Letter of support to Bar Association of Sri Lanka regarding impeachment proceedings and dismissal of the Chief Justice of Sri Lanka
5 March 2013
Dear President of the Bar Association of Sri Lanka,
The impeachment proceedings and dismissal of the Chief Justice of Sri Lanka
The Malaysian Bar notes with deep concern the circumstances surrounding the impeachment proceedings and dismissal of the Chief Justice of Sri Lanka, Shirani Bandaranayake, on charges of professional misconduct.
While we are not in a position to comment on the merits of the charges levelled against the Chief Justice, we note that:
i. The impeachment proceedings were undertaken by a Parliamentary Select Committee (PSC) appointed by the Sri Lankan Parliament. Despite claims by the Chief Justice of serious due process violations in the conduct of the proceedings, the PSC found her guilty of three charges of misconduct;
ii. The Chief Justice then successfully impugned the impeachment proceedings at the Supreme Court of Sri Lanka and the Supreme Court has, inter-alia, declared that the impeachment proceedings were unconstitutional;
iii. Based on the afore-mentioned decision of the Supreme Court, the Chief Justice successfully moved the Court of Appeal of Sri Lanka for prerogative orders to quash both the impeachment proceedings and the findings of the PSC;
iv. The Chief Justice also obtained an interim stay order from the Court of Appeal prohibiting the implementation ( by the Parliament ) of the findings made by the PSC in the impeachment proceedings;
v. Notwithstanding the decision of the Supreme Court and the subsequent orders issued by the Court of Appeal, Parliament voted to impeach the Chief Justice and the President of Sri Lanka has dismissed her from office.
It is troubling that Parliament and the President have chosen to ignore the decision of its highest national courts. In this regard, their refusal to respect and adhere to these decisions will undoubtedly have wide ramifications to the system of the administration of justice in Sri Lanka. Without more, it may be seen as a serious threat to the independence of the Sri Lankan judiciary and may be construed as a pernicious attempt by the executive government to curtail and paralyse the constitutional powers of the judiciary. Regrettably, this may erode public confidence in the judiciary in Sri Lanka as an impartial institution of justice.
We, in Malaysia, have had the unfortunate experience of our own judicial crisis in 1988, arising out of the unlawful dismissal of the Lord President of our Supreme Court and two other Supreme Court judges. The Malaysian Bar was at the forefront of this crisis, defending the independence of the judiciary against unbridled attacks from the executive. The crisis severely undermined our judiciary and left an indelible stain on its integrity. It took us almost twenty years to overcome the aftermath of this debacle and for our judiciary to gradually regain its stature in the estimation of our citizenry. It is our fervent hope that Sri Lanka is spared this painful and trying experience.
It is axiomatic that judicial independence is cardinal to any system of government founded on the rule of law. The Beijing Statement on principles of the independence of the Judiciary 1995 and the Bangalore Declaration 1998 vouchsafe the universality of the principle of judicial independence as an adjunct to the rule of law. Further, an assault on the independence of the judiciary would bring the entire system of administration of justice into disrepute. In short, it is a recipe for chaos in constitutional government. Accordingly, it is imperative for governments that claim to uphold the rule of law to safeguard and strengthen judicial independence at all times
We write to express our support for and solidarity with the Bar Association of Sri Lanka in your efforts to uphold the rule of law and to protect the sacrosanct principles of the independence of the judiciary. We encourage you to continue to stand firm and unflinching in the face of adversity. As an independent Bar that subscribes to judicial independence, we stand with you at this critical time.
Lim Chee Wee