| by Dr. Ruwantissa Abeyratne
( January 15, 2013, Montreal, Sri Lanka Guardian) A recent issue of Colombopage - a web-based news sheet - reported that The Lawyers Collective, a lawyers' organization of Sri Lanka, plans to challenge the impeachment of the Chief Justice by taking the matter before the international court. There are several international courts, but the writer assumes that the lawyers’ group has referred to the International Court of Justice.
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Media personnel (3 vans) fallow Sri lanka's impeached Chief Justice Shirani Bandaranayake's vehicle (R jeep) to capture her in Colombo on January 14, 2013, a day after President Mahinda Rajapakse sacked her. Sri Lankan President Mahinda Rajapakse sacked the chief justice by ratifying a controversial parliamentary vote, defying international calls for restraint and plunging the country into a constitutional crisis. ( Photo by Sanka Vidanagama )
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The International Court of Justice, which is the principal judicial organ of the United Nations, was established by the Charter of the United Nations (Sri Lanka signed the United Nations Charter on December 14, 1955 and all Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice). The Court is composed of a body of independent judges, (15 to be exact, where no two members are nationals of the same State) elected regardless of their nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law. The Court functions in accordance with the provisions of the Statute of the International Court of Justice.
Only States may be parties in cases before the Court which is open to the states parties to the Statute of the Court. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. The States parties to the Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; d) the nature or extent of the reparation to be made for the breach of an international obligation.
In addition to these four areas of jurisdiction, Article 96 of the Charter of the United Nations confers upon the Court jurisdiction to give an advisory opinion on any legal question referred to it by The General Assembly or the Security Council. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, is obligated by its Statute to apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Even assuming that one member State of the United Nations brings the impeachment issue before the International Court against Sri Lanka (and no group, NGO or association can do so) the Court has only four types of jurisdictions. Does the removal of the Chief Justice by the Executive President (through the impeachment process, which was dictated by internal legislative provisions of a sovereign State (the Charter of the United Nations, to which the International Court is subservient, recognizes State sovereignty) involve the interpretation of a treaty? Does the act concerned involve any question of international law; does it involve a breach of an international obligation/ and if so what? And what would the reparation for such a breach be?
Of course, as already mentioned, the United Nations General Assembly could, theoretically, request the Court for an opinion, by which Sri Lanka may choose not to be bound. Of course, there is the Resolution “Basic Principles on the Independence of the Judiciary” adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan from 26 August to 6 September 1985, which was endorsed by the United Nations General Assembly Resolutions 40/32 of November 1985 and 40/146 of 13 December 1985, which states inter alia that a charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
How strong is this Resolution as hard law? Not very, as resolutions are the result of political compromises to which one cannot ascribe legal effect or compulsion. The last consideration would then be whether the impeachment of the Chief Justice and her subsequent removal was tantamount to a breach of an international obligation. The 1971 Singapore Declaration of the Commonwealth Principles (of which Sri Lanka is a member) has the principle: “We believe in the liberty of the individual, in equal rights for all citizens regardless of race, colour, creed or political belief, and in their inalienable right to participate by means of free and democratic political processes in framing the society in which they live. We therefore strive to promote in each of our countries those representative institutions and guarantees for personal freedom under the law that are our common heritage”. The Harare Commonwealth Declaration of 1991 states inter alia: “We believe in the liberty of the individual under the law, in equal rights for all citizens regardless of gender, race, colour, creed or political belief, and in the individual's inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives”.
Are these international obligations of a member of the Commonwealth, and more importantly, are these relevant in the current context? Was the impeachment process a democratic one? Obviously, there are no answers, yet. All that we have are questions that have to be addressed in accordance with established principles. Therefore, it is interesting to see what the fallout of this issue would be.
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