During the new year holidays, the International Bar Association put out a report titled “A Crisis of Legitimacy: The Impeachment of Chief Justice Bandaranayake and the Erosion of the Rule of Law in Sri Lanka”. It is important for bodies purporting to represent the legal profession not to convey the impression of being a kangaroo court lest it undermines the confidence of the people in the legal system.
People expect a certain clinical rigour from bodies made up of the legal fraternity. The International Bar Association (IBA) markets itself as “The Voice of the Global Legal Profession” (no less!). So the standards that we should expect of them should be even higher than what we would expect from legal bodies here.
The IBA claims on the title page of the report on Sri Lanka that it has been compiled in accordance with the Lund–London Guidelines of 2009. These guidelines stipulate among other things, that “fact-finding missions must be, and be seen to be, conducted in a bona fide manner. Reports must be clearly objective and properly sourced, and the conclusions in them reached in a transparent manner”. They further stipulate that “Wherever possible the delegation should interview all parties relevant to the situation under consideration in order to achieve a balanced, comprehensive picture.” Another requirement is that the source of funding for the mission should be disclosed.
The IBA team was not allowed to visit Sri Lanka. But they claim to have conducted in-depth conversations by telephone and internet with 20 key individuals, including judges, lawyers, journalists, parliamentarians and civil society activists in SL. The names of the persons they interviewed are not disclosed in the report. They claim to have contacted journalists, but they never contacted the present writer, who wrote more than 50,000 words entirely on impeachments and the sources mentioned in this column were points of reference for both the government and the opposition. Who are the journalists the IBA has been talking to, and why the reluctance to mention names? Opposition to the impeachment in this country was both open and vigorous. So the IBA can’t say that they cannot reveal names because the interviewees could not be threatened. Furthermore even though the Lund-London guidelines require that the funding for the fact finding mission should be revealed, the IBA has not done that either.
The IBA report has been written with a view to deliberately misleading those not familiar with the Sri Lankan case. The report opens with the assertion that Sri Lanka’s 43rd Chief Justice “has been removed by the country’s parliament and president, in contravention of an unequivocal ruling by Sri Lanka’s Court of Appeal”. The IBA holds that Sri Lanka’s Court of Appeal ‘acted properly’ by agreeing to hear the Chief Justice’s legal challenge to the fairness of the Parliamentary Select Committee’s procedure. They claim that the Court of Appeal is entitled to correct “all errors in fact or in law…which shall be committed by any tribunal or other institution”. Thus the IBA, has for a political purpose, sought to undermine the precedence of higher courts over the lower courts and of the precedence of the legislature which is the fountainhead of all law, over the courts system.
The Court of Appeal does not have the power to pronounce judgment over rulings of the Supreme Court. If the term ‘any other institution’ includes the parliament, it has to include the Supreme Court as well and by cavalierly accepting such a position the IBA is undermining the very concept of a legal system. Due probably to a guilty awareness of what they are doing, the IBA says that if there is any doubt about the jurisdiction of the Court of Appeal with regard to such matters, the Sri Lankan government had in a periodic report to the UN Human Rights Committee in 2002, specifically accepted in the context of a impeachment by parliament that “if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.”
The Sri Lankan government did in fact make such an assertion in section 302 of its Fourth Periodic Report to the UN Human Rights Committee (18 September 2002) in response to concerns expressed that Sri Lanka’s impeachment procedure violates Article 14 of the International Right on Civil and Political Rights which holds that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. While using that statement to their advantage, the IBA has not taken into account what the SL government said in the very next section of the report they were quoting. In Section 303 of that report to the UN Human Rights Committee, the SL government (led at that time by Prime Minister Ranil Wickremesinghe) has stoutly defended the impeachment process where the legislature plays the principal role, and pointed out that such a procedure does not by itself contravene the right to a fair hearing by an independent and impartial tribunal. The SL government even pointed out that the United Nations Basic Principles on the Independence of the Judiciary approved of this type of mechanism. Article 20 of the United Nations Basic Principles on the Independence of the Judiciary goes as follows: “Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”
The IBA seems to think we Sri Lankans are fools and that they can selectively quote from Sri Lankan documents without anybody noticing. This same attitude can be seen in other parts of the IBA report as well. The IBA points out for example that Shirani Bandaranayake’s replacement Mohan Peiris spent several years serving the Government of Sri Lanka as Attorney-General and legal advisor to the cabinet and they hold this out as an unacceptable conflict of interest. Yet they don’t apply the same conflict of interest criteria to Shirani Bandaranayake. The IBA dismisses allegations 1 and 5 of the impeachment motion saying that they “are arguably not serious enough to merit any sanction at all”. Yet both those allegations were about the conflict of interest. The first allegation related to the former CJ hearing a case concerning a property in which she had acquired an interest on behalf of her sister. The fifth allegation related to her continuing to remain CJ and the Chairperson of the Judicial Services Commission while a case was being heard by a court under her control, against her husband.
If such conflict of interest was ‘not sufficient to merit any sanction at all’, how is it that the mere holding of the position of Attorney General and Legal Advisor to the Cabinet sufficient to disqualify Mohan Peiris from holding the position of CJ? Which smells of moral turpitude more – holding the position of legal advisor to the cabinet or hearing cases in which one has acquired an interest and controlling those who sit in judgment over one’s own family members? Even though this IBA inquiry had been carried out from London and they claim to have spoken to journalists, they do not appear to have spoken to Uvindu Kurukulasuriya who lives in London and operates the Colombo Telegraph website. He was one of the first to call for the resignation of Shirani Bandaranayake, several months before the impeachment on the grounds that a proper inquiry would never be conducted against her husband so long as she remained CJ.
The IBA states that Chief Justice Bandaranayake “was removed after presiding over two Supreme Court panels that gave rulings against the government”. This is indeed what acted as a trigger for her removal. This point formed the basis of the ninth allegation in the impeachment motion – that Shiranai Bandaranayake was sitting in judgment on cases from which she should have recused herself in difference to the 1996 judgment by four members of the supreme court in Edward Francis William Silva V. Shirani Bandaranayaka where it was held that it would be improper for her to sit on cases relating to the devolution of power.
The IBA says that there is a conflict of interest in Justice Shiranee Tilakawardane, who testified before the Parliamentary Select Committee that condemned Chief Justice Bandaranayake hearing impeachment related cases and states sanctimoniously “It is axiomatic that judges should play no role in considering a cause in respect of which they have previously testified, even if their bias might be merely apparent.” Thus, while it is wrong for Justice Shiranee Tilakawardhana to hear cases relating to the impeachment, it was quite OK for Shirani Bandaranayake to hear cases relating to the devolution of power even when there was express ruling by the Supreme Court itself against it.
Those who compiled the IBA report, have made a feeble attempt to appear unbiased by finding fault with Shirani Bandaranayake too, by pointing out that she was ‘unduly close to the executive in the past’, and some of her rulings have helped facilitate the centralisation of power. They blame her specifically for chairing a Supreme Court panel in August 2010 ‘which upheld the constitutionality of the 18th Amendment’. This indicates that the IBA team has not even read the Sri Lankan constitution and they have been relying on hearsay to compile their report. According to the Sri Lankan constitution, when a bill is designated as a constitutional amendment, the supreme court has no role in ruling on its constitutionality. All they are entitled to do when a bill is prepared for a constitutional amendment is to say whether a referendum should be held in addition to a two thirds majority in parliament. There are only a limited number of constitutional provisions which cannot be amended without a referendum and the 18th amendment did not require one.
It is quite clear that the IBA has not exercised the rigour that one should expect from a body that claims to represent the legal fraternity and that they not been fair or transparent. The members of the IBA would do very well as advocates in Kangaroo courts, not in normal courts of law.