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Published On:Tuesday, March 5, 2013
Posted by Sri Lanka Guardian

Justice loses if Sri Lanka holds court for Commonwealth

| by Geoffrey Robertson
Sydney Morning Herald 

( March 5, 2013, London, Sri Lanka Guardian) The Commonwealth - those 54 ostensibly democratic nations formerly known as ''the British Commonwealth'' - is sleepwalking towards a human-rights disaster. That is if it goes ahead with November's Commonwealth Heads of Government Meeting in Colombo, where it will be presided over by Sri Lanka's President Mahinda Rajapaksa. Perhaps emboldened by getting away with murder - the army slaughter of about 40,000 Tamil civilians in 2009 - his government has moved to destroy the independence of the judiciary. It has sacked the chief justice for daring to bring down a decision it finds inconvenient.

It was a foregone conclusion. She [Shirani Bandaranayake] was found guilty on three charges of misconduct on evidence that would not stand up in any real court". Photo: AP
Chief justice Shirani Bandaranayake, former dean of Colombo law school and the first woman to be made a Supreme Court judge, is a highly respected jurist. Last year she infuriated the government when she declared a bill introduced by the President's brother, the Minister for Economic Development, as unconstitutional. The bill would have centralised political power (especially at the expense of the northern, largely Tamil province) and given the minister wide-ranging powers to infringe civil liberties. So the government removed her. Its 117 MPs introduced a bill to impeach her on 14 charges of alleged ''misconduct''.

The principle of judicial independence requires that no judge should be impeached for doing his or her duty, merely because the decision has upset the government. That is exactly what the Rajapaksa government has done in the case of Dr Bandaranayake.

Three of the charges accused her of misinterpreting the constitution. But it is a judge's job to interpret the constitution and she gave it a purposive construction with which most judges - in Australia and elsewhere - would have agreed. Indeed, with two colleagues who joined in her judgment, she interpreted the meaning of a key word in the constitution by looking it up in the Oxford English Dictionary - a familiar source of linguistic enlightenment in courts throughout the Commonwealth. But not for these 117 MPs.

Before politicians sack a respected judge, they must at least afford her a fair trial. So to whom did the Speaker, Rajapaska's elder brother, entrust this task? To a ''Star Chamber'' of seven cabinet ministers. It sat in secret, refusing the chief justice's request to admit the public and even refused to have international observers. It declined to be bound by any rules about the prosecution bearing the burden of proof and it gave her no time to prepare a defence - she was presented with 1000 pages of evidence and told to be ready for a trial that would start the following day. The tribunal chairman told her expressly they would allow no witnesses, whereupon she and her counsel walked out, despairing of any fair trial. The next day, in her absence and without notice to her, they called 16 witnesses whom she could not cross-examine.

It was a foregone conclusion. She was found guilty on three charges of misconduct on evidence that would not stand up in any real court and would not amount to ''misconduct'' under any sensible definition of the term. For example, the fact her bank had addressed her as ''Chief Justice'' on her statements was regarded as an abuse of office justifying her removal. Because her husband had been summonsed to attend a magistrates' court, this was sexistly said to be ''misconduct'' on her part although she had not conducted herself at all. The Supreme Court quashed the Select Committee's findings of guilt, but the President refused to obey their orders.

The President sacked her and appointed the government legal adviser, who had no judicial experience, as Chief Justice in her place. Her impeachment was celebrated by a fireworks display from the Sri Lankan navy and by entertainment, feasting and fireworks supplied by the government to a crowd surrounding her home.

The prospect of the Queen travelling as head of the Commonwealth to Sri Lanka to provide a propaganda windfall for the host president after his destruction of judicial independence would make a mockery of the democratic values for which the Commonwealth is meant to stand. Canada has already signalled it may refuse to attend an event which will be a showcase for the regime, but Bob Carr is determined Australia will be there (although, in November, Carr may not) a position that is sure to damage Australia's standing in respect of human rights. Mauritius, an exemplary democracy, is willing to host CHOGM. That's where it should take place.

Australian human rights lawyer Geoffrey Robertson is based in London. His report can be downloaded from the Bar Human Rights Committee website at barhumanrights.org.uk.


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