{"id":15184,"date":"2013-01-23T09:55:31","date_gmt":"2013-01-23T14:55:31","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=15184"},"modified":"2013-01-23T10:06:28","modified_gmt":"2013-01-23T15:06:28","slug":"world-wide-eminent-judges-and-jurists-write-to-mahinda-and-chamal-demanding-re-instatement-of-shirani-bandaranayake-as-chief-justice","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=15184","title":{"rendered":"World Wide Eminent Judges and Jurists Write to Mahinda and Chamal Demanding Re-instatement of Shirani Bandaranayake as Chief Justice"},"content":{"rendered":"

His Excellency President Mahinda Rajapakse <\/p>\n

Honorable Speaker of the Parliament Chamal Rajapakse <\/p>\n

Sri Jayawardenepura Kotte <\/p>\n

Sri Lanka <\/p>\n

January 23, 2013 <\/em><\/p>\n


\nConcerning the removal of Chief Justice Dr. Shirani Bandaranayake <\/strong><\/p>\n

<\/p>\n

Your Excellencies, <\/p>\n

The International Commission of Jurists and the undersigned senior judges and <\/p>\n

eminent jurists from around the world condemn the recent removal of Chief Justice <\/p>\n

and urge you to act immediately to restore the independence of the judiciary by <\/p>\n

reinstating the legal Chief Justice, Dr. Shirani Bandaranayake. We are gravely <\/p>\n

concerned that recent actions to remove the Chief Justice have been taken in <\/p>\n

contravention of the Constitution, international human rights law and standards, <\/p>\n

including the right to a fair hearing, and the rule of law.<\/p>\n

Judicial independence and the separation of powers are the bedrock of the rule of law. <\/p>\n

International standards such as the United Nations Basic Principles on the <\/p>\n

Independence of the Judiciary stress that judicial independence is a fundamental <\/p>\n

requirement in promoting human rights and preserving rule of law. The United <\/p>\n

Nations General Assembly in Resolution 65\/213 of 1 April 2011 reaffirmed that an <\/p>\n

independent and impartial judiciary is essential for the protection of human rights, the <\/p>\n

rule of law, good governance and democracy. <\/p>\n

The irremovability of judges is a main pillar of judicial independence. Judges may be <\/p>\n

removed only in the most exceptional cases involving serious misconduct or <\/p>\n

incapacity. And in such exceptional circumstances, any removal process must <\/p>\n

comport with international standards of due process and fair trial, including the right <\/p>\n

to an independent review of the decision. Members of the judiciary must never be <\/p>\n

subject to removal on the basis of judicial decisions rendered in the legitimate <\/p>\n

exercise of their professional functions. <\/p>\n

The United Nations Special Rapporteur on the Independence of Judges and Lawyers <\/p>\n

and the United Nations Human Rights Committee have raised concerns that the <\/p>\n

procedure for removing judges under Article 107 of the 1978 Constitution and the <\/p>\n

complementary Standing Orders do not adequately guarantee the right to a fair trial <\/p>\n

rights and due process under Article 14 of the International Covenant on Civil and <\/p>\n

Political Rights. <\/p>\n

Sri Lanka\u2019s actions further violate the core values of the Commonwealth of Nations <\/p>\n

enunciated in the Singapore Declaration 1971, the Harare Declaration 1991 and the <\/p>\n

Latimer House Principles on the Three Branches of Government 2003. The Latimer <\/p>\n

House Principles call on member States to uphold the rule of law by protecting judicial <\/p>\n

independence and maintaining mutual respect and cooperation between Parliament <\/p>\n

and the Judiciary. <\/p>\n

Finally, Sri Lanka\u2019s actions run against the regionally applicable standards set out in <\/p>\n

the Beijing Statement of Principles on the Independence of the Judiciary in the <\/p>\n

LAWASIA Region. <\/p>\n

The threats to the separation of powers, independence of the judiciary and <\/p>\n

rule of law in the impeachment case in Sri Lanka are revealed by the <\/p>\n

following sequence of events: <\/p>\n

On 1 November 2012, a resolution signed by 117 Members of Parliament was <\/p>\n

presented to the Speaker of the House, Chamal Rajapakse, to initiate impeachment <\/p>\n

proceedings against the Chief Justice. The resolution contained fourteen allegations <\/p>\n

relating to misconduct and non-disclosure of financial assets. <\/p>\n

On 14 November 2012, a Parliamentary Select Committee was established pursuant <\/p>\n

to Parliamentary Standing Orders 78A and Article 107(3) of the 1978 Constitution to <\/p>\n

investigate the charges. The Parliamentary Select Committee was composed of seven <\/p>\n

Cabinet Ministers and four members from the opposition political parties. <\/p>\n

On 22 November 2012, the Supreme Court of Sri Lanka requested Parliament to <\/p>\n

suspend the impeachment proceedings until the Court could decide on the <\/p>\n

constitutionality of Parliamentary Standing Orders 78A. Parliament disregarded the <\/p>\n

Supreme Court\u2019s request and the Chief Justice appeared before the Parliamentary <\/p>\n

Select Committee for the first time on 23 November 2012. <\/p>\n

On 6 December 2012, Chief Justice Bandaranayake walked out of the impeachment <\/p>\n

hearing in protest over the denial of a fair hearing. The Chief Justice was not <\/p>\n

provided timely and full disclosure of the evidence in relation to the charges; was not <\/p>\n

given adequate time to respond to the charges; was denied the right of crossexamination; <\/p>\n

and was treated in a derogatory and disrespectful manner by Members <\/p>\n

of Parliament and denied the right to a public hearing. On the same day, the four <\/p>\n

opposition Members withdrew from the Parliamentary Select Committee. <\/p>\n

On 7 December 2012, the seven remaining members of the Parliamentary Select <\/p>\n

Committee concluded their investigation on the first five charges, finding the Chief <\/p>\n

Justice guilty on three charges. <\/p>\n

On 1 January 2013, a three-member panel of the Supreme Court ruled that the <\/p>\n

impeachment procedure set out in Standing Orders 78A was not constitutionally valid, <\/p>\n

holding that such procedures could only be established \u2018by law\u2019 enacted by <\/p>\n

Parliament. <\/p>\n

On 7 January 2013, the Court of Appeal, relying on the judgment of the Supreme <\/p>\n

Court, issued a writ quashing the findings of the Parliamentary Select Committee on <\/p>\n

the basis the Committee lacked authority to make such a finding. <\/p>\n

On 11 January 2013, in utter defiance of the Supreme Court judgment and the Court <\/p>\n

of Appeal order, Parliament passed a motion with 155 votes, to impeach Chief Justice <\/p>\n

Dr. Shirani Bandaranayake. <\/p>\n

On 13 January 2013, President Mahinda Rajapakse signed a decree removing the <\/p>\n

Chief Justice from her post and delivered the document to her official residence in the <\/p>\n

morning. <\/p>\n

On 15 January 2013, President Mahinda Rajapakse nominated three candidates to <\/p>\n

replace Chief Justice Bandaranayake. Former Attorney-General Mohan Peiris was <\/p>\n

approved by the Parliamentary Council and sworn in as Chief Justice. Prior to his <\/p>\n

appointment, Mohan Peiris served as the legal advisor to President Rajapakse and was <\/p>\n

widely known for defending the conduct of the Sri Lankan government and <\/p>\n

consistently blocking efforts to hold State officials accountable for gross human rights <\/p>\n

violations. <\/p>\n

On the same day, Chief Justice Bandaranayake issued a public statement strongly <\/p>\n

denying all of the charges against her and asserting her status as the legal Chief <\/p>\n

Justice of Sri Lanka. She said, \u201cThe accusations leveled against me are blatant lies. I <\/p>\n

am totally innocent of all charges…Since it now appears that there might be violence <\/p>\n

if I remain in my official residence or my chambers I am compelled to move\u2026\u201d <\/p>\n

Attacks against the judiciary have escalated to the point of physical violence in recent <\/p>\n

months. In July 2012, Government Minister Rishad Bathiudeen threatened a <\/p>\n

magistrate in Mannar and then allegedly orchestrated a mob to pelt stones at the <\/p>\n

Mannar courthouse. In early October 2012, four individuals assaulted the Judicial <\/p>\n

Service Commission Secretary Manjula Tillekaratne in broad daylight. <\/p>\n

The undersigned jurists urge your High Excellency President Mahinda Rajapakse and <\/p>\n

Honorable Speaker Chamal Rajapakse to act immediately to restore the independence <\/p>\n

of the judiciary by reinstating the legal Chief Justice Dr. Shirani Bandaranayake and <\/p>\n

enacting a law in Parliament to govern the impeachment process. Such a law must <\/p>\n

comply with Sri Lanka\u2019s obligations under international human rights law and <\/p>\n

standards. <\/p>\n

Yours Sincerely <\/p>\n

Justice Md. Abdul Matin <\/p>\n

Former judge at the Appellate Division of <\/p>\n

the Supreme Court, Bangladesh <\/p>\n

Justice Md. Abdur Rashid <\/p>\n

Former Judge at the Supreme Court, <\/p>\n

Bangladesh <\/p>\n

Justice Ajit Prakash Shah <\/p>\n

Former Chief Justice of the Delhi High <\/p>\n

Court, India <\/p>\n

Justice Bharat Raj Uprety <\/p>\n

Former Justice at the Supreme Court, <\/p>\n

Nepal <\/p>\n

Justice C. Baardman <\/p>\n

Judge at the Court of Appeal of The <\/p>\n

Hague, the Netherlands <\/p>\n

Justice Dragana Boljevic <\/p>\n

Judge at the High Court of Belgrade, <\/p>\n

Serbia <\/p>\n

President of Judges\u2019 Association of Serbia <\/p>\n

and Secretary General of MEDEL <\/p>\n

(Magistrats Europ\u00e9ens pour la D\u00e9mocratie <\/p>\n

et les Libert\u00e9s) <\/p>\n

Justice E.D. Bonga-Sigmond <\/p>\n

Judge at the Court of Amsterdam, the <\/p>\n

Netherlands <\/p>\n

Justice Gerrard Boot <\/p>\n

Judge at the Court of Amsterdam, the <\/p>\n

Netherlands <\/p>\n

Board member of Judges for Judges <\/p>\n

Justice Azhar Cachalia <\/p>\n

Judge at the Supreme Court of Appeal, <\/p>\n

South Africa <\/p>\n

Justice Moses Hungwe Chinhengo <\/p>\n

Former judge at the High Court, <\/p>\n

Zimbabwe and Botswana <\/p>\n

Justice Anaclet C. Chipeta <\/p>\n

Judge at the High Court, Malawi <\/p>\n

Justice Fernando Cruz Castro <\/p>\n

Judge at the Constitutional Chamber of <\/p>\n

the Supreme Court, Costa Rica <\/p>\n

Justice E. de Rooij <\/p>\n

Judge at the Court of Amsterdam, the <\/p>\n

Netherlands <\/p>\n

Justice Radmila Dicic <\/p>\n

Acting President of the Belgrade Court of <\/p>\n

Appeal and Judge of the Supreme Court, <\/p>\n

Serbia <\/p>\n

Justice Rodolfo Gonzalez <\/p>\n

Judge at the Constitutional Chamber of <\/p>\n

the Supreme Court, El Salvador <\/p>\n

Justice Augusto J. Ib\u00e1\u00f1ez Guzm\u00e1n <\/p>\n

Former President of the Supreme Court, <\/p>\n

Colombia <\/p>\n

Justice \u00c5sne Julsrud <\/p>\n

Judge at the District Court of Drammen, <\/p>\n

Norway <\/p>\n

Justice Maclean Kamwambe <\/p>\n

Judge at the High Court, Malawi <\/p>\n

Justice Kalthoum Kennou <\/p>\n

Investigative judge at the Tribunal of <\/p>\n

Tozeur, Tunisia <\/p>\n

Justice C\u00e9sar Landa <\/p>\n

Former President of the Constitutional <\/p>\n

Court, Peru <\/p>\n

Justice Ketil Lund <\/p>\n

Former Judge at the Supreme Court, <\/p>\n

Norway <\/p>\n

Justice Qinisile Mabuza <\/p>\n

Judge at the High Court, Swaziland <\/p>\n

Justice D. Madise <\/p>\n

Judge at the High Court, Malawi <\/p>\n

Justice Mbufto Mamba <\/p>\n

Judge at the High Court, Swaziland<\/p>\n

Justice Jos\u00e9 Antonio Mart\u00edn Pall\u00edn <\/p>\n

Emeritus Judge at the Supreme Court, <\/p>\n

Spain <\/p>\n

Justice Thomas Masuku <\/p>\n

Former Judge at the High Court, <\/p>\n

Swaziland <\/p>\n

Justice Florent\u00edn Mel\u00e9ndez <\/p>\n

Judge at the Constitutional Chamber of <\/p>\n

the Supreme Court, El Salvador <\/p>\n

Justice Egbert Myjer <\/p>\n

Former judge at the European Court of <\/p>\n

Human Rights <\/p>\n

Justice Reynato Puno <\/p>\n

Former Chief Justice, Supreme Court of <\/p>\n

the Philippines <\/p>\n

Justice M.D. Ruizeveld <\/p>\n

Senior judge at the Court of Amsterdam, <\/p>\n

the Netherlands <\/p>\n

Justice Jolien Schukking <\/p>\n

Judge at the Court of Utrecht, the <\/p>\n

Netherlands<\/p>\n

Board member of Judges for Judges <\/p>\n

Justice R.C. Stam <\/p>\n

Judge at the Administrative High Court <\/p>\n

for Trade and Industry, the Netherlands <\/p>\n

Justice F.M.P.M. Strengers <\/p>\n

Senior judge at the Court of Amsterdam, <\/p>\n

the Netherlands <\/p>\n

Justice Philippe Texier <\/p>\n

Judge at the Social Division of the Court <\/p>\n

de Cassation, France <\/p>\n

Justice Stefan Trechsel <\/p>\n

Judge at the Trial Chamber III, <\/p>\n

International Criminal Tribunal for the <\/p>\n

Former Yugoslavia <\/p>\n

Justice Tamara Trotman <\/p>\n

Judge at the Court of Rotterdam, the <\/p>\n

Netherlands<\/p>\n

Vice-President of Judges for Judges <\/p>\n

Justice N.L.J.M. Tuijn <\/p>\n

Deputy Chief Justice, Judge at the Court <\/p>\n

of Appeals of Den Bosch, the Netherlands <\/p>\n

Justice Vilenas Vadapalas <\/p>\n

Judge at the General Court, European <\/p>\n

Union <\/p>\n

Justice E.J. van der Molen <\/p>\n

Judge at the Court of Noord-Holland, the <\/p>\n

Netherlands <\/p>\n

Justice Gerritjan van Oven <\/p>\n

Judge at the Court of Appeals of The <\/p>\n

Hague, the Netherlands <\/p>\n

President of Judges for Judges <\/p>\n

Justice T.N.I. van Voorst Vader <\/p>\n

Judge at the Court of Amsterdam, the <\/p>\n

Netherlands <\/p>\n

Justice T. Wolters <\/p>\n

Judge at the Court of Appeal of <\/p>\n

Leeuwarden, the Netherlands <\/p>\n

Antonio Cluny <\/p>\n

Assistant Prosecutor-General at the Audit <\/p>\n

Court, Portugal <\/p>\n

President of MEDEL (Magistrats <\/p>\n

Europ\u00e9ens pour la D\u00e9mocratie et les <\/p>\n

Libert\u00e9s) <\/p>\n

Commonwealth Magistrates\u2019 and <\/p>\n

Judges\u2019 Association <\/p>\n

Asma Jahangir <\/p>\n

Advocate at the Supreme Court, Pakistan <\/p>\n

Chair of the Human Rights Commission, <\/p>\n

Pakistan<\/em><\/p>\n

Tweet<\/a><\/div>","protected":false},"excerpt":{"rendered":"

His Excellency President Mahinda Rajapakse Honorable Speaker of the Parliament Chamal Rajapakse Sri Jayawardenepura Kotte Sri Lanka January 23, 2013 Concerning the removal of Chief Justice Dr. Shirani Bandaranayake<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[12],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/15184"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=15184"}],"version-history":[{"count":3,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/15184\/revisions"}],"predecessor-version":[{"id":15190,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/15184\/revisions\/15190"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=15184"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=15184"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=15184"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}