SRI LANKA: The Standing Orders relating to the impeachment are flawed in law - says an international expert
1. I am Sergei GOLUBOK. I hold postgraduate degrees of LL.M. in International Human Rights Law awarded by the University of Essex in the United Kingdom and Candidate of Juridical Sciences in Public International Law and European Law awarded by the St. Petersburg State University in the Russian Federation. In 2008-2011 I had an honour to serve as a legal secretary at the Registry of the European Court of Human Rights in Strasbourg, France. Currently I am a practicing attorney and member of the St. Petersburg Bar Association appearing before Russian courts including the Supreme Court of the Russian Federation and before the international human rights tribunals such as, for example, the Committee against Torture. I am also a deputy editor-in-chief of the International Justice law journal which is published by the Institute of Law and Public Policy and teach international law at the Russian Academy of Justice in Moscow.
2. It was brought to my attention that the following question had been referred to the Supreme Court of Sri Lanka: Is it mandatory under Article 107 (3) of the Constitution [of Sri Lanka] to provide for matter relating to the forum before which allegations are, the mode of proof, the burden of proof, standard of proof etc., of any alleged misbehaviour or incapacity in addition to matters relating to the investigation of the alleged misbehavior or incapacity?
3. Pursuant to Article 107 (3) of the Constitution of Sri Lanka in conjunction with Article 107 (2) of the said Constitution Parliament shall by law or by standing orders provide for all matters relating to the presentation of the address on removal of the serving Judge of the Supreme Court and of the Court of Appeal on the ground of misbehavior or incapacity ("the impeachment procedure") including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by representative.
4. I was approached by the Asian Human Rights Commission with a request to prepare this opinion on international legal standards concerning the fair-trial guarantees in the impeachment procedures against serving judges.
5. The most important point of reference is the International Covenant on Civil and Political Rights (hereinafter, "the Covenant") to which Sri Lanka is a State Party. Article 14 § 1 of the Covenant provides that all persons shall be equal before the courts and tribunals and that in the determination of his or her rights and obligations in a suit at law everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Further, under Article 25 (c) of the Covenant every citizen shall have the right and the opportunity without any distinction on the basis such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status and without unreasonable restrictions to have access to public service in his or her country, on general terms of equality.
6. In its jurisprudence the Human Rights Committee (hereinafter, "the Committee"), an independent expert body tasked with the interpretation and application of the provisions of the Covenant, has developed the meaning of the rights listed in the preceding paragraph of this opinion with relation to the impeachment and other types of involuntary removal from office of serving members of the judiciary.
7. The Committee found that a dismissed judge should have at his or her disposal the availability of effective judicial protection of his or her rights and be able to effectively contest the removal (see Views of the Committee rendered on 5 August 2003 in the matter of Pastukhov v. Belarus, Communication no. 814/1998, UN Doc. CCPR/C/78/D/814/1998, at para. 7.3).
8. With respect to the parliamentary impeachment with no subsequent judicial remedy the Committee found violations of Articles 14 and 25 of the Covenant referring to the conclusion that such procedure would not ensure required objectivity and impartiality (see Views of the Committee rendered on 24 July 2008 in the matter of Bandanaranayake v. Sri Lanka, Communication no. 1376/2005, UN Doc. CCPR/C/93/D/1376/2005, at para. 7.3).
9. In its concluding observations on Sri Lanka the Committee expressed concern that the procedure for the removal of judges which is set out in Article 107 of the Constitution of Sri Lanka is incompatible with the Covenant as it allows Parliament "to exercise considerable control over the procedure for removal of judges" (UN Doc. CCPR/CO/79/LKA, at para. 16). The Committee went on to recommend to Sri Lanka to provide for judicial, rather than parliamentary, supervision and discipline of judicial conduct.
10. The then Special Rapporteur of the United Nations Human Rights Council on the Independence of Judges and Lawyers (hereinafter, "the Special Rapporteur") Mr Leandro Despouy of Argentina opined in 2009 that the irremovability of judges was one of the main pillars guaranteeing the independence of the judiciary and that that fundamental principle might be transgressed only in exceptional circumstances (see UN Doc. A/HRC/11/41, at para. 57). Special Rapporteur Despouy further expressed his strong concern about the situation in those countries where, like in Sri Lanka, the legislative or executive branches of the government play an important or even decisive role in disciplining judges (see UN Doc. A/HRC/11/41, at para. 60).
11. The serving Special Rapporteur Mrs Gabriela Knaul of Brazil issued a special press statement on 14 November 2012 expressing her concern about reprisals against judges in Sri Lanka and urging reconsideration of Chief Justice's impeachment. Having reiterated her predecessor's thoughts as summarized in the preceding paragraph of this opinion, the Special Rapporteur expressed her uneasiness with the procedure of impeachment of the Chief Justice of the Supreme Court of Sri Lanka. She shared the view of the Committee that 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 Covenant. The Special Rapporteur urged the Sri Lankan authorities to reconsider the impeachment of Chief Justice and ensure that any disciplinary procedure that she might have to undergo would be in full compliance with the fundamental principles of due process and fair trial.
12. The European Court of Human Rights (hereinafter, "the European Court") in its jurisprudence likewise considers possibility of independent judicial review with full fair-trial guarantees to constitute inalienable element of any involuntary removal from office of a serving judge.
13. Thus, in its recent judgment in Harabin v. Slovakia (Application no. 58688/11) the European Court found the following: "The mission of the judiciary in a democratic state is to guarantee the very existence of the rule of law. The [European] Court therefore sees as a matter of major importance when a Government, as in the present case, initiates disciplinary proceedings against a judge in his or her capacity as President of the Supreme Court. What is ultimately at stake in such proceedings is the confidence of the public in the functioning of the judiciary at the highest national level. It is therefore particularly relevant that the guarantees of Article 6 [of the European Convention on Human Rights which is substantially similar to Article 14 of the Covenant] should be complied with in such proceedings" (at para. 133 of the European Court's judgment rendered on 20 November 2012).
14. The European Court has earlier found that Article 6 § 1 of the European Convention is fully applicable in the disciplinary proceedings against a sitting judge (see the judgment of 5 February 2009 in Olujić v. Croatia, application no. 22330/05).
15. It follows that a serving judge in disciplinary proceedings which might ultimately lead to her or his dismissal should be entitled to fair-trial guarantees including a right to be tried by an independent tribunal. According to the international legal standards all disciplinary (including those ultimately potentially leading to removal) proceedings against members of the judiciary must be determined in full compliance with the procedures that guarantee the right to a fair hearing and to an independent review (by a court of law).
16. Given the absence of such guarantees procedure as currently established by the Standing Orders enacted by the Parliament under Article 107 (3) of the Constitution cannot be legally used.
Dr Sergei Golubok, LL.M.
Attorney-at-Law, St. Petersburg Bar Association, Russian Federation
197374, St. Petersburg, RUSSIAN FEDERATION