Sir Geoffrey Robertson, QC, conducted for the Human
Rights Committee of the Bar of England and Wales
1. The Chief Justice of Sri Lanka, Dr Shirani Bandaranayke, was impeached by the vote of government members of that nation’s parliament on 10th 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. 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. 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. 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.
2. It is a regrettable fact that close scrutiny of the impeachment by independent observers has not been welcomed by the Sri Lankan government. 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. The Sri Lankan Media Minister explained “The impeachment was done in accordance with the Sri Lankan Constitution. Outsiders cannot criticize the Constitution. This is an infringement of the sovereignty of Sri Lanka, which the government is bound to protect”.1
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. A mission of distinguished lawyers seeking to elucidate the facts cannot possibly infringe the sovereignty of the nation.
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. That requires an analysis of:3. Nonetheless, it has meant that I have been unable to travel to interview the various parties – fortunately, an exercise which has not been an obstacle to the establishment of such facts as are necessary for this report. That is because I am in possession of all relevant documents – court judgements, ‘Hansard’ of the parliamentary impeachment process, the fourteen charges against the judge and two volumes (some 1600 pages) published by Parliament which contain the evidence. I 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. I have also read some press coverage of what happened, in papers such as the “Colombo Telegraph”, “The Sunday Times”, and “The Island online”, as well as overseas reporting in journals such as “The Economist” and a collection of documents relevant to the impeachment published by the Asian Human Rights Commission. As will appear, the facts upon which I base my conclusions are either on record or incapable of significant challenge.
- The reason for the impeachment. Were the motives “political” – 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 prima facie evidence she had committed some crime or serious misconduct?
- The nature of the charges. Did they relate to the political inconvenience of her judgements, or to allegations of serious misbehaviour?
- 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?
- 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.
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 in this case was used fairly. Another side-issue is the correctness of the Supreme Court decision to intervene in a parliamentary process. 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. A different consideration, raised by the UN’s Human Rights Commission, is the fitness of Mrs. Bandaranayke’s successor, one Mohan Peiris, who had been Attorney General and had led delegations to Geneva to “vigorously defend” the government over its mass-murder of Tamil civilians. Lawyers briefed to defend a client vigorously do not necessarily believe in the client or the defence: barristers who act for governments sometimes turn out to be remarkably independent of that government when appointed to the bench. The criticism of Mr. Peiris must come from the fact – if it is a fact – that he accepted the office in the knowledge that his predecessor had been unlawfully or improperly removed.
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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. ‘Incapacity’ is clear enough, and is not relevant in this case. ‘Misbehaviour’ is a broad term and should be limited to serious misbehaviour. 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. Criminal offences can at least be ‘proven’ – 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.
11. Some assistance as to the kind and degree of misbehaviour that disqualifies a judge is found in the “Latimer House Principles” agreed by Law Ministers of the Commonwealth and by the Commonwealth Heads of Government. A specific rule provides “Judges should be subject to suspension or removal only for reasons of incapacity or misbehaviour that clearly renders them unfit to discharge their duties”.2 This requires clear proof of misconduct that renders them unfit, at least in the eyes of reasonable people, to occupy the justice seat. This finds an echo in the Beijing Statement of Principles of the Independence of the Judiciary in the ASEAN Region which is subscribed to by thirty-two Chief Justices, including Mrs. Bandaranayke’s predecessor. Article 22 provides “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.”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 – necessarily to the criminal standard, beyond reasonable doubt – that the judge is in fact guilty. Where the ‘misbehaviour’ 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? There are dangers of judges being impeached because governments dislike what they lawfully say or do. Republican politicians in the U.S. attempted to impeach William O. Douglas because he gave an interview to Playboy, 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. In every case where it is alleged that non-criminal conduct amounts to ‘misbehaviour’ 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 – because, in a sense, they cannot even judge themselves.
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 – must comply with the minimum standards set out in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Sri Lanka is a state party, namely a fair and public hearing by a competent, independent and impartial tribunal”, 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” (14(3)(e)).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 – 107 – headed “Independence of the Judiciary” as if to underline its constitutional importance. Article 107(2) provides “Every 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”. It is essential that the misbehaviour or incapacity be proved. But how? By what procedures and according to what standards? Article107 is deficient in this respect – it requires at least a third of MPs to sign the motion for an address, but goes on: “the 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” is left to Parliament to provide, “by law or by Standing Orders…”.3 The President’s powers to appoint (Article 122) and dis-appoint (Article 107) judges were, of course, based on the Presidency as a ceremonial position under a ? style constitution. Subsequently, the President became the political leader of the country, with executive power and majority support from his party in Parliament.
14. These are fundamental safeguards that must apply to quasi-criminal ‘misconduct’ charges which, if they result in an impeachment address by MPs, will blast the judge’s reputation and deprive him of status, job and pension rights. For this reason the common law insists on scrupulous fairness, as the Privy Council made clear in the leading Commonwealth case of Rees v Crane, 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.4 The Beijing Rules insist that “Removal by Parliamentary procedure… should be rarely, if ever, used” because “its use other than for the most serious reasons is apt to lead to misuse”.5 When it is used, “the judge who is sought to be removed must have the right to a fair hearing”.6 The Latimer House principles are similarly emphatic: Principle VII lays down that “any disciplinary procedures should be fairly and objectively administered… with…appropriate safeguards to ensure fairness”.
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———–18. Article 107(3) of the Sri Lankan Constitution must therefore be read consistently with these international and commonwealth requirements. The “law or standing orders” it provides for the procedures leading up to the address, such as “the investigation and proof of the alleged behaviour,” must be scrupulously fair. 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. 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. The procedure for establishing judicial misconduct is merely set out in Standing Order 78A
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 “full particulars” of the alleged misbehaviour. This is the cue under 78A(2) for the Speaker to appoint a Select Committee of at least seven MPs to investigate and report. It must give the accused judge a copy of the allegations (but not necessarily the evidence) and the judge must provide it with a written defence statement. Then the judge has the right to be heard and to call evidence (but not, apparently, to question or crossexamine 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 “until a finding of guilt on any of the charges against such judge is reported to Parliament by such Select Committee”. 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 ‘address’ to the President who may then remove the judge.
21. There are other aspects to the protection of judicial independence which should be observed when a judge – especially a Chief Justice – is put through the demeaning ordeal of an impeachment. 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. 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. Sri Lanka’s 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’s Freedom Alliance, with supporting parties, had a large majority in Parliament – more than two thirds of its total of 225 members. The President’s elder brother, Chamal Rajapakse, was the Speaker of the House who oversaw Dr. Bandaranayke’s impeachment. 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.20. These rules, which were broadly followed in Dr Bandaranayke’s 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. Secondly, the Committee hearings must necessarily be in secret, and remain so until reasons for a ‘guilty’ verdict are presented to Parliament. This is a plain breach of Article 106 of the Constitution which provides that every “tribunal or other institution established under the Constitution or by Parliament” (which would include a Select Committee established to try a judge and report on whether he is guilty) “shall be held in public and all persons shall be entitled freely to attend such sittings”. The Rules are, therefore, contrary to the Constitution, which plainly requires open justice, as do the Latimer Rules and the Beijing principles and the common law. 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. 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 “proof beyond reasonable doubt”. In all these respects, the Standing Orders of Parliament are gravely deficient in fairness.
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. 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. This has been widely alleged in Sri Lanka’s 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. 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. 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.
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26. The power of the Chief Justice, as chair of the JSC, came under political attack in September 2012 shortly before her impeachment. It began with a telephone call from the Secretary to the President on 13th September, telling that the President had directed the three JSC members to meet him at his residence on 17th September. No reason for the meeting was given. This direction was put in writing at the Chief Justice’s 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. 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 (see later). It is a fundamental Latimer House principle that “While dialogue between the judiciary and the government may be desirable or appropriate, in no circumstance should such dialogue compromise judicial independence”.7 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.
28. So far as the President’s action in summoning the judges to a meeing was concerned, the JSC drew the inference – not unreasonably – that he was attempting to exert undue influence over them. On 18th 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 “forces” (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 “to keep the public informed of the threat”.27. On the 17th September, the Divineguma Bill decision was handed down, and it went against the Minister, Basil Rajapaske. 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’s brother, who was reporting it to Parliament.)
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. 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. 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. 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. 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.
c. The Devineguma bill30. These incidents show the pressures that were building up in the weeks before the impeachment, partly as a result of the Supreme Court’s decision to strike down the Divineguma Bill. Before explaining its significance, I should mention one other vulnerability of the Chief Justice at this time, namely her husband. Pradeep Kariyawasam had been appointed by the President as Chairman of the National Savings Bank, shortly before his wife was made Chief Justice. Although he was not a politician or a backer of the President’s 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. However, the bank made a bad investment decision, lost public money, and Kariyawasam tendered his resignation in May 2012. In August, at the very time the argument about the constitutionality of the Divineguma 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. 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.
31. It is difficult for those who do not live in a Federal system to understand the political importance of the Divineguma bill, or the government’s anxiety to have it declared constitutional. 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. 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 Bill. Because it did breach the constitution, which required the Minister to consult with all Sri Lanka’s nine provincial Councils before it could be tabled. 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’s brother. It also gave his departmental officials new powers to invade privacy and obtain information about citizens.
32. In deciding constitutional cases, judges must usually choose between arguments that are good and arguments that are better. The decision of the three Supreme Court judges, with the Chief Justice presiding, in the first Divineguma bill case clearly and logically applied the provision S.154 of the Constitution requiring such Bills to be submitted “to every provincial council for the expression of its views thereon” 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. It was a straightforward issue, and the decision was in my view an obviously correct application of Section 154.
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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. Nonetheless the Chief Justice and her colleagues reported on the 1st November that the Bill was even more flawed than they had ruled the first time – 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. Once again, their decision was properly reasoned, but it tipped the government over the brink. A few hours after the judgement was delivered, 117 MPs signed an impeachment resolution, calling on the Speaker to present an ‘address’ to the President seeking the removal of the Chief Justice. In all these circumstances, it is impossible to resist the inference that the impeachment was the government’s direct response to the unfavorable decision by the Supreme Court in the Divineguma Bill cases.36. The impeachment would soon come. The Divineguma 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. The press on 26 September and again on 4 October reported that the President and a committee of Cabinet members were discussing “strong measures” against the judiciary. 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. 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.
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40. …The only reason it could appear on an impeachment charge was that the government and the 117 MP’s who had all taken to the government whip, disliked the consequences of the decision, and it is that motivation that strikes at the heart of judicial independence. 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. I can think of no behaviour more likely to bring the profession into disrepute, although in fact it brings these individual MPs into disrepute. As far as Sri Lanka’s membership of the Commonwealth is concerned, there can hardly be a more blatant breach of the Latimer House principles.
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51. The Select Committee sat in secret. This was a consequence of Standing Order 78A(8), which requires secrecy until a “finding of guilt” is reported to Parliament. But Standing Orders are not laws – they can be altered or suspended, and the Chief Justice and her counsel repeatedly requested this protection. It was refused, and both her counsel and the opposition MP’s spoke of the insulting and demeaning treatment she received, out of public sight, from several ministers. “At various stages of the proceedings” says one of her counsel, “two members of the Select Committee hurled abuse and obscene demands at the Chief Justice and her lawyers and addressed the Chief Justice in a humiliating and insulting manner.” This is to some extent corroborated by the four MP’s, in their resignation letter: “the treatment meted out to the Chief Justice was insulting and intimidatory and the records made were clearly indicative of preconceived findings of guilt”. Had the proceedings been open to the public, this kind of behaviour might not have occurred.
52. As I have pointed out above, (para 19), Standing Order 78A(8), which requires secrecy until a ‘finding of guilt’ is made, appears ultra vires Section 106 of the Constitution, which requires such committee proceedings to be open to the public. In any case, it is an order ostensibly made for the protection of the accused judge, and the Chief Justice’s leading counsel explained to the Committee that she wished to waive that protection and have the trial in public, or at least to have international observers present. This was supported by opposition MPs, but the Chairman ruled that the Committee was bound by the Order. It could, of course, have asked the Speaker to amend or suspend it – the request was made on 4th December, before the ‘trial’ began on the 6th – but the government Ministers apparently had no wish to let the public observe their own behaviour, or that of their witnesses, and the request was refused,8 on the basis that it was not possible. It was possible, of course, because the Speaker could immediately have called the Standing Orders Committee (which he chairs) to advise the House to amend or suspend 78A(8). It need hardly be said – Jeremy Bentham said it, and it still holds good – that “publicity is the very soul of justice. It keeps the judge, while trying, under trial”. These proceedings, and particularly the evidence given on December 7th, would have come under public scrutiny and the prejudice of the Committee would have been palpable. It is essential, in cases of this kind, for the public to hear the witnesses, because if they tell lies others will come forward to confound them. The Chairman of the Committee, by refusing to suspend the Standing Order after its protection had been waived, ensured that justice was not seen to be done.
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60. That did not happen. The committee was selected and met on 14 November 2012. That evening it caused the charge sheet to be delivered to the Chief Justice, with a direction that her written statement be received no later than 22 November 2012. This was a ridiculously short time in which to refute in any detail the 14 charges, which ranged from transactions by relatives in Australia to decisions taken by the JSC. The Chief Justice’s lawyer asked on several occasion that the deadline be extended but the Committee chairman refused. On 20 November 2012 the judge asked for further information and some particulars of the charges – this too was refused. On 23 November 2012 she appeared with counsel in front of the committee and asked to know the procedure the committee intended to follow – whether it was calling witnesses and if so whom, what standard of proof would it apply, and so on – but answer came there none. The committee merely told her to present her defence statement by 30 November: there would be a hearing on the 4th December and the trial would start on 6th December. It rejected her application that two of its members should stand down because they had personal bias against her. On 4th December (the day of the big demonstration against her), counsel for the Chief Justice requested a list of witnesses and relevant documents, but they were not provided. On the 6th, the Chairman announced that no witnesses would be called. At 4pm on that day a bundle of 80 documents, totalling over 1,000 pages, was given to the Chief Justice and she was told that the inquiry would begin to consider charges 1 and 2 at 1.30pm the next day, 7th December. Her request that independent observers from local and international bar associations attend the hearing was rejected.59. …There is no rule in the Standing Orders that the judge should be given reasonable time or facilities to prepare a defence: the timing is left to the Select Committee. Since it is under an international law duty to give fair trial, the Committee itself should have ensured that the judge was given ample opportunity to contest the charges.
61. In my opinion, these facts demonstrate a clear breach of the fair trial rules relating to particularised charges and to adequate time to prepare defences. It is possible that the Chairman was misinforming the Chief Justice when he said that no witnesses would be called – it would be surprising if the committee simply decided overnight to summon 16 persons who were all available to testify the next day. Even if he believed on the 6th that there would be no live testimony, to deliver 1,000 pages of evidence to the defence at 4pm and tell them to be ready for trial in less than 24 hours is preposterously unfair. It demonstrates, indeed, the Committee’s contempt for justice and its refusal to provide the Chief Justice with even a semblance of fairness. The four committee members from the opposition say they had not been consulted about the chairman’s decisions, and they resigned on the afternoon of the 6th in a letter which protested about the lack of time given to the Chief Justice and her lawyers to study the evidence. I am forced to concluded that the Select Committee chair and his fellow ministers, all of whom took the government whip, were determined to convict the Chief Justice, come what may.
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67. By this time, the independence of the Sri Lankan judiciary had ended, and the Beijing and Latimer House principles had been abandoned. The Chief Justice had been impeached by the government and its supporters, firstly by the charges brought in November which had accused her of misconduct for doing her conscientious duty in Devinegama and as Chief Justice at the JSC, and secondly by putting her through a grotesquely unfair secret trial at which she was abused and denied her rights, while outside parliament demonstrators brought on government buses bayed for her blood.9On any view, this constitutes a shameful abuse of judicial independence. The President had power, of course, to stop it, but had fanned the flames and may have authorised the rejoicing when the impeachment motion was passed, at 7pm on Friday 10 January. Celebratory fireworks were set off outside parliament, without intervention from police or military, and according to the press reports four of the brothers Rajapaske – President, Speaker, Environment Minster Basil and Defence Secretary Gotabaya, along with other ministers, appeared on a balcony to watch a special fireworks display put on by the Sri Lankan navy. For four hours a jubilant crowd surrounded the Chief Justice’s home, in the knowledge that Mrs Bandaranayake and her family were inside. A “milk rice celebration” took place, a free meal was served and fireworks were lit (presumably at government expense) and later the mob (said by some reporters to be members of the civil defence force in plain clothes) was addressed by members of the Select Committee and told to urge Mrs Bandaranayake to resign. They did so – when not singing and dancing to loud music.66. What Standing order 78A(8) terms “a finding of guilt” was reported to the Speaker by the Select Committee on December 8 – the day after hearing the witnesses. It was a document of 35 pages, which must have been finalised, if not written, the previous evening: a rushed judgement which serves to emphasise the injustice of proceedings. Standing Order 78A(1) requires a month to elapse between the committee request and impeachment resolution, so on January 9th – the first possible date – such a resolution was presented to parliament. A two day debate ended with its passage – the government MPs and their supporters, under the party whip, voted that the speaker “address” his brother the President and request the removal of the Chief Justice.
68. A nation whose leaders treat the head of the judiciary as if she was a public enemy, abusing the democratic process to put her through an unfair trial as punishment for doing her constitutional duty and then celebrating her unjust impeachment with feasting and fireworks, deserves to have those leaders treated by the international community in ways I shall suggest at the end of this report.
———88. So far as judicial review is concerned, the courts are historically reluctant to intervene in the affairs of Parliament. The Bill of Rights of 1689 lays down that proceedings in parliament, the ultimate court, may not be questioned. However that may be in the UK – a country without a written constitution – the precise limits of the separation of powers in other countries will depend on what their Constitution says…87. The attack on the Chief Justice cause great dismay among Sri Lankan civil society: hundreds of articles were written in her support in non-government media, lawyers protested and even went on strike, judges at every level below the Supreme Court released statements insisting that due process and judicial independence had been violated. A joint statement of the High Court and District Court judges and the Magistrates Association deplored the attacks on the Chief Justice, the judiciary in the state media,10and the Judicial Service Association protested as well at the contempt of court committed by “certain media institutions maintained by taxpayers money” but with apparent impunity from any action by the Attorney General. But the only real protection she had, like anyone else, against abuse of government power was the law, and ironically she had to appeal to her old colleagues to help. It is not, in my experience, the case that judges are necessarily biased in judging their own colleagues – they are usually unforgiving of fellow professionals who have acted unbecomingly, and the bench is a place where hostilities fester as often as friendships form. However, it does not look good, which is why many other countries insist first on criminal jury trials for charges of judicial misbehaviour which amount to a criminal offence or (in the Commonwealth) bring in respected jurists from other Commonwealth countries, like Lord Mustill in the Sharma case, to decide on guilt or innocence.11
89. What exactly did this mean? Could a Standing Order provide, for example, that the hearing should be in secret, or that there should be no burden of proof? There was a genuine question of interpretation which the Select Committee refused to address. So the Chief Justice and some other petitioners took the issue to the Supreme Court on 20 November. On 22 November the Supreme Court (3 judges, excluding of course, the Chief Justice) politely and deferentially asked the Speaker, given “the mutual understanding and trust” between the judiciary and Parliament, to adjourn the Select Committee hearing until after it could deliberate and deliver its judgement. The Speaker announced that he would do no such thing – the court had no right to intervene. On January 3rd, however, the Supreme Court ruled that Article 107(3), properly interpreted, meant that Parliament had to pass a law to fix the burden of proof and to guarantee the judge’s right to be heard and other basic matters: Standing Orders, which were made by the Speaker and were not in any sense “law”, could only govern matters of procedure. That was because any “finding of guilt” by the Select Committee was a final decision which adversely affects the right of the judge to remain in office: it was an exercise of judicial power and Article 4(c) of the Constitution says in terms that any such exercise (except in the case of Parliament in respect of its own members) must be by a body “established by law”. The Select Committee had been established by Standing Order, so its proceedings and its determinations of guilt were ultra vires the Constitution and so null and void.
91. Nevertheless, MPs reacted with fury at this perceived attempt by the judiciary to interfere with their sovereignty, and the debates on 9-10 January were dominated by MPs attacking the judges for daring to trespass on their prerogatives. It must be clearly understood that this question – whether a court has power to quash such a finding by a Parliamentary committee – is nothing at all to do with the question of judicial independence. They are quite different issues. But regrettably, I think, because the Supreme Court (and then the Court of Appeal, following its decision) to quashed the Select Committee finding, the argument over the legitimacy of it doing so overshadowed the argument about the palpable breach of judicial independence. In the debate, the two issues became hopelessly mixed up and speakers in favour of the impeachment were able to pose as democrats, fighters for Parliamentary sovereignty against interfering judges. The Sri Lankan government, through its external affairs Minister, one Professor Pereis, has pretended to foreign diplomats that this is really what the case is all about, i.e. the sovereignty of Parliament. He regularly cites other cases – one from the Philippines, another from the US – pretending that they justify what happened to the Chief Justice, whereas they are really about the separation of powers under the relevant constitution. The government has a case – not a particularly good one, but at least arguable – that the Supreme Court was wrong to intervene. It has no case at all to claim that what happened was not a grave assault on judicial independence. (Editor’s note: see also Danilo Reyes, “Impeachment of two Chief Justice: A critique on the Sri Lanka and Philippine cases”)90. It was a well-argued and logical judgement interpreting 107(3) purposively to mean that Parliament was obliged to pass a law setting up an impartial body to decided whether misconduct had taken place and laying down the standard of proof it should apply, while Standing Orders would deal with the more routine procedures, such as the powers to obtain evidence, the length of sittings and so forth. I need not go into the details of the judgement. S.107(3) is ungrammatical – “Parliament shall by law or by standing orders shall (sic) provide for all matters…” and then it lists matters that the court said were appropriate for a law (ie a statute passed by Parliament) and other matters (“procedures for the passing of such resolution”) appropriate for Standing Orders introduced by the Speaker. It was an elliptical sub-section, and the Court gave it a construction that made it work in the context of Article 4(e), which sets out the basic constitutional rule for the separation of powers. It was a perfectly legitimate construction.
————92. It is necessary, therefore, to disentangle the two issues. Professor Peiris made the main speech for the government on the impeachment, beginning with a reference to “the English Court of Appeal in the Pinochet case” which decided that “in respect of impeachment proceedings, the responsibiity is that of Parliament and not of the courts.” The English Court of Appeal was not, in fact, involved in the Pinochet proceedings and the House of Lords (which was) decided nothing of the sort. He then expatiated on the Corona case, claiming that “the Chief Justice of the Philippines did exactly what the Chief Justice of Sri Lanka did” and the Courts in the Phillipines declined to intervene to halt his impeachment. The two cases are a world apart, and the Philippines Constitution, with Spanish and US legal influences, was not the same as the Constitution of Sri Lanka. Corona was appointed by the disgraced President Arroyo at midnight, just before she was to be replaced by Benito Aquino. Parliament impeached the judges, in televised proceedings lasting several months, in which he was accorded every defence right by Senate President Ponce Enrile, who frequently refused prosecution motions and allowed the defence team of 8 leading lawyers the time, whenever they asked for it, to obtain and study documents. Senators frequently criticised the prosecution and it was Corona, eventually, who could not face questioning over his undeclared bank accounts so he went on television to blame the bank. Interestingly, the Supreme Court did intervene by issuing an order restraining its own employees from testifying, and Speaker Enrile obeyed the order against the wishes of the Parliamentary prosecutors. So the Corona trial was probably as fair as an impeachment by Parliament can be: the Supreme Court was obeyed by the Speaker when it ordered witnesses not to appear, and no one has doubted the verdict, reached upon clear evidence. Professor Peiris explained none of this to Parliament.
95. The denouement was as unseemly as the procedures used to bring it about. On 12 January, 2 days after receiving the “address” from his brother, the President summoned the remaining 10 Supreme Court judges to his office for a 90 minute meeting. It is not known what he said – the meeting was highly improper – although it seems that he asked them to pass on one threatening message to the Chief Justice, namely that if she resigned without further fuss, she could keep her full pension entitlements. The Chief Justice, who appears to have behaved throughout with great dignity, remained with her family at her official residence. The following day she received a Presidential order removing her from office, and (in a despicably petty gesture) her security guards were withdrawn, while threatening demonstrators remained outside. On the next day, a holiday Monday, police ordered the Registrar to pack up all her belongings in her chambers, to make way for the next incumbent. A large phalanx of military police occupied the court building overnight and a riot squad (with water cannon) arrived the next morning along with a government rent-a-crowd who shouted slogans in praise of the new Chief Justice. He was Mohan Peiris, a man without judicial experience, who served as the legal advisor to the cabinet and Chairman of a bank and of an arms procurement firm established by Defence Secretary Rajapanske. He was sworn in by the President and that afternoon took over the Chief Justice’s chambers whilst a large number of lawyers stood outside the court holding candles “to symbolise the onset of darkness”. Dr Bandaranayake was confined to her residence until her successor was installed in her former chambers, and then required to leave in her own car without speaking to the media or (as she had requested) being given an opportunity to thank her staff. She did issue a dignified and moving statement, pointing out that the rule of law to which she had devoted her life had been shattered. She would not resign in order to save her pension, but she could not resist the power of the state to remove her physically from the Court.CONCLUSION
96. I have done my best to recite the facts, which are on record, as objectively as possible. That Dr Bandaranayake was not even conceivably guilty of misconduct on 12 of the 14 charges is palpable, and the evidence does not support Count 1 (that she made decisions in a case which somehow benefited her sister) and charge 4 (that she had “assets”, in the form of an empty bank account, that were undeclared). The evidence shows that she was impeached as a reprisal for her decision in the Divineguma case and perhaps for the outspoken stance that her Judicial Services Commission took in defending what it saw, no unreasonably, as threats to judicial independence. Some commentators have suggested that the Rajapaske clan had a long-term plan to neuter the independence of the country’s judiciary lest it put difficulties in the way of their future hegemony. Others claim that the impeachment removes any danger of unruly judges if the government is forced by international pressure to put a few of its military leaders on trial for war crimes committed during the 2009 conflict: I have no comment to make on these suggestions. I have tried to confine this Report to the law and practice of judicial independence, as applied to Dr. Bandaranayke’s case. Although there is an interesting intellectual debate over the precise constitutional borders that separate legislative, executive and judicial powers, I do not regard it as impinging on the question of whether the Chief Justice was properly impeached. To that question, the only answer is: “no”.
98. Politicians, media people and diplomats must be made to understand this, and international bodies which uphold, or purport to uphold, the rule of law must realise just what a corrosive precedent this impeachment sets. There is nothing necessarily wrong with impeachment, which gives a sovereign Parliament representing the people the ultimate power to remove a disgraced judge, but his or her misbehaviour must be proved and by fair means not foul. Certainly not by a process that has been triggered by dissatisfaction with a judgement which has gone against the ruling party. That this is precisely what has happened in Sri Lanka is a matter of record, and those who have made it happen are on the record. Some of them, regrettably, are lawyers, but all of them must have known that they were embarked on a witch-hunt.97. What is to be – or can be – done? I have written this Report at the request of the Bar Human Rights Committee, and doubtless it will be read by lawyers elsewhere – people who know in their professional bones that this treatment of a judge is wrong, and that it undermines the rule of law to such an extent that the country which suffers it will suffer the loss of that independent power which is essential to make democracy work. It is a calamity for a nation that purports to uphold the rule of law but it is an international problem as well, in so far as it may be emulated elsewhere if it passes without consequences and becomes an example for other governments to follow, ie to sack inconvenient judges and hold the rest in fear of being impeached if they displease their political masters.
99. There are international fora in which Sri Lanka may be politely condemned- during periodic review in the UN’s Human Rights Council, for example, where it will doubtless be “thrashed by a feather” when member states wring their metaphorical hands and evince “concern”. The Commonwealth is an organisation which pretends to uphold democratic principles, and on occasion expels or suspends member states which disregard them. It cannot be taken seriously, however, if it permits Sri Lanka to showcase its destruction of judicial independence at the Commonwealth Heads of Government meeting planned for Colombo in November this year. A government which trashes the Latimer House principles and gets away with it – to such an extent that it is permitted to host the most prestigious event in the Commonwealth calendar – would make the whole organisation a mockery. At very least, governments which respect the rule of law should not attend. Nor should the Queen or any Royal family member, to provide a photo-opportunity for President Rajapaske, Speaker Rajapaske, Defence Secretary Rajapaske and Minister for Economic Development, Bail Rajapaske. Royal seals of approval serve the propaganda interests of people like this, and no-shows by powerful nations would signal the unacceptability of their behavior.
100. But it was behaviour in which many MPs – 117, to begin with – were complicit, and then the seven Ministers. These identifiable people are collectively responsible for an unlawful attack on the rule of law, and unless made to suffer for it others will do the same dirty work in other countries, in clashes with the judiciary which are yet to emerge. What might deter them, or at least give them pause? There is a new tool available to name, shame and actually cause pain to people like this – the train-drivers to Auschwitz, so to speak – those who are necessary for the perpetuation of a human rights atrocity, even though their part is minor, and their hands unbloodied. It is called a Magnitsky Act, named after Sergei Magnitsky, the Russian whistleblower jailed when he tried to expose corruption and who was killed in prison. The Act, passed by the US Congress and ratified by President Obama in December last year, identifies all the people – police, lawyers, criminals and judges – who were in some small way morally responsible for Magnitsky’s arrest imprisonment and death. The Act denies them visas for travel to the US, and their funds in US banks are frozen. The Act caused fury in Russia, and Mr. Putin rather pathetically responded by stopping US couples from adopting Russian orphans. But the Act is being taken up in the Council of Europe, Canada and other countries, and would seem appropriate to a case where there is no doubt as to the identity of those responsible, and where some of these Ministers and MPs are likely to want to go to Britain and may well have undisclosed funds in British banks. If a number of countries were to “Magnitsky” them, they might live to rue the day they chose to humiliate and vilify their Chief Justice.
1Xinhua/Agencies, “Sri Lanka to reject visa for delegation to probe controversial impeachment”, Feb 8, 2013.
2Commonwealth Principles on the Accountability of and the Relationship between the three branches of Government, Abuja, 2003. Section IV (Independence of the Judiciary).
3S107(3).
4Evan Rees v Richard Alfred Crane 1994 1 AC 173.
5Rule 23.
6Rule 26.
7Guideline I, point 5.
8See record, Parliamentary Series No.187, 190.
930 Much of the contemporary press coverage collected by the Asian Human Rights Commission reports on a government publicity campaign against the Chief Justice by posters and leaflets (p. 303), bussing in demonstrators, state media bans against her (p.230-231). See, AHRC, ‘Collection of Documents’, Revised Edition, 21 December 2012.
10Joint statement of the judges, December 3rd 2012, Asian Human Rights Commission, 7.
11Judicial Service Association Statement.
