{"id":75473,"date":"2013-02-28T15:42:16","date_gmt":"2013-02-28T15:42:16","guid":{"rendered":"http:\/\/www.colombotelegraph.com\/?p=75473"},"modified":"2013-03-10T09:01:39","modified_gmt":"2013-03-10T09:01:39","slug":"exclusive-full-text-of-the-qc-geoffrey-robertsons-100-points-report-cj-shirani-is-innocent-of-the-misconduct-charges","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/exclusive-full-text-of-the-qc-geoffrey-robertsons-100-points-report-cj-shirani-is-innocent-of-the-misconduct-charges\/","title":{"rendered":"Exclusive: Full Text Of The QC Geoffrey Robertson’s 100 Points Report – CJ Shirani Is Innocent Of The Misconduct Charges"},"content":{"rendered":"

By Colombo Telegraph<\/a><\/span> –<\/strong><\/p>\n

A report by Geoffrey Robertson<\/a><\/span> QC published yesterday by the Bar Human Rights Committee of England and Wales (BHRC) concludes that the Chief Justice of Sri Lanka was innocent of the misconduct charges which brought about her removal from office last month, which was in reality a reprisal for her \u201ccareful and correct\u201d decision in a case where she had ruled against the government. The report calls for the UK to subject the seven Sri Lankan cabinet ministers who convicted her, and 117 government MPs who signed a \u201cfalse and fabricated\u201d impeachment motion, to be refused entry visas and to have their bank accounts in Britain frozen. It wants Sri Lanka suspended from the Commonwealth, and urges the Queen not to attend the November Heads of Government meeting (CHOGM), scheduled for Colombo.<\/p>\n

\"\"<\/a>

Geoffrey Robertson QC<\/p><\/div>\n

The Report, by eminent human rights lawyer Geoffrey Robertson QC, who was the First President of the UN Court in Sierra Leone and a \u2018distinguished jurist\u2019 member of the UN Internal Justice Council which disciplines UN judges, concludes that Mrs Bandaranayake<\/a><\/span>, Sri Lanka\u2019s first woman judge, was forced out because her \u201ccareful and conscientious\u201d rulings had displeased the government and the family of President Rajapaksa<\/a><\/span>. Mr Robertson\u2019s report analyses the charges against her and says that they are not based on evidence and that some of the allegations \u00a0\u2013 such as the use of her title in bank statements \u2013 could not conceivably amount to \u2018misconduct\u2019. He accuses the government of further subverting the independence of judges by organising its supporters to demonstrate against her with abusive slogans and by paying for firework displays and other celebrations of her dismissal.<\/p>\n

Mr Robertson says that the most basic rights of a defendant were denied by a \u201cStar Chamber\u201d of seven government ministers who put her on a secret trial. They were all biased against her because of a judgement she had given against the government, and they refused to allow entry not only to the public but to distinguished international observers. They gave her no time to prepare a defence and told her there were no witnesses to be called when this was not the position. As soon as she withdrew they called sixteen, whom she was thus prevented from cross-examining.<\/p>\n

Mr Robertson concludes that:<\/p>\n

\u201cSri Lankan political leaders treated the head of their judiciary as if she were public enemy number one, abusing the democratic process to put her through an unfair trial as punishment for doing her constitutional duty and then celebrating her unjust removal with feasting and fireworks.\u201d<\/em><\/p>\n

He recommended that the 117 MPs who signed the impeachment motion, and the 7 government ministers who convicted her, should all be subject to international measures now available for use against human rights violators, called the \u201cMagnitsky Act\u201d. This is the law that President Obama drafted last December (and which caused President Putin in reprisal to ban US adoption of Russian babies!). Mr Robertson says:<\/p>\n

\u201cthe Magnitsky Act is a new tool to name, shame and actually punish those human rights violators who fall within the class of \u201ctrain drivers to Auschwitz\u201d \u2013 they do not order an atrocity, but it would not have happened without their help. These 117 tame MPs started the impeachment process by making false accusations against the Chief Justice. Some are likely to want to visit the UK, other have funds in UK banks. All democracies should act to protect judicial independence as a core value, and there should be a stigma attached to those that have destroyed it in Sri Lanka.\u201d <\/em><\/p>\n

Mr Robertson also said<\/p>\n

\u201cGiven the blatant breach of the rule of law, for which the government purports to stand it would make a mockery of the Commonwealth as an organisation if it permits the Rajapaske government to showcase its destruction of judicial independence by presiding over CHOGM.\u201d<\/em><\/p>\n

He said the UK should ensure that the Queen did not attend, her presence in Colombo \u201cwould provide a royal seal of approval for the propaganda interests of President Rajapaske\u201d.<\/p>\n

Covering Letter by Kirsty\u00a0Brimelow Q.C. –\u00a0<\/span>Chair, Bar Human Right Committee<\/span><\/strong><\/p>\n

The Bar Human Rights Council of England and Wales (BHRC) has been gravely concerned about the impeachment of the Chief Justice of Sri Lanka and has recognised the need for an objective account and analysis of the proceedings leading up to her removal.<\/p>\n

When the Sri Lankan government refused entry to an International Bar Association fact-finding mission led by a former Chief Justice of India, the BHRC invited distinguished international jurist, Geoffrey Robertson QC, to undertake that task.<\/p>\n

His report is an authoritative and devastating indictment of those government ministers and Members of Parliaments who set out to destroy judicial independence by removing a judge whose decision, on a constitutional case was conscientious and correct, but nonetheless had displeased the President and his government.<\/p>\n

The BHRC believes that this report will have a lasting impact. It is a fair, objective and expert study of the evidence and procedures used to effect the removal of the Chief Justice.\u00a0 It is, further, and more generally, a clear authority on the appropriate procedures for putting judges on trial for allegations of misconduct in any circumstance. \u00a0.<\/p>\n

Geoffrey \u00a0Robertson Q.C. brings to his report, which he has undertaken pro bono<\/em> on behalf of the BHRC, his experience as First President of the UN Court in Sierra Leone and his service as a \u2018distinguished jurist\u2019 member of the UN Justice Council, responsible for selecting and disciplining UN judges. He was counsel in Rees v Crane<\/em> (1993), the leading Privy Council authority on judicial removal, and defended the Chief Justice of Trinidad and Tobago at his impeachment proceedings in 2007.<\/p>\n

No one who reads this report can put it down without thinking that something must be done to hold accountable those politicians who have acted to remove a Chief Justice simply because of her insistence that she remain independent of government.<\/p>\n

Furthermore, the BHRC notes that in light of this report, it is now beyond doubt that the government of Sri Lanka has breached the Latimer House Principles. In these circumstances, Sri Lanka should not be permitted to hold the Commonwealth Head of Government meeting scheduled for Colombo in November 2013.<\/p>\n

We believe the Robertson Report confirms that the removal of the Mrs Bandaranayke was a contrived attack on the independence of the judiciary. The BHRC hopes that, armed with this information, responsible organs of the UK Parliament, and of the Commonwealth, and Bar Associations throughout the world, will be step up to their international responsibilities and take appropriate action.<\/p>\n

Kirsty Brimelow Q.C.<\/p>\n

Chair, Bar Human Right Committee<\/p>\n

REPORT ON THE IMPEACHMENT OF SRI LANKA\u2019S CHIEF JUSTICE<\/strong><\/p>\n

Conducted for the Human Rights Committee of the Bar of England and Wales by<\/strong><\/p>\n

GEOFFREY ROBERTSON QC<\/strong><\/p>\n

CONTENTS<\/span><\/strong><\/p>\n

1.\u00a0\u00a0\u00a0 <\/strong>Introduction<\/strong><\/p>\n

2.\u00a0\u00a0\u00a0 <\/strong>Judicial Independence<\/strong><\/p>\n

3.\u00a0\u00a0\u00a0 <\/strong>Background to the Impeachment<\/strong><\/p>\n

<\/strong>a. The Chief Justice<\/span><\/p>\n

b. The Judicial Standards Council<\/span><\/p>\n

c. The Divinguma Under Attack Bil<\/span><\/p>\n

4.\u00a0\u00a0\u00a0 <\/strong>The Impeachment Charges<\/strong><\/p>\n

<\/strong>a. The Three <\/span>Divineguma<\/em> Counts<\/span><\/p>\n

b. The Six JSC Counts<\/span><\/p>\n

c. Counts 9 & 11<\/span><\/p>\n

5.\u00a0\u00a0\u00a0 <\/strong>Trial by Select Committee<\/strong><\/p>\n

<\/strong>a. public hearing<\/span><\/p>\n

b. competent independent and impartial tribunal<\/span><\/p>\n

c. the presumption of innocence<\/span><\/p>\n

d. adequate time and facilities to prepare defence<\/span><\/p>\n

e. right to cross-examine and call witnesses<\/span><\/p>\n

6.\u00a0\u00a0\u00a0 <\/strong>The Conviction Charges<\/strong><\/p>\n

<\/strong>a. Count 1<\/span><\/p>\n

b. Count 4<\/span><\/p>\n

c.Count 5<\/span><\/p>\n

7.\u00a0\u00a0\u00a0 <\/strong>The Supreme Court Intervenes<\/strong><\/p>\n

8.\u00a0\u00a0\u00a0 <\/strong>Conclusion<\/strong><\/p>\n

INTRODUCTION<\/span><\/strong><\/p>\n

<\/strong>1. The Chief Justice of Sri Lanka, Dr Shirani Bandaranayke, was impeached by the vote of government members of that nation\u2019s parliament on 10<\/span>th<\/sup> January 2013, after a report from a Select Committee of seven government ministers declared her guilty of misconduct. This decision involved the rejection of a ruling by the Supreme Court that the process was in breach of the Constitution.\u00a0 The impeachment has been widely condemned both by a large majority of local lawyers and by international organisations concerned with human rights and judicial independence.\u00a0 The Sri Lankan government, however, claims that the actions of its ministers and MPs have done nothing to threaten judicial independence but have merely demonstrated the sovereignty of Parliament..\u00a0 The Human Rights Committee of the Bar has itself issued statements evincing concern that judicial independence has been imperilled, but has made clear that these statements must in no way influence the outcome of my inquiry. I would certainly not have undertaken it otherwise.<\/span><\/p>\n

2. It is a regrettable fact that close scrutiny of the impeachment by independent observers has not been welcomed by the Sri Lankan government.\u00a0 It has refused to grant visas for an International Bar Association fact-finding mission, which was to have been led by the former Chief Justice of India, J.S. Verma.\u00a0 The Sri Lankan Media Minister explained<\/span><\/p>\n

\u201c The impeachment was done in accordance with the Sri Lankan Constitution.\u00a0 Outsiders cannot criticize the Constitution.\u00a0 This is an infringement of the sovereignty of Sri Lanka, which the government is bound to protect\u201d.[1]<\/a><\/p>\n

On the contrary, the independence of the judiciary is a requirement of every human rights treaty and a requisite for membership of the Commonwealth: when a Chief Justice removed from office, whether in accordance with the Constitution or not, the question for outsiders as well as insiders is whether it has been done in a manner which comports with the judicial independence guarantee in international law.\u00a0 A mission of distinguished lawyers seeking to elucidate the facts cannot possibly infringe the sovereignty of the nation.<\/p>\n

3. Nonetheless, it has meant that I have been unable to travel to interview the various parties \u2013 fortunately, an exercise which has not been an obstacle to the establishment of such facts as are necessary for this report.\u00a0 That is because I am in possession of all relevant documents \u2013 court judgements, \u2018Hansard\u2019 of the parliamentary impeachment process, the fourteen charges against the judge and two volumes (some 1600 pages) published by Parliament which contain the evidence. \u00a0I have the statement by the four members who walked out of the Select Committee, its Minutes of evidence, and the findings of guilt on three of the charges.\u00a0 I have also read some press coverage of what happened, in papers such as the \u201cColombo Telegraph\u201d, \u201cThe Sunday Times\u201d, and \u201cThe Island online\u201d, as well as overseas reporting in journals such as \u201cThe Economist\u201d and a collection of documents relevant to the impeachment published by the Asian Human Rights Commission.\u00a0 As will appear, the facts upon which I base my conclusions are either on record or incapable of significant challenge.<\/span><\/p>\n

4. The question I am tasked to answer is whether the removal of the Chief Justice was a breach of the guarantee of judicial independence which Sri Lanka is bound to uphold, both by international law and by its membership of the Commonwealth.\u00a0 That requires an analysis of:<\/span><\/p>\n

# The reason for the impeachment. Were the motives \u201cpolitical\u201d \u2013 for example, as a reprisal for some judgement against the government, or was the impeachment process begun out of genuine concern for the public interest because there was <\/span>prima facie <\/em>evidence she had committed some crime or serious misconduct?<\/span><\/p>\n

#The nature of the charges. Did they relate to the political inconvenience of her judgements, or to allegations of serious misbehaviour? \u00a0<\/span><\/p>\n

# The fairness of the method used for proving them. Did the Select Committee give her a fair hearing and adopt a proper standard of proof?<\/span><\/p>\n

# The question of political pressure. Was the Parliament was prejudiced or placed under pressure e.g. by demonstrations against the judge orchestrated by the government.\u00a0<\/span><\/p>\n

5. Much of the public debate has been over the use of the impeachment process, which takes place in Parliament rather than in the courts, but this is not the key issue: it is whether the impeachment process as used by the government <\/span>in this case<\/em> was used fairly.\u00a0 Another side-issue is the correctness of the Supreme Court decision to intervene in a parliamentary process.\u00a0 Again, the real question for judicial independence is whether that process was fair, not whether the courts were right to intervene – an interesting question, but one pertaining to the different subject of the separation of powers. \u00a0A different consideration, raised by the UN\u2019s Human Rights Commission, is the fitness of Mrs. Bandaranayke\u2019s successor, one Mohan Peiris, who had been Attorney General and had led delegations to Geneva to \u201cvigorously defend\u201d the government over its mass-murder of Tamil civilians.\u00a0 Lawyers briefed to defend a client vigorously do not necessarily believe in the client or the defence:\u00a0 barristers who act for governments sometimes turn out to be remarkably independent of that government when appointed to the bench.\u00a0 The criticism of Mr. Peiris must come from the fact \u2013 if it is a fact \u2013 that he accepted the office in the knowledge that his predecessor had been unlawfully or improperly removed.<\/span><\/p>\n

JUDICIAL INDEPENDENCE<\/span><\/strong><\/p>\n

<\/strong>6. Every international human rights treaty, and every constitutional Bill of rights, requires judges to possess \u201cindependence and impartiality\u201d.\u00a0 These are disparate concepts: the latter is well-defined and the tests for real or apparent judicial bias are well established. \u201cIndependence\u201d however, has not been much litigated: I would define it as <\/span>a duty on the state to put judges in a position to act according to their conscience and the justice of the case, free from pressures from governments, funding bodies, the military or any other source of influence that may possibly bear upon them<\/strong>.\u00a0 Security of tenure is fundamental to independence, and subject to a mandatory retirement age it can only be lost by proven mental incapacity or else by serious misconduct, proved beyond reasonable doubt, preferably by a criminal conviction or at least by a trial proceeding that is fair.<\/span><\/p>\n

7. That an independent judiciary is a prerequisite for any society based on the rule of law cannot be doubted, and the definition of that independence is uncontroversially set out in the IBA\u2019s <\/span>Minimum Standards of Judicial Independence <\/em>(1982) and in the <\/span>Basic Principles of the Independence of the Judiciary <\/em>adopted by the General Assembly of the United Nations in 1985.<\/span>[2]<\/a> These instruments lay down guidelines for appointment and removal, and for tenure, conduct and discipline, which are generally designed to ensure that \u201cjudges are not subject to executive control\u201d (personal independence) and that in the discharge of judicial functions \u201ca judge is subject to nothing but the law and the commands of his conscience\u201d (substantive independence).\u00a0 This latter formulation strikes me as inadequate: a judge is subject additionally to certain public expectations arising from the constitutional importance of the office. These should be spelled out in a code of judicial conduct, requiring justice to be done efficiently and decently, without fear or favour, discrimination or discourtesy.\u00a0 Complaints about breaches of the Code should be decided by a Tribunal which includes senior judges, and is itself free from political influence.\u00a0 Most misconduct complaints, if upheld, will result in guidance or reprimand: if serious enough, in the Tribunal\u2019s estimation, to warrant removal that power (which in many countries constitutionally resides in the Parliament) can be exercised after a vote has been taken on whether to adopt the Tribunal\u2019s recommendation.\u00a0<\/span><\/p>\n

8. Although this is the case with the UN\u2019s own justice system<\/span>[3]<\/a> and in many countries with Westminster-style constitutions, others such as Sri Lanka \u2013 and the UK itself \u2013 still rely on an archaic system of an \u201caddress\u201d in Parliament to remove a senior judge, the last step in a process known as \u201cimpeachment\u201d.\u00a0 Although in some respects unsatisfactory, it does at least ensure judicial accountability to an outside body \u2013 the democratically elected legislature – and this provides an ultimate safeguard against judicial guardians becoming too incestuous or perceived as too self-interested to guard themselves.\u00a0 The impeachment process <\/span>per se <\/em>is therefore unobjectionable \u2013 so long as it is conducted fairly, in a way that fully protects the judge\u2019s rights and in circumstances where it cannot be credibly suggested that it has been instituted or carried on as a reprisal \u2013 because, for example, the government does not like the judge\u2019s decision in a particular case. Almost all cases of serious misbehavior will involve allegations of crime: the judge should be normally be tried in court fairly, and only impeached if convicted.<\/span><\/p>\n

9. It is generally accepted, and may now be considered an imperative rule of international law, that judges cannot be removed except for proven incapacity or misbehaviour.\u00a0 \u2018Incapacity\u2019 is clear enough, and is not relevant in this case. \u2018Misbehaviour\u2019 is a broad term and should be limited to <\/span>serious<\/em> misbehaviour.\u00a0 Criminal offences would normally qualify, although even here there are lines to be drawn: in England a circuit judge was sacked after his conviction for smuggling whisky, but senior appellate judges have escaped impeachment for drink-driving offences.\u00a0 Criminal offences can at least be \u2018proven\u2019 \u2013 namely by the verdict of a judge and\/or jury, and subsequent impeachment by Parliament is scrupulously fair to a judge given the opportunity (however unlikely it is to succeed) to claim that his conviction was wrongful.\u00a0<\/span><\/p>\n

10. Where for some reason a criminal charge has not been proferred, Parliament has the difficult task of replicating court procedures in order to prove \u2013 necessarily to the criminal standard, beyond reasonable doubt \u2013 that the judge is in fact guilty.\u00a0 Where the \u2018misbehaviour\u2019 alleged does not constitute a criminal offence at all, the question of whether it is serious enough to warrant dismissal becomes acute. Why should a judge be dismissed for conduct which is lawful? \u00a0There are dangers of judges being impeached because governments dislike what they lawfully say or do.\u00a0 Republican politicians in the U.S. attempted to impeach William O. Douglas because he gave an interview to <\/span>Playboy<\/em>, and the calculating Dr. Mahartir, fearing that his honest Chief Justice would rule against him in a forthcoming case, had him dismissed because, at a University book-launch, he spoke up for the independence of the Malaysian judiciary.\u00a0 In every case where it is alleged that non-criminal conduct amounts to \u2018misbehaviour\u2019 sufficient to disentitle a judge to sit, especial care must be taken to ensure that the conduct really does reflect so badly on the individual that he or she can no longer be considered fit to judge others \u2013 because, in a sense, they cannot even judge themselves.<\/span><\/p>\n

11. Some assistance as to the kind and degree of misbehaviour that disqualifies a judge is found in the \u201cLatimer House Principles\u201d agreed by Law Ministers of the Commonwealth and by the Commonwealth Heads of Government.\u00a0 A specific rule provides<\/span><\/p>\n

\u201cJudges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties\u201d.<\/span>[4]<\/a><\/p>\n

This requires clear proof of misconduct that renders them unfit, at least in the eyes of reasonable people, to occupy the justice seat.\u00a0 This finds an echo in the <\/span>Beijing Statement of Principles of the Independence of the Judiciary in the ASEAN Region <\/em>which is subscribed to by thirty-two Chief Justices, including Mrs. Bandaranayke\u2019s predecessor.\u00a0 Article 22 provides<\/span><\/p>\n

\u201cJudges should be subject to removal from office only for proved incapacity, conviction of a crime, or conduct that makes the judge unfit to be a judge.\u201d<\/span><\/p>\n

12. This international approach to what is required to secure judicial tenure is fully endorsed by the Constitution of Sri Lanka. It has a special Article \u2013 107 \u2013 headed \u201cIndependence of the Judiciary\u201d as if to underline its constitutional importance. Article 107(2) provides<\/span><\/p>\n

\u201cEvery judge 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\u201d.<\/em><\/p>\n

It is essential that the misbehaviour or incapacity be <\/span>proved.<\/em> But how?\u00a0 By what procedures and according to what standards? Article107 is deficient in this respect \u2013 it requires at least a third of MPs to sign the motion for an address, but goes on: \u201cthe investigation and proof of the alleged misbehaviour or incapacity and the right of such judge to appear and be heard in person or by a representative\u201d is left to Parliament to provide, \u201cby law or by Standing Orders…\u201d.<\/span>[5]<\/a> The President\u2019s powers to appoint (Article 122) and dis-appoint (Article 107) judges were, of course, based on the Presidency as a ceremonial position under a <\/span>? <\/strong>style constitution. Subsequently, the President became the political leader of the country, with executive power and majority support from his party in Parliament.<\/span><\/p>\n

13. Quite clearly, the standards and procedures for trying allegations of judicial misconduct, particularly if he has not been convicted in the courts of any offence \u2013 must comply with the minimum standards set out in Article 14 of the <\/span>International Covenant on Civil and Political Rights <\/em>(ICCPR), to which Sri Lanka is a state party, namely<\/span><\/p>\n

a fair and public hearing by a competent, independent and impartial tribunal\u201d, with the presumption of innocence (14(2)) and rights to have adequate time to prepare a defence, (14(3)(6)) to examine and cross-examine witnesses and to call witnesses on his behalf\u201d<\/em> (14(3)(e)).<\/span><\/p>\n

14. These are fundamental safeguards that must apply to quasi-criminal \u2018misconduct\u2019 charges which, if they result in an impeachment address by MPs, will blast the judge\u2019s reputation and deprive him of status, job and pension rights.\u00a0 For this reason the common law insists on scrupulous fairness, as the Privy Council made clear in the leading Commonwealth case of <\/span>Rees v Crane<\/em>, where the rules of natural justice were held to require a judge to be given, even at a preliminary stage, all the evidence against him and an opportunity to refute the charges.<\/span>[6]<\/a>\u00a0 The Beijing Rules insist that \u201cRemoval by Parliamentary procedure… should be rarely, if ever, used\u201d because \u201cits use other than for the most serious reasons is apt to lead to misuse\u201d<\/span>[7]<\/a>. When it is used, \u201cthe judge who is sought to be removed must have the right to a fair hearing\u201d<\/span>[8]<\/a>.\u00a0 The Latimer House principles are similarly emphatic: Principle VII lays down that \u201cany disciplinary procedures should be fairly and objectively administered…with…appropriate safeguards to ensure fairness\u201d.\u00a0 The Latimer House Guidelines go further:<\/span><\/p>\n

\u201cIn cases 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\u201d.<\/span>[9]<\/a><\/p>\n

15. These principles must be stringently applied to any attempt to remove a Chief Justice, who is the representative of the judiciary as a whole and by virtue of the fact that he or she has achieved that exalted status, will normally have a high degree of peer approval and possess a recognised judicial distinction. Indeed many \u201cWestminster model\u201d constitutions give the Chief Justice, through chairmanship of a Legal Services Commission, a leading role in the disciplining and removal of other judges.\u00a0 This makes the removal of a Chief Justice particularly problematic.\u00a0 Some commonwealth countries provide in their constitution for a tribunal of overseas commonwealth judges to investigate misconduct charges against the Chief Justice, a recognition both of the momentous political character of such a move and the need to eliminate any suggestion of bias in the membership of the tribunal.\u00a0 The cases are, fortunately, very few, but the tribunal in Trinidad and Tobago called in 2006 to hear charges of misconduct against Chief Justice Sharma provides a procedural exemplar.\u00a0<\/span><\/p>\n

16. The Tribunal was chaired by Lord Mustill, siting with distinguished jurists from Jamaica and St. Vincent. The allegation was that Sharma had attempted to pervert the course of justice by pressuring the Chief Magistrate, to acquit the leader of the opposition of an imprisonable offence.\u00a0 This is, of course, a serious crime and it should always be \u2018proved\u2019 in court before removal proceedings are undertaken.\u00a0 The Chief Justice had been charged, but bizarrely the Chief Magistrate refused to testify when called into court to give evidence against him, so the criminal proceedings were discontinued and an impeachment process commenced instead. Lord Mustill insisted, after lengthy argument, on scrupulously fair procedures: the Chief Magistrate was cross-examined at length; the rules of evidence at a criminal trial were applied; the burden of proof (following <\/span>In re a solicitor<\/em>)<\/span>[10]<\/a> was held to be the criminal standard, i.e.proof beyond reasonable doubt.\u00a0<\/span><\/p>\n

17. The procedures adopted by Lord Mustill in <\/span>Sharma\u2019s Case <\/em>provide the best precedents for the first stage of any impeachment of a Chief Justice in a Commonwealth country.\u00a0 Regrettably the Commission\u2019s report has not been properly published by the Trinidad government. I have asked the Bar Human Rights Committee to publish the Mustill Report on its website, order that its findings might become better known and perhaps prevent some of the procedural improprieties that occurred in the course of impeaching Chief Justice Bandaranayke.<\/span><\/p>\n

 <\/p>\n

18. Article 107(3) of the Sri Lankan Constitution must therefore be read consistently with these international and commonwealth requirements. The \u201claw or standing orders\u201d it provides for the procedures leading up to the address, such as \u201cthe investigation and proof of the alleged behaviour,\u201d must be scrupulously fair.\u00a0 It is unfortunate that Sri Lanka has not passed a law similar to that of Trinidad and some other commonwealth countries, which provides (usually in their Constitution) for an independent tribunal to hear removal allegations against a judge. An amendment to the Constitution proposed in 2000 would have done exactly that, but it was dropped.\u00a0 As for Standing Orders, which do not have the force of law, those made by the Speaker in Sri Lanka (on the recommendation of a committee that he chairs) do not provide any kind of independent tribunal.\u00a0 The procedure for establishing judicial <\/span>misconduct<\/em> is merely set out in Standing Order 78A, headed confusingly, <\/span>Rules of Debate:<\/span><\/p>\n

\u00a0<\/span><\/strong>1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>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 of the Constitution, the Speaker shall entertain such resolution and place it on the Order Paper of Parliament but such resolution shall not be proceeded with until after the expiration of a period of one month from the date on which the Select Committee appointed under paragraph (2) of this Order has reported to Parliament.<\/em><\/p>\n

\u00a0<\/em>2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>Where a resolution referred to the paragraph (1) of this Order is placed on the Order Paper of Parliament, the Speaker shall appoint a Select Committee of Parliament consisting of not less than seven members to investigate and report to Parliament on the allegations of misbehavior or incapacity set out in such resolution.<\/em><\/p>\n

\u00a0<\/em>3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>A Select Committee appointed under paragraph (2) of this Order shall transmit to the Judge whose alleged misbehavior or incapacity is the subject of its investigation, a copy of the allegations of misbehavior or incapacity made against such Judge and said out in the resolution in pursuance of which such Select Committee was appointed, and shall require such Judge to make a written statement of defense within such period as maybe specified by it.<\/em><\/p>\n

\u00a0<\/em>4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>The Select Committee appointed under paragraph (2) of this Order shall have power to send for persons, papers and records and not less than half the number of members of the Select Committee shall form the quorum.<\/em><\/p>\n

\u00a0<\/em>5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>The Judge whose alleged misbehavior or incapacity is the subject of the investigation by a Select Committee appointed under paragraph (2) of this Order shall have the right to appear before it and to be heard by, such Committee, in person or by representative and to adduce evidence, oral or documentary, in disproof of the allegations made against him<\/em><\/p>\n

\u00a0<\/em>6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>At the conclusion of the investigation made by it, a Select Committee appointed under paragraph (2) of this Order shall within one month from the commencement of the sittings of such Select Committee, report its findings together with the minutes of evidence taken before it to Parliament and may make a special report of any matters which it may think fit to bring the notice of Parliament;<\/em><\/p>\n

\u00a0<\/em>7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>Where a resolution for the presentation of an address to the President for the removal of a Judge from office on the ground of proved misbehavior or incapacity is passed by Parliament, the Speaker shall present such address to the President on behalf of Parliament.<\/em><\/p>\n

\u00a0<\/em>8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em>All proceedings connected with the investigation by the Select Committee appointed under paragraph (3) of this Order shall not be made public unless and until a finding of guilt on any of the charges against such Judge is reported to Parliament by such Select Committee.<\/em><\/p>\n

19. The impeachment procedure is arcane, the Order is elliptically drafted and at no point does it envisage the involvement of persons other than politicians. Article 107 requires impeachment to begin with a petition signed by at least a third of all members of Parliament, setting out the \u201cfull particulars\u201d of the alleged misbehaviour.\u00a0 This is the cue under 78A(2) for the Speaker to appoint a Select Committee of at least seven MPs to investigate and report.\u00a0 It must give the accused judge a copy of the allegations (but not necessarily the evidence) and the judge must <\/em>provide it with a written defence statement.\u00a0 Then the judge has the right to be heard and to call evidence (but not, apparently, to question or cross-examine any hostile witnesses). The Select Committee has only a month to investigate, and most importantly (and most unfairly) it must clothe its work in secrecy \u201cuntil a finding of guilt on any of the charges against such judge is reported to Parliament by such Select Committee\u201d. After that report has been sent to Parliament, a month must elapse before the impeachment debate, at the end of which, if more than half the MPs favour the motion, the speaker will present the \u2018address\u2019 to the President who may then remove the judge.<\/p>\n

20. These rules, which were broadly followed in Dr Bandaranayke\u2019s case, are highly objectionable. In the first place, the Select Committee members must all be MPs, and the Speaker may (as he did in this case) appoint a majority of government Ministers.\u00a0 Secondly, the Committee hearings must necessarily be in secret, and remain so until reasons for a \u2018guilty\u2019 verdict are presented to Parliament. This is a plain breach of Article 106 of the Constitution which provides that every \u201ctribunal or other institution established under the Constitution or by Parliament\u201d (which would include a Select Committee established to try a judge and report on whether he is guilty) \u201cshall be held in public and all persons shall be entitled freely to attend such sittings\u201d.\u00a0 The Rules are, therefore, contrary to <\/em>the Constitution, which plainly requires open justice, as do the Latimer Rules and the Beijing principles and the common law.\u00a0 The Standing Order gives the judge a few rights, but the basic protection of openness, and the rights to have time to prepare a defence, and to cross-examine adverse witnesses, are not mentioned.\u00a0 Nor is the most important protection of all, the burden and standard of proof. The burden must fail in or the prosecution and conviction must only come after \u201cproof beyond reasonable doubt\u201d. In all these respects, the Standing Orders of Parliament are gravely deficient in fairness.<\/p>\n

21. There are other aspects to the protection of judicial independence which should be observed when a judge \u2013 especially a Chief Justice \u2013 is put through the demeaning ordeal of an impeachment.\u00a0 There must be some respected and responsible trigger for this draconian process, yet Article 107 provides that merely a third of the number of MPs can commence it, by signing a request to the Speaker.\u00a0 As this number of supportive members will necessarily be commanded by the party or coalition in power, it is a frail reed indeed to protect a judge from reprisals by the government if his rulings discomfort its Ministers. As for the President, who has the supreme and absolute power to accept or reject the address, this is not the ceremonial President envisaged by Westminster model institutions.\u00a0 Sri Lanka\u2019s head of state is not an apolitical figure like the Queen in the UK, but a street-fighting politician who is head of the government and has wide- ranging constitutional powers at his discretion. His party or its supporters will command over half of the MPs, and so can easily round up one third of them to initiate the process to remove a judge. In Sri Lanka, in 2012-13, President Rajapakse and his United People\u2019s Freedom Alliance, with supporting parties, had a large majority in Parliament – more than two thirds of its total of 225 members.\u00a0 The President\u2019s elder brother, Chamal Rajapakse, was the Speaker of the House who oversaw Dr. Bandaranayke\u2019s impeachment.\u00a0 In this situation, the terms of the Constitution afford no real protection to a judge whose rulings incur the enmity of the ruling President or his family or his party.<\/p>\n

22. I should note several non-legal ways in which a government can imperil judicial independence in the course of making attempts to remove a judge.\u00a0 In Sri Lanka, as in many other countries, it controls and heavily influences the state media, which endorses its campaigns. Tame journalists may wage a propaganda war against disfavoured judges, placing intolerable psychological pressure on them and their families. A government will, by definition, have a political party with control over large swathes of supporters, and an ability, for example, to organise demonstrations against judicial targets. The large scale public protests against Dr. Bandaranayke are of particular concern in this respect: the public at large does not know or much care about fine points of constitutional law and it is difficult to believe that they took to the streets against her without government manipulation. <\/em>\u00a0This has been widely alleged in Sri Lanka\u2019s free press and requires serious investigation: there is television footage which seems to show demonstrators being paid after chanting slogans against her and against the Supreme Court.\u00a0 Orchestrated protest against a particular judge is a particularly objectionable form of retaliation, and any government political party behind such demonstrations deserves the strongest condemnation.\u00a0 The government, of course, will have control of the police and armed forces, and I note how the authorities later effected the physical removal of Mrs. Bandaranayke from her Supreme Court chambers and official residence in disrespectful ways that seem designed to humiliate her.<\/p>\n

BACKGROUND TO THE IMPEACHMENT<\/span><\/strong><\/p>\n

a) The Chief Justice<\/p>\n

23. Sri Lanka is a long standing democracy which was granted independence from Britain in 1948 and endowed with a Westminster model constitution which has been substantially amended since.\u00a0 The Privy Council was its final Court of Appeal for many years, and its common law and its legal profession reflect their English models. \u00a0\u00a0\u201cQueen\u2019s Counsel\u2019 are now styled \u201cPresident\u2019s Counsel\u201d, (somewhat unfortunately when the President is no longer ceremonial but a powerful political figure).\u00a0 The country was plunged for many years into a violent civil war against the secessionist Tamil Tigers, which ended in 2009 when government forces captured their base in the island\u2019s north, killing up to 40,000 civilians in the process.\u00a0 A UN Human Rights Committee investigation was highly critical of both sides and particularly of the government, and some commentators have sought to draw connections between the government\u2019s lawlessness in the civil war and the disrespect for law it showed in the course of removing the Chief Justice.\u00a0 I perceive no such connection, other than that the result of the war \u2013 the ending of Tamil Tiger terrorism \u2013 had the consequence of making President Rajapaske so popular that the next election gave him an overwhelming majority. There have been long-standing tensions between the executive and the judiciary, noted in IBA reports in 2001 and 2009,[11]<\/a> and two previous impeachment attempts.\u00a0 (The simmering discontent among politicians about judges getting \u201ctoo big for their boots\u201d was undoubtedly a background factor in their contemptuous behaviour toward the Chief Justice).\u00a0 However, in other respects Sri Lanka was a state in good standing in the commonwealth: so much so that criticism of it\u2019s conduct of the 2009 hostilities was removed from the CHOGM agenda at the 2012 meeting and Sri Lanka was paid the compliment of being chosen to host the Commonwealth Heads of Government meeting in November 2013.<\/p>\n

24. Dr. Shirini Bandaranayake has had a most impressive career culminating in her appointment in May 2011, at age 53, as Chief Justice \u2013 the first woman to achieve that rank.\u00a0 She had attended a state school in the countryside before taking a law degree and winning a Commonwealth scholarship to earn her doctorate at London University.\u00a0 She went straight into academic work, rising to become Dean of Colombo\u2019s excellent law school and acting as Vice-Chancellor of the university.\u00a0 In 1996, at age 38, she had been made a Justice of the Supreme Court by President Kumaratunge, achieving a double first \u2013 first woman and first academic on that bench.\u00a0 There were petitions by several barristers objecting to her appointment on the grounds that the President had not consulted the judicial network,[12]<\/a> but no-one suggested that she lacked integrity or intellectual calibre. Her record refutes any suggestion that she was anti-establishment (or, anti-Rajapaske) \u2013 on the contrary, her juristic writing in over three hundred court decisions is conventional and her approach quite conservative. Indeed, her appointment as Chief Justice met with criticism from some human rights NGO\u2019s. as she was seen as an ally of the President, after a ruling in 2010 which upheld controversial legislation extending his powers.\u00a0 She was respected by her colleagues and became one of the two Supreme Court judges sitting with the former Chief Justice in the Judicial Service Commission. During her impeachment tribulation she had the support of all high Court judges, and the majority of lawyers and magistrates in Sri Lanka.<\/p>\n

25. On becoming Chief Justice, Mrs. Bandaranayake, under Article III of the Constitution, automatically became chair of the Judicial Service Committee, comprising herself and two other Supreme Court Justices nominated by the President.\u00a0 The three were required to choose the Committee\u2019s secretary \u201cfrom among senior judicial officers of the Courts of First Instance\u201d, and they chose a judge who was not the most senior of possible candidates but was \u201csenior\u201d nonetheless. The Commission is empowered to transfer, promote, discipline and dismiss judicial officers and public servants working in the courts.<\/p>\n

b. The JSC under attack<\/p>\n

26. The power of the Chief Justice, as chair of the JSC, came under political attack in September 2012 shortly before her impeachment.\u00a0 It began with a telephone call from the Secretary to the President on 13th<\/sup> September, telling that the President had directed the three JSC members to meet him at his residence on 17th<\/sup> September.\u00a0 No reason for the meeting was given.\u00a0 This direction was put in writing at the Chief Justice\u2019s request, again giving no reason, and the JSC wrote back saying that a meeting would be open to misinterpretation and harmful to public confidence in the independence of the judiciary.\u00a0 This was prudent, as the Chief Justice and another of the JSC judges were members of the bench that was about to deliver a very controversial decision on the Devineguma Bill<\/em> (see later).\u00a0 It is a fundamental Latimer House principle that<\/p>\n

\u201cWhile dialogue between the judiciary and the government may be desirable or appropriate, in no circumstance should such dialogue compromise judicial independence\u201d[13]<\/a><\/p>\n

Summoning two of the three judges who were about to deliver a politically important decision, and giving no reason for the summons, was unsatisfactory behaviour on the part of the President and I have no doubt that the judges genuinely feared that a meeting with him would compromise them.<\/p>\n

27. On the 17th<\/sup> September, the Divineguma Bill <\/em>decision was handed down, and it went against the Minister, Basil Rajapaske.\u00a0 A large crowd of governmental supporters suddenly materialized outside Parliament, shouting slogans against the Supreme Court and against the Chief Justice. Whether this demonstration was orchestrated by the government or not, it was clearly not spontaneous (the judgement at this point had been delivered to the Speaker, the President\u2019s brother, who was reporting it to Parliament.)<\/p>\n

28. So far as the President\u2019s action in summoning the judges to a meeing was concerned, the JSC drew the inference \u2013 not unreasonably \u2013 that he was attempting to exert undue influence over them. On 18th<\/sup> September the JSC issued a press release which spoke of other threats from government quarters after it had disciplined a particular judicial officer, and said that there were \u201cforces\u201d (unspecified) that were using the electronic and print media to make baseless criticism of the JSC and attempting to undermine the judiciary. The press statement was being issued \u201cto keep the public informed of the threat\u201d.<\/p>\n

29. It was a surprisingly powerful statement, perhaps issued by a Commission rattled by the demonstrations on the previous day, but it threw down a gauntlet to the government. A week went by before President Rajapakse responded, by telling the media that he had summoned the JSC members not in his capacity as President but in his role as Minister of Finance, merely in order to discuss their budget.\u00a0 If this had been the case, it was very surprising that his secretary failed to mention this purpose at the time. Although the President denied any intention of interfering with the judiciary, I have seen no evidence that he ever condemned the public demonstration against it, and nor did his law officers.\u00a0 The following day (28 September) the JSC secretary claimed that there was a security threat to the Chief Justice and her fellow judges, although it turned out that the most immediate threat was to himself.\u00a0 President Rajapaksa told national newspaper publishers at a breakfast meeting on 4 October that he had instructed the Criminal Investigation Department to look into an allegation of sexual harassment that had been made against the Secretary. This man, a District judge, was assaulted three days later, after dropping his wife and son at school, by unidentified men and suffered serious injuries to his face and head.\u00a0 On the following day, judges and magistrates refused to attend their courts in protest against this attack which they said was incited by the government. Its perpetrators have still not been arrested.<\/p>\n

30. These incidents show the pressures that were building up in the weeks before the impeachment, partly as a result of the Supreme Court\u2019s decision to strike down the Divineguma <\/em>Bill.\u00a0 Before explaining its significance, I should mention one other vulnerability of the Chief Justice at this time, namely her husband.\u00a0 Pradeep Kariyawasam had been appointed by the President as Chairman of the National Savings Bank, shortly before his wife was made Chief Justice.\u00a0 Although he was not a politician or a backer of the President\u2019s party, some thought at the time that this favour from the President, who then appointed him as director of a public company chaired by another of his brothers (Gotabhyaya Rajapaksa, the Defence Secretary). Some commentators expressed concern that his appointment might incline his wife to repay the favours by more pro-government judgements.\u00a0 However, the bank made a bad investment decision, lost public money, and Kariyawasam tendered his resignation in May 2012.\u00a0 In August, at the very time the argument about the constitutionality of the Divineguma <\/em>bill was being heard by the Supreme Court, he was summoned by the Bribery Commission to give evidence about the share transaction. This might well have been because the share transaction was dubious, although some thought that it was a means by which the government could put further pressure on the Chief Justice.\u00a0 There was media comment at the time about why he alone had been summonsed, and not others who were more involved in decisions to make the bad investment.<\/p>\n

c. The Devineguma bill<\/p>\n

31. It is difficult for those who do not live in a Federal system to understand the political importance of the Divineguma<\/em> bill, or the government\u2019s anxiety to have it declared constitutional.\u00a0 It was the brainchild of another brother of the President, Basil Rajapaksa, the Minister of Economic Development, who presented it to Parliament on 10 August 2012.\u00a0 Sri Lanka, unlike the UK, has a system of preventive overruling, which permits speedy constitutional challenge to government Bills as soon as they are placed on the order paper of Parliament, and there were a number of challenges to the Divineguma <\/em>Bill.\u00a0 Because it did breach the constitution, which required the Minister to consult with all Sri Lanka\u2019s nine provincial Councils before it could be tabled.\u00a0 It was a centralising Bill, bringing devolved power back to Colombo, in this case power that would henceforth be wielded by Basil Rajapaska, the President\u2019s brother.\u00a0 It also gave his departmental officials new powers to invade privacy and obtain information about citizens.<\/p>\n

32. In deciding constitutional cases, judges must usually choose between arguments that are good and arguments that are better.\u00a0 The decision of the three Supreme Court judges, with the Chief Justice presiding, in the first Divineguma <\/em>bill case <\/em>clearly and logically applied the provision S.154 of the Constitution requiring such Bills to be submitted \u201cto every provincial council for the expression of its views thereon\u201d<\/em> before being placed on the order paper. As the Bill had been placed on the order paper without any such consultation, it could go no further.\u00a0 It was a straightforward issue, and the decision was in my view an obviously correct application of Section 154.<\/p>\n

33. However, the Solicitor General on behalf of the government had taken a preliminary and highly technical point, Article 12(1) of the Constitution allowed citizens to challenge a Bill<\/p>\n

\u201cby a petition in writing addressed to the Supreme Court…within one week of the Bill being placed on the Order Paper of the Parliament and a copy thereof shall at the same time be delivered to the Speaker\u201d.<\/em><\/p>\n

The Bill was placed on the Order Paper on 10 April. And the petition was filed in the Supreme Court Registry on 17 August \u2013 just before the deadline.\u00a0 It was at the same time <\/em>sent to the Speaker by registered post, arriving in the Speaker\u2019s hands only on the 20th August., which was not, obviously, at the same time <\/em>as it was addressed to the Supreme Court.\u00a0 So what did the word \u201cdeliver\u201d mean in the context of the constitutional right for citizens to petition against a proposed law \u2013 did it mean the act of conveying the document, which was performed when it was sent on 17th<\/sup>, or did it mean the point at which it came into the Speaker\u2019s hands, i.e. the 20th<\/sup>?\u00a0 If the latter, then the objectors to the Bill would be knocked out – on the merest of technicalities.<\/p>\n

34. This is exactly the kind of problem that lawyers are born to solve.\u00a0 It is their bread and butter, from their first day at law school, when they are asked whether a law against bringing a \u201cvehicle\u201d into the park should exclude a perambulator or a bicycle or a crashing aeroplane. It is meat and drink to the judges of any country called upon to decide the meaning of words and phrases in a Constitution applying \u2018literal rules\u2019 and \u2018golden rules\u2019 and rules of \u2018purposive interpretation\u2019 to the language of sloppy parliamentary draftspersons.\u00a0 The Chief Justice and her two colleagues did what judges in other English-speaking countries usually do when faced with a question of the meaning of a word \u2013 they consulted the Oxford English Dictionary. It defined \u2018delivery\u2019 as \u201dthe act of conveying into the hands of another, especially the action of a courier in delivering letters entrusted to him for conveyance to a person at a distance\u201d.\u00a0 They reasoned that such an act could be carried out by posting, so the commencement of the delivery by posting on the 17th<\/sup> satisfied the precondition for bringing a petition about the Bill\u2019s constitutionality.\u00a0 They made reference to a previous case, in 1991, (the Sri Lankan Telecommunications case<\/em>) but distinguished it on the facts of that case(there had been no posting of the petition simultaneously with its Court filing, but instead an out-of-time hand delivery to the speaker).<\/p>\n

35. I have addressed the issue at some length, to point out that the court dealt and distinguished with the 1991 precedent and reached a perfectly sensible, logical and legal conclusion.\u00a0 It must be emphasized that this is a perfectly normal and indeed commonplace example of judicial reasoning, because the Chief Justice\u2019s accusers were later to claim, outrageously, that it amounted to misbehaviour justifying the impeachment.<\/p>\n

36. The impeachment would soon come. \u00a0The Divineguma<\/em> decision against the government was handed down on 17 September, angering the government by invalidating legislation that was important to its agenda, followed by the protest of the JSC and the assault on its Secretary.\u00a0 The press on 26 September and again on 4 October reported that the President and a committee of Cabinet members were discussing \u201cstrong measures\u201d against the judiciary.\u00a0 It may be that at this point the drafting of impeachment charges began, although Basil Rajapaske was prepared to give the Supreme Court one last chance. On 10 October he tabled the Bill again, reporting that it had now been approved by eight out of nine elected Provincial Councils, and by the Governor who had been imposed on the largely Tamil and war-torn Northern Province.\u00a0 Challenges were made again, to the same Supreme Court bench, headed by the Chief Justice, this time on the grounds that the governor was not authorised to approve the Bill in the absence of an elected Council.<\/p>\n

37. Given all this existing pressure on the Chief Justice it did not help when on 25 October the Bribery Commission charged her husband with unlawfully causing a substantial loss to the public.\u00a0 Nonetheless the Chief Justice and her colleagues reported on the 1st<\/sup> November that the Bill was even more flawed than they had ruled the first time \u2013 the Governor could not usurp the role of an elected Council, and other provisions of the Bill would need to be approved by a public referendum.\u00a0 Once again, their decision was properly reasoned, but it tipped the government over the brink.\u00a0 A few hours after the judgement was delivered, 117 MPs signed an impeachment resolution, calling on the Speaker to present an \u2018address\u2019 to the President seeking the removal of the Chief Justice.\u00a0 In all these circumstances, it is impossible to resist the inference that the impeachment was the government\u2019s direct response to the unfavorable decision by the Supreme Court in the Divineguma<\/em> Bill cases.<\/p>\n

THE IMPEACHMENT CHARGES<\/span><\/strong><\/p>\n

<\/strong>a.\u00a0\u00a0\u00a0 <\/strong>The Three Divineguma<\/em> Counts<\/strong><\/p>\n

38. The evidence for this proposition is not only circumstantial \u2013 it came from the terms of the impeachment charges. There were fourteen of them, in not particularly coherent English, appended to the motion.\u00a0 Did any of them charge, as misbehaviour, conduct that on any reasonable view amounted to the exercise of a proper and conscientious professional judgement?\u00a0 That would be proof of a blatant assault on judicial independence, the ousting by government of a judge who did her duty and arrived at a result the government did not like.\u00a0 The Rajapaske government did not like the first Divineguma <\/em>decision, and it probably liked the second even less, because the impeachment resolution was tabled on the same day it was handed down. What those 117 MPs did, fatally to their case, was to accuse the Chief Justice of misbehaviour for rendering an utterly professional judgement \u2013 shared by her two colleagues \u2013 in Divinegume No.1.<\/em><\/p>\n

39. Count 8 in the Bill of impeachment reads:<\/p>\n

Whereas Article 121(i) of the Constitution has been violated by the said Dr. Bandaranayke despite the fact that it had been decided that the mandatory procedure set out in the said Article of the Constitution must be followed in accordance with the interpretation given by the Supreme Court in the 1991 Sri Lanka Telecommunications Case.<\/em><\/p>\n

40. This was not an allegation of misbehaviour. It was an allegation that the Chief Justice should be sacked because she (and her two colleagues) had not accepted the Solicitor General\u2019s technical argument, based on the 1991 case.\u00a0 As I have explained, the judges distinguished the facts of the Telecommunications Bill <\/em>case,,<\/em> which did not therefore bind them, and reached their interpretation of the word \u2018deliver\u2019 by reference to the Oxford English Dictionary.\u00a0 They did what judges in all common law countries do, and reached a decision that many other judges would have reached. That did not, of course, matter \u2013 the important thing is that they reached it honestly and professionally.\u00a0 The only reason it could appear on an impeachment charge was that the government and the 117 MP\u2019s who had all taken to the government whip, disliked the consequences of the decision,\u00a0 and it is that motivation that strikes at the heart of judicial independence.\u00a0 No honest lawyer, with any respect for the principles of his or her profession, could support such an impeachment and those of the 117 who were lawyers deliberately made a false accusation of misconduct against a judge for doing her judicial duty.\u00a0 I can think of no behaviour more likely to bring the profession into disrepute, although in fact it brings these individual MPs into disrepute.\u00a0 As far as Sri Lanka\u2019s membership of the Commonwealth is concerned, there can hardly be a more blatant breach of the Latimer House principles.<\/p>\n

41. The Count 8 accusation against a judge of misbehaviour for doing her duty did not stand alone.\u00a0 It was no accidental inclusion, overlooked by MPs when they signed up to the impeachment.\u00a0 There was another charge, related to the court\u2019s dismissal of the Solicitor General\u2019s unattractive technical argument for adopting a literal interpretation to dismiss one of the petitions,[14]<\/a> which had been \u201cdelivered\u201d on time, but addressed to the \u201cSecretary General of Parliament\u201d rather than to the \u201cSpeaker of Parliament\u201d.\u00a0 As the petitioner\u2019s counsel pointed out to the court, the Solicitor General\u2019s argument was tantamount to saying that a rule requiring delivery to the Chief Justice could not be satisfied by delivering it to the Registrar of his court.\u00a0 Moreover it would be hopelessly impractical, because the Speaker is a grand figure (especially grand when he is the elder brother of the President) and petitioners, process servers and lawyers cannot barge into Parliament or serve him personally in his limousine or when he is surrounded by security guards. Citizens usually approach him through the Secretary General of the Parliament, who is, in effect, the Speaker\u2019s gatekeeper and Parliament\u2019s administrator. \u00a0\u00a0The Solicitor General\u2019s reliance on the literal rule of construction was absurd and impractical, which is one reason why, the literal rule has fallen out of fashion, as Lord Steyn has pointed out:<\/p>\n

\u201cThe tyrant Temures promised the garrison of Lebastia that no blood would be shed if they surrendered to him.\u00a0 They surrendered.\u00a0 He shed no blood. He buried them all alive.\u00a0 This is literalism.\u00a0 If possible it should be avoided in the interpretative process\u201d[15]<\/a><\/p>\n

The Chief Justice and her colleagues dealt patiently and correctly with the submission of the Solicitor General, the government\u2019s lawyer. They quoted all of Article121, which showed that the purpose of requiring an urgent delivery to the Speaker was so that Parliamentary proceedings on a challenged Bill could be suspended as soon as possible, while the Supreme Court decided on its constitutionality \u2013 and this purpose would be as well served by delivery to the Secretary General of Parliament as to the Speaker.\u00a0 This \u201cpurposive construction\u201d is one way of ensuring that the law conforms to common sense, and many judges would have rejected the Solicitor General\u2019s literal construction, which would have made the right to citizen petition depend on whether the citizen could get close enough to the Speaker in time to thrust the petition into his hands. Any court prepared to take this pettifogging approach to protect the government from having its unconstitutional plans overruled would be open to serious rebuke.<\/p>\n

42. Nevertheless, Count 7 of the impeachment accused the Chief Justice of misbehaviour for not upholding the Solicitor-General\u2019s argument:<\/p>\n

\u201cWhereas with respect to Supreme Court Special ruling no\u2019s 2\/2012 and 3\/2012, Dr. Bandaranayke has disregarded and\/or violated Article 121(1) of the Constitution by making a special ruling of the Supreme Court to the effect that provisions set out in the Constitution are met by the handing over of a copy of the petition filed at the court to the Secretary General of Parliament despite the fact that it has been mentioned that a copy of a petition filed under Article 121(1) of the Constitution shall at the same time be delivered to the Speaker of Parliament\u201d.<\/em><\/p>\n

This charge was clumsily worded and incompetently drafted \u2013 the court\u2019s ruling was in fact confined to petition 3\/2012.\u00a0 It was a shameless attempt to re-run the unrealistic argument of the Solicitor General.\u00a0 The same objection applies to Count 7 as to Count 8: the MPs were alleging misbehaviour against a judge for delivering an exemplary judgement on the purposive interpretation of a Constitutinal provision.<\/p>\n

43. They were taking issue moreover, with the legal basis of a decision which was not only correct, and which most courts would have reached, but which only the Supreme Court had the right to reach. <\/em>That is clear from S125(i) of the Constitution.<\/p>\n

\u201cThe Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution…\u201d<\/em><\/p>\n

It was the duty of the Chief Justice to preside over such a question, and even if she and her colleagues came to what other courts might think a wrong decision \u2013 if they preferred a good argument to a better one (although in truth both the Solicitor General\u2019s arguments were not very good) then the decision must stand as the correct interpretation until such time as the Supreme Court itself reconsiders the issue.\u00a0 It is monstrous to charge a judge with misbehaviour for doing her duty.\u00a0 Charges 7 and 8 did exactly that, and their inclusion proves beyond any doubt that this impeachment constituted a blatant attack on the independence of the judiciary and the Latimer House principles. This country\u2019s government, and this country\u2019s parliament, were out to remove a judge because they disliked her honest and expert decisions.\u00a0 The fact that, in the end, the Select Committee did not need to consider these two charges does not matter. The very that they were made matters a great deal.<\/p>\n

44. The third impeachment charge related to the Divineguma<\/em> Bill was risible. So furious were the 117 MPs about the Supreme Court\u2019s decision that in Count 10 they accused the Chief Justice of bias because one of the petitioners in the case (the Centre for Policy Alternatives) had, twenty years before, published an academic article she had written when she was a law lecturer at the University of Colombo. No rational person would consider this a ground for removal of a judge for misbehaviour, or indeed for any suggestion that she might be biased on an issue of statutory interpretation (from which she could obtain no possible benefit) because one of the petitioners happened to be a public interest NGO which had once published an article she had written. It was obviously not \u201cserious misbehavior,\u201d or misbehaviour of any sort.<\/p>\n

b). THE JSC CHARGES<\/span><\/strong><\/p>\n

45. No less than six charges related to the decisions taken by the Judicial Services Commission in pursuance of its disciplinary functions under the Constitution. None of these can be described as \u201cmisbehaviour\u201d. Count 11, for example, alleged that a magistrate\u2019s brother claimed that she had been \u201charassed\u201d by a JSB decision \u2013 with no details at all of the decision, or the \u201charassment\u201d. \u00a0Count 12 is nonsensical (the JSC is accused of acting ultra vires <\/em>because it \u201cordered the magistrate\u2019s right to obtain legal protection for lodging a complaint in police against the harassment meted out to her by the Secretary of the JSC\u201d.\u00a0 What does this mean? Did the 117 MPs ever read the charges? (perhaps \u2013 it was widely rumoured they signed blank sheets of paper).\u00a0 Did they not realise that her decisions were all supported by her fellow Commissioners who were both Supreme Court judges?<\/p>\n

46. Counts 13 and 14 accuse the Chief Justice of misbehaviour because the JSC discouraged magistrates from going direct to police to seek protection, but directed them to route such requests through the Commission.\u00a0 This seems an eminently sensible policy, given that the JSC was in overall charge of maintaining security for judges. Several of the charges make accusations against the Secretary of the JSC, Manjula Thilakaratne, who had angered the government \u2013 and certainly the President \u2013 by his September press releases.\u00a0 Count 6, for example, accused the Chief Justice (it did not mention her judicial colleagues) who had joined in the decision of appointing Thilakaratne \u201cdisregarding the seniority of judicial officers\u201d \u2013 as if the JSC was somehow debarred from appointing on what it considered to be merit. (Article 111G of the Constitution simply says that the Secretary shall be selected \u201cfrom among senior judicial officers\u201d and Thilakaratne was one such.\u00a0 He was more senior, in fact, than some previous Secretaries to the Commission had been at the time of their appointment.\u00a0 In none of these cases could \u201cserious misbehaviour\u201d be a reasonable description of work undertaken by the Chief Justice, with the agreement of her other judicial colleagues, in administering the courts and the judges.\u00a0 They are all trivial and unparticularised, and accuse her of no criminal offence or of any behaviour that could be described as corrupt or of a kind that would make and reasonable person think her unfit to judge.<\/p>\n

COUNTS 9 & 11<\/span><\/strong><\/p>\n

47. These two charges are worth briefly examining, as they provide proof positive of the irresponsibiity and incompetence of those who framed them and of the 117 MPs who signed them as fit for impeachment proceedings. \u00a0Both are premised on<\/p>\n

\u201cthe absolute ruling stated by the Supreme Court in the fundamental rights violation case, President\u2019s Counsel Edward Francis William Silva and three others versus Shirani Bandaranayke 19912 New Law Journal Reports of Sri Lanka 92…\u201d<\/em><\/p>\n

48. Count 9 alleges that \u201cshe acted in contradiction of the said ruling\u201d and Count 11 alleges, on the say-so of a magistrate\u2019s brother, that she \u201charassed the said magistrate\u201d.\u00a0 Anyone reading the charge would think that the Supreme Court in 1992 had, on a challenge to her appointment, delivered a ruling on Mrs. Bandaranayke that constrained her in some way which she had ignored.\u00a0 The date of the cited case was odd (it was several years before her appointment) and I could not find it in the New Law Journal of Sri Lanka \u2013 I stopped looking when it was pointed out to me that these reports ceased to be published in the 1980\u2019s!\u00a0 I did find the case in the Sri Lankan Law Reports for 1996, and have carefully read the decision.\u00a0 It was not a ruling that in any way constrained or commented upon Mrs. Bandaranayke or her suitability as a Supreme Court judge.\u00a0 It was entirely concerned with the President\u2019s<\/span> power of judicial appointment, and it challenged her appointment only on the ground that the President had not consulted the Chief Justice. The petitions were quickly dismissed, first because the President had sole discretion in exercising his power of appointment, and secondly because the petitioners had produced no evidence that he had not consulted the Chief Justice or sought the co-operation of the judiciary in her appointment.\u00a0 The petitioners, seemingly upset annoyed that she was a woman and one who held and had expressed opinions, objected that she had \u201cviews and conduct\u201d about political issues, to which the court replied \u201cHer views and conduct, even if they related to political views, were neither illegal nor improper\u201d.\u00a0 It was absurd to suggest that she had somehow disobeyed this \u201cruling\u201d or disobeyed it in a way that justified her impeachment.<\/p>\n

49. The Chief Justice was not, in the event, convicted or acquitted on the three Divineguma <\/em>counts or the 6 JSC charges.\u00a0 They have simply been left hanging \u00a0to blacken her name.\u00a0 She was convicted on counts 1, 4 and 5 which I shall consider in detail after explaining the procedure which led to these verdicts.\u00a0 She was acquitted on counts 2 and 3.<\/p>\n

TRIAL BY SELECT COMMITTEE<\/span><\/strong><\/p>\n

50. On the subject of the fairness of removal procedures, international law is adamant: extirpating a judge from his or her office determines their rights and obligations, and since \u201cserious misbehaviour\u201d usually means a criminal offence, it attracts the full force of protections in Article 14 of the ICCPR.<\/p>\n

That means<\/p>\n