Justice must be served: An appeal by lawyers on the impeachment process

Lawyers for Democracy (LfD) raises serious concerns with the process that has commenced to impeach the Chief Justice of Sri Lanka Dr. Shirani Bandaranayake.

The impeachment follows in the wake of several other attempts in recent times to interfere and intimidate the Judiciary, the most recent incident being the attack against the Secretary of the Judicial Services Commission (JSC) in October 2012.

These incidents, now culminated with the attempt to impeach are a direct attack against maintaining an independent Judiciary, a fundamental element in a functioning democracy. LfD urges that the process to impeach meets basic principles of rule of law and natural justice and ensure that the Chief Justice of Sri Lanka be provided with a due process and there be justice.

Parliamentary Select Committee

LfD is also dismayed with the recent developments in the Parliamentary Select Committee (PSC) which has been appointed to inquire into the 14 charges brought against her by 116 Members of Parliament (MPs).

While desisting from commenting on the charges and terms of the PSC at this present moment, LfD is concerned with reports indicating that the PSC is to exercise judicial powers in its deliberation in the impeachment process.

Based on the limited information publicly available, LfD believes that the impeachment procedure provided by Standing Order 78 of Parliament contravene natural justice and is incompatible with the Constitution of Sri Lanka. LfD therefore supports and aligns itself with the view of the Special Rapporteur on Independence of Judges and Lawyers, Gabriela Knaul, that the present procedure to impeach the Chief Justice is incompatible with both the principle of separation of power and Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

LfD wishes to point out at the outset that with a two-third majority, the Government has caused a Motion for impeachment to be forwarded, signed by 117 of members of Parliament, all from the Government side.

This process begins with this Motion and ends when the Parliament takes a vote to decide on the Chief Justice’s fate on a simple majority. Therefore the ‘proof’ of any misconduct has to be decided by a body that can look at the allegations objectively, impartially and not politically. But the composition of the Parliamentary Select Committee is also lopsided with seven members for the Government and four members for the Opposition, raising a fundamental issue of bias and fairness.

Alarming developments

In addition to the political dimension of the impeachment and irreparable damage such an exercise will have on the independence of the Judiciary and the rule of law in Sri Lanka, LfD is also alarmed with developments in the PSC last week.

Media reports have highlighted the speed with which the PSC has commenced its sitting, with the Speaker appointing 11 MPs (seven Government MPs and four Opposition MPs) to the PSC at 10 a.m. on 14 November 2012 and having its first sitting on the same day at 4:30 p.m. At 6 p.m. on the same day, the Chief Justice was personally served with the resolution containing the 14 charges.

While such efficiency is to be applauded in any inquiry and investigation, it is unfortunate that such speed is not evident in other such processes. The unprecedented speed in constituting the PSC and commencing proceedings is also evident in the extremely short time of one week provided to the Chief Justice to show cause for the 14 charges.

Such speed within the first few days of commencing proceedings begs the question whether the Chief Justice and her counsel will be provided sufficient time to adequately prepare and respond to charges made against her.

Lack of respect

LfD is also dismayed with the lack of due respect shown towards the highest sitting justice in Sri Lanka. Reports indicate that the PSC has attempted to limit legal representation for the Chief Justice to one counsel, a limitation not provided in any known law nor the Constitution.

LfD was also informed that although the Chief Justice through her counsel had requested for a six-week period to respond to the charges, at the time of issuing this statement, this was not agreed to by the PSC, with correspondence informing her of her need to personally present herself at the PSC on 23 November.

As practicing lawyers in Sri Lanka, we hold that the general practice is for court to grant approximately six weeks or more for any Respondent to reply to allegations. Further, disciplinary inquiries against public officials are conducted generally after a preliminary inquiry is completed. LfD also notes that there is no limitation regarding the number of counsel that can appear for a client in a court of law.

LfD is dismayed that the present PSC did not examine previous PSCs, in particular the one established to investigate into allegations made against the then Chief Justice N.D.M. Samarakoon Q.C., where several counsel marked appearance.

LfD is shocked that the Chief Justice of Sri Lanka is not provided with basic legal protections, raising further concern of independence and impartiality of the entire impeachment process.

On behalf of LfD

Signed by

Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan , K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe, Sudarshana Gunawardana, Lakshan Dias , Sunil Jayaratne, Harin Gomas, S.G. Punchihewa

(Lawyers of Democracy – LfD – is a representative body of legal practitioners throughout the island. Conveners include Lal Wijenayaka, Chandrapala Kumarage, E. Viwekanandan, K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe, Sudarshana Gunawardana, Lakshan Dias, Sunil Jayaratne, Harin Gomas, and S.G. Punchihewa. It was established on 10 December 2009.)