By Ranil Wickremesinghe –

Latimer House, widely talked about in recent times, located in Buckinghamshire, England, has a remarkable history of its own. In the mid 17th Century, a civil war took place between England’s King Charles I and Parliament. The King’s army lost. Thereafter in 1647, Charles I was imprisoned in Latimer House before he was taken to London.

The original building was burnt to the ground by a fire in 1830s. The owners of the property, the Cavendish family (the descendants of the fifth Prime Minister of the UK, the Duke of Devonshire) rebuilt the mansion and it is this structure, which stands today. Latimer House, like many other old castles and mansions, has become a hotel. It is here that in June 1998 that the Commonwealth Parliamentary Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates’ and Judges’ Association and the Commonwealth Lawyers’ Association summoned a conference to discuss the implementation of the Harare Commonwealth Declaration with regard to the Commonwealth parliaments and the judiciary.

In 1991, the Commonwealth Heads of Government Meeting (CHOGM) took place in Harare to build on the principles of good governance to which they had previously agreed in Singapore in 1971 (the Singapore Declaration of Commonwealth Principles). They pledged that “the Commonwealth and its constituent countries work ‘with renewed vigour’, concentrating especially on the following areas:

The protection and promotion of the fundamental political values of the Commonwealth;

Democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government;

Fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief;”

This pledge was called the Harare Declaration and was strengthened through a number of Commonwealth initiatives to which, Sri Lanka gave its complete support. In 1996, the Commonwealth Law Ministers Meeting examined the role of judges and lawyers in democracy. Prof. G L Peiris, Sri Lanka’s Minister of Justice during that time was at this meeting, which led to the decision to summon a colloquium of judges, lawyers and parliamentarians. This colloquium agreed on a set of common guides called the Latimer House Guidelines on Parliamentary Supremacy and the Judicial Independence. Thereafter in 1999, a meeting of the Law Ministers in Port of Spain led to a small working group, which developed a statement of principles based on the Latimer House Guidelines to be presented to the CHOGM. Finally, at the Abuja CHOGM in 2003, the Heads of Government “endorsed the recommendations of their Law Ministers on Commonwealth Principles on the accountability of and 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 Judiciary.” This is what is known as the Commonwealth (Latimer House) Principles. Sri Lanka is not only a party to this declaration but has also taken part in its making. The President at that time was Chandrika Kumaratunga while I was Prime Minister and the declaration received bipartisan acceptance.

In 2009, the Government of President Rajapaksa joined in the Affirmation of the Commonwealth Values and Principles at the CHOGM in Port of Spain in Trinidad & Tobago, stating “We recall earlier statements through which the Commonwealth’s values and principles have been defined and strengthened over the years, including the Singapore Declaration, the Harare Declaration, the Millbrook Action Programme, the Latimer House Principles and the Aberdeen Principles.” Prime Minister Ratnasiri Wickramanayake represented President Rajapaksa at this meeting. At the Perth CHOGM 2011, President Rajapaksa himself, the Australian Prime Minister Julia Gillard and the other Commonwealth Heads of Government adopted the proposal that “the core values of the 2009 Affirmation of Commonwealth Values and Principles (which updates and expands on the earlier 1971 Singapore Declaration and the 1991 Harare Declaration and the 2003 Commonwealth [Latimer House] Principles on the three branches of government) should be deemed ‘core Commonwealth priorities’.”

In fact, the criteria for compliance with “Commonwealth fundamental values, principles, and priorities as set out in the 1971 Declaration of Commonwealth Principles and contained in other subsequent Declarations” was made a condition of membership at the Uganda CHOGM (2007) attended by President Rajapaksa. In other words, all Commonwealth members, including Sri Lanka, are committed to upholding and implementing these values in accordance with the decisions at CHOGM where President Rajapaksa has been present.

The Commonwealth gives its members flexibility in implementing the Latimer House Principles. In the instance, “where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal.” The Latimer House Principles are exceedingly clear as to what should be the rules and practice when the issue is that of a removal of a judge.

After the Abuja CHOGM, the United Kingdom enacted the Constitutional Reforms Act 2005 to reinforce the independence of the judiciary. A Supreme Court was established to take over the judicial functions that had hitherto been exercised by the House of Lords. The Lord Chancellor’s judiciary-related functions were transferred to the Lord Chief Justice. A statutory duty was imposed on all government officers, those involved in the administration of justice and those involved in the appointment of judges to respect and maintain the independence of the judiciary.

Statutory procedures were laid out for judicial appointments and discipline. The provisions of the Act of Settlement 1701 providing for a Judge to be removed only on an address by Parliament to the Queen was maintained in respect of Supreme Court judges — Section 33 of the Constitutional Reforms Act 2005. This is not in conflict with the Latimer House principles because the Upper House in the UK, the House of Lords is not an elected body and is distinct from the House of Commons. Its membership is for life. There are a large number of members — crossbenchers — with no party affiliation. Many have legal experience. And the House has time and again shown its independence of the government by rejecting government-sponsored bills or amending them radically.

The separation of powers and the independence of the judiciary in independent Sri Lanka can be traced to Article 52 (2) of the first Constitution of Independent Sri Lanka – the Soulbury Constitution. It was taken from Section 72 of the Australian Constitution which states, “the Justices of the High Court and of the other courts created by the Parliament– (ii.) Shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”.

Even prior to the establishment of the Latimer House Principles, the Australian Parliament enacted the Parliamentary Commission of Inquiry Act in 1986. This empowered a Commission of three former judges to report on whether the conduct of Justice Lionel Murphy amounted to ‘misbehaviour’ under Section 72 of the Constitution. During the Inquiry, Justice Murphy announced that he had terminal cancer and was not in a position to take part in the proceedings. In these circumstances, the Parliament repealed this Act one week before his death.

In 2012, the Australian Parliament passed the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act. Section 3 states the object of the Act is for a Commission to be established by the Houses of Parliament to investigate and report to them on any alleged misbehavior or incapacity of an Australian Commonwealth Judge so that Parliament can be well-informed to consider whether to pray for his removal under Article 72 of the Constitution. A Commonwealth judicial officer may be removed by the Australian Governor General only if both Houses of Parliament pray for his / her removal on the basis of a Commission Report finding of conclusive evidence (Section 4).

There is a misconception that Australia does not follow the Latimer House Principles. This, however, is incorrect. The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act complements Article 72 (ii) of the Australian Constitution. This is made clear in the explanatory Memorandum of the Bill, tabled in the House of Representatives, which highlights –

That the Bill seeks to establish a transparent, impartial and accountable system of judicial complaint to support judicial independence, and

That the measures provided under the Bill will strengthen public confidence in the judiciary while supporting the separation of powers and the independence of the Judiciary. This misconception has arisen as a result of the misreading of Section 3(2) of the Act. The Act requires the Australian Parliament to be well informed so as to pray for the removal of a Judge even if a Parliamentary Commission is not utilised.

For example, during the Lionel Murphy affair there was a proposal to directly utilise Court proceedings relating to Murphy. However, the interpretation of Section 3(2) together with “proved misbehavior” referred to in Article 72 (ii) of the Constitution is the complete responsibility of the High Court — unlike in Sri Lanka. The Constitution of Australia is materially different from that of Sri Lanka. Article 71 states that the judicial power of the Commonwealth shall be vested in a federal Supreme Court to be called the High Court of Australia. Under Article 77, the Australian Parliament has no power to define the jurisdiction of the High Court. Therefore, contrary to Sri Lanka, the final say in Australia in specifying the procedure lies with the High Court.

In Sri Lanka, Standing Order 78A was passed by Parliament in 1984 prior to formulation of Latimer House Principles. Standing Order 78A(6) requires the establishment of a Select Committee to report on the findings of any investigation to Parliament. Standing Order 78A(1) states that a Resolution shall not be proceeded with until a period of one month from the date on which the Select Committee has reported to Parliament. Standing Order 78A (7) requires the Speaker to present such an address to the President. However, the problem lies with the fact that there are no provisions in Standing Order 78A on the Parliamentary proceedings once such a resolution is taken up under Public Business. The Standing Orders are limited to the proceedings of the Select Committee and the functions of the Speaker.

Parliament has not made any provisions (via Standing Orders under Section 107(3) of the Constitution) for the procedure of passing a resolution, and the right of such a judge to appear and to be heard in person or through a representative. The only precedent in this instance, the Select Committee on Chief Justice Neville Samarakoon, held that his conduct did not amount to misbehavior. Therefore the need to present new Standing Orders or Legislation in Parliament did not arise.

It is to this hiatus that Speaker Anura Bandaranaike (who was a Member of that Select Committee) referred in his determination in 2001 when pointing out the need for legislation. He said that Article 107 “empowers the regulation of the procedure prior to removal from office by way of Standing Order. An examination of the petitions shows that the grounds pleaded in the said petitions which rely on alleged defects and infirmities of the procedure adopted by Parliament, in entrusting the inquiry into the conduct of the judge to a Select Committee of the House, on the ground that they violate Articles 3 and 4 (c) of the Constitution and also certain fundamental rights of the petitioner, undoubtedly constitute an impeachment and a questioning of the proceedings of Parliament. I am satisfied that the petition, both in respect of the substantive paragraphs noted above, as well as in the several paragraphs of the prayer thereto, violate the clear and unambiguous prohibitory provisions of Section 3 of the Parliament (Powers and Privileges) Act of 1953 because the several grounds of complaint specified in the petition are clearly founded on what the Speaker is required to do, pursuant to the said Standing Order. However Members of Parliament may give their minds to the need to introduce fresh legislation or amend the existing Standing Orders regarding Motions of Impeachment against Judges of Superior Courts. I believe such provision has already been included in the Draft Constitution tabled in the House in August 2000.”

Justice Ameratunga’s judgment in Chandra Jayaratne v. Anura Priyadharashana Yapa gave effect to Speaker Anura Bandaranaike’s determination which highlighted the need to introduce fresh legislation if necessary. The establishment of such an independent committee to proceed with the next stage in parliamentary procedure cannot be done by Standing Orders alone. It requires an amendment to the Parliament (Powers and Privilege) Act so as to confer on such a committee, the powers enjoyed by a Select Committee to summon witnesses and hear evidence. There is no way in which an independent committee can be appointed without resorting to legislation. Both the Parliament and Courts have to take cognisance of this determination. The non adherence to this decision is a fatal flaw in the Parliamentary proceedings since there is no determination by Speaker Chamal Rajapaksa that this judgment is in violation of the powers and privileges of Parliament. Neither did any Member of Parliament raise a question in relation to a breach of privilege by the Court. The last determination made by Speaker Rajapaksa is that Supreme Court under Article 125 of the Constitution has the power to interpret the Constitution.

The proceedings of the Select Committee on Chief Justice Shirani Bandaranayake appointed under Standing Order 78A is open to question since it did not give the Chief Justice a fair hearing. This is a violation of Article 14(1)(g) of the Constitution which guarantees to every citizen the freedom to engage in any lawful occupation or profession. It also contravenes two international agreements. Article 14 of the International Covenant on Civil and Political Rights protects the right to a fair trial and a fair hearing. Article 16 of the International Covenant on Economic, Social and Cultural Rights enshrines the right not to be justly deprived of work, requiring security against unfair dismissals.

During the debate that followed in Parliament, the UNP raised the following issues on procedure:

a. There was no report as required by Standing Order 78A since the seven members who signed the purported report referring to the 5 allegations had not fulfilled the mandate of the House to inquire and report into 14 allegations. Therefore the requirement of proved misbehaviour or incapacity in Article 107(2) of the Constitution had not been complied with.

b. The Chief Justice was not offered an opportunity of presenting her case to Parliament under Article 107(3) of the Constitution. This violates the equal protection of the laws under Article 12 of our Constitution. Chief Justice Shirani Bandaranayake was deprived of the opportunity to defend herself under Article 107(3) of the Constitution.

c. There was no resolution in the form of an address by Parliament to be presented to the President through the Speaker praying for the removal of the Chief Justice on the grounds of proved misbehaviour. The only resolution was to appoint a Select Committee to inquire into the allegations and thereafter to present an address to the President on its findings. Therefore the validity of the Order made by the President under Article 107(3) of the Constitution is open to question.

It is, therefore, not surprising that the proceedings of Parliament of 10th and 11th January 2013 and the President’s Order removing Chief Justice Bandaranayake are now being questioned as violations of the fundamental political values of the Commonwealth. The Commonwealth Secretary General Kamalesh Sharma highlighted this when he referred to “our shared Commonwealth values and principles, to which Sri Lanka and all member governments have subscribed”.

In his speech at the 56th Commonwealth Parliament Conference in Nairobi Sharma stated “that the Latimer House Principles of 2003 – drafted with the CPA’s help and also that of the Commonwealth Magistrates and Judges Association – are an integral part of the body of belief which the Commonwealth espouses.

They affirm, of course, that the three branches of government may be mutually dependent – but so, too, that they are independent. And when countries have flouted them, they have flouted our most cherished values, and faced consequences. For instance, when Pakistan was suspended from the councils of the Commonwealth in November 2007, this was done in part because the executive’s dismissal of the judiciary in that country was a clear breach of the Latimer House Principles.”

The Sri Lankan government actions are no better than that of the Pakistan Government of the time.
The Commonwealth Ministerial Action Group (CMAG) is the custodian of these fundamental political values of the Commonwealth and has been entrusted with the task of assessing the nature of the infringement of such core values. CMAG inquires into the unconstitutional and undemocratic overthrow of governments as well as serious violations of fundamental political values by a government.

The expanded powers and the new procedures adopted in Perth requires the Secretary General to take notice of any serious violation of these values, to raise it with the Member State, and to afford the offending Member State an opportunity to redress the situation. The Secretary General’s statement of January 11, 2013 comes within the requirement set out in Paragraph 18.1 of the report by CMAG to CHOGM 2011. The Member States are also free to raise this issue with the Commonwealth Secretary General as well as CMAG. If the Secretary General recognises that a situation is serious, he will undertake an assessment of the situation in question and then conclude whether it constitutes serious violation. In coming to such a judgment the Secretary General has to take into account:

“The unilateral abrogation of a democratic constitution or serious threats to constitutional rule;
The suspension or prevention of the lawful functioning of Parliament or other key democratic institutions;
The postponement of national elections without constitutional or other reasonable justification;
The systematic denial of political space, such as through detention of political leaders or restriction of freedom of association, assembly or expression.”

In addition he can also take into account the following factors:

“A national electoral process that is seriously flawed;
The abrogation of the rule of law or undermining of the independence of the judiciary;
The systematic violation of human rights of the population, or of any communities or groups, by the member government concerned; and
Significant restrictions on the media or civil society that prevent them from playing their legitimate role. “

Given other critical violations of human rights and democratic norms by President Rajapaksa and his government, this procedure will open a can of worms because the issues concerned are not confined to the removal of Chief Justice Bandaranayake. Other issues pertaining to violation of Commonwealth Principles can be raised. This includes the UNHRC Resolution. If, following consultation and further attempts at engaging the member government by the Secretary General fails, the Secretary General will brief the CMAG on the country situation. Thereafter the CMAG can have recourse to the following measures:

a. Exclusion of the Government concerned from all Commonwealth intergovernmental meetings and events, including ministerial meetings and CHOGM;
b. f no acceptable progress is made, suspension of the country from the Commonwealth. (Paragraphs 18 and 19 of CMAG Report to CHOGM 2011).

The present CMAG consist of Australia, Canada, Bangladesh, Jamaica, Sierra Leone, Tanzania, Trinidad & Tobago, Vanuatu and the Maldives. The membership of the Maldives is currently under suspension. The Commonwealth Secretariat has stated, “in situations where a member of CMAG is under scrutiny by the Group itself, its membership is suspended as long as it remains on the formal agenda of the group. The Maldives is currently not participating in CMAG.”

The issue is further complicated by the Sri Lankan Government’s Resolution at the 2009 UNHRC which endorsed “the joint communiqu issued at the conclusion of the visit and the understandings contained therein.” The joint communiqu issued by the UN Secretary General and Government of Sri Lanka states “Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations.” The Commonwealth Values and the 2009 UNHRC Resolution mutually reinforces one another.

The test of President Rajapaksa and the Sri Lankan government’s commitment to the 2009 UNHRC Resolution will be judged by its ability to implement the fundamental political values of the Commonwealth espoused by Sri Lanka. On the other hand, the test of upholding the Commonwealth Principles will depend on President Rajapaksa’s ability to implement the UNHRC Resolution.

When a serious violation takes place in a member country, the Secretary General is empowered to consult other international organisations. Therefore the Commonwealth and the UNHRC can coordinate their actions in respect of Sri Lanka. The UNHRC Resolution will be taken up prior to the CMAG procedure being initiated under the Commonwealth timeline. Therefore the Commonwealth can discuss the UNHRC Resolution once again. It is the duty of President Rajapaksa to ensure that his government lives up to the democratic values that we have agreed to uphold for our citizens.

The last Commonwealth Parliamentary Conference was held in Colombo and the next CHOGM is to be held in Colombo. We cannot afford to ignore the Commonwealth. Secretary General Sharma in his statement of January 13, 2013 has said the “dismissal of the Chief Justice will be widely seen, against the background of the divergence between the Judiciary and the Legislature, as running counter to the independence of the judiciary, which is a core Commonwealth value.

I have been in touch over recent days with the Government of Sri Lanka at the highest levels and have offered Commonwealth assistance to find a way forward from the constitutional impasse. I will continue to remain engaged with the Sri Lankan Government following today’s developments. I will also consider further Commonwealth initiatives and responses as are envisaged in situations that could be perceived to constitute violations of core Commonwealth values and principles.”

The communiqu ends by stating that the Secretary General will be visiting Sri Lanka in February 2013. It would seem then that the CMAG procedure has been set in motion. The consequences of violation are serious. The recommendations in regard to serious violations of Commonwealth fundamental political values can result in the in the last resort in expulsion from the Commonwealth.

President Rajapaksa cannot blame his opponents, the West, the human rights organisations or the diaspora for his undemocratic and unconstitutional actions. After all, he agreed to the new core Commonwealth priorities and strengthening of the role of CMAG at the CHOGM 2011. It was his Government that gave notice of the UNHRC Resolution of 2009. In fact, he has violated his own rules and is being held to account. President Rajapaksa has got imprisoned in Latimer House.

Charles I had no option – he had lost the battle. In this instance, President Rajapaksa has imprisoned himself. This would not concern us in the least if it were only the future of the Rajapaksa regime that is in question. Unfortunately, in this instance, all of us in Sri Lanka will have to face the consequences if the Commonwealth and the UNHRC decide to act against us. We will become a pariah state. It is time for President Rajapaksa and his government to think of the country and its people: not only of themselves and their power ride. We have no wish to ride with him in this Lamborghini to disaster.

It is time to engage in serious consultation with the political parties in Sri Lanka and members of the Commonwealth to redress the situation. But words will not do; the government has to show a serious commitment. Firstly, by immediately and fully implementing the LLRC Report. Then President Rajapaksa must make use of the time frame available under the CMAG procedure to come to an agreement with the Opposition political parties on the implementation of the fundamental political values of the Commonwealth in Sri Lanka.

If not, the Government must take the blame for the consequences of its violations. In such a situation the rest of us in Sri Lanka will have only one option. Resort to non-violent agitation to force the Government to hold elections both Parliamentary and Presidential. Then the decision regarding the country’s future can be taken by the people.

*This article is first appeared in the Sunday Times.