Published On:Sunday, January 6, 2013
Posted by Sri Lanka Guardian
( January 6, 2013, Hong Kong, Sri Lanka Guardian) An Open Letter from the Asian Legal Resource Centre to Honourable Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights
Honourable Ms. Navanethem Pillay
United Nations High Commissioner for Human Rights
Office of the United Nations High Commissioner for Human Rights (OHCHR)
52 rue des Pâquis
Fax: +41 22 917 9022
Honourable High Commissioner
SRI LANKA: The plan to impeach the Chief Justice of Sri Lanka and the imminent danger to the rule of law and democracy
Greetings from the Asian Legal Resource Centre (ALRC)
Perhaps it might be a rare moment during your term in office, where a country is faced with the possibility of losing its tradition in the rule of law and democracy, entirely through a parliamentary process, and the transformation thus made, is for the worse. In Sri Lanka, this is what might happen within the next five days.
I am certain that your office is aware of the issue of the impeachment of the Chief Justice of Sri Lanka, Mrs. Shirani Bandaranayake. The UN Special Rapporteur on the Independence of Judges and Lawyers has condemned that the process adopted for the impeachment, as one that contravenes the principles of separation of powers and the independence of the judiciary. The Rapporteur has further said that the attack on the independence of the judiciary appears to be the culmination of a series of earlier attacks upon the judiciary by the executive. The letter written by the ALRC to the Rapporteur calling for an intervention is annexed herewith for your information.
The ALRC expects that the United Nations human rights mechanisms and the Office of the High Commissioner for Human Rights to have within their means and the capacity for immediate intervention, when a situation arises in a country where irreparable loss will be caused to all previous work done to promote and protect human rights due to political actions a government has launched against independent institutions in that country. If no actions were taken now, no amount of condemnations later would help repair the damage.
Despite the interpretation by the Supreme Court of Sri Lanka that has clearly declared the absence of legality in the current process adopted to impeach judges in Sri Lanka, the ALRC wishes to bring to your notice that the Government of Sri Lanka is proceeding with the impeachment on the basis of a report filed by seven members of the Parliament, out of the 11-member Parliamentary Select Committee. It is this very process that the UN Special Rapporteur on the Independence of Judges and Lawyers has condemned to be violating the principles of separation of powers and the independence of the judiciary. It is no surprise that the Supreme Court of Sri Lanka also holds the same opinion about the process adopted by the government.
The ALRC wishes to bring to your attention that the government is extensively using the state media to defy the Supreme Court's interpretation of the Constitution and is believed to be proceeding to remove the Chief Justice from office.
The address by the President, as required by the Constitution is to be made on the 8 January. The debate in the parliament is to take place for two days and the voting will take place on the 11 January. The ruling political parties have the required majority in the house to see that the motion to remove the Chief Justice succeeds. In consequence, the ALRC fears that the Chief Justice will be removed from the office by force and a new Chief Justice appointed. The legal and constitutional consequences of such a change is extremely dangerous to the rule of law and the possibilities of protection of human rights in Sri Lanka.
This coming week therefore is crucial. The government's proposal for removal of the Chief Justice, if proceeded with will essentially lead to a direct confrontation of the Executive and the Parliament with the Supreme Court.
The appointment of a new Chief Justice who will be under the thumb of the government will mark the point of a serious threat to the rule of law, the concept of separation of powers as well as the independence of judiciary in Sri Lanka. Should such an environment prevail, where the questions of legality and constitutionality are no more relevant, it is obvious that the government will take steps to arrest and otherwise illegally deal with anyone of their choice in the country, including the judges and lawyers.
In our view, the result of all this will be the reduction of Sri Lanka's judiciary to become a mere administrative body without judicial authority or independence that is required to uphold the rule of law or to protect the rights of the individuals. The judiciaries in Cambodia and Burma in the region are examples to this situation.
There is open opposition to this move by the lawyers, by the members of the judicial services association and by the civil society organisations. The ALRC is concerned that to silence this opposition, the government will resort to serious abuses of human rights. Illegal arrest, arbitrary detentions and fabrication of charges of innocent individuals are likely. The ALRC is certain that your office is aware about Sri Lanka's historic background involving forced disappearances, which the ALRC fears would be repeated under the present circumstances.
We therefore wishes to bring to your notice this extraordinary situation, which will be a decisive moment, that if not prevented at all costs, will result in the collapse of the rule of law in Sri Lanka. We urge you therefore to intervene with the Government of Sri Lanka and make use of all the powers that your mandate warrants and could exercise to prevent this impending catastrophe.
Interim Executive Director