Letter To Ban Ki-moon On The Plan To Impeach The CJ
By Bijo Francis -
Bijo Francis
January 6, 2013
Honourable Mr. Ban Ki-moon
Secretary General
United Nations SA-1B15
New York, NY 10027
Fax: + 212-963-7055
Honourable Secretary General
Re: The plan to impeach the Chief Justice of Sri Lanka and imminent danger to the rule of law and democracy in Sri Lanka
Greetings from the Asian Legal Resource Centre (ALRC)
I am certain that your office is already aware regarding the critical situation undermining the rule of law and democracy in Sri Lanka that has developed by way of an open conflict between the Supreme Court of Sri Lanka and the Government of Sri Lanka. This conflict relates to the impeachment, by the government of the Chief Justice of Sri Lanka, Mrs. Shirani Bandaranatake.
The Supreme Court in its judgment dated 1 January 2013, has stated that the process adopted by the government for impeachment is unconstitutional and hence illegal. The UN Special Rapporteur on the independence of judges and lawyers has stated that the manner in which the Government of Sri Lanka is proceeding against the Chief Justice violate the principles of separation of powers; independence of the judiciary and the process is the culmination of a series of attacks against the independence of judiciary.
The ALRC is contacting your office fearing that within the coming five days that is by 11 January there will be such a drastic change within the political system of Sri Lanka, which would transform Sri Lanka’s judiciary to a mere administrative organ without judicial powers, and hence will be unable to protect the liberty of individual citizens. The judiciary in Sri Lanka will be transformed into an instrument at the service of the executive.
Perhaps during your tenure in office you may not have been confronted with a situation where democracy and the rule of law is abandoned and dictatorship established through a parliamentary process. This is exactly what the Government of Sri Lanka is attempting to achieve in Sri Lanka.
According to the announcements made by the government, on 8 January the President will address the parliament on the report made by a Parliamentary Select Committee constituted by the government to impeach the Chief Justice. It is this process that the Supreme Court has declared invalid and as illegal and is against the fabric of the constitution. However, the government has announced that subsequent to the President’s address to the parliament, there will be two days’ of debate after which the issue of impeachment will be voted in the parliament. The government has more than the required majority to have the motion passed.
Since the Chief Justice is challenging the legality of her removal from office and the entire process held unconstitutional by the Supreme Court of Sri Lanka, the ALRC fears that the Chief Justice will be removed from office by force and a new Chief Justice who is willing to oppose the judgment of the Supreme Court appointed. The resulting chaotic situation will be disastrous to the rule of law and democracy in Sri Lanka.
Besides, since the Judicial Services Association and the Bar Association of Sri Lanka have categorically opposed the removal of the Chief Justice since the process is devoid of universally accepted safeguards, the government clashing with the judges and the lawyers of Sri Lanka is inevitable. It is most likely that many judges, lawyers and the members of the civil society will be arrested or otherwise their rights tampered with by the government.
Under these circumstances it is only an extraordinary intervention through your high office that could weigh upon the government, to persuade the government to withdraw from the disastrous collision course it has embarked upon against the judiciary in Sri Lanka. If this fails, Sri Lanka will sink under a dictatorship and how long that will last is hard to predict. Condemning this event and the damage done after it has taken place will be of little practical use to the people of Sri Lanka.
Sri Lanka has been undergoing many political catastrophes since the past several decades, and the United Nations is blamed for its inability to make timely interventions to prevent such situations. We firmly hope that the present catastrophe would not have the same fate and that your office would use its mandate and the capacities that is available to your high office to make a decisive intervention on this occasion.
Sincerely
Bijo Francis
(Interim) Executive Director
ALRC
Annexe:
1. Judgment of the Supreme Court of Sri Lanka
For a complete dossier concerning the impeachment kindly see: www.humanrights.asia/resources/books/the-impeachment-motion-against-shirani-bandaranayake
Reconciliation: Looking Forward viii – Rules To Prevent Judicial And Other Abuses
Prof Rajiva Wijesinha
Problems connected with the attempted impeachment of the Chief Justicerequire solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.
In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.
Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.
