When the Sri Lankan government refused entry to an International Bar Association fact-finding mission, led by a former chief justice of India, the Bar Human Rights Committee (BHRC) invited Geoffrey Robertson QC to undertake write a report on the matter.
His detailed and comprehensive “Report on the impeachment of Sri Lanka’s chief justice” (see www.barhumanrights.org.uk) was launched on 27 February 2013 at an international seminar organised by the BHRC. The seminar also featured contributions from Sri Lankan lawyers, Dr Nihal Jayawickrama, coordinator of the Judicial Studies Integrity Board and Upul Jayasuriya, president of the Bar Association of Sri Lanka. Commentators included Graham Gee (Birmingham University) and Dr Malagodi (LSE).
The report is an authoritative and devastating indictment of the government ministers and Members of Parliament who set out, as the report concludes, 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.
It is a clear authority on the appropriate procedures for putting judges on trial for allegations of misconduct in any circumstance and for the evidence and procedures necessary for any removal to comply with international law.
The report focuses on 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 its membership of the Commonwealth.
It finds, based on international standards including the UN Basic Principles of the Independence of the Judicial Independence (1985), that “judges cannot be removed except for proven incapacity or misbehaviour”.
Guidance on the definition of “misbehaviour” is found in the Commonwealth “Latimer House Principles” and in the Beijing Statement of Principles of the Independence of the Judiciary in the ASEAN Region, Art 22 of which states: “Judges 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.”
Crucially, the report concludes that extricating a judge from his or her office engages Art 14 of the International Covenant on Civil and Political Rights. This means that Chief Justice Bandaranayke was entitled to:
- a fair and public hearing;
- by a competent, independent and impartial tribunal;
- the presumption of innocence;
- adequate time and facilities to prepare a defence; and
- the right to cross-examine any hostile witnesses and to call witnesses.
The impeachment process
The report concludes that “each one of the [above] safeguards was blatantly ignored by the 11-person select committee (seven government ministers, plus four opposition MPs who soon resigned) appointed by the Speaker of the House to investigate and report to Parliament”.
Particular breaches in the manner in which the chief justice was impeached include that:
- the committee did not apply the standard of proof of “beyond reasonable doubt”, and failed to explain what, if any, standard was applied;
- the chief justice had 21 hours to review over 1000 pages of evidence;
- having been told that no live witnesses would be called and a decision would be made on the papers alone, the committee failed to inform her when they changed their mind overnight and called 16 live witnesses the next day;
- the select committee sat in secret;
- the charges against the chief justice were inadequately particularised and the chief justice was mandated to make a written statement in breach of her right not to incriminate herself;
- the select committee was made up of senior government ministers, two of whom had suffered judgments against their personal interests by benches chaired by Mrs Bandaranayke and that none had legal or adjudicatory experience.
The report dismisses the 14 charges laid against the chief justice. It concludes that the three counts on which the chief justice was convicted were contrived to accommodate a finding of guilt and were “plainly ridiculous”, “a legal outrage” and “palpably absurd”.
The report concludes that the select committee and the 117 MPs who signed the impeachment motion acted in violation both of international law and the principles of the Commonwealth. It further concludes that: “Sri 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.”
The report recommends that the 117 MPs who signed the impeachment motion, and the seven government ministers who convicted the chief justice should all be subject to international measures. The obvious example is the Magnitsky Act signed into law in the US in December 2012 and which bars Russian officials who are suspected of human rights violations from entering the US and also allows for the freezing of their foreign assets. The report states: “Given 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 the Commonwealth Head of Government Meeting (CHOGM) scheduled for Colombo in November 2013.”
It states that the Queen should not attend, any such presence serving only to “provide a royal seal of approval for the propaganda interests of President Rajapaske”. It recommends that in these circumstances, Sri Lanka should not be permitted to hold the CHOGM.
The BHRC believes that the Robertson report confirms that the removal of Chief Justice Bandaranayke was a contrived attack on the independence of the judiciary in Sri Lanka.
The report sends out a clear message 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.
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 step up to their international responsibilities and take appropriate action. It also notes that any failure to properly address this defiant impeachment of a perfectly professional chief justice is likely to serve as a further impetus for the continued regression of the rule of law in Sri Lanka.
Theodora A. Christou is completing her PhD at Queen Mary, University of London and is a consultant on a number of human rights projects.
Gráinne Mellon is a barrister at 36 Bedford Row and teaches international human rights law at the LSE. Both are elected members of the executive committee of the BHRC.