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Monday, July 15, 2024

Three year limit on the term of the Chief Justice: a grave danger to independence of judiciary

M.A.Sumanthiran MP
On 15th January 2013, by no less than violent means, Chief Justice Shirani Bandaranayake was de facto removed from her post. This was done despite a ruling by the apex court of this country that the purported process by which she was sought to be removed was illegal and unconstitutional.
The purported removal of Chief Justice Bandaranayake resulted in various responses by governments, political groups, the legal fraternity and Human rights groups both here and abroad.

Spokesperson for the United States State Department Victoria Nuland expressed her country’s deep concern over the impeachment and said it also raised serious questions about the separation of powers:

“…we are deeply concerned about the impeachment of Sri Lankan Chief Justice Shirani Bandaranayake. The impeachment proceedings against her were conducted, as you know, in defiance of the Supreme Court order. And from our perspective, this impeachment raises serious questions about the separation of powers in Sri Lanka, which is a fundamental tenet of a healthy democracy. Throughout these proceedings, we’ve repeatedly conveyed to the Government of Sri Lanka our concern that there was a lack of due process, and we’ve also made very clear our view that actions undermining an independent judiciary would impact on Sri Lanka’s ability to attract foreign investment.”

Ms. Nuland also noted that:

“… The United Kingdom, Canada, the European Union, and the United Nations have all issued statements expressing strong concerns about this process”

A press release by spokesperson for UN Human Rights Chief Navi Pillay stated:

The UN High Commissioner for Human Rights Navi Pillay is deeply concerned that the impeachment and removal of Sri Lanka’s Chief Justice has further eroded the rule of law in the country and could also set back efforts for accountability and reconciliation. The removal of the Chief Justice through a flawed process — which has been deemed unconstitutional by the highest courts of the land — is, in the High Commissioner’s view, gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka…Sri Lanka has a long history of abuse of executive power, and this latest step appears to strip away one of the last and most fundamental of the independent checks and balances, and should ring alarm bells for all Sri Lankans. The jurist sworn in by the President as the new Chief Justice … Mr. Mohan Peiris, has been at the forefront of a number of government delegations to Geneva in recent years to vigorously defend the Sri Lankan government’s position before the Human Rights Council and other human rights mechanisms. This raises obvious concerns about his independence and impartiality, especially when handling allegations of serious human rights violations by the authorities. We are also concerned that the impeachment process has caused bitter divisions within Sri Lanka, and that it sends an ominous signal about the Government’s commitment to accountability and reconciliation. It flies in the face of the strong calls by the Lessons Learned and Reconciliation Commission, and by leaders of Sri Lanka’s civil society and legal profession, to rebuild the rule of law which has been badly eroded by decades of conflict and human rights violations.

The Lawyers’ Collective of Sri Lanka stated:

The politically motivated process of removal of the Chief Justice was nothing but a misuse and abuse of Constitutional provisions and Standing Orders…With this impeachment, the Government of Sri Lanka has demonstrated that it will not respect the Constitution and the Judiciary. The manner in which the impeachment process was conducted, in and outside parliament, by the government, the state media and the government-sponsored goons leaves the country with unforgettable memories of a horror period in our history…The conscience of the nation and the BAR is disturbed and is in anguish-and will never accept the illegal and unconstitutional removal of the Chief Justice

The response of the Sri Lankan government to these concerns however, has been both disturbing and sadly predictable.

Media reports last week indicated that government plans to enact a 19th Amendment to the constitution, expected to contain, among other things, the following two provisions:

– A three year time limit on the term of the Chief Justice

– Include the Standing Orders of Parliament within the definition of ‘law’ in the Constitution.

Three year limit on the term of the Chief Justice

It is widely accepted that judicial independence is promoted by granting life tenure or long tenure for judges, particularly those of the superior courts. The thinking behind this is that judges must be left make rulings on the law, independently and impartially without the threat of losing their jobs.
If judges felt that they could be easily thrown out of government, they would have their decisions swayed a certain way, and no longer be impartial and independent. This thinking is evident in many of the judicial terms of modern democracies. In the United States, Supreme Court justices, court of appeals judges, and district court judges are appointed for a life term. In Germany, Greece, Netherlands and the United Kingdom judges generally enjoy life tenure subject to a compulsory retirement age, ranging between 65 and 75 years of age. Hungary, India, Japan and Spain all protect judicial tenure upto a retirement age ranging between 62-70 years of age. Judges in South Africa serve for what is effectively a fixed term with appropriate provision being made for retirement. Judges of the Constitutional Court serve for a term of 12 years or until the age of 70, whichever comes first. In some circumstances, this can continue for a term of 15 years, or until the age of 75.

Currently, the Sri Lankan constitution too only indicates that judges must retire at 65 years of age. There is no other time limit on the term of any judge. In these circumstances, the threat to judicial independence by placing a limit of merely 3 years on the tenure of the most superior judge in the country is self evident.

The role of Chief Justice Bandaranayake in several judgments that went ‘against’ the government, including the notorious ‘Divineguma Bill’, is widely perceived to be the political motivation behind her purported impeachment. It is also no secret that at age fifty-four, she had more than ten years ahead of her as the head of the judiciary. But despite this and the ruling of the Supreme Court, she was, by violent means, prevented from occupying her official chambers and thus de facto removed from her post.

At this critical juncture, one hopes that the response of the government will serve as a reassuring harbinger of the restoration of judicial independence, democracy and the rule of law.

With the proposed time limit, however, the message by the government to the judiciary is clear:

Play by our rules, or do not play at all.

Standing Orders as law

Chief Justice Shirani Bandaranayake was purportedly removed from her post under the process set out in Standing Order 78A. The Supreme Court in its determination held that one of the reasons this process was unconstitutional was that it was not a process established ‘by law’, which is a constitutional requirement relating to impeachment of the Chief Justice.

Standing orders are a body of rules by which proceedings within parliament are conducted. They thus come within the definition of written law as defined in Article 170 of the Constitution:

“written law” means any law and subordinate legislation and includes Orders, Proclamations, Rules, By-laws and Regulations made or issued by any body or person having power or authority under any law to make or issue the same.

“Law”, on the other hand is defined in Article 170 of the Constitution as:

Any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council.

Article 4(c) of the constitution requires that any body that exercises judicial powder must be established by law, not written law.

The process by which Standing Orders and laws are brought into effect is also important in this regard. Laws are published by way of gazettes. This happens before they are passed, when they are at the stage of Bills. In keeping with principles of transparency and democracy the public therefore is not only made aware of what the laws is, but is also given a window of opportunity (albeit restricted) to scrutinize, and even challenge laws before they are passed by way of an application to the Supreme Court.

Further, Standing Orders, as internal rules governing conduct in Parliament, may be suspended from time to time by Parliament itself. It is hardly necessary to state that this is unlike the applicability of laws.

It is thus clear, as recognized by the Supreme Court, that Standing Orders are indeed, not law. Standing Orders are in effect, merely the ‘internal’ rules of Parliament. The law, on the other hand is applicable to all citizens of Sri Lanka. It is in light of this that the Supreme Court has held that Standing Orders are indeed not law, and thus a process to impeach the Chief Justice of the country established by Standing Order is both illegal and unconstitutional.

The responsible response of a government in such a situation, is surely to initiate action to properly establish, by law, a process by which a Chief Justice may be impeached.

The response of the Sri Lankan government, however, is to elevate the status of Standing Orders – internal rules of Parliament of which the public are not, by any proper means, informed and are thus unable to scrutinize, question or challenge – as law.

Instead of ensuring that its processes and actions are in accordance with the law and the Constitution, the government has chosen to ensure that the law and the Constitution do not inconvenience it’s processes and actions. Instead of righting a wrong, it has chosen to elevate a wrong to the status of that which it right.

And so, one crisis of democracy leads to another. Will Parliament finally succeed in defeating yet another attack on democratic and constitutional values? Or will it, with distressing predictability, once again cow down to an all powerful regime?


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