U.S. Embassy Urges Transparency and Due Process

December 7, 2012

• Read this press release in Sinhala (pdf, 68 kb)
• Read this press release in Tamil (pdf, 184 kb)

The United States Embassy remains very concerned about the state of the Sri Lankan judiciary and the impeachment process of the Chief Justice.  We urge that the Government of Sri Lanka and the Parliamentary Select Committee investigating the Chief Justice ensure any investigation be conducted transparently, guarantee due process, and is conducted in accordance with the rule of law.

Parliamentary Select Committee Exposed!

By Laksiri Fernando -December 7, 2012 

Dr Laksiri Fernando

The timing of the impeachment motion against the Chief Justice coinciding with the Supreme Court verdict on the Divineguma Bill raised serious doubts about the political motives behind the move. By that time hurriedly framed bribery charges against the husband of the CJ have already been initiated. Perhaps with the intension of pressurising her to resign that the President asked her to come with the other members of the Judicial Services Commission (JSC) for a discussion. She rightly refused.

The independence of the judiciary has been a sore point for the Rajapaksa regime for some time. This independence could not be prostituted even by giving the CJ’s husband some political appointments. She had determined to keep her husband’s affairs quite separate from her professional obligations. After all she is not only a judge but also a legal academic with international recognition. She can easily become a professor of law in any international university.

I remember her when I was briefly the Director of the Sri Lanka Foundation Institute (SLFI) in 1995. When the then President, Chandrika Kumaratunga, proposed what came to be known as the Package, the SLFI organized a seminar on devolution and invited Dr Shirani Bandaranayake to deliver a paper on the legal side of the subject. She did it excellently and professionally. There were no political overtones. The seminar took place on the 19^th of August and the proceedings were published with all other papers. Perhaps this was the paper cited in the case against her when she was appointed a Supreme Court Judge in 1996. This is also the paper I believe that the impeachment charge 10 attributed as a CPA publication!

I have met her few times during the seminar and after, particularly in the process of editing the papers and she was not a ‘nona’ or a ‘baba’ as some of the PSC members have apparently abused her yesterday. She was dignified, to the point and extremely civilized. When she was appointed a SC judge, I was delighted although I was not in the country by that time, primarily because she was the first woman judge in Sri Lanka’s Supreme Court.

The real reason behind the move to remove her became revealed when the President said she was ‘too big for her shoes’ (tharamata vada iddimila). It is a personal remark and a personal dislike. Perhaps the President regretted her appointment made only a year ago like he regretted many appointments like that of Tilak Karunarathne as the Chairman of the Securities and Exchange Commission.

She was acting independently. She also has 12 more years to go. That is the worry unashamedly said. She is also a woman. The mindset of the 18^th Amendment and the independence of the judiciary were not going along well. In quite an unprecedented public statement, the JSC also had to reveal the pressures and the threats coming towards the judiciary from unnamed high executives. Then the Secretary to the JSC, Manjula Tilakeratne, was mercilessly attacked broad day light and still no one has been arrested for the crime.

The PSC was a farce from the beginning although the opposition members understandably had to sit in the process. They however should have done better to safeguard the rights of the Chief Justice. Their actual role will be revealed soon while the role of the gangsters on behalf of the government is already exposed. There are no rules of procedure for the PSC; they are not interest in them. No ample time was given for the CJ to answer the charges; they are not interested in hearing them either. Suddenly they have given thousands of papers yesterday asking the CJ to answer them by afternoon of today.

The PSC is now exposed of its crooked justice.

It is at this juncture that the CJ and her legal advisors have left the PSC in protest. I believe they left the place in protest and that means that they could again go and counter the charges if they wish. Protest is necessary. Exposing the blatant injustice by other means is also necessary. It is reliably revealed that the ‘verdict’ is already prepared. This is a mockery of justice. The proceedings are a farce. But the ‘verdict’ should not be allowed to go by default in my opinion. But the best judge should be the CJ herself and not anyone of us on whether to continue with the PSC or not.

The whole procedure has been shameless. I don’t see anything wrong in the CJ or anybody else managing their finances effectively keeping the best interests of the family, children and the old age. Everyone has a right to do so within the existing legal limits. I completely believe that she has revealed all her assets properly. What we can see now is the abuse of her personal financial information, breaching privacy, in a manner to prejudice the general public against her. Money is always a matter that can prejudice innocent people. What appeared in the last Sunday Observer is one case of example.

The Speaker has completely disregarded the requests of the Supreme Court to postpone the impeachment proceedings until petitions on constitutionality are heard and interpretation given. The scant respect for the judiciary by the government is again shown. The government apparently wants to complete the saga in a mighty hurry. The reason is obvious. The government is rapidly losing its popularity and an independent judiciary is a thorn in their sinful flesh.

What I can do from a distance is to wish all blessings of the triple gem to the CJ. Bon Courage! People will soon vindicate that you were just and right.

Reserves down by US$ 506mn, FDI falls 9.4%

December 6, 2012

Gross official reserves fell by 7.7 percent month-on-month to US$ 6,547 million as at end October 2012, down US$ 506 million from US$ 7,053 million as at end September 2012, Central Bank data showed.

Currency dealers said the Central Bank had been heavily intervening in the market in recent months in order to prevent the rupee from depreciating beyond Rs. 130 against the greenback.

The Central Bank said yesterday that foreign direct investments during the first nine months of this year reached US$ 614.7 million, down 9.4 percent from a year earlier, while heavy borrowings and short term inflows continue to buoy the balance of payments growing 68 percent to US$ 6,076.3 million.

"With regard to the services account and current transfers in the BOP, earnings from tourism and workers’ remittances continue to cushion the current account of the BOP," the Central Bank said in the ‘External Sector Performance—October 2012’ report released yesterday (Dec. 06).

"While 80,379 tourists visited Sri Lanka in October 2012, thus raising tourist arrivals during the first ten months of 2012 by 16 per cent, year-on-year, to 774,151, earnings from tourism have also grown in parallel, by 22.1 per cent, to US dollars 790.5 million for the ten months ending October 2012.

"Inflows on account of workers’ remittances meanwhile have continued to increase at a healthy rate of more than 24.2 per cent, year-on-year, by October this year. For the first ten months of 2012, workers’ remittances recorded a growth of 17.6 per cent, year-on-year, and amounted to US dollars 4,941 million. Earnings from both tourism and workers’ remittances are expected to record high growth for the last quarter of 2012.

"There have been substantial foreign currency inflows to the capital and financial account of the BOP during the first ten months of 2012. Foreign investments at the Colombo Stock Exchange (CSE) increased to US dollars 268 million, on a net basis, by end October 2012, while there have been a significant increase in foreign investments in Government securities, with net inflows to Treasury bills and Treasury bonds during the first ten months of 2012 amounting to US dollars 846 million.

"Meanwhile, long-term loans obtained by the government during the first ten months of 2012 amounted to US dollars 2,614 million. In addition, long-term borrowings by commercial banks during January-October 2012 amounted to US dollars 973 million.

"Foreign Direct Investment (FDI), including foreign loans obtained by BOI companies, amounted to US dollars 615 million for the first nine months of 2012, with more inflows expected to materialise during the remainder of the year.

"Gross official reserves amounted to US dollars 6,547 million by end October 2012, while total international reserves, which include gross official reserves and foreign assets of commercial banks amounted to US dollars 8,063 million. In terms of months of imports, gross official reserves were equivalent to 4.0 months of imports by end October 2012, while total reserves were equivalent to 4.9 months of imports," the Central Bank said.

Gross official reserves stood at US$ 7,053 million by end September 2012, unchanged from end August 2012.

Defer From Taking Any Further Steps Until An Independent Committee Is Appointed – CJ Writes To The Speaker

By Colombo Telegraph -December 7, 2012

“The people of the Country (the Sovereign) have an inalienable right that their Chief Justice be given, a fair trial by an independent and impartial tribunal in keeping with the universally accepted rules and norms.We annex herewith for your ready reference, the proposal contained in the draft Constitution of the year 2000 with regard to the procedure for removal of the Judges (Chief Justice).Thus, we request you to defer from taking any further steps until an independent Committee is appointed to inquire in to the matter.” the lawyers for the Chief Justice Dr. Shirani A. Bandaranayake wrote to the Speaker Chamal Rajapaksa.

We publish below the full text of  the letter;

Date:  7th December 20 12

Neelakandan & Neelakandan

Your Ref  :

Our Ref  :  KNISRNPN-SC(206)

Hon. Chamal Rajapaksa

The Honourable Speaker

Parliament Secretariat

Sri Jayewardenepura.

Kotte.

Honourable Sir,

We are instructed by our Client, Hon. Dr. Shirani A. Bandaranayake.

As you are no doubt aware, our Client has withdrawn from the proceedings of the Select Committee and the reasons have been given.

We write to request you to defer any further action until an independent and impartial panel is appointed to inquire in to the allegations.

Our  Client is absolutely innocent of the  allegations and is convinced  that  she will be exonerated of any wrongdoing by an independent and impartial tribunal.

Our Client re-iterates that the charges are baseless and groundless and can easily be refuted. The issue is of broader and of wider relevance than our Client’s rights and affects the integrity and independence of the judiciary.

Thus in the interests of the judiciary and in the interests of the country and in the interests of our Client, we request that our Client be given the opportunity of vindicating herself before an independent and impartial tribunal.

The people of the Country (the Sovereign) have an inalienable right that their Chief Justice be given, a fair trial by an independent and impartial tribunal in keeping with the universally accepted rules and norms.

We annex herewith for your ready reference, the proposal contained in the draft Constitution of the year 2000 with regard to the procedure for removal of the Judges (Chief Justice).

Thus, we request you to defer from taking any further steps until an independent Committee is appointed to inquire in to the matter.

Yours faithfully

Neelakandan

Read the full communication here 

Opposition members walkout from PSC: Their full statement herein
(Lanka-e-News- 07.Dec.2012, 
4.30PM) Four opposition members of the Parliamentary Select Committee announced a short while ago that they withdrew from the committee and stated that they put forward four conditions before the Chairman of the PSC to further remain in the committee.

The opposition members were John Amaratunga, Lakshman Kiriella (UNP), Vijitha Herath (DNA) and R Sampanthan (TNA). Addressing a press conference at the Parliamentary complex MP Amaratunga said that the PSC does not allow the formal procedures on the impeachment.

MP Kiriella said that the members of Parliament who had signed the impeachment motion had not seen any proof before signing it as the PSC members themselves saw the documents only on December 5.

Opposition members later walked out of the committee room as the Chairman of the PSC refused to accept the conditions put forward by the opposition members.

According to a copy of the statement made available to the press, the four members said that they requested an opportunity be given for the lawyers of the Chief Justice to cross-examine complainants.

“It is also a matter of note that the Chief Justice has not been afforded the courtesies’ and privileges due to her office. We have made our position clear regarding these matters. It is the duty of the PSC to maintain the highest standard of fairness in conducting this inquiry. 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,” the statement signed by the four members said.

The full text of statement as follows
-------------------------------------
7 December, 2012

The Chairman
Select Committee on the Chief Justice

Sir,

We the undersigned Members of the Select Committee wish to place on record the following matters:

In the course of the deliberations of the Committee, the following matters had been raised by us:

• The absence of a clear direction regarding the procedure to be followed by the Select Committee.
• Whether documents were to be made available to the Chief Justice and her lawyers.
• The standard of proof which would be required.
• The need to arrive at a definition of “misbehavior”.
• Whether sufficient time would be made available to the Chief Justice and her lawyers to study the documents.

We have also requested a direction whether 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 can be asked to respond.

None of these matters have been addressed by your Committee.

We also find that we are groping in the dark and proceeding on an ad hoc basis.
In addition we wish to note that over 300 documents were received by the Committee and handed over to the Members only on 5th December, 2012 and those were handed over to the Chief Justice only at 4.30 pm on 6th December, 2012.

We understand that there are several more documents to be produced.

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 will 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.

The sequence of events can be set down as follows:

When the motion was filed, there were no documents provided with it

The Inquiry started on 14th November 2012 without either a list of witnesses or a list of documents.

After three sittings the Secretary General was instructed to call for the documents from the Banks and other institutions.

What is obvious here is that when the Impeachment Motion was filed none of the signatories could have seen any of the documents.

It is regrettable that the Committee is ignoring salient provisions of the law and requirements of Natural Justice in the conduct of this Inquiry.

• Article 12(1) of the Constitution which guarantees equality and equal protection of the Law and Article 13(5) the presumption of innocence.
• Article 7 of the Human Rights Declaration guaranteeing equality before the law.
• Item 17 and 20 of the United Nations Basic Principles of the Independence of the Judiciary which guarantees to every judge the right to a fair hearing and an independent review of removal proceedings.

It is also a matter of note that the Chief Justice has not been afforded the courtesies and privileges due to her office.

We have made our position clear regarding these matters. It is the duty of the Select Committee to maintain the highest standards of fairness in conducting this inquiry. 

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.

Afford the Chief Justice privileges necessary to uphold the dignity 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.

R. Sampanthan, MP
John Amaratunga, MP
Lakshman Kiriella, MP
Vijitha Herath, MP

PSC Offers The CJ An Inquiry Without Witnesses

By Basil Fernando -December 7, 2012

Basil Fernando

The Parliamentary Select Committee (PSC) inquiring into the allegations against the Chief Justice, Dr Shirani Bandaranayake in a surprising and shocking move informed her that during this inquiry no witnesses would be produced and therefore there would be no room for cross examination.

An ‘inquiry’ without witnesses naturally cannot be an inquiry at all. The essence of an inquiry is to place before the accused the witnesses who are making allegations thus giving the opportunity of cross examination on any such witness. There is no other way to find the truth behind any matter by any person who sits as an impartial judge than to listen to the witnesses and to see how they fare when they are cross examined on what they have said in evidence.

This really raises the question about the PSC. Are they a body who has already made up its mind about the allegations and are sitting there just to listen to what the CJ has to say about the allegations? If they have already made up their mind about the allegations they have no right to sit as judges.

Verdict first — trial later

The PSC inquiry is a reminder of the story of Alice in Wonderland where the verdict is made first and then when reminded, that there was no trial with a request “for just a little trial” the queen replies, the verdict first and the trial later.

The PSC inquiry is not just funny but only a ritual setup before the verdict is announced to the parliament for a vote. The task of the PSC is just to hook up a finding to be placed before the parliament which will decide the matter on the basis of a hand count.

‘Peoples’ Power’ — a comic programme in the SLBC

While this is proceeding in this manner there is also a comic show which is staged every morning in a programme entitled ‘Peoples’ Power’ broadcast through the SLBC. Under the pretext of reading the headlines in newspapers a commentator who is a former editor of several newspapers that has been unceremoniously dismissed from his position tries to interpret the news in a truly sycophantic fashion. The main point is to say how right the government is and how wrong everybody else is.

To do that the commentator chooses not to mention any of the factual information around the news item he is discussing. For example in discussing the walkout of the CJ from the PSC proceedings the commentator does not inform the public the reasons as to why the CJ and her legal team decided to take that path. He does not tell his listeners that the PSC proposed an inquiry with witnesses and cross examination.

Instead, rhetorically the commentator asked if any person walks out of a judicial proceeding whether it would not amount to contempt of court. In fact, if any judge in Sri Lanka were to announce that in the trial he was about to conduct no witnesses will give evidence and that the affected person has no opportunity for cross examination no litigant would commit contempt to court if he refused to participate in such proceedings. The precondition of participation is that there is a real trial where the basic norms of fairness would be observed. The commentator of course does not ask his question from anyone else who may have given him the explanation as to condition under which people are under obligation to participate in judicial proceedings. Instead he himself gives the answer and that is the monologue that the listeners are forced to listen to.

The commentator also does not follow any of the ethics that are expected to be observed when accusing persons which this commentator quite liberally does. None of those persons are called upon to reply to his accusations. Like the PSC this commentator running the programme ‘Peoples’ Power’ does not believe that he has any duty to be fair.

Strangely in today’s programme (December 7) the only person whose opinion the commentator called for was a member of PRA a onetime underground death squad. This former member of PRA is the Erskine May that this commentator relies on regarding parliamentary practices.

What all this indicates is not just funny but the lowest depth to which the government has reduced all political discourse, whether it is about conducting an inquiry for the removal of the highest judicial officer in the country or about the manner in which the state media is used for providing their version of the information to the people.

That lowest depth is no surprise. In a country where no inquiries are conducted into well-publicised murders which are perceived by the public as political assassinations, where enforced disappearances are allowed and even allegations of rape against the ruling party politicians do not amount to a scandal, and where prisoners are shot down inside the prisons, where every kind of financial fraud goes without accountability and where lawlessness has become the norm that is the lowest depth that society can descend to.

But that is no matter, nothing is treated as shocking and even the Chief Justice of the country is treated worse than a common criminal (in fact, the common criminals enjoy rather a privileged place).

For an E-Book which includes documents and information on the impeachment proceedings place see here.

Video: Lawyers hail CJ’s walkout decision

Several seniorlawyers addressing the media outside the Supreme Court today hailed Chief Justice Shirani Bandaranayake’s decision to walk out of the Parliamentary Select Committee (PSC). They denounced the PSC members who had allegedly insulted the CJ during the proceedings. Pix by Pradeep K.Pathirana

 

Lawyers protest

Lawyers who gathered at the Supreme Court today hailed Chief Justice Shirani Bandaranayake’s move to walk out from the Parliamentary Select Committee (PSC) and said it was an act to ensure the dignity of the judiciary. The lawyers also vowed to standby the decision taken by the CJ’s decision and said according to the country’s law she hold a post even month after PSC is over.

Lawyers Collective, an umbrella organization of several lawyers’ associations and independent lawyers at a news conference outside the Supreme Court strongly condemned the verbal abuse herald at her by some government members of the Parliamentary Select Committee (PSC).

“Some PSC members representing the Government have acted in such a way that they have insulted the country’s Chief Justice, the head of the Judiciary. They have made remarks against the highest judge of the country, which is completely unacceptable by the legal community and others as well,” J.C. Weliamuna told the media.

They said the Chief Justice had walked out of the PSC in the face of the hostile and biased conduct of government representatives so as to ensure the dignity of Sri Lanka’s Judiciary of Sri Lanka.

The lawyers said the CJ was innocent of the false charges made against her and was always willing to face any impartial tribunal and vindicate herself.

Economics Of Impeaching Chief Justice In The Absence Of The Opposition

By Kusal Perera -December 7, 2012

Kusal Perera

She’s abused, says the media. That was all some parakeets could do. She,Chief Justice walks out and that’s all she could do, as well. The UNP members in the PSC says, the CJ should be given a fair chance and be persuaded to attend PSC sittings, stressing they will stay on and fight to the end. The “end” was decided before the beginning. It was for that, the PSC was appointed by this regime with a 7 to 4 margin and not with a single vote majority of 6 to 5.

We now begin the ascendency to the next ugly phase of Executive power strengthened through the 18 Amendment to the Constitution (for now, lets not discuss Justice Shirani Bandaranayake’s hand in it) and that of economics under this regime. This for me therefore is no narrow issue of saving or cleaning the CJ. It is for me a much broader political issue of contradictions within the system created to develop a free market economy through political patronage. A situation where answers are sought for the inherent contradictions within their system in continuing with the free market. Of course with not just political patronage, but with political partaking. A revised system that allows more powers, unquestioned in any forum. Some in fact marvelled at the arrogance of this regime in impeaching the CJ while the Universal Periodic Review (UPR) on Sri Lanka was on.

From the side of the regime, by 27 November, there was some justification, or rather, some explanation on why the CJ was impeached. In a neither official nor unofficial media intervention, a spokesperson for the Presidential Secretariat suggested that the CJ and her husband acted improperly, contravening legislative regulations. Only when the number of acts began increasing alarmingly did the executives of the legislature take up the issue, the spokesperson said. While that could be so, they need to be proved beyond doubt in an impartial and a fair forum.

Within Sri Lanka, protests against this arrogant impeachment remains a very isolated social protest by a concerned group of lawyers and some urban Sinhala middle class elements. What nevertheless becomes important is, the constituency of the growing protests. For the first time, a conspicuous section of the Sinhala middle class that steadfastly backed this regime against LTTE separatism and promised a reasonably fair and comfortable post war dividend, has got dislodged from their “patriotic” Sinhala platform. They now seem to understand, there is a serious mismatch between the regime they helped consolidate and its economic life that define its style of governance. These Sinhala urbanites have now joined the foray against the regime, buddying up with their direct opponents on the pro devolution platform, demanding a reversal of the impeachment. To that extent, the impeachment against CJ has shaken up the social power alignment against the regime.

                                 Read More

Why CJ Walked Out -Lawyers Collective

(Lanka-e-News- 06.Dec.2012, 11.00PM) Today the Chief Justice of Sri Lanka Dr. Shirani Bandaranayake walked out of the Parliamentary Select Committee in protest in the face of hostile and biased conduct of the government members of the PSC so as to ensure the dignity of the judiciary of Sri Lanka. The Chief Justice reiterates that she is innocent of the false charges made against her and is always willing to face any impartial tribunal in order to vindicate herself. The following are the events which led to the decision of the Chief Justice to walk out of the PSC. The PSC was requested as far back as November 20th to furnish the information required to reply the allegations. This information was never provided. When the PSC commenced sitting on 23rd November 2012 learned 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. It is common knowledge that even in a disciplinary inquiry in the public service or a trivial criminal case that a respondent or accused is furnished with a list of witnesses and documents so that they could prepare for the defence. The PSC failed to meet this basic requirement at any of its sitting. Today at about 4pm, the PSC handed over a bundle of documents consisting of approximately 1000 pages and required the chief justice to respond by 1.30 pm tomorrow, i.e. in less than 24 hours. It was obvious that a majority of the members of the PSC had no real intention to give the chief justice a fair hearing.

In addition to the above, at various stages of the proceedings of the PSC, two members hurled abuse at the Chief Justice (such as Mad Woman) and her lawyers and it became evident that these members had been mandated to ridicule the head of the judiciary and the legal profession. The Opposition MPs requested the Chairman to prevent such remarks and to conduct the inquiry with dignity was ignored.
The Select Committee was requested numerous times to formulate the procedure that it intended to follow. There was no response to this request until today. Today when this request was repeated, the Chairman of the PSC stated that no oral evidence would be led to establish the allegations and, consequently no opportunity would be given to cross examine such witnesses making the allegations. Instead it became evident today that the Chief Justice was expected to refute allegations that had not even been supported by evidence. Such an irregular and unlawful procedure would undermine every single independent judge in Sri Lanka. In almost all instances the same members of the PSC, who were in majority, overruled the submissions made on behalf of the Chief Justice without cogent reasons and often without any prior consultation with the other members. It is for the above reasons that the Chief Justice requested to waive the secrecy provisions and sought an open and public inquiry and requested for independent observers to watch the proceedings, but this request was also refused by a majority of the PSC. 

In the face of the above no right thinking person could any longer continue to accept the legitimacy of a body steeped in partiality and hostility towards the head of the judiciary and in this background the chief justice and her counsel had no alternative but to withdraw from participating in the select committee. The CJ reiterates that she is willing continue to face any impartial and lawful tribunal as is done in other commonwealth countries as was proposed in the draft constitution of August 2000 in order to vindicate herself and she will continue in her efforts to safeguard the independence of the judiciary, which is a heritage of the people of Sri Lanka, who alone are the sovereign of this country.

Lawyers Collective, Colombo, Sri Lanka CJ explains why she walked out  Friday, 7th December 2012 Chief Justice Shirani Bandaranayake has walked out of the Parliamentary Select Committee (PSC) in the face of hostile and biased conduct of the government members of the PS so as to ensure the dignity of the judiciary of Sri Lanka, a statement said.

Is Parliament Sovereign?

By Dr Reeza Hameed -December 7, 2012

There is no basis in the Sri Lanka Constitution for the view that is currently being propagated that the Sri Lanka Parliament is sovereign. It is neither sovereign nor supreme.

Parliamentary sovereignty in England

The doctrine of parliamentary sovereignty has its roots in the legal theory developed by A.V. Dicey in relation to English constitutional law. In a Scottish case it was described as ‘a distinctively English principle which has no counterpart in Scottish constitutional law’.[1] The doctrine of sovereignty implies that there is no higher law to restrain Parliament from making – or unmaking- any law. It also implies that the Courts are obliged to give effect to the laws passed by Parliament.

In the Bonham case (1610), Lord Chief Justice Coke had this to say about Parliament’s power to legislate without any limits: “In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void, for when an Act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

In Jackson v the Attorney General[2], the then House of Lords considered the relationship between the rule of law and parliamentary sovereignty, and it was suggested by some of the Law Lords that the theory of parliamentary sovereignty has its limits and that Courts would contradict Parliament if it were to enact legislation contrary to the rule of law. In Jackson, Lord Steyn said:

“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”[3]

In the same case, Lord Hope spoke of the supremacy of the law and said:         Read More

DIPLOMATIC IMPUNITY – WHY SUSPECTED WAR CRIMINALS SHOULD NOT BE DIPLOMATS

Alan Wallis---6 December, 2012

Shavendra Silva

It was recently reported that Sri Lanka intended to deploy suspected war criminal, General Shavendra Silva, to South Africa to take up the post of deputy ambassador. In anticipation of this move SALC in consultation with the Foundation for Human Rights and a number of Solidarity Groups in South Africa, including that Tamil Federation of Gauteng and the South African Tamil Federation prepared and submitted a briefing paper to South African President Jacob Zuma, outlining the legal implications of recognising General Silva. The President is the person constitutionally mandated, in terms of section 84(2)(h) of the Constitution, to either receive and recognise foreign diplomats or to decline the sending state’s request.

SALC has learnt that South Africa declined to receive General Silva. Although there is no official confirmation of this, if true, SALC applauds this decision. It demonstrates principled observance of South Africa’s commitment to ending impunity for international crimes and respect for human rights worldwide. It also shows that South Africa’s foreign policy subscribes to the belief that the maintenance of political and international relationships will not trump human rights considerations.

The briefing paper highlights the legal implications of recognising persons accused of war crimes and discusses the considerations that should inform decisions made in terms of section 84(2)(h). These are relevant beyond the circumstances of General Silva’s anticipated deployment and it is hoped that the briefing paper will inform future decisions in which the eligibility of diplomatic nominees are assessed, especially in instances where the sending state is one with a questionable human rights record.

The recognition of foreign diplomats is a decision that ultimately rests with the President. This however does not mean that the President can make decisions outside the parameters of the Constitution. There is a distinctly South African approach to be taken in this regard which requires the exercise of all public power to subscribe to the rule of law, be rational and in accordance with the principle of legality.

Where there are allegations of crimes against humanity and war crimes the President must assess their eligibility with reference to two key considerations: the purpose and integrity of diplomatic status and its attendant privileges and South Africa’s domestic and international obligations to ensure accountability for international crimes under the Rome Statute, Geneva Conventions and customary international law.

Recognition in terms of section 84(2)(h) confers diplomatic immunity on the person concerned. The practice of diplomatic immunity is intended to safeguard sovereign equality between states and enable the peaceful conduct of foreign relations. It is not intended to shield individuals from accountability for egregious human rights violations. The extension of diplomatic immunity to alleged war criminals would amount to an abuse of the internationally regulated system of diplomatic status.

Moreover, by according diplomatic immunity to suspected war criminals, South Africa would render itself complicit in their impunity, frustrating efforts at accountability and denying justice to victims. What is more, South Africa would find itself in violation of its own constitutional, domestic and international obligations to combat impunity.

The inviolability of immunity afforded to consular staff and diplomats is a contentious area of international law and has generated much scholarly debate – in particular, whether persons accused of core international crimes are entitled to diplomatic immunity. However, this debate is fluid and constantly evolving, and it is perhaps only a matter of time before absolute immunity takes on a more qualified character in respect of persons accused of war crimes, crimes against humanity and genocide. This will however depend on individual states stepping up and ensuring that they do not bestow immunity on persons accused of international crimes.

The vetting of persons nominated to diplomatic posts is therefore an important component of ensuring accountability for international crimes. States are not obliged to accept diplomatic nominees and, in the context of international crimes, states must make decisions that ensure that the objective and purpose of international obligations, assumed either through ratification of international instruments or by virtue of their status under international law, are realised through rational and lawful assessments.

In South Africa this is a constitutional imperative, and should the President make decisions of this nature outside the confines of the Constitution it could render his conduct susceptible to judicial review.

The briefing paper is available here:

Brieifing Paper – Implications of Recoginsing Shavendra Silva as Sri Lanka’s Deputy Ambassador to South Africa