PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND Mandates of the Special Rapporteur on the independence of judges and lawyers; and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence REFERENCE: OL LKA 9/2020 10 December 2020 Excellency, We have the honour to address you in our capacities as Special Rapporteur on the independence of judges and lawyers; and Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, pursuant to Human Rights Council resolutions 44/8 and 45/10. We would like to bring to the attention of your Excellency’s Government information we have received concerning the adverse impact that the 20th Amendment to the Constitution of Sri Lanka may have on the independence of the judiciary and the separation of powers, as well as on the independence of institutions which are essential to the establishment of guarantees of non- recurrence of past gross violations of human rights and serious violations of international humanitarian law, in particular the Human Rights Commission and the National Police Commission. * * * The 20th Amendment to the Constitution of Sri Lanka (hereinafter, “the Amendment”) was passed into law on 22 October 2020, with a qualified majority of two thirds. It was adopted after two days of deliberation, overruling the Opposition’s request for at least four days of debate. The Amendment introduces far-reaching changes to the Constitution, and may alter the balance of power between the different branches in favour of the President of the Republic. It eliminates most of the reforms introduced with the 19th Amendment, adopted in 2015, which the former Special Rapporteur on the independence of judges and lawyer welcomed in her country report on Sri Lanka (A/HRC/35/31/Add.1, paras. 4-5). In this communication, we do not aim at providing a comprehensive analysis of the Amendment and its compatibility with international human rights standards. We focus solely on those changes that fall within the scope of the mandates entrusted to us by the Human Rights Council, namely those regarding (i) the procedure for the selection, appointment and dismissal of senior judges and high-ranking officials in the administration of justice, and (ii) the design and implementation of transitional justice measures aimed at addressing gross human rights violations and serious violations of international humanitarian law in countries transiting from conflict or authoritarian regime. * * * Before explaining our concerns on the content of the above-mentioned Amendment, we wish to remind your Excellency’s Government of its obligations to protect and promote the independence of the judiciary and the separation of powers and to adopt measures to ensure the rights to truth, justice, reparation and guarantees of non-recurrence in connection to gross human rights violations and serious violations of international humanitarian law. The independence of the judiciary is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. It refers to both the individual and the institutional independence required for decision-making. The independence of the judiciary is an essential component of the democratic principle of separation of powers, which stipulates that the executive, the legislature and the judiciary constitute three separate and independent branches of Government. According to this principle, the Constitution, laws and policies of a country must ensure that the justice system is truly independent from other branches of the State, and it is the duty of all State institutions to respect and protect the independence of the judiciary. The core of the principle of judicial independence is the complete liberty of the judge to hear and decide the cases before them on the basis of facts and in accordance with the law, without any improper interference or pressure, direct or indirect, from any outsider – be it Government, pressure group, individual or even another judge. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), acceded on 11 June 1980, provides that everyone is entitled to a fair and public hearing “by an independent and impartial tribunal established by law.” In General Comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, the Human Rights Committee stressed that the requirement of independence of a tribunal “refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature.” The Human Rights Committee clearly stated that “[a] situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal” (para. 19). The principle of the independence of the judiciary has also been enshrined in the Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985. The Principles provide, inter alia, that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary (principle 1); that judges shall decide matters before them impartially (…) without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason (principle 2); and that there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision (principle 4). The Basic Principles also provide guidance on a series of further requirements, including qualifications and selection of judges (principle 10), conditions of service 2 (principle 11), security of tenure (principle 12) and disciplinary, suspension or removal proceedings (principles 17-20). With regard to the accountability of judges, the Basic Principles provide that judges can only be removed for serious misconduct, disciplinary or criminal offence or incapacity that renders them unable to discharge their functions (principle 18). Any decision to suspend or remove a judge from office should be taken in accordance with a fair procedure (principle 17), and be taken in accordance with established standards of judicial conduct (principle 19). At the regional level, the principles of judicial independence and separation of powers are enshrined in the Commonwealth (Latimer House) Principles on the Three Branches of Government, adopted in 2003. The Principles acknowledge that “[a]n independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice,” and set out specific principles on judicial appointments and the suspension or removal of judges. They expressly state that “[i]nteraction, if any, between the executive and the judiciary should not compromise judicial independence.” In light of the above-mentioned standards, the 20th Amendment to the Constitution may fall short of international standards and adversely affect the independence of the judiciary as well as the separation of powers, particularly in relation to the wide discretionary powers that the Amendment confers to the President of the Republic in relation to the selection, appointment and removal of the Chief Justice and judges of the Supreme Court, the president and judges of the Court of Appeal, members of the Judicial Service Commission and the Attorney-General. * * * Parliamentary Council The Amendment abolished the Constitutional Council, which was established by the 19th Amendment, and re-established the Parliamentary Council. According to article 41 A, para. 1, the Constitutional Council consisted of ten members: three ex-officio members (the Prime Minister, the Speaker, who served as the chairperson of the Council, and the Leader of the Opposition in Parliament); four other Members of the Parliament (one appointed directly by the President; two appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition; one appointed by the President and nominated by agreement of the majority of the Members of Parliament belonging to political parties or independent groups); and three persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party, nominated jointly by the Prime Minister and the Leader of Opposition and approved by the Parliament. 3 In nominating the two MPs and three eminent persons referred to above, the Prime Minister and the Leader of the Opposition had to consult the leaders of political parties and independent groups represented in Parliament “so as to ensure that the Constitutional Council reflect[ed] the pluralistic character of Sri Lankan society, including professional and social diversity” (article 41 A, para. 4). The Council was in charge of recommending to the President the appointment of the chairs and members of a number of independent commissions, including the Human Rights Commission, the Public Service Commission and the National Police Commission (article 41 B). In relation to the appointment of high-ranking judicial officials, the Council had to approve the nominees of the President of the Republic for the position of Chief Justice and judges of the Supreme Court, president and judges of the Court of Appeal, members of the Judicial Service Commission (other than the Chairperson) and Attorney-General (article 41 C, para. 1). The Council had to seek the views of the Chief Justice for the appointment of judges of the Supreme Court and the president and judges of the Court of Appeal (article 41 C, para. 4). According to article 41 C, para. 3, these persons could only be removed from office in the cases provided for by the Constitution or ordinary legislation.