Letter dated 14 December 2012 - The International Criminal Law ...

YOUNG LAWYERS ASSOCIATION
;reK kS;S{ ix.uh வழகறிஞக சக
No.17, Hulftsdorp Street,Colombo12,Sri Lanka ylasl@gmail.com ,mfernan6@alumni.nd.edu fax:0718804771
14 th December 2012
Mr. John D.V. Hoyles
Chief Executive Officer
Canadian Bar Association
500-865,Carling Ave,
Ottawa ON
Canada.
Dear Sir,
CONCERNS RELATING TO THE IMPEACHMENT OF THE CHIEF JUSTICE AND THREATS
TO THE INDEPENDENCE OF THE JUDICIARY IN SRI LANKA
1. We the undersigned, who are the executive members of the Young Lawyers
Association wish to bring to your attention the serious erosion of the rule of law, the
independence of the judiciary, and democratic governance, resulting from the
malicious and arbitrary steps taken by the Government of Sri Lanka to impeach the
Chief Justice. The entire process is not only unconstitutional, but is tainted with
malice and has proceeded in a manner that callously ignores the rules of natural
justice and totally disregards the concept of the rule of law. It is calculated to
undermine the Judiciary and make it an appendage of the Executive.
Appointment of the Chief Justice
2. In May 2011, upon the retirement of Chief Justice Asoka de Silva (who was
immediately thereafter appointed by President Rajapakse to be his Legal Adviser),
the most senior Judge, 53-year old Justice Shirani Bandaranayake, was appointed
by the President to the office of Chief Justice. She was the first woman, the first
academic, and the first product of a non-urban school to be appointed to that office.
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

Events leading to the Impeachment motion
3. We set out below the sequence of events that thereafter led to the institution of
impeachment proceedings against the Chief Justice. What is revealed is a diabolical
attempt to exert undue influence, coerce, threaten, and finally punish the Chief
Justice for having held that a very controversial Bill presented by President
Rajapakse’s brother, Basil Rajapakse, Minister of Economic Development, was
contrary to the Constitution and could not be passed except with a two-third majority
and approval of the people at a referendum.
4. On 10 August 2012, a very controversial Bill known as the Divineguma Bill was
presented in Parliament by President Rajapakse’s brother, Basil Rajapakse, Minister
of Economic Development. In the weeks that followed, the constitutionality of the Bill
was challenged by several persons and organizations in the Supreme Court before a
three-judge Bench chaired by the Chief Justice. While the matter was being argued,
Mr. Kariyawasam, the Chief Jusitce’s husband was summoned by the Bribery
Commission, and a statement recorded on the share transaction that had led to his
resignation from the National Savings Bank. The Bribery Commission, which was
appointed by President Rajapakse, is not perceived as an independent institution,
and this act was perceived as an attempt to intimidate the Chief Justice.
5. On 13 September, the Secretary to the President telephoned the Chief Justice and
informed her that President Rajapakse had directed that a meeting be arranged with
her and the other two members (both Judges of the Supreme Court) of the Judicial
Service Commission (JSC). The Chief Justice and one other member of the JSC
were also members of the three-judge Bench hearing the constitutionality of the
Divineguma Bill. The Chief Justice insisted that the request be made in writing, and
a letter was accordingly sent informing her that the meeting had been fixed for 17
September at the residence of the President. At an emergency meeting of the JSC
on the next day, it was agreed that a meeting between the JSC and the President at
that stage was undesirable and “harmful”. Accordingly, the Chief Justice wrote to
the Secretary to the President that it would not be proper for the JSC to attend such
a meeting and that a meeting of such nature would be cause for severe criticism,
thus eroding public confidence in the independence of the JSC.
6. On 17 September 2012, a large crowd of people demonstrated outside Parliament
and shouted slogans against the Chief Justice and the Supreme Court, while inside
the chamber the Speaker, Chamal Rajapakse, the elder brother of the President,
announced that the Supreme Court had determined that the Divineguma Bill could
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

not be passed by Parliament until it had been approved by every Provincial Council,
since it sought to take away powers conferred by the Constitution on Provincial
Councils.
7. On 18 September, the Judicial Service Commission (JSC) instructed its Secretary (a
judicial officer) to issue a public statement which alleged that there were forces who
were using the electronic and print media to make baseless criticism of the JSC in
order to undermine the judiciary and destroy the independence of the judiciary and
the rule of law. The statement claimed that the JSC had been subjected to threats
and intimidation from persons holding high office, especially after it had taken
disciplinary action against a judicial officer. It added that the Chief Justice and the
other two members of the JSC had been summoned to a meeting which they had
refused to attend. It reminded everyone that any attempt to exert undue influence
on the JSC was an offence triable in the High Court. The statement asserted that
the JSC would not be intimidated by threats or criticism, and concluded that it was
being issued to keep the public informed of attempts to destroy the credibility of the
JSC and the Judiciary.
8. On 26 September, it was reported that the Cabinet had discussed the possibility of
taking disciplinary action against the Secretary of the JSC following a complaint
against him received by the Cabinet. That night, it was reported that President
Rajapakse had met for three hours with a committee appointed by the Cabinet (that
included two Ministers who were subsequently appointed as members of the Select
Committee) and a team of lawyers, to discuss what “strong measures” could be
taken to deal with the situation that had arisen. On the next day, President
Rajapakse addressed heads of print and electronic media and said that he had
invited the Chief Justice and the other two members of the JSC for the purpose of
discussing budget allocations and not for any other purpose. He denied that he had
attempted to interfere in judicial matters. The President’s Secretary explained that it
was he who had telephoned the Chief Justice, but admitted that he had not informed
the Chief Justice of the purpose of the meeting.
9. On 28 September, the Secretary of the JSC made a statement in which he claimed
that there was a danger to the security of the Chief Justice and the other two
members of the Commission and himself and their families.
10. On 4 October, at a breakfast meeting with publishers of national newspapers,
President Rajapakse informed them that he had instructed the Criminal Investigation
Department to probe allegations of sexual harassment made against the JSC
Secretary. It was also reported that legal experts supporting the Government were
“studying various options available to the Executive should any situation demand
precipitate action” against the Judiciary. The report added: “Such measures have
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

anged from a milder course of action to a more confrontational resolution in
Parliament where, it was pointed out, only a simple majority would be sufficient”.
11. On 7 October 2012, the JSC Secretary was assaulted by four unidentified men
shortly after he had dropped his wife and son at school, and was admitted to the
Colombo National Hospital with severe injuries to his face and head. No one has
been charged or even arrested in connection with this incident. On the following
day, work in all High Courts, District Courts and Magistrates Courts came to a
standstill when judges kept away in protest over the assault on the JSC Secretary.
12. On 10 October 2012, President Rajapakse’s brother, Basil Rajapakse, Minister of
Economic Develoment, tabled the Divineguma Bill in Parliament and reported that
eight of the nine Provincial Councils had approved it, and that, in the absence of a
Provincial Council in the Northern Province, the Governor of the Province had
approved it. On the same day, the constitutionality of the Bill was again challenged
in the Supreme Court, on the ground that the Governor was not authorized to
approve it in the absence of an elected Provincial Council, and the matter was listed
for argument before a Bench chaired by the Chief Justice.
13. On 25 October, the Bribery Commission filed a charge in the Magistrate’s Court of
Colombo alleging that Mr. Kariyawasam “had attempted to cause a monetary loss of
Rs.391 million to the Government by the unlawful purchase of The Finance
Company shares.” The Magistrate noticed him to appear in court next year, on 28
February 2013.
14. On 1 November 2012, the Supreme Court submitted to President Rajapake and to
Speaker Rajapakse its determination that the Divineguma Bill required not only a
two-third majority in Parliament (since the Governor of Northern Province could not
approve the Bill in the absence of an elected Provincial Council), but also approval
at a referendum (because of certain other contraventions of the Constitution).
15. On the same day, 117 members of the Government Parliamentary Group, purporting
to act under Article 107(2) of the Constitution, presented a resolution to Speaker
Rajapakse for the presentation of an address to President Rajapakse for the
removal of the Chief Justice. The resolution contained 14 charges.
Appointment of the Select Committee
16. On 6 November 2012, the resolution was placed on the Order Paper of Parliament.
On 14 November 2012, Speaker Rajapakse appointed a Select Committee of 11
Members of Parliament (seven Cabinet Ministers and four Members from among the
Opposition Parties) to investigate and report to Parliament on the allegations set out
in the resolution. On the same day, the Select Committee caused the resolution to
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

e delivered to the Chief Justice, and required her to respond by 22 November 2012
to the charges contained in it. A request for further time was refused.
17. Meanwhile, several applications were filed in the Supreme Court and the Court of
Appeal by various persons, including the Bar Association, challenging the
constitutionality of the Standing Order under which the Select Committee was
established. Notices served by the two Courts were not accepted either by Speaker
Rajapakse or the members of the Select Committee. A “recommendation” of the
Supreme Court that the proceedings of the Select Committee be deferred pending a
determination on the matters referred to Court, was ignored by the Select
Committee.
Inquiry by the Select Committee
18. On 4 December 2012, the first day of inquiry, large placard-carrying crowds,
believed to have been transported by certain members of the Government
Parliamentary Group, shouted abusive, derogatory and defamatory slogans against
the Chief Justice outside the premises of Parliament. On that day, and thereafter,
the Government controlled media has continuously subjected the Chief Justice and
Judges of the Supreme Court to virulent attacks.
19. The Select Committee proceedings were conducted by the Chairman (a Cabinet
Minister) and other Government Members in callous disregard of the rules of natural
justice (which, according to the Chairman of the Select Committee, applied to the
“people”, but not to “the people’s representatives”). When the Chief Justice objected
to two Government Members continuing to serve on the Select Committee because
she had recently heard and determined cases in which they were involved, these
two Members overruled the objections stating that the rule against bias did not apply
to Members of Parliament.
20. On 20 November 2012, the Chief Justice requested that relevant information be
provided to enable her to respond to the allegations. This was not provided. On 23
November 2012, Counsel for the Chief Justice requested that a list of witnesses and
a list of documents relied upon in support of the allegations be made available.
These were not provided. On 6 December 2012, at about 4 pm, the Select
Committee handed over a bundle of documents consisting of approximately 1000
pages and required the Chief Justice to respond by 1.30 pm on the next day, i.e. in
less than 24 hours. It was obvious that the Government Members of the Select
Committee had no real intention to give the Chief Justice a fair hearing.
21. The Select Committee was repeatedly requested by the Chief Justice to formulate
the procedure that it intended to follow. There was no response to this request. On
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

6 December 2012, when this request was repeated, the Chairman of the Select
Committee stated that no oral evidence would be led to establish the allegations
and, consequently, an opportunity to cross examine witnesses did not arise. It then
became evident that the Chief Justice was expected to refute allegations that had
not been supported by evidence.
22. Counsel for the Chief Justice requested the Select Committee to waive the secrecy
provisions and conduct an open and public inquiry. He also requested that
independent observers be permitted to watch the proceedings. Both requests were
refused by the Government majority in the Select Committee.
Withdrawal of the Chief Justice
23. Meanwhile, at various stages of the proceedings, two members of the Select
Committee, both of whom are Ministers, hurled abuse and obscene remarks at the
Chief Justice and her lawyers, and addressed the Chief Justice in a humiliating and
insulting manner. It was quite evident that these Members had been mandated to
ridicule and intimidate the Head of the Judiciary and the legal profession. In these
circumstances, on 6 December 2012, Counsel for the Chief Justice stated that it was
not possible to continue to accept the legitimacy of a body steeped in partiality and
hostility towards the Head of the Judiciary. Accordingly, the Chief Justice and her
Counsel withdrew from participating in the Select Committee. The Chief Justice did
so reiterating that she was willing to face any impartial and lawful tribunal as was
done in other commonwealth countries, and as was proposed in the draft
constitution of August 2000,
Withdrawal of the Opposition Members
24. On the same day, i.e. 6 December 2012, the four Members from Opposition Parties
also withdrew from the Select Committee citing conduct demeaning the Chief Justice
and callous disregard for the rules of natural justice on the part of the majority of
Members of the Select Committee, all of whom were subject to the Government
whip. In a three-page letter to Speaker Rajapaksa, they stated that they had raised
five issues in the Select Committee:
a) The absence of a clear direction regarding the procedure to be followed by the Select
Committee.
b) Whether documents were to be made available to the Chief Justice and her lawyers.
c) The standard of proof that would be required.
d) The need to arrive at a definition of “misbehaviour”
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

e) Whether sufficient time would be made available to the Chief Justice and her lawyers to
study the documents.
f) None of these had been addressed. “We also requested a direction that the Chief
Justice and her lawyers would be given an opportunity to cross-examine the several
complainants who had made the charges against her. It was also our position that if,
and only if, a prima facie case had first been made out against the Chief Justice that
she could be asked to respond. None of these matters were addressed by your
Committee. We also find that we are groping in the dark and proceeding on an ad hoc
basis. . . . The lawyers appearing for the Chief Justice asked for time to study the
documents. This was refused. Apart from the Chief Justice, we the Members of the
Select Committee ourselves need sufficient time to study these documents.
Furthermore the Chief Justice had not been provided with either a List of Documents or
a List of Witnesses. . . . We also regrettably note that during these proceedings, the
treatment meted out to the Chief Justice was insulting and intimidatory and the remarks
made were clearly indicative of preconceived findings of guilt. We are therefore of the
view that the Committee should, before proceeding any further, lay down the procedure
that the Committee intends to follow in this inquiry; give adequate time to both the
Members of the Committee and the Chief Justice and her lawyers to study and review
the documents that had been tabled and afford the Chief Justice privileges necessary to
uphold the dignity of the Office of the Chief Justice while attending proceedings of the
Committee. If these matters are attended to, we feel that the Chief Justice should be
invited to continue her participation in these proceedings. However, if the Committee is
not agreeable to these proposals of ours we will be compelled to withdraw from the
Committee.”
25. At a joint news conference held in the Parliament premises on 7 December 2012,
the four Opposition Members - John Ameratunga (United National Party), Lakshman
Kiriella (United National Party), Vijitha Herath (Jathika Vimukti Peramuna) and
Rajavarothayam Sampanthan (Tamil National Alliance) explained why they had
withdrawn from the Select Committee. They explained that there was no discussion
about the standard of proof, no procedure, and no agenda. The objective of the
Government was not to hold a proper inquiry. The signatories to the motion had not
seen any documents. It was being said that they had signed on blank sheets of
paper. The Government did not want an inquiry as it could not prove anything. The
Government thought that the Chief Justice would step down when the charges were
brought. When that did not happen, the Government was not ready for a proper
investigation. They asserted that they did not wish to be party to a witch-hunt. What
had happened was unprecedented in the country’s history. It was a deadly blow to
the country’s entire judiciary.
Submission of Report
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

26. On 7 December 2012, without any notice to, and in the absence of, the Chief Justice
and her lawyers and the four Opposition Members of the Select Committee, the
remaining seven Government Members summoned 16 witnesses and elicited their
evidence. Thereafter, within 24 hours, the seven Government Members submitted a
report in which they held that the Chief Justice was guilty of three of the 14 charges.
Extracts of the report which have been published in Government newspapers
contain several references to English case law which many of the Government
Members on the Select Committee, being non-lawyers, are unlikely to have been
familiar with. This report will be taken up for debate in Parliament on 8 January
2013. If the majority of the Members of Parliament vote in favour of the resolution
calling for the impeachment of the Chief Justice (the government has a two-third
majority in Parliament), President Rajapakse will remove her from office, and appoint
a successor of his choice.
Conclusion
27. A clear causal nexus exists between the determination of the Supreme Court that a
Bill presented by President Rajapakse’s brother, Minister Basil Rajapakse, in
Parliament violated provisions of the Constitution that protected human rights and
the devolution of power, and the presentation of the impeachment motion,
28. It is our opinion that the actions of the Government of Sri Lanka set out above
blatantly violate the Affirmation of Commonwealth Values and Principles 2009 and
the Latimer House Principles. Therefore, we respectfully request that the Canadian
Bar Association communicate these facts to the Members of the Commonwealth
Ministerial Action Group of which Canada is a member, so as to enable them to
consider and determine what action should be taken against a Government that
expects to host the next meeting of CHOGM next year. We seriously and earnestly
request CMAG to consider whether it is realistic to expect the Government of Sri
Lanka to provide leadership in protecting and promoting Commonwealth Principles
in the following two years if it insists on continuing this brutal attack on the
independence and integrity of the judiciary.
Yours faithfully
Yours Sincerely,
Nuwan Bopege
Achala Kumarasiri
Executive Committee member
Executive Committee member
Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608

Executive Committee members
Majuka Fernandopulle-+9477344477,Achala Kumarasiri AAL-+94712080141 ,Kelum Kumarsingha- +94772994951,Supun
Wickramaratne-+94774810515 Sadamal Rajapaksha-+94714197650,Thanuka Madawa-+94715527766,
Dasanta Ihalage-+94719081380,Nuwan Bopege-+94718403608