A Statement from the Asian Human Rights Commission

INDIA: Does impeachment of the Chief Justice in Sri Lanka matter?

The Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, is facing
impeachment in that country. Those who know the state of affairs in
Sri Lanka, might have no doubt, that the impeachment is politically
motivated. To justify the process, the government has levelled
allegations of corruption against Justice Bandaranayake. The
Constitution of Sri Lanka (Article 107) and the Parliamentary Standing
Orders, though allows such a process, in law and theory, the entire
process is devoid of legal and jurisprudential merits, a question that
the Supreme Court of Sri Lanka is now considering, by way of receiving
a reference petition to consider the constitutional vires of Article
107 of the 1978 Constitution.

Sri Lanka is not a country far and distant from Indian shores.
Neither are the people, culture and politics of Sri Lanka alien to
India. Though some people in both countries would argue for and
against India’s involvement in Sri Lankan affairs, the impeachment of
the Chief Justice for purely political reasons is not something that
India could pretend to ignore. Sri Lankans and Indians and all those
who believe in democracy have the moral duty to express their opinion
about the impeachment process. New Delhi has a little more difficult
job, perhaps in expressing its concern about the impeachment process
to Colombo, a responsibility nonetheless. The notion of state
sovereignty is not a moral or legal impediment to this.

That no government in India would ever dare to initiate impeachment
proceedings against a judge in the country, without complying the
constitutional requirements that guarantee universally accepted norms
of justice, fair trial and due process strikes a stark contrast to the
process adopted in Sri Lanka.  That none of these guarantees are
offered to a judge, when a judge is judged in Sri Lanka, is reason
persuasive enough for any government to express its concern to Colombo
about the impeachment.

Whenever in India, the state legislatures or the central parliament
has tried using parliamentary privilege for unjustifiable reasons
against the judiciary, the judiciary has corrected the legislative
houses. Additionally, the basic structure doctrine, postulated in
Kesavananda Bharati (petitioner) against State of Kerala and others
(respondents) [All India Reporter 1973 Supreme Court p. 1461],
triumphs the clarion call of the power of judicial review and the
limits drawn upon the parliament, even in its legislative authority.
Justice J. R. Mudholkar who first postulated the concept in 1965
proposing a limit to legislative power of the parliament, or Justice
Hans Raj Khanna and his brother judges who together in 1973 put the
concept into practice were not attempted to be impeached by the then
all-powerful Prime Minister of India, Mrs. Indira Gandhi, though the
fallout from the judgment resulted in the promotion of junior judges.
That too was not left without critique, immortalised in the words of
former Chief Justice Mohammad Hidayatullah as an “attempt of not
creating ‘forward looking judges’ but ‘judges looking forward’ to the
office of Chief Justice.”

At the core of the issue is the concept of independence and
separation of powers in governance. Power of judicial review, is one
of the building blocks required by all states to prevent the
deterioration of democracy into dictatorship. In that, the impeachment
of a judge in Sri Lanka is the impeachment of the entire justice
process in that country. The asphyxiation of what is left of judicial
independence in Sri Lanka will have far-reaching and damaging effects
upon its neighbours, India included.

During Ms. Aung San Suu Kyi’s visit to India, she said that India’s
active appreciation of the military junta in Burma saddened her. Ms.
Suu Kyi said that she was not surprised by India’s accommodation of
Burma’s military dictators, who have brutally denied and continues to
do so, the people of Burma, their freedom. Pretending ignorance of the
impeachment proceedings in Sri Lanka will only cement this image.

Democracy and institutions of democracy are not internal affairs of a
country, since no country can claim absolute ownership of democratic
norms and values. Neither is this concept western, as often wrongly
portrayed by individuals like Mr. Lee Kuan Yew, who has self-assumed
the right of all Singaporeans to decide what is best for them, on the
basis of a fake Asian value doctrine, or like Mr. Hun Sen of Cambodia
who has decided on behalf of the Cambodians to continue in power until
he is 80 years old.

The concepts of democracy and freedom, the institutions necessary to
sustain these concepts and the character of these institutions and
their relationship between each other are the results of centuries of
human struggle to free the public from unwarranted state control over
fundamental freedoms. Crystallised into legal theory, these concepts
translates into legal restrictions against arrest and detention; as
concepts of bail; presumption of innocence; right against torture and
everything that is understood as fair trial. In constitutional theory
this means among others, the separation of powers between the organs
of the state and the respect state institutions maintain about each
other while discharging constitutional mandates.

The quintessence of democracy is freedom and administration by
consultation, embodied in the concept’s ability to check absolute
control. Judicial independence is elementary to this premise and the
judiciary’s ability to review acts of the executive, legislature and
the judiciary itself, openly and freely is a prerequisite to realising
democracy. When these spaces of freedom and consultation are shrunk,
no matter where it happens in the world, it is the moral and legal
responsibility of everyone who values these concepts to express
concern and be worried.

When it happens in the neighbourhood, it brings matters close to
home.

/*For information and comments*: Bijo Francis, AHRC. Telephone: + 852
– 26986 339, Email: india@ahrc.asia/

Read this statement online
<http://www.humanrights.asia/news/ahrc-news/AHRC-STM-238-2012>
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About AHRC: The Asian Human Rights Commission is a regional
non-governmental organisation that monitors human rights in Asia,
documents violations and advocates for justice and institutional
reform to ensure the protection and promotion of these rights. The
Hong Kong-based group was founded in 1984.

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