SRI LANKA: An early warning

January 8, 2013: The Beginning of Sri Lanka’s Year Zero

On the 8th of January, the President of Sri Lanka will address a proposal to parliament to remove the incumbent Chief Justice Shirani Bandaranayake, based on a report by a Parliamentary Select Committee (PSC). The entire PSC process has been declared unconstitutional and null and void by the Supreme Court of the country. For two days, the illegal proposal will be debated in the parliament and on the 11th it will be put to a vote. The government has the required majority to get it through the parliament. Immediately after passing the resolution, the Chief Justice of Sri Lanka will be removed by force and will be prevented from entering into the Supreme Court premises. A new Chief Justice will be appointed.

In all likelihood, in the course of these events, she will be arrested on some pretext. As there a strong resistance to this, many persons, including members of the legal community, including some judges, are very likely to be arrested. Many persons from political and civil society organizations will also be arrested or otherwise dealt with.

As Sri Lanka has a fearsome tradition of using forced disappearances, torture and ill treatment, arbitrary arrests and illegal detention to deal with any opposition to the government, the government will, in all likelihood, resort to such practices.

The new Chief Justice will not be easily accepted by the legal fraternity, and the protests will be suppressed ruthlessly. This has become a quite a common practice in Sri Lanka.

Thus, by passing the resolution to remove the Chief Justice of Sri Lanka, the government will usher in a period of serious repression, which they will have no capacity to control. As it has happened in such times before, for example in 1971 after JVP uprising; 1980 after the general stike;1983 racial riots; 1988 -1991, generally referred to as period of terror; and the suppression which took place in the North and East from 1983 to May 2009, there can be serious acts of repression.

The state media will be used to attack the removed Chief Justice, the legal fraternity and all those who oppose these moves by the government. All free media will continue to be suppressed.

The most marked difference from the earlier periods of repression will be the open undermining of the judicial role in Sri Lanka. There will be serious monitoring of the judiciary and those judges who act to uphold the rule of law will particularly be exposed to reprisals. Creating serious divisions in the judiciary - so as to prevent future actions against the government on the basis of rules - will be a major feature of this period of repression, which makes it worse than the earlier periods of state repression.

As the judicial role is displaced, the most dominant institution of Sri Lanka will be the Ministry of Defense. The paramilitary forces, such as the Special Task Force (STF) and the intelligence services - which, in the recent times, have acquired enormous experience in repression and enjoy immunity - will play the major role in social control. As the rule of law is relegated into an unimportant position, the activities of the Ministry of Defense will not be deterred by legal rules.

The Asian Human Rights Commission wishes to draw everyone’s attention to the events that are to unfold in the coming few days as the government moves to remove the Chief Justice through a legal process that the Supreme Court of Sri Lanka has declared to be illegal. The government will also proceed to appoint a new Chief Justice, the appointment of whom will be invalid from the start, as the removal of the incumbent Chief Justice is illegal. Under these circumstances, the government will unleash repression to force these decisions on the people.

The AHRC issues this statement as an urgent alert and a warning to all, to caution everyone about the situation that will unavoidably arise under these circumstances. We wish to draw attention to the events that began in Cambodia in 1975, a period which is known as the year zero; the events that unfolded in Indonesia in 1965, which lasted for decades, causing enormous destruction to the life and liberties of people; the period that began in Myanmar with Ne Win’s military coup in 1962, the consequences of which have lasted for many decades; several military coups in Pakistan, which displaced the rule of law system; the period under Ferdinand Marcos in the Philippines; and many other catastrophic political situations that several nations in Asia have faced.

Sri Lanka now enters into a similar period.

Sri Lanka’s tragedy has not received attention in the international media, in the same way that most of these tragedies did not receive attention at the time they were beginning. Such a lack of notice by the rest of the world was one of the reasons that enabled such political catastrophes to cause such havoc on the people of those countries. We urge the international media to take notice of what is taking place in Sri Lanka and thus avoid complicity in such a situation.

Above all, we urge the people of Sri Lanka to take note of what is taking place and to do all that they can to avoid this catastrophe falling on themselves, even at this last moment.

We urge the international human rights movement to do their utmost to assist Sri Lanka in this moment. To not do so would be to be guilty of complicity with what is to come.
We urge everyone also to give maximum publicity to this statement.

Signed,

Bijo Francis                                                                         Basil Fernando
The Executive Director                             Director of Policy and Programmes
Asian Human Rights Commission

The AHRC seeks UN intervention on the independence of the judiciary in Sri Lanka

The Asian Human Rights Commission today wrote a letter to Ms. Gabriella Knaul, the Special Rapporteur on the independence of judges and lawyers informing her of the attempted abduction and assault of Mrs. Manjula Tilakaratne, the secretary of the Judicial Service Commission of Sri Lanka.

The AHRC stated that: The judiciary in Sri Lanka is facing an exception threat of being reduced merely to administrative functions and of rubber stamping the decisions of the executive as are some ‘judiciaries’ in Asia such as that of Myanmar and Cambodia. This is a very real and serious threat.

The AHRC requested the Special Rapporteur that:

…. in your capacity as the Special Rapporteur on the independence of judges and lawyers you should seek a visit to Sri Lanka in order to observe the situation yourself or otherwise take some exceptional steps for assessment of the situation and to make an effective intervention. The highest bodies of the United Nations need to be duly informed about the predicament that the independent judiciary in Sri Lanka is faced with.

The full text of the letter is as follows:

Dear Ms. Knaul,

Re: Attempted abduction and the assault of  the secretary of the Judicial Service
Commission of Sri Lanka

I refer to my earlier correspondence to you dated September 25, 2012 regarding a press release issued by Mr. Manjula Tilakaratne, the secretary to the Judicial Service Commission (JSC) regarding certain threats faced by the JSC and the independence of the judiciary in Sri Lanka. I am now writing to you to inform you that there was an attempted abduction of the JSC secretary in which he was assaulted on October 7. Perhaps you have already been made aware of this incident.

The details of the incident are as follows:

On October 7, 2012 the secretary to the Judicial Service Commission (JSC), Manjula Thilakaratne, a former High Court judge, was attacked by four persons. The JSC secretary, accompanied by his wife, had taken his son to drop him at the St. Thomas College gymnasium. After dropping his wife and son at the college he parked his car and as he to wait for some time took a newspaper and was reading it.

Suddenly he saw four persons stopping near his car. One of them had a pole that was about three-feet long and another was holding a pistol. The one with the pole walked towards the passenger’s door of the car and the other three were in front of the door on the driver’s side. The one with the pistol and the other two demanded that the JSC secretary should open the door but he refused. Then they threatened to use the pistol and at that point he opened the door. One of the three persons asked whether he was the boss (Lokka) of the JSC. Then without warning they started beating him about the face and tried to drag him out of the car.

He continued to resist them. Having realised that it would be difficult to pull him out of the car they tried to push him into the passenger’s seat and he realised that they were trying to abduct him. At this stage he shouted loudly.

On hearing his shouts some doors from the nearby houses opened and some three- wheeler drivers and others were attracted by the noise. At this stage the four assailants grabbed his mobile phone and ran towards the road behind the car and he lost sight of them.

Later the JSC secretary was admitted to the hospital and is being treated for his injuries.

The following day all the judges and lawyers of Sri Lanka boycotted the courts for a day as a mark of protest.

I am attaching herewith a copy of a statement issued by the Asian Human Rights Commission pointing out the basic threats faced by the JSC and the independence of the judiciary in general in Sri Lanka.

The judiciary in Sri Lanka is facing an exception threat of being reduced merely to administrative functions and of rubber stamping the decisions of the executive as are some ‘judiciaries’ in Asia such as that of Myanmar and Cambodia. This is a very real and serious threat.

Perhaps in your capacity as the Special Rapporteur on the independence of judges and lawyers you should seek a visit to Sri Lanka in order to observe the situation yourself or otherwise take some exceptional steps for assessment of the situation and to make an effective intervention. The highest bodies of the United Nations need to be duly informed about the predicament that the independent judiciary in Sri Lanka is faced with.

Hoping for your urgent intervention on the situation of the Sri Lankan judiciary, I remain,
Yours sincerely, Basil Fernando
Director Policy and Programme Development
Asian Human Rights Commission

The impeachment of the Chief Justice is a prelude to Greater Militarisation

by Asian Human Rights Commission

After a series of attacks on the judiciary the Mahinda Rajapaksa government is now reported to be engaged in preparing papers for the impeachment of the Chief Justice (CJ). While the accusation against the CJ is not known the determination of the government to impeach her has been highly publicised. The state media have been mobilised to make a concerted attack on the judiciary.

Meanwhile there is also a bill being discussed which attempts to introduce several provisions which  will  limit  the  powers  of  the magistrates  relating  to arrest  and detention and will increase the powers of the police.

The reasons for the hurried attempts to suppress the judiciary are not accidental. The project for the replacement of the democratic form of governance with a national security state where the military and the intelligence services will have enormous powers has been going on for some time. Impunity for almost all actions by the executive and the security forces against the freedoms of the individual has been assured now for many years. The allegations of serious abuses of human rights by way of enforced disappearances, other forms of extrajudicial killings, torture and kidnappings are never credibly investigated.

Now, according to reports there are moves to bring the military more directly into the policing system. It was reported that even the IGP may be replaced by a military officer as a police commissioner. Also the OICs and Divisional Police Chiefs will be replaced by Special Task Force officers. This will amount to a complete shift from the civilian policing which is an essential component of a democracy to military policing. Such radical changes would naturally be resisted by an independent judiciary. Therefore there is an urgent need to put in place judges who will be willing to carry out whatever projects the government may propose. The impeachment of the CJ has therefore several purposes. One is to remove the present CJ and replace her with a friend of the executive and the second is to have a chilling effect on all other judges of the Supreme Court and the Court of Appeal. The message is simple: anyone who will abide by the mandate to protect the dignity and the freedom of the individual as against  the  dictates  of  the  executive  is  clearly  not  wanted  among  the  highest judiciary.

The government, beset with serious economic problems will continue to impose harsher conditions on the population. The government knows that such measures will necessarily bring about retaliation from the trade unions and other organisations representing the ordinary folk. Such protests on the part of the people will be ruthlessly crushed and recourse to justice will be denied.

The government wants to pass a strong message to the effect that justice is no longer welcome. The courts will be required to approve whatever the government wants and the protection of the individual freedoms will be regarded as a hostile action towards the government.

Disappearances of persons and the disappearance of the system of justice

Over a long period Sri Lanka has been engaged in the large scale practice of enforced disappearances of persons. In the process justice has always been denied to the victims and their families. The practice of enforced disappearances amounts to the denial of all rights. This practice which has gone on for several decades has had a seriously paralysing influence on the entire system of justice.

Now the stage has been set for the destruction of the independence of judicial institutions altogether. These institutions have a history going back to 1802 when the Sri Lanka’s first Supreme Court was instituted. It is this legacy that is now being seriously challenged. In a recent published book by a senior lawyer, S.L. Gunasekara entitled Lore of the Law and other Memories, the author quotes a prediction by another well known lawyer, D.S. Wijesinghe, President’s Council, “We now have a new Parliament and with it democracy vanished. We are now about to get a new Superior Courts Complex and with that justice will vanish“. With this attempt to file an impeachment on the incumbent Chief Justice this prophecy may come to a complete realisation.

While there are usual noises from some quarters protesting the impeachment move, there still does not seem to be a full grasp of the threat that the independence of the judiciary in Sri Lanka is faced with by the Bar Association of Sri Lanka or the legal profession. The end of the independence of the judiciary also means the end of the legal profession as an independent profession. The lawyers lose significant when the possibility of the protection of the dignity and the freedom of the individual is no longer possible. It is perhaps the last chance available for everyone including the judiciary itself and the legal profession to fight back from the ultimate threat to the independence of the judiciary and the possibility of the protection of the dignity and the freedom of the individual in Sri Lanka. Many years of cumulative neglect has led to the possibility of the executive being able to come to a position to make a final assault against any challenge by way of demand for justice. Unless the gravity of this

threat is fully grasped Sri Lanka will soon become like some countries which no longer have independent institutions to protect individual liberties.

The people of the north and east are already under military grip. It may not take a long time before the people of the south are also brought under the same grip.

( Statement issued by the Asian Human Rights Commission)

The attack on the judiciary is a logical extension of the 18th Amendment to the Constitution

by Basil Fernando

The 18th Amendment to the Constitution, which ended all the debates and discussions on the 17th Amendment, brought an end to all independent public institutions in Sri Lanka. From that point on, only one institution remained outside the complete control of the executive president. That was the judiciary.

True, that institution itself had been seriously undermined since the 1972 and 1978
Constitutions.   The   1978   Constitution   conceptually   displaced   the   idea   of   the
independence of the judiciary. However, a 200-year-old tradition of an independent judiciary could not be wiped out merely by a constitutional change. At ground level the institution and the people who had been trained under the 'old' framework were still there. More than that, a belief had been created over those 200 years that in court it was possible to obtain justice. And this was difficult to erase.

This gave rise to a contest between the executive president and Neville Samarakoon QC, the first Chief Justice under the new constitution. One of the issues that no one has yet explained is as to how a person with such legal erudition and integrity as Neville   Samarakoon   could   have  not   seen   the   pernicious   effect   of   the  1978
Constitution on democracy as a whole and on the independence of the judiciary in particular. Surely, as one of the leading civil lawyers of the time, he would have had some  understanding  of  the  basic  principles  of  constitutionalism.  That  the  ruler cannot be above the law is so basic a premise that it is difficult to fathom how Neville Samarakoon failed to understand it when he agreed to be the Chief Justice under the new constitution, in which the basic premise was that the executive president was above the law.

The debate throughout the period of the coalition government (1970-1977), particularly within the legal community, was about the attack made through the 1972
Constitution on the independence of the judiciary. It replaced the notion of the supremacy of the law with the supremacy of the parliament. This meant that parliament could make any law, because of the removal of the powers of judicial review that the judiciary had enjoyed until then. In fact, judicial review was what gave the power and the punch to the judiciary. In at least one instance, even in the

colonial days, an order by the governor representing the British Crown was declared null and void and quashed by the then Chief Justice. This was in the well known case of Bracegirdle. Neville Samarakoon QC could not have failed to realise that if a similar  situation  arose  under  the  1978  Constitution  an  order  of  the  executive president could not be so quashed by the Supreme Court of Sri Lanka, as Article 35 (1) of this constitution ensured that no law suits could be brought against the executive president in any court of law.

Mr. Neville Samarakoon QC and many others like him could have done better if they had initially rejected the 1978 Constitution rather than when they rebelled against the executive president when he began to bring into effect what he designed the 1978
Constitution for, which was to have absolute power. It is said by many who knew Neville Samarakoon QC that he regretted his mistake bitterly until the time of his death.

It was when J.R. Jayewardene found that the Chief Justice was not under his control that he brought the first impeachment move under the 1978 Constitution. Since then, whenever the impeachment provisions are used, it is done under the same circumstances and for the same purpose.

The Chief Justices who came after Neville Samarakoon understood the new equation and did all they could to avoid any kind of confrontation. In that way they weakened the judiciary and also the peoples' faith in their independent function.

When Sarath N. Silva became the Chief Justice he understood the equation very well and made it his business to support President Chandrika Bandaranaike until the very end, up to the point when he realised that the future did not lie with her. Then he shifted his alliance to Mahinda Rajapaksa and kept up the supportive link to the executive until finally, for reasons best known to himself, their relationship faltered.

Sarath N. Silva makes many speeches now and, at times, expresses partial regret for his allegiance to the executive. However, by then irreparable damage had been done to the power, as well as the image, of the judiciary.

Over the years this situation led to the creation of disillusionment among the people as well as the lawyers. The following quote from S.L. Gunasekara's recent book Lore of the Law and other Memories reflects the demoralisation caused by the weakening of  judicial  independence.  In  answer  to  a  question  from a  junior lawyer:  "Sir,  is Hulftsdorp much different today to what it was when you joined the Bar?" He replied,

"When I joined the Bar we had no air conditioners, no computers, no lifts, no ponds inside the Supreme Court premises, no photocopying machines or free trips abroad sponsored by the Government or nongovernmental organisations; but we had justice.........I did not, by this, mean to say that there is no justice whatever done in the courts today, (in that some measure of justice is done) but that the difference between then and now lay chiefly in the fact that while there were doubtless many shortcomings  in  the  administration  of  justice  even  in  those  days  which  we nostalgically recall as having been the gold old days, that was a time when we almost always won good cases and lost bad cases whereas today, there are so many occasions when  we  lose  good  cases  and  win  bad  cases  that  it  has  now  become  virtually impossible to properly advise a client about his prospects in a case whether already filed or in contemplation......"

The new impeachment motion

The advantage that President Rajapaksa may be trying to cash in on now as he brings the new impeachment motion against the incumbent Chief Justice may be this disillusionment and demoralization, prevalent among the people as well as among the lawyers themselves about what they see as the deterioration of the judiciary. Perhaps the executive may be seeing this as a suitable moment for striking a final blow against the judiciary and thus complete the process started by J.R. Jayewardene when he filed his impeachment against Neville Samarakoon.

The 18th Amendment to the Constitution was a determined attempt for the full realisation of the aim of the 1978 Constitution, which was to give absolute power to the executive president. In 1978 this was still a difficult task as there were the habits formed over a long period to trust the local institutions and still a belief in the possibility of justice and fairness was quite alive. Perhaps the executive thinks that the opportune moment has arrived to realise the full potential of the 18th Amendment.

Already there are public rumours about who the executive is aiming to put in place of the incumbent Chief Justice once the impeachment process is speeded up by the utilisation of the toothless majority that the government has in parliament. If those rumours  are  correct  then  the  last  days  of  even the  limited independence  of  the judiciary are close at hand.

However, it may not all go that way. The people may use this occasion not only to critique the absolute power of the executive but also as a critique of the weaknesses of the judiciary itself. They may use this occasion to demand a stronger judiciary. That, of course, implies that the people will have to deal with the displacement of the absolute  power  notion  which  was  created  through  the  tyranny  of  a  four-fifth majority in parliament that J.R. Jayewardene had in 1978.

Whichever way, for better or for worse, the present impeachment motion will prove decisive.

The Supreme Court should resign before the executive destroys the judiciary

by Bijo Francis

The Supreme Court should resign before the executive destroys the judiciary as a separate branch of governance through the persecution of the Chief Justice

The political attack on the Chief Justice, which is in retaliation to some independent judgements given by the Supreme Court, is quite clearly an attempt to stop the Supreme Court judges doing what they are mandated to do. It is not just an attack on one person; it is an attack on the entire Supreme Court and, in fact, on the entire judiciary, on the very notions of the independence of the judiciary and the separation of powers. To suppress the independence of the judiciary and the separation of powers is to undo the judicial role and to reduce the judges to the same status as other government servants. Under these circumstances the only way to assert their unique mandate as members of the judiciary who belong to a separate and independent branch of the government is to let the government know that they will all resign unless the government immediately stops the persecution of the Chief Justice by way of the impeachment attempt.

Rarely in history does an institution like the judiciary face the option to be or not to be?

If the Supreme Court judges remain in office despite their mandate being fundamentally challenged and reduced it would mean that they would have opted not ‘to be’. Their character, their mandate and their position would be fundamentally altered despite them retaining their jobs.

However, if they let the government know that if this persecution of the Chief Justice by of the impeachment attempt does not stop forthwith they will resign, then it is taking the option ‘to be’.

The people will clearly get the message about the proportion of the threat that the judiciary is faced with. That it is the will of the judges to retain their position of independence as members of a separate branch of governance rather than to cow down to the obstinate will of the executive.

If the people see the will of the Supreme Court expressed so clearly they will rally round their Supreme Court, clearly understanding that it is their right for justice dispensed by independent judges that is at stake. The people will not let the judiciary sink  if  the  judges  themselves  are willing  to  fight  for the  right  to  preserve  their independence. If the people do not see that will expressed firmly, they will feel discouraged and let down.

The cynics may argue that if the Supreme Court resigns the executive will replace them with others. In this, as always, the cynics fail to see the movement of history. Whenever judges have expressed their firm will to defend and to stand by the norms and standards of their profession and to defend the independence of the judiciary at the risk of losing their own jobs, nowhere have the judges been let down by the people.

In the history of Sri Lanka in recent decades it is some judges who have betrayed the people, not the people who have betrayed the judges.

For example, in 1972, by way of a new constitution, judicial review was removed and the supremacy of parliament replaced the supremacy of the law. If the Supreme Court had then challenged the coalition government that pursued that course the government would not have been in a position to so seriously damage the independence of the judiciary and the rule of law. Similarly, despite the four/fifths majority of the UNP government, if the judiciary had stood up against the obnoxious provisions of this constitution, then the power of the executive presidency could have been subdued at that point itself. Even later, when the 18th Amendment to the Constitution was proposed, if the judiciary had stood its ground and opposed the suppression of the 17th Amendment and also the extension of the powers of the president contrary to the well known traditions of constitutionalism throughout the world, the people would not be facing the monstrous attack on their rights by the power that is exercised without restraint.

Perhaps at this final moment the Supreme Court can undo many of its own mistakes in the past and help the people to reassert their sovereignty against tyranny.

It is on the sovereignty of the people alone that the power and the independence of the judiciary rest. Therefore there is the obligation of the judiciary to defend that sovereignty  at  whatever cost  to  themselves.  If the  prosecution against  the  Chief Justice succeeds, it is the sovereignty of the people that will suffer a serious setback. At this crucial moment the judiciary should not cow down to tyranny. They should, by taking a risk themselves, provide the opportunity for the people to intervene decisively in protecting democracy.

Speak out in defending judicial independence, before it is too late

Letter to all judges of Sri Lanka written by AHRC Executive Director Bijo Francis

by Bijo Francis

I am writing on behalf of the Asian Human Rights Commission (AHRC) under extraordinary circumstances as the gravity of the issues involved compels me to do so.

The issue that I wish to seek your attention is the impeachment proceedings of the Chief Justice of Sri Lanka, which violates the principles of separation of powers, due process and the right to a fair trial that the Chief Justice is entitled to. All of this is denied to the Chief Justice in the impeachment procedure as set out in Article 107 of the Constitution and the related Standing Orders.

It is the duty of the Supreme Court and all other judges in Sri Lanka to protect the dignity and the liberty of every individual. This is the exclusive prerogative of the judiciary. It is a universally recognised principle in all countries where independence of the judiciary exists and is valued. This is also a principle well enshrined in Sri Lankan law as so beautifully expressed by Sir Sydney Abraham in the Mark Anthony Lyster Bracegirdle case.

Defending the liberty of an individual and the independence of the judiciary weighs heavily on the shoulders of all the judges in the country, more importantly upon the Supreme Court. If the judiciary falters or fails in this, it will not only destroy individual liberty and also the very existence of an independent judiciary.

History is proof to the fact that in the past decades, the Sri Lankan judiciary has on crucial occasions failed to protect its own independence. Two of those crucial moments were when the Constitution itself was changed in 1972 and further in 1978, attacking fundamentally judicial independence. Had the judiciary used its inherent powers and constitutionally resisted these attacks, judicial independence and the entire nation would not have suffered the setbacks, Sri Lanka has suffered so badly, in the recent times.

In the very vocation of being a judge is the duty to be courageous, even at the expense of great personal sacrifice at crucial moments when the integrity of one’s position is challenged.

The Sri Lankan judiciary is facing one such crucial situation at the moment. Perhaps a time in history that is so important, that if it is lost, the very independence of the judiciary will suffer a setback so devastating, from which it would be difficult to recover.

The independence of the Chief Justice‘s office is being challenged, and the Chief Justice is deprived of the basic right, which every citizen of Sri Lanka is entitled to, in defending oneself within  a framework  of fair trial,  observing  standards  that  are universally recognised. If the Chief Justice falls, the entire judiciary will fall with her. It is within the powers of the judiciary in Sri Lanka to prevent this by demanding justice for the Chief Justice, who is also a colleague. It is not a mere act of solidarity or friendship, but a step so vital to the survival of an independent profession.

History will question whether the judges of Sri Lanka rose to the occasion and faced it with courage in defending the very foundation of their own profession and their independence. If the judiciary is not willing to shoulder this responsibility, that too will be on record and generations to come will suffer the loss of their liberty as a consequence of this failure.

Global support for just causes often begins from bold initiatives of a few individuals, who make the first move from the frontline of defence. It is equally the responsibility of the global human rights community to support initiatives in Sri Lanka in defence of fundamental freedoms.

I therefore, on behalf of the global human rights community and in the name of the best ideals on which human rights and human liberty rest, most humbly call upon all the judges of Sri Lanka, more importantly the judges serving at the Supreme Court of Sri Lanka, to face this moment of destiny, boldly, and with the farsightedness the situation warrants, in defending the Chief Justice in her right to just and fair treatment.

The Mahanayaka theras have called President to withdraw the Impeachment

Full text of the Mahanayaka theras letter to the President Mahinda Rajapaksa is follows;

Importance of avoiding apprehension in the minds of the people in dispensing law and justice in a Democratic Society

Sri Lanka is an island which won the eulogy "Daham Divayina" from time immemorial and was praised here and abroad.  But society at present is full of grave crimes such as murders, rape, robberies, arson, abductions, bribery, drug trafficking and child abuse; committed with craving and hatred.   Almost every day these are reported in the media.  These pernicious acts imply the lack of security and value of human life.  There is more room for deterioration of human values, in the absence of equilibrium between the materialistic spiritual and ethical development and apprehension with regard to the equity in law.  If there is a collapse in law and order it is rather difficult to rise up as a righteous nation.  If we are to re-kindle the fast vanishing human values in our country, we must make the man a humanist, who respects human values.  Teaching of Lord Buddha elucidates that the selfish craving , ignorance, hatred, lead to the destruction of human society.  We can establish peace and happiness in our country by following Buddha's teaching and propagating and practicing patience and loving kindness.  Many lessons can be learnt by the ruler and the subject if they follow the "Chakkavathi Sihanada" Sutra, the discourse by Lord Buddha and take refuge in the teachings of the Buddha.  The time has come for all social institutions including the government to work together to bring this society out of this mire taking into consideration the saying of the Buddha, "To be born as a human is arduous and rare". The legislature, Executive and the Judiciary can perform an immense service to maintain morals, law and peace in any civilized democratic society.  It should be based on law, justice, patience and fairness.  In order to achieve this end, it is not proper to resort to actions which will generate an apprehension with regard to the judiciary and the judges.  It will be harmful than beneficial.  It is certain to affect the honour and the trust that the judiciary of Sri Lanka had up to now in the world. Majority of the people think that the impeachment motion against the Chief Justice will lead to a disenchantment about all branches of the judiciary. Therefore the government should think patiently about the ill effect of the prevailing attempt of the Legislature Executive and the Judiciary to go above the other and take steps to safe guard the independence of the judiciary and solidify the feelings of justice  in  the  minds  of  the  people.    By  the  display  of  just  behaviour  of  the government it will definitely generate a feeling of satisfaction in the minds of the
Asian Human Rights Commission |www.humanrights.asia

people It is possible to get humans to respect law and traditions by acting according to human ethics without scorn.   Therefore to avoid the breakdown in law and deterioration of society as a result of the impeachment motion we kindly request that the impeachment motion be withdrawn, taking into consideration the recent recommendation of the Supreme Court.  This will be beneficial to the country.
May you have the refuge of the Triple Gem!
09
Impeachment against CJ
Irreparable loss of confidence and public respect of the judicial system

A resolution passed by Attorneys –at-Law practicing in the Jaffna peninsula present at a meeting held on the 28th of November 2012 with regard to the Motion of Impeachment against the Chief Justice.

Noting with grave concern that the impeachment proceedings initiated against Her Ladyship the Chief Justice would inevitably lead to an irreparable loss of confidence and public respect of the judicial system as a whole which in turn would further deteriorate the state of governance of the country,

Noting in particular as lawyers from the North and East of Sri Lanka the importance of ensuring stability in the administration of justice as such stability is quintessential to the restoration of normalcy in the North and East of Sri Lanka and noting that the motion against Her Ladyship the Chief Justice is a threat to the smooth functioning and administration of justice to the whole of the country,

Noting with concern the lack of comity on the part of the Parliamentary Select Committee   in   rejecting   the   request   of   Honourable   Supreme   Court   to   stay proceedings until the hearing and conclusion of a case on matter relating to the interpretation of the constitution relating to the impeachment of the Chief Justice,

Express their solidarity with her Ladyship the Chief Justice during this darkest hour of assault the independence of the judiciary and call upon the Honourable Members of Parliament who were signatories to the impeachment motion to consider withdrawing the motion of impeachment against Her Ladyship the Chief Justice.

And seek to inform the Chairman of the Parliamentry Select Committee that the Jaffna Bar Association, if invited is prepared to make submission on all of the above issues raised above.

The motion to impeach the Chief Justice should be withdrawn

“We appeal to our representatives, the Executive and the Legislature, to fulfil their political and legal obligations towards us, and to guarantee respect of the judiciary and to defend their independence. The motion to impeach the Chief Justice should be withdrawn, those responsible for the assault on the Secretary to the JSC should be brought to justice and those responsible for the attack on the Mannar Courts should also be brought to justice.” say some leading academics in Sri Lanka.

Full text of the statement is follows;
The varied types of attacks on the judiciary in Sri Lanka have risen to alarming proportions over the last few weeks and suggest that the very institution of the judiciary is under serious threat in the country. We the undersigned are extremely disturbed by these developments and would like to request that both the Executive and Legislative arms of the state fulfil their duty and guarantee the security and independence of the judiciary. In making this request we would like to remind the government and the public that;

ALL public power is derived only from the People (Articles 3 and 4 of the Constitution). As such, public power whether executive, legislative or judicial can only be exercised according to law and the democratic values of a society. Public power can only be exercised for the benefit of the People of Sri Lanka.

The ‘benefit of the People’ cannot be equated with a majority view, a majoritarian approach, the political interests of the political party(ies) in power or of a powerful few within a government. Contemporary society world over has accepted that the dignity and equality of all human beings is inherent, inalienable and that protecting that dignity is the primary responsibility of a state. Accordingly the ‘benefit of the People’ can only be understood as a framework for decision making which respects the inherent dignity and equality of ALL people in this nation.

Guaranteeing  the  independence  and  effective  functioning  of  the  judiciary  in  Sri Lanka is a prerequisite for protecting the dignity of all Sri Lankans. The judiciary are mandated  under  the  Constitution  to  adjudicate  on  disputes  that  arise  between private parties and between the state and individuals. It is only in a context where the judiciary can function independently and is also generally perceived as functioning independently that society could expect to live and act according to law.

Recent events such as the attack on the Mannar Courts, the assault on the Secretary to   the   Judicial   Service   Commission   (JSC),   understood   in   the   light   of   the unprecedented public statement issued by the JSC, at the very least, suggests that the judiciary in Sri Lanka is struggling to maintain its independence. Political analysts have gone as far as to suggest that the Executive is directly interfering with the function of the judiciary.

Against this background, the motion to impeach the Chief Justice that has been handed over to the Speaker of Parliament is highly suspect. At the face of it, it seems to be evident that the all powerful Executive arm of the government is taking advantage of its position to undermine the judicial arm of the state, through a subservient Legislature. This is a manifest abuse of public power and goes against all accepted democratic norms of government. While the politicians and the political party(ies) in power may seemingly emerge as victors in the short run in this matter, in the long run, neither those politicians, those political parties, the Opposition nor the People would stand to benefit. All Sri Lankans will suffer grave consequences due to this interference with the Judiciary.

While politicians and political parties in power are understood as being susceptible to act according to prevailing political interests, the judicial arm of a state is designed specifically to defend against all, the law and the spirit of the law. That includes the democratic values of a society and the rights of all persons. In a society where the other arms of the government interferes with that function of the judiciary and is aggressive towards the judiciary, the political sustainability of that society is under threat.

The motion to impeach the Chief Justice and the other attacks on the judiciary are but only symptoms of a more alarming, complex and long standing crisis of governance in Sri Lanka. With each new incident the crisis becomes more embedded and widespread. The broader political context in which these incidents have taken place suggest a complex inter-play of different factors characteristic of a society where political patronage, expediency and convenience are the reference points for exercise of public power rather than democratic principles of governance and the law.

Therefore, we appeal to our representatives, the Executive and the Legislature, to fulfil their political and legal obligations towards us, and to guarantee respect of the judiciary and to defend their independence. The motion to impeach the Chief Justice should be withdrawn, those responsible for the assault on the Secretary to the JSC should be brought to justice and those responsible for the attack on the Mannar Courts should also be brought to justice.

(The statement issued with the more than sixty signatures given by the leading acedemics in
Sri Lanka)

BASL resolution on the impeachment motion

The Bar Association of Sri Lanka at a special general meeting yesterday passed a resolution calling on President Mahinda Rajapaksa and Speaker Chamal Rajapaksa to reconsider the impeachment motion against Chief Justice Shirani Bandaranayake.

Pandemonium reigned at the meeting attended by more than 1,000 lawyers from various parts of the country as views were exchanged for and against the eight-point resolution. The meeting was presided over by BASL President Wijeyadasa Rajapakshe.

Rival factions of lawyers seen cheering and booing at yesterday's special general meeting of the BASL at Hulftsdorp. Pic by Susantha Liyanawatte

Mr. Rajapakshe said the special general meeting was called for the first time in 24 years,  the  last being  in  1988  over the  abduction  and  killing  of  lawyer Wijedasa Liyanaarachchi.  “The  meeting  was  called  due  to  the  impending  threat  to  the judiciary and the impeachment of the Chief Justice,” he said.

As Mr. Rajapakshe and officials came to the head table, there was a rumpus with the lawyers split into two factions with one supporting the resolution and other against.

Some lawyers were seen hooting, with some standing on chairs and grabbing files from the head table.

Mr. Rajapakshe after a few desperate measures to control the lawyers decided to go for a vote and requested them to move into two sides. But this did not work out because of the large number present. Finally, senior lawyer Razik Zarook read out the  eight-point  resolution  and  it  was  passed  amidst  a  mixture  of  cheering  and booing. Even after the resolution was passed, a tense situation arose outside the Bar Association auditorium.

The full text of the resolution is as follows:

To express its grave concern about the impeachment and the independence of the
Judiciary,

To urge his Excellency the President of the Republic and the Hon. Speaker of the
Parliament to reconsider the said ‘impeachment’.

To  urge  the Hon.  Speaker to  have  a meeting with him for the  Members  of  the Executive Committee and the former Presidents of the Bar Association of Sri Lanka on the above subject,In the event the Legislature decides to proceed with the said impeachment;

To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee appointed for the inquiry to look into the charges in the impeachment to adopt  a  transparent  and  accountable  procedure  with  regard  to  the  proceedings before it and announce it before the proceedings are commenced,

To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee to recognise our legitimate right to represent on behalf of the Bar Association of Sri Lanka in the proposed proceedings before the Select Committee.

To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee  to  ensure  that  the  judicial  pronouncements  made  by  the  Hon.  Chief Justice   should   not   influence   adversely   in   the   proceedings   before   the   Select Committee and its findings.

To urge the Hon. Speaker and the Hon. Chairman of the Parliamentary Select Committee to permit a few observers on the proceedings before the Parliament Select Committee preferably retired Chief Justices and Justices of the Supreme Court who are not holding any public office.

To urge the legislature to formulate an alternate acceptable constitutional mechanism for the removal of a Judge of the Superior Courts that will not undermine the authority, the dignity and the independence of the Judiciary.

(Courtesy: Sunday Times)

Impeachment on CJ Government must adhere to international standards of due process says ICJ

The impeachment process against Sri Lankan Chief Justice Shirani Bandaranayake must   follow   international   standards   of   due   process   says   the   International Commission of Jurists.

“Many people in Sri Lanka have called the impeachment proceedings against Chief JusticeBandaranayake a politically motivated attack on the independence of the judiciary,” said Sam Zarifi, Asia Director of the   (ICJ). “If the government wants to dispel any such notion, it must adhere to international standards of due process in the impeachment proceedings.”

The proceedings come in the wake of the Supreme Court ruling on a controversial bill, the Divi Neguma bill, before Parliament.

The bill seeks to establish a centralized development authority by amalgamating three provincial development agencies. If the bill passes, the Minister of Economic Development  (who  is  also  the  President’s  brother  Basil  Rajapakse)  would  have control over a fund of 80 billion Sri Lankan rupees (611 million USD).

In  early  September,  the  Chief  Justice,  leading  a  bench  of  three  Supreme  Court Justices, issued a ruling, directing Parliament to obtain the consent of each of the elected Provincial Councils before passing the bill.

Following the ruling, all of the provincial councils, except the Northern province, endorsed the Divi Neguma bill. The Tamil-majority Northern Province, until recently the stronghold of the insurgent armed Liberation Tigers of Tamil Eelam, has still not held elections for the Provincial Council.

However, the appointed Governor of the Northern Province endorsed the bill on the basis that no provincial council had been elected or established in the Northern province.

The Tamil National Alliance (a political alliance of minority Sri Lankan Tamils) filed a petition before the Supreme Court challenging the authority of the Northern Province Governor to approve the Divi Neguma Bill in the absence of an elected provincial council.
Asian Human Rights Commission |www.humanrights.asia



On 1 November 2012, the Chief Justice handed the decision on the Divi Neguma bill to the Speaker of the House. On the same day, the Government coalition, the United People’s Freedom Alliance presented a motion to initiate impeachment proceedings in Parliament.
The Speaker of Parliament then postponed the tabling of the impeachment motion until the announcement of the decision on the Divi Neguma bill.

“The timing of the impeachment motion, just as the Supreme Court had challenged the  government,  certainly  has  raised  some  eyebrows,”  said  Zarifi.  “And  all  this comes against the backdrop of increasing tensions between the between the judiciary and the Government, which have escalated to the point of physical violence in the past few months,” Zarifi said.

In July 2012, Government Minister Rishad Bathiudeen threatened a Magistrate in Mannar and then allegedly orchestrated a mob to pelt stones and set fire to part of the Mannar courhouse.

In  early  October,  the  secretary  of  the  Judicial  Service  Commission,  Manjula
Tillekaratne was assaulted by four unidentified persons in broad daylight.

The ICJ issued a report earlier this month, Sri Lanka’s Crisis of Impunity, documenting the recent attacks on judicial officers and judges, explaining how the systemic erosion of accountability has led to a crisis of impunity in Sri Lanka.

Fourteen charges

The impeachment motion against Chief Justice Bandaranayake sets out 14 charges. Allegations include failing to follow Constitutional provisions by handing a Court decision to the Secretary of Parliament instead of the Speaker of Parliament; not declaring all of her bank accounts to the auditor general; and misusing her position. Opposition leaders have called on the Speaker of Parliament to allow observers from the  International  Commission  of  Jurists  and  other  international  organizations  to attend the proceedings.

”The fact that members of parliament believe it is necessary to have international observers indicates the strong perception that this impeachment motion is politically motivated,” Zarifi added. Under the UN Basic Principles on the independence of the judiciary, a judge should only be removed for incapacity or serious misconduct.

Exceptional measure

In the region, impeachment is an exceptional measure reserved only for gross misconduct. Only India and Nepal allow for the impeachment of the Chief Justice and neither country has ever initiated proceedings.

In the two instances where a provincial high court judge was removed in India, allegations involved criminal acts or egregious acts of corruption.

Where a judge is at risk of being removed, he or she must be accorded the right to be fully informed of the charges; the right to be represented at the hearing; the right to make a full defense; and the right to be judged by an independence and impartial tribunal. The removal proceedings must meet international standards on fair trial and due process.

In India, an impeachment hearing is presided over by a three-member committee comprised of a Supreme Court justice, a Chief Justice of any High Court and an eminent jurist.

In Sri Lanka, a seven-member Select Committee, comprising only Parliamentarians, presides over the impeachment hearing. The Judicial Service Commission does not play a role in the impeachment process and there is no appeal to a judicial body.

At least twice, the Sri Lankan government has attempted to impeach its Chief Justice. In 1978, the Government attempted to impeach Chief Justice Samarakoon. The Chief Justice, however, retired before the Committee report could clear him of the charges after some two years of hearings.

In 2001, the Government initiated impeachment proceedings against Chief Justice Sarath Silva. However, before a Committee could be constituted President Kumaratunga dissolved Parliament.

Statement issued by the International Court of Justice

Impeachment: Esure firness and Latimer house principles say Commonwealth lawyers, magistrates and judges

The   Commonwealth   Lawyers   Association   (CLA),   the   Commonwealth   Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are concerned about the recent motion in the Sri Lankan Parliament to proceed with the impeachment of Chief Justice Shirani Bandaranayake.

The  existence  of  an  independent  and  impartial  judiciary  is  one  of  the  cardinal features of any country governed by the rule of law. By virtue of its membership of the Commonwealth, Sri Lanka is committed to the shared fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence   to,   democratic   principles   including   an   independent   and   impartial judiciary. Any measure on the part of the Executive or Legislature which is capable of being seen as eroding the independence and impartiality of the judiciary is a matter of serious concern and is in danger of eroding public confidence in the legal system as a whole.

The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between theThree Branches of Government (2003), which form part of the Commonwealth fundamental values state that disciplinary proceedings which might lead to the removal of a judicial officer should include appropriate safeguards to ensure fairness’ that is to say, the right to be fully informed of the charges against them, to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal.

Furthermore tthese Principles require that judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly   renders them unfit to discharge their duties. The Associations urge upon the Government and Parliament of Sri Lanka to respect the independence of the judiciary and in particular to comply with its constitutional safeguards and the Commonwealth Latimer House Principles which, as the Commonwealth Secretary General emphasised in his statement of 15 November 2012, ‘govern the relationship between the three branches of government and are a cornerstone of our Association’s values.’

Statement issued by the
Commonwealth Lawyers Association (CLA) Commonwealth Legal Education Association (CLEA) Commonwealth Magistrates’ and Judges’ Association (CMJA)
19 November 2012

Commonwealth Secretary-General concerned about parliamentary move to impeach Sri Lankan chief justice

Commonwealth Secretary-General Kamalesh Sharma today expressed concern about the recent  move by  the Parliament of  Sri  Lanka  to  impeach  the country's  Chief Justice, Dr Shirani Bandaranayake.

Speaking in London, the Secretary-General said: "The Commonwealth's principal consideration  is  that  the  provisions  of  Sri  Lanka's  constitution  are  upheld  with regards to the removal of judges, respecting the independence of the judiciary."

The Secretary-General stressed that the Commonwealth believes the preservation of the rule of law and independence of the judiciary are vital to the healthy functioning of a democracy. He noted: "The Commonwealth's Latimer House Principles, which govern the relationship between the three branches of government, are a cornerstone of our association's values. All our member states have committed themselves to upholding the Latimer House Principles so that citizens' faith and confidence in democratic culture is assured and the rule of law is maintained."

15 November 2012, Statament issued by Richard Uku, Director of Communications and
Public Affairs, Commonwealth Secretariat

UN expert concerned about reprisals against judges urges reconsideration of the Chief Justice’s impeachment

The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, today expressed serious concerns about reported intimidation and attacks against judges and judicial officers, and warned that they might form part of a pattern of attacks, threats reprisals and interference in the independence of the justice system in Sri Lanka.

“I urge the Sri Lanka Government to take immediate and adequate measures to ensure the physical and mental integrity of members of the judiciary and to allow them to perform their professional duties without any restrictions, improper influences, pressures, threats or interferences, in line with the country’s international human rights obligations,” Ms. Knaul said. According to reports received by the independent human rights expert, most cases of attacks and interference against the judiciary in Sri Lanka are not genuinely investigated, and perpetrators are not held to account. “The irremovability of judges is one of the main pillars guaranteeing the independence of the judiciary and only in exceptional circumstances may this principle be transgressed,” the Special Rapporteur underscored, expressing her uneasiness with the procedure of impeachment of the Chief Justice of the Supreme Court, Dr. Bandaranayake, launched before the Parliament on 1 November 2012.

“Judges may be dismissed only on serious grounds of misconduct or incompetence, after a procedure that complies with due process and fair trial guarantees and that also provides for an independent review of the decision,” she stressed. “The misuse of disciplinary proceedings as a reprisals mechanism against independent judges is unacceptable.”  In her view, the procedure for the removal of judges of the Supreme Court set out in article 107 of the Constitution of Sri Lanka allows the Parliament to exercise considerable control over the judiciary and is therefore incompatible with both the principle of separation of power and article 14 of the International Covenant on Civil and Political Rights.

“I   urge   the   authorities   to   reconsider   the   impeachment   of   Chief   Justice Bandaranayake and ensure that any disciplinary procedure that she might have to undergo is in full compliance with the fundamental principles of due process and fair trial,” the UN Special Rapporteur added.

Gabriela Knaul took up her functions as UN Special Rapporteur on the independence of judges and lawyers on 1 August 2009. In that capacity, she acts independently from any Government or organization. Ms. Knaul has a long-standing experience as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems. (United Nations- GENEVA (14 November 2012)

Learn more:  http://www.ohchr.org/EN/Issues/Judiciary/Pages/IDPIndex.aspx

Impeachment: A host of questions can be raised

A host of questions can be raised following recent events regarding the Chief Justice of  our  country.  A  survey  of  developments  involving  the  independence  of  the judiciary can go way back to the 1972 Constitution, to the de facto sacking of judges by the 1978 Constitution, the summoning of Supreme Court Justices Wimalaratne and Colin Thomé before a Select Committee of Parliament, the attempted impeachment of Chief Justice Neville Samarakoon, the physical attacks against and killings, in a later era, of lawyers and litigants engaged in fundamental rights cases. Subsequently came the allegations levelled against Chief Justice Sarath Silva and the moves to impeach him. Along with disappointment at the content of several judgments of the Supreme Court (among which are that relating to the Eighteenth Amendment) many lawyers and laymen alike have watched with dismay the conferring of state benefits and positions on family members of judges and on retired judges. Most recently we have had the events concerning the Magistrate’s court of Mannar, the conflict between the Judicial Services Commission and the President and the physical attack on the judge holding the position of Secretary of the JSC.

These are all matters of importance and should not be disregarded by anyone concerned about the independence of the judiciary in our country. However they do not,  in  the  view  of  the  Civil  Rights  Movement  (CRM),  affect  the  question  of immediate urgency which is addressed below.

The action against the present Chief Justice

Charges have been framed and widely publicized against the current Chief Justice, and proceedings to remove her from office have been commenced. (In this context the term “impeachment” simply means the process of removal from office). The procedure is to be inquiry by a Select Committee of Parliament. The question we raise is both the constitutionality and the appropriateness of this procedure.

When   similar   proceedings   were   commenced   against   Chief   Justice   Neville
Samarakoon in 1984 CRM in a telegram to the Speaker said:

The proposal is unconstitutional as it violates the concept of the independence of the judiciary which is part of the basic structure of our Constitution. The actions of such a Select Committee would be ultra vires the powers of Parliament as they are not ancillary  to  the  exercise  of  legislative  power.  Parliament  has  no  judicial  power (except in respect of its own privileges). Parliament enjoys no supervisory function over judges, in respect to whom its power is limited to removal from office for proved  misbehaviour  or  incapacity.  Such  misbehaviour  or  incapacity  has  to  be proved  by  proper  procedure  as  envisaged  by  Article  107  of  the  Constitution.  It follows that any inquiry must be by an independent judicial tribunal similar to that provided under the Judges Inquiry Act of 1968 in India. In Sri Lanka no such procedure has yet been created. … The fact that so far this machinery has not been

provided does not justify parliament resorting to unconstitutional methods which in effect undermine the independence of the judiciary.[emphasis added]
The argument on constitutionality

One does not need to be a lawyer to follow the argument, which is restated briefly below.
• A judge of the Supreme Court can be removed by a certain procedure, all the details of which it is not necessary to set out here. Relevant for our present purpose is that such removal can only be for “proved misbehaviour or incapacity”. (Article 107 (2) of the Constitution).
• The Constitution then proceeds to provide that “Parliament shall by law or by Standing Orders provide for all matters relating to …the investigation and proof of the alleged misbehaviour or incapacity …” (Article 107 (3))
• Under this provision, it was thus open to Parliament to pass a law similar,
say, to the Judges Inquiry Act of India, providing for an appropriate judicial body to investigate and determine the allegations.
• Such a law had not (and still has not) been passed when the question of removing Chief Justice Samarakoon arose. Parliament then made provision by Standing Order of Parliament, which is the alternative method envisaged by the Constitution. That is the present Standing Order 78A.
• Standing Order 78A could itself have made provision for investigation and determination of the allegations by an appropriate body which would not attract the present criticism.
• What Standing Order 78A did, however, was to provide that the investigation and determination would be by a Select Committee of Parliament. A Select Committee of Parliament is necessarily composed of members of Parliament and is part of the legislature.
• This brings us to the vital Article of the Constitution, Article 4, which deals with  how  the  separate  Executive,  Legislative  and  Judicial  powers  of  the people are to be exercised. Article 4 (c) says
“The judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the  Constitution,  or  created  and  established  by  law,  except  in  regard  to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;”
• Thus the one and only exception to Parliament exercising judicial power is as regards its own privileges etc. Investigation and proof of misbehaviour or incapacity of a judge does not come within this exception. So when in Article
107  it  is  provided that “Parliament  shall  by  law  or by  Standing  Orders” provide for the investigation and proof of the alleged misbehaviour or incapacity, Parliament cannot, by reason of provision of Article 4(c) cited above, require that it be heard by a Select Committee of its own members.
•   To   recap,   the   investigation   and   determination   of   allegations   of misbehaviour or incapacity, which can result in a judge being removed from office, is clearly a judicial investigation and a judicial determination, and in

view of Article 4 is therefore not properly exercisable by the legislature or a body that is part of the legislature.
• The provision made for the removal of the President is instructive. There again specific allegations have to be made. If satisfied that further steps are merited “the allegation or allegations … shall be referred by the Speaker to the Supreme Court for inquiry and report.” (Article 38 (2) (c). It is only if the Supreme Court finding is adverse to the President that Parliament may proceed to remove him.
• Can one accept that the framers of the Constitution envisaged a lesser
protection for the investigation of allegations against a judge of the superior courts?

The Neville Samarakoon case

The above argument was contended for comprehensively by defence counsel S. Nadesan QC in the impeachment proceedings against Chief Justice Neville Samarakoon, which took place in 1984 and is fully reported in Parliamentary Series No 71. The Select Committee divided on this, as it did on the merits, on party lines. The majority felt it was bound to carry out the mandate given it by Parliament. The minority view on this vital matter of constitutional interpretation is worth citing at length:

The point made by Mr. Nadesan, was that in the context of a Constitution such as that of our country, in which the separation of powers was jealously protected, this Committee  in  seeking  to  go  on  with  this  inquiry  as  to  whether  or  not  Mr. Samarakoon was guilty of “proved misbehaviour”, was violating the provisions of Article 4(c) of the Constitution which stipulates that except in matters concerning parliamentary privileges ─ the judicial power of the people shall be exercised exclusively through the courts.

The signatories to this statement, while conceding that Mr. Nadesan’s argument have considerable cogency ─ are not in a position to come to a definite conclusion on this matter. We would urge that H.E. the President could refer this matter to the S.C. for an authoritative opinion thereon–under article 129(1) of the Constitution.

The signatories to this statement however feel strongly that the procedure that Parliament finally adopts should be drafted along the lines of the Indian provisions where the process of inquiry which precedes the resolution for the removal of a Supreme Court Judge should be conducted by Judges chosen by the Speaker from a panel appointed for this purpose. We therefore urge the House to amend Standing Order 78A accordingly.

1) Anura Bandaranaike, Leader of the Opposition (2nd} M.P. for
NuwaraEliya
2) Sarath Muttetuwegama, M.P. for Kalawana
3) Dinesh Gunawardena, M.P for Maharagama

The Aftermath of the Neville Samarakoon case
The aftermath of the Neville Samarakoon case is significant. The minority view cited above opened a clear way for the resolution of this issue – reference to the Supreme Court for an advisory opinion, which the President is empowered to call for under Article 129 . Neither the then President nor his successors, regrettably, availed themselves of the suggestion to seek a ruling from the Supreme Court. But the matter did not rest there, and eventually the government chose an even better option.

Numerous representations were made about the unsatisfactory nature of the existing situation. They were made, amongst others, by civil liberties groups, including repeatedly by CRM, and by international organizations concerned with the administration of justice . The need for change was stressed in several responses to official requests including from Parliamentary Select Committees for suggestions as to constitutional amendments. It was incorporated into public representations to various UN human rights bodies including in communications connected with the Periodic  Review  procedure  of  the  International  Covenant  on  Civil  and  Political Rights to which the Sri Lankan state is a party. Time and again this concern was raised in formal and informal discussions with those in authority. And at last these efforts appeared to have borne fruit.

A wrong set right? – the proposed changes of 1997 and 2000

Alternative provision for the inquiry into allegations of misbehaviour or incapacity of a judge of the superior courts, which took into account the criticisms levelled, was made in both the Government’s Proposals for Constitutional Reform of October 1997, and the Bill of the year 2000 titled THE CONSTITUTION OF THE REPUBLIC OF SRI LANKA. The relevant part of the latter provides that procedure for the removal of a judge of the Supreme Court or Court of Appeal may proceed only if:
an inquiry has been held-
(i) in the case of the Chief Justice by a committee consisting of three persons each of whom hold, or have held, office as a judge in the highest court of any Commonwealth country;
(ii) in the case of any other Judge referred to in paragraph (2) of this Article, by a committee consisting of three persons who hold, or have held, office as a judge of the Supreme Court or the Court of Appeal created and established by the Constitution, the 1978 Constitution or any other law and appointed by the Speaker to inquire into allegations of misbehaviour or incapacity made against  the  Chief  Justice  or  such  judge,  as  the  case  may  be,  and  such committee has found that the allegation of misbehaviour or incapacity has been established against such Judge.
[Clause 151 (4) (b) of the Bill]

This Constitution Bill of 2000 was presented by a government headed by the same major political party that is in power today, and of which government the present

President was a Cabinet Minister. Although the 2000 Constitution did not see the light of day, it seemed reasonable to assume that resort to the Parliamentary Select Committee procedure for investigation of allegations against senior judges was a thing of the past.

The present development is a retrograde step but it is not too late for the government to remedy it and thus remain true to its own principles on this subject as reflected in the Constitution Bill of 2000.

(A statement issued by thehe Civil Rights Movement)