By Colombo Telegraph –
Sri Lanka has stated in its Fourth Report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) submitted to the Human Rights Committee of the United Nations in 2002 that proceedings of a Parliamentary Select Committee (PSC) on the impeachment of judges of the Supreme Court and Court of Appeal are subject to review by the courts. The report states: “Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.” The Chief Justice, Dr. Shirani Banadaranayake, cites the report in her application No. CA 411/2012, made to the Court of Appeal to quash the report of the Select Committee. For the benefit of our readers, we reproduce the relevant paragraphs (paragraphs 300 to 303) of Sri Lanka’s Fourth Report.
CJ
300. Standing Order 78A provides that where notice of a resolution for the presentation of an address to the President for the removal of a Judge from office is given to the Speaker in accordance with Article 107, the Speaker must entertain such resolution and place it on the Order Paper of Parliament. But such resolution cannot be proceeded with until after the expiration of a period of one month from the date on which the Select Committee was appointed. Paragraph 2 of the Standing Order that deals with appointment of such a Select Committee requires the Speaker, to appoint a Select Committee with a minimum membership of seven Members of Parliament for this purpose. The Select Committee is required to transmit to the Judge concerned a copy of the resolution setting out the allegations of misbehaviour or incapacity made against him. The Judge is compelled by the Standing Order governing the functioning of the Select Committee to make a written statement of defence within a stipulated time period. Moreover, the Judge has the right to appear before the Select Committee to be heard either in person or via representative and adduce evidence, oral or documentary, in disproof of the allegations against him.
301. At the conclusion of the investigation made by it, the Select Committee must within one month of the commencement of its sittings report its findings together with minutes of evidence taken before it to Parliament. It may also make a special report of any matters, which it may think, fit to bring to the notice of Parliament. If however, the Select Committee is unable to report its findings to Parliament within the stipulated time limit, the Committee must seek the permission of Parliament for an extension of a further specified period of time, giving reasons for it. Where the resolution for the presentation of an address to the President is passed by Parliament, the Speaker must present such address to the President on behalf of Parliament.
302. On the previous occasion the Human Rights Committee examined Sri Lanka’s periodic report, it expressed concern on the compatibility of the impeachment process with the scope and sprit of Article 14, since it would compromise the independence of the judiciary. As stated above Article 107 a judge can be removed only on “proved grounds of misbehaviour or incapacity” and the standing orders allows for the judge in question defend himself either on his own or retaining a legal counsel, none adherence to the rules of natural justice by the inquiring committee would be attract judicial review. Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.
303. Further, it is the position of Sri Lanka that an impeachment process where the legislature plays the principal role does not by itself contravene the provisions of Article 14 of the ICCPR. In fact the United Nations Basic Principles on the Independence of the Judiciary seem to approve this type of mechanism, since provisions that deal with disciplinary proceedings against judges state “Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings”.
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nalinP / December 20, 2012
Thank you, Colombo Telegraph for this information. Now what can the Government say? Where is the supremacy of Parliament they were talking about?
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frank hilary / December 20, 2012
Exactly.
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concerned / December 20, 2012
so I believe a writ of certiorari and prohibition can be issued against the PSC !!!
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sandaruwan / December 20, 2012
The criminal clown Mahinda Rajapakse should be impeached for lies and harm done to the judiciary, legislature and sovereign people of Lanka by running a Kangaroo court aka. PSC in the Diya-wenna parliament.
Of course, the parliament is full of crooked, overfed, politicians who are morons, thieves and dead leftist geriatrics.. and the legislature that the clown Vasu claims is superior to the judiciary is the laughing stock of the world..
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Safa / December 20, 2012
If this was declared to UN in 2002, what have successive governments being doing. This is another serious failure of the govt to live up to its promises made to the international community. No doubt to our leaders UN has become a bit of a joke, after all we have been able to lie to them and get away without any action on their part.
Concluding observations of the Human Rights Committee: Sri Lanka : Sri Lanka. 01/12/2003.
CCPR/CO/79/LKA. (Concluding Observations/Comments)
C. Principal subjects of concern and recommendations
16. The Committee expresses concern that the procedure for the removal of judges of the Supreme Court and the Courts of Appeal set out in article 107 of the Constitution, read together with Standing Orders of Parliament, is incompatible with article 14 of the Covenant, in that it allows Parliament to exercise considerable control over the procedure for removal of judges.
The State party should strengthen the independence of the judiciary by providing for judicial, rather than parliamentary, supervision and discipline of judicial conduct.
7. While taking note of the proposed constitutional reform and the legislative review project currently being undertaken by the National Human Rights Commission, the Committee remains concerned that Sri Lanka’s legal system still does not contain provisions which cover all of the substantive rights set forth in the Covenant, or all the necessary safeguards required to prevent the restriction of Covenant rights beyond the limits permissible under the Covenant. It regrets in particular that the right to life is not expressly mentioned as a fundamental right in chapter III of the Constitution of Sri Lanka, even though the Supreme Court has, through judicial interpretation, derived protection of the right to life from other provisions of the Constitution. It is also concerned that contrary to the principles enshrined in the Covenant (e.g. the principle of non-discrimination), some Covenant rights are denied to non-citizens without any justification. It remains concerned about the provisions of article 16, paragraph 1. of the Constitution, which permits existing laws to remain valid and operative notwithstanding their incompatibility with the Constitution’s provisions relating to fundamental rights. There is no mechanism to challenge legislation incompatible with the provisions of the Covenant (arts. 2 and 26). It considers that a limitation of one month to any challenges to the validity or legality of any “administrative or executive action” jeopardizes the enforcement of human rights, even though the Supreme Court has found that the one-month rule does not apply if sufficiently compelling circumstances exist.
13. The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the Covenant (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sect. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sect. 9). There is no legal obligation on the State to inform the detainee of the reasons for the arrest; moreover, the lawfulness of a detention order issued by the Minister of Defense cannot be challenged in court. The PTA also eliminates the power of the judge to order bail or impose a suspended sentence, and places the burden of proof on the accused that a confession was obtained under duress. The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.
Even after 9 years the situation remains the same and govt sees it fit to continue on its merry path with no one to question.
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Saro / December 20, 2012
The difference in words, deeds and the mode of deliverance between the highly educated and mere literates are amply demonstrated by this action.
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MISS DOOM / December 20, 2012
HOW CAN A KURAKKAN GOVIYA GOVERN A COUNTRY???????????
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Karunadasa Wijesinghe / December 20, 2012
Please correct me if I am wrong.
Is a statement in a report to the UN law of a country?
I am confused, and worried because Mr Kandiah Neelakanda is one ass of a lawyer. He also asked the Speaker to appoint an independent panel outside the parliament.
Let us clarify this legal point please.
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Safa / December 20, 2012
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of March 2012, the Covenant had 74 signatories and 167 parties. Sri Lanka is a signatory and has ratified this treaty.
The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. This statement is made with full knowledge and responsibility by the Govt of Sri Lanka to ICCPR in 2002.
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Kiri Gamarala / December 23, 2012
The issues that need clarification are that whether the International Covenant on Civil and Political Rights ratified by the Parliament of the Government of Sri Lanka and the contents of the fourth report submitted to the UNHRC by Sri Lanka in 2002 have impacted on the Constitution of Sri Lanka and if so whether the Speaker and the PSC have the authority under such circumstances to overrule the directives from judiciary.
If the ratification and subsequent report to UNHRC have impacted the Constitution of Sri Lanka then the government in power in 2002 and successive governments are guilty of violating the law of Sri Lanka by not enacting the amendments to the Constitution and other legislation.
Ignorance is no excuse before the law and therefore Lawyer-Law makers those who were in the parliament in 2002 and continue to be in there to date, should resign forthwith accepting the responsibility for failure to pass amendments to the constitution following up the 2002 submission to UNHRC and passing judgement based on invalid provisions in the constitution.
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Quick Fox / December 20, 2012
I think the President will appoint another Committee to look into this as well. Sri Lanka is a country of never ending Committees of inquiry with no result ever being produced. What a shame!
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S.R.H. Hoole / December 20, 2012
Touché
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Kiri Gamarala / December 21, 2012
Why did not the watch dogs of civil and human rights highlight this last month? May be that they are also computer programmed and the programmers failed to install this when it was ratified by the parliament in 2002.
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kumar of gun point / December 21, 2012
Thank you, Colombo Telegraph for educating us on these important matters. The most important task of all is to take these facts to general public in local languages. This is where govt. media goons (bath belayas) like Hudsen, Chandrepeme, Rajpal, Mahindapala, etc. are deceiving general public into believing govt. is pursuing a lawful fair inquiry.
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Native Vedda / December 21, 2012
kumar of gun point
“This is where govt. media goons (bath belayas) like Hudsen, Chandrepeme, Rajpal, Mahindapala, etc. are deceiving general public into believing govt.”
If people are gullible enough to believe anything that these media mercenaries write (media goons as you put it) then don’t blame the bath belayas.
Blame the stupid people.
There are words that are important for human survival and intellectual development, such as why, what, when, where, how…… and why now. It seems the Lankies don’t use these words anymore.
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Kiri Gamarala / December 21, 2012
Bath belayas or ALs are all over the world. Better to spot them and expose them rather than criticising them. They change colours to match the s–t their masters pour over them.
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