The views of two
Australian experts
( December 17,
2012, Hong Kong, Sri Lanka Guardian) Two Australian experts, Laureate Professor
Cheryl Saunders AO Sugath Nishanta Fernando Professor Adrienne Stone, Director,
Centre for Comparative Constitutional Studies, have submitted a paper at the
request of the Asian Human Rights Commission (AHRC) based in Hong Kong
explaining the requirements for the removal of judges in Australia.
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Judicial removals are treated by the vast majority of governments with the utmost seriousness. As extraordinary decisions that must only be made in extraordinary circumstances, judicial removals must be treated with that level of seriousness.
The AHRC has
referred the paper to the lawyers who are making presentations against
government's move for the impeachment of the Chief Justice.
After giving a
summary of the Australian experience regarding this matter the two experts sum
up their position in Australia regarding the removal of judges as follows:
Judicial
removals are treated by the vast majority of governments with the utmost
seriousness. As extraordinary decisions that must only be made in extraordinary
circumstances, judicial removals must be treated with that level of
seriousness.
Australian and
international standards on the removal of judges from office clearly reflect a
requirement that prior to any consideration by a parliament to remove a judge,
a thorough, cautious, fair and independent investigation into alleged
misconduct or incapacity by former judicial officers must take place.
Any procedure
which does not fulfil that standard is inimical to the rule of law and the
independence of the judiciary, and no government that refuses to afford its
judicial officers these standards of protection can claim to legitimately
represent its constituent people, or act with the legitimate authority which
only the people may bestow upon their governors.
They also state:
Australia forms
a good comparator jurisdiction for Sri Lanka. Both nations share the same
English common law arid parliamentary heritage. The rule of law forms the
fundamental basis entrenched in the Australian Constitution. The stability of
the Australian polity, its economic growth and prosperity, and the wellbeing of
its people depend upon respect for the rule of law. Central to the realisation
of that ideal is that the independence of the judiciary be beyond question.
Australian courts, and not Parliament, have the final say on the interpretation
of the law. The High Court has general authority to determine the meaning of
Australia's Constitution, and its interpretations bind Australian legislatures
and executives at all levels of government.1 The Court's power of judicial
review prevents any law or executive action from transgressing the principles
and limits to government laid down in the Constitution. The Justices of the
High Court of Australia are highly respected as the guardians and guarantors of
Australia's democracy: like all judges, they cannot fulfil these vital tasks
without complete independence; in practice as well as principle.
These are the
hallmarks of all successful and lasting constitutional democracies. Such a
state cannot be achieved without entrenched safeguards to ensure judicial
independence, chief among which is proper standards preventing the arbitrary or
baseless removal of judicial officers.
The full text of
the expert opinion may be viewed at: Click Here
1 Australian
Communist Party v Commonwealth (1951) 83 CLR 1.
- Statement Issued by the Asian Human Rights Commission
 Two Australian experts, Laureate Profe...){kind=link}