the sycophants of the regime who use the state media to insult the Chief Justice be prosecuted?

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    This regime doesn’t care about the provisions in the constitution nor international standard.They want to have their own judiciary. Because the Rajapakse populace are drug traders and murderers and wheeler dealers. Tsunami and War gave them enough sources to become rich and more rich.Therefore Rajapaksa,s wants their lackeys to head the key institutions including judiciary.That is why he has appointed school 8th grade qualified Wimal Weerawanse to the PSC to judge CJ who is a brilliant academic, mainly to insult her. That is the mentality of Rajapaksa’s

  • 0
    0

    This regime doesn’t care about the provisions in the constitution nor international standards.They want to have their own judiciary. Because the Rajapakse populace are drug traders and murderers and wheeler dealers. Tsunami and War gave them enough sources to become rich and more rich.Therefore Rajapaksa,s wants their lackeys to head the key institutions including judiciary.That is why he has appointed school 8th grade qualified Wimal Weerawanse to the PSC to judge CJ who is a brilliant academic, mainly to insult her. That is the mentality of Rajapaksa’s

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