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The U.N. committee recommended that compensation be made for the violation, and that the state report the measures taken within 180 days. The judge had prayed for reinstatement and compensation.
This should lead to a genuine scrutiny of the justice system in Sri Lanka. The victim in this case was a former district judge and the violation took place by the decision of the JSC consisting of three Supreme Court judges including the chief justice, and was based on the recommendation of a committee composed of three senior judges.
The denial of a fair hearing to a fellow judge by the highest judicial body is a matter of the utmost concern. The U.N. Human Rights Committee’s recommendations on this issue can be ignored only at great peril to the justice system and the nation. Unfortunately, judging by the manner in which Sri Lanka has neglected to implement earlier such recommendations, it is most likely that the government will do nothing to implement these.
The complaint of the judge, as summed up by the U.N. committee, is as follows:
“The author highlights what he considers to have been irregularities in the conduct of the Committee of Inquiry:the inquiry did not make documents relevant to the author’s defense available at the hearing, including documents from the proceedings held on 18 November 1998, and refused counsel’s request to have the Secretary of the JSC testify and produce the documents in question.
the members were not appointed by law;
legally inadmissible evidence of witnesses to prove charges was relied upon;
the affidavits of police officers had not been made under oath or affirmation in accordance with law;
evidence relied upon to find the author guilty was unsubstantiated, including an undated complaint by the High Court Judge in question, which bore no official stamp;
the author was questioned extensively on his past conduct in an alleged attempt to incriminate him and he was not given an opportunity to demonstrate that he had been exonerated for past misconduct and subsequently promoted;
there was no opportunity to cross-examine the chief police witness;
the inquiry overlooked the fact that the material witness (the police officer in question) had been remanded as a suspect to murder and a drug offence;
the author was deprived of his right to summon important witnesses, including the officer-in-charge of the police station at the time of the alleged incident;
the inquiry relied on evidence that was not adduced during the inquiry but came from the interview held by the JSC on 18 November 1998, in particular a document which was alleged to have been an admission by the author, but was not produced during the inquiry and not made available to the author;
objections made by counsel in respect of the absence of a complaint or of official entries made by the police officers were neither recorded (as required by the rules and regulations of the Police Department) nor was any ruling made in respect of such objections;
the inquiry did not take into account the fact that the High Court Judge in question habitually makes complaints against junior judges;
when the High Court judge in question informed the Committee that in view of the tainted witnesses he no longer believed that the alleged incident had taken place, the inquiry refused to terminate the proceedings;
an application made by author’s counsel to address the inquiry on the question of whether a prima fade case had been established was denied;
the inquiry insisted that the author should give evidence in his own defence as failure to do so would result in disastrous consequences, thus denying him his right to remain silent contrary to article 12 (1) of the Constitution.”
The U.N. committee has reiterated its position that, “Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the Constitution or the law.” And held that in this particular instance, “The dismissal procedure did not respect the requirements of basic procedural fairness and failed to ensure that the author benefited from the necessary guarantees to which he was entitled in his capacity as a judge, thus constituting an attack on the independence of the judiciary.”
It is to be hoped that the government, the legal community consisting of lawyers and judges in Sri Lanka, public opinion makers and all those who are concerned with the independence of the judiciary, rule of law and human rights in the country will seriously study the implications of this view and develop strategies to deal with the problems reflected in this case.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
