The government’s current position against the Court review of the Parliamentary Select Committee (PSC) contravenes a guarantee given by Sri Lanka to the United Nations Human Rights Committee as far back as 2002 in the eve of the planned impeachment of then chief justice Sarath N. Silva.
Sri Lanka in its fourth report on the implementation of the International Covenant on Civil and Political Rights (ICCPR) has assured the United Nation’s Human Rights Committee that the impeachment of the judges of the Supreme Court and the Appeal Court are subject to the review by the Judiciary.
However, Speaker Chamal Rajapaksa earlier disregarded a Supreme Court directive against the PSC proceedings and said no outside body has the authority to issue directives to him or the members of the PSC.
The fourth report of Sri Lanka has stated in its article 302 that, “... As stated above Article 107 (of the Constitution) a judge can be removed only on “proved grounds of misbehaviour or incapacity” and the Standing Orders allow for the judge in question to defend himself either on his own or retaining legal counsel; non adherence to the rules of natural justice by the inquiring committee would attract judicial review. Indeed nowhere either in the relevant constitutional provisions or the standing orders seeks to exclude judicial scrutiny of the decisions of the inquiring committee. Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.”
The Chief Justice, Dr. ShiraniBanadaranayake has cited the report in her Writ Application filed in the Court of Appeal against the findings of the Parliamentary Select Committee.
The fourth report of Sri Lanka in its Article 300-303 provides a basic outline on the procedure dealing with the removal of judges as set out in Standing Order 78 A and Article 107 of the Constitution. It also notes that that on a previous occasion the Human Rights Committee expressed concern on the compatibility of the impeachment process with the scope and sprit of Article 14 and, therefore it would compromise the independence of the judiciary.
Then it assures that relevant constitutional provisions or the Standing Orders do not exclude judicial scrutiny of the decisions of the inquiring committee. “Thus, it is envisaged that if the inquiring committee were to misdirect itself in law or breaches the rules of natural justice its decisions could be subject to judicial review.”