The Issue About the Independence of the Judiciary in Sri Lanka INTRODUCTION the Procedure Adopted by the Mahinda Rajapakse Government to Remove Chief Justice Dr

Position Paper Impeachment against Chief Justice Dr. Shirani Bandaranayake and the Issue about the independence of the Judiciary in Sri Lanka INTRODUCTION The procedure adopted by the Mahinda Rajapakse government to remove Chief Justice Dr. (Mrs.) Shirani Bandaranayke from the office of Chief Justice through an impeachment1 has turned a dissension in to a serious crisis that alters the balance of power in the constitutional order of functioning of the Executive, Legislature and the Judiciary in Sri Lanka. Article 125 of the constitution that sets the However this construction of the constitution supreme law of the land, the judiciary is the only undermines the doctrine of separation of powers and exclusive institution empowered to interpret that requires the three institutions of the Executive, the provisions of the constitution. However, in this Legislature and the Judiciary to exercise state instance the legislature while disregarding the power subject to the checks and balances of the interpretation given by the Supreme Court also three institutions functioning independent of each refused to comply with the writ of Certiorari issued other. It has instead made governance subject to a by the Court of Appeal.2 duality of power exercised by the Executive and the Legislature. These checks and balances built in to The legislature contended that it [the legislature] the functioning of the three arms of the constitution was the sole repository of sovereignty of the would ensure good governance. The undermining people and hence was supreme and not subject of any one of these three institutions would have a to the authority of any other constitutional body. negative impact on the entire constitutional order. 1. Parliament publications. No. 187, vol 1, pp 3 -10 2. Judgment by Justice Gamini Amaratunge, K. Sri Pavan and Priyasad Dep to petition No. 385/2012 and 3/20/2012 | 1 In addition to the executive, legislature and the the government. The four opposition members of judiciary other pillars such as the public sector, the committee announced their withdrawal from law enforcement agencies, auditor general and the committee on 6th December on the grounds mass media make valuable contributions towards building a national integrity system by functioning the inquiry in to the charges and hence had no with transparency and integrity. In addition these that they were not satisfied with the manner of institutions by their independence and proper confidence in the committee. conduct create the required space to minimize Justice is currently available in two volumes under corruption by preventing abuse of power, misuse of Theparliamentary official report publication of ruling number against 187. Thethe reportChief resources and enable the people to enjoy the fruits has 1575 pages. of good governance. The faulty attributes of the impeachment procedure The Judiciary of a country is specially committed earned severe criticism of eminent jurists both local to protect human rights, democratic values and to and international and of legal scholars, religious assess the legality of executive action and performs leaders, intellectuals, politicians, civil society an exceptional function within a national system of activists and citizens. integrity. Although the allegations against the Chief Justice made by the Mahinda Rajapakse government Therefore, this position paper focuses more on the had apparently strong elements pertaining to aftermath of the impeachment of the Chief Justice corruption, the political nature of the procedure Mrs. Shirani Bandaranayake than on the charges made many observers skeptical of the charges. framed and the process adopted. The Chief Justice thorough her lawyers5,responded to the select committee by refusing to accept its competence to exercise judicial ructions or to reach Background of the impeachment against the Chief a judicial determination. She rejected all charges Justice and requested all documents pertaining to the charges framed against her. Many independent The motion to impeach Dr. Shirani Bandaranayake groups observing the event called for an impartial and transparent inquiry. Transparency International Sri Lanka took the stand that the Chief Justice should toof Parliamentremove her was from brought office underof the articleChief Justice 107 of that the to be subject to an unbiased hearing according to specifiedconstitution 14 ofcharges the Democratic and signed Socialist by 117 Republic members of 6 Sri Lanka. international covenants ratified by Sri Lanka. The Speaker of the Parliament thereafter appointed The judiciary of a country a parliamentary select committee under the is obligated to protect chairmanship of Minister Anura Priyadarshan Yapa zz human rights, uphold to commence proceedings under standing order 78 A (2). The parliamentary select committee appointed democratic values, and to determine the validity of parliament . They are Nimal Siripala de Silva, of executive acts. These onA.D. 14th Susil November Premajayantha, 2012 consisted Dr. Rajitha of eleven Senarathne, members are best implemented in a Dilan Perera, Wimal Weerawansa, Niyomal Perera national integrity system. (Government) party) John Amaratunge, Lakshman Kiriella, Vijitha Herath, R. Sampanthan (opposition). ZZ The select committee began its investigations into Although the Chief Justice appeared before the 3. They parliamentary select committee accompanied by her lawyers at the commencement of the impeachment the 14fourteen charges charges on 14th and of foundNovember the Chief2012 Justice proceedings, she subsequently informed that she confined the investigation to charges one to. five of was withdrawing from the proceedings on grounds 4 that she had not been given adequate time to prepare guilty of three charges (charges 1, 4, and 5) her defense and that she had not been apprised of the procedure to be followed in the conduct of the Theguilty committee was not attended that adopted by a single the memberfinal decision of the business of the committee.7 onopposition the 8th andof December consisted toentirely find the of Chiefmembers Justice of 3. Parliament publications. No. 187, vol. 1, pp. 8-10 5. Parliament publications. No. 187. vol. 2. P. 1327 6. Open letter sent by TISL to the president, speaker and the party leaders. www.tisrilanka.org/?p=10271 4. Parliament publications. No. 187, vol. 2 pp. 1574, 1575 7. Parliament publications. No. 187. Vol 2 2 | Transparency International Sri Lanka by the Committee, the failure to produce a list of select committee. Thewitnesses absence and of documentsa definite procedure relevant to to thebe followedcharges, 2013 quashed the findings of the Parliamentary the denial of an adequate time frame to respond Following the ruling by the Court of Appeal the to the charges, the absence of a clear standard opposition in Parliament objected to the scheduling of determining the burden of proof combined to of the motion of impeachment for debate in the provoked a strong critique by legal experts and civil house. The government decided to hold the debate society. despite the inability of party leaders to reach a consensus.10 the Court of Appeal praying for a writ of certiorari The debate in Parliament on the motion to remove Concurrentlyrestraining the seveneleven memberspetitions ofwere the parliamentary filed before the passage in parliament and the president select committee from proceeding with the inquiry8. The petitioners claimed that impropriety and Chief Justice were all enacted in the background of corruption are matters that should be inquired theconfirming two judicial and determinationsimplementing werethe removal in force. of the by a court of law and that the committee was not competent in law to precede with their inquiry. The court of appeal that considered the petitions Sovereignty of the people requested the Supreme Court for a determination on the interpretation of article 107 (3) taken together According to article three of the constitution of Sri with article 125 of the constitution. Lanka, sovereignty rests with the people. It includes the power to govern, fundamental rights and The Supreme court exercising its jurisdiction in franchise. interpreting the provisions of the constitution9 held that a court of law, tribunal or any other institution Article four explains that sovereignty is inalienable determining the rights of a person in a country with and how it is exercised and enjoyed. Accordingly the a constitution based on legal order had no power to legislative power of the people shall be exercised by arrive at such determination unless such supervisory Parliament, consisting of elected representatives of power is expressly vested on them by law. the people and in a Referendum by the people. The executive power of the People including defense of Such a court of law, judicial tribunal or panel could the land shall be exercised by the President of the only exercise such power enacted by parliament. Republic elected by the people. Except for powers to Standing orders of parliament were intended to be exercised by Parliament pertaining to privileges guide the proceedings of parliament. The Supreme and immunity of parliament and its members Court citing article 170 of the constitution that all other judicial powers of the people should be exercised by courts of law, tribunals and institutions expressly established by law. defines the word ‘law’ determined that ‘standing orders’ could not be considered as ‘law.’ It is clear that the written constitution of Sri Lanka While

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