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The Singarasa Case: Quis custodiet … ? A Test for the Bangalore Principles of Judicial Conduct

Published online by Cambridge University Press:  19 March 2012

Nigel Rodley
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Abstract

This Essay considers the 2006 Sri Lankan Supreme Court case, Singarasa v. Attorney General, which declared unconstitutional the state's eight-year-old accession to the Protocol permitting the Human Rights Committee to examine complaints of violation of the International Covenant on Civil and Political Rights. It places the decision in the context of the Committee's earlier findings of Covenant violations by Sri Lanka resulting from actions by the Court. This forms the basis of a discussion of problems of identifying questionable judicial conduct and the relevance of the Bangalore Principles of Judicial Conduct.

Type
A Symposium on Constitutional Rights and International Human Rights honoring Professor David Kretzmer
Information
Israel Law Review , Volume 41 , Issue 3 , Winter 2008 , pp. 500 - 521
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2008

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References

1 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966), Dec. 16, 1966, 999 U.N.T.S. 171, entered into force Mar. 23, 1976 [hereinafter OP)].

2 Nallaratnam Singarasa v. Attorney General, S.C. SPL (LA) No. 182/99 (2006), reprinted in 17 (227–228) L. & Soc. Trust Rev. 9–18 (2006)Google Scholar

3 Id.

4 Nallaratnam Singarasa v. Sri Lanka, Communication No. 1033/2001, U.N. Doc. CCPR/C/81/D/1033/2001 (2004). The Human Rights Committee can only consider cases after domestic remedies have been exhausted (OP, supra note 1, art. 5(2)(b)). In this case the conviction in the High Court was upheld by the Court of Appeal, sentence, reduced from 50 to 35 years, and leave to appeal to the Supreme Court was denied by the latter Court. See Goonesekere, RKW, The Singarasa Case—A Brief Comment, 17 (227–28) L. & Soc. Trust Rev. 25 (2006)Google Scholar (the author was lead counsel for Singarasa before the Supreme Court); John Cerone, Comment on the Singarasa Case Relating to the Status of the International Covenant on Civil and Political Rights in Sri Lankan Law, id. at 27.

5 Although Sri Lanka was a party to the ICCPR since 1980, the consistent practice of the Committee was that the Optional Protocol does not extend to acts occurring after the applicability of the Covenant for a state party, but before the OP is in force for the same state party (Aduayom v. Togo, Communication No. 422–24/90, U.N. Doc. CCPR/C/51/D/422–24/90 (1996), despite a compelling dissent by Committee member Mr. Fausto Pocar). Since new states parties may expect to rely on the established practice of the Committee in respect of such procedural matters, the Committee is unlikely to revisit the issue: see Joseph, Sarah, Schultz, Jenny, & Castan, Melissa, The International Covenant on Civil and Political Rights—Cases, Materials, and Commentary 56–57 (2nd ed. 2004)Google Scholar; Nowak, Manfred, U.N. Covenant on Civil and Political Rights—CCPR Commentary 854–56 (2nd rev. ed. 2005)Google Scholar. These two commentaries provide helpful guidance on the interpretation of the ICCPR in general and the practice of the HRC in particular. A valuable treatise on the early work of the HRC is found in McGoldrick, Dominic, The Human Rights Committee—Its Role in the Development of the International Covenant on Civil and Political Rights (with an updated introduction, 1994).Google Scholar

6 Singarasa v. Sri Lanka, supra note 4,¶¶ 7.4–7.6. Also the Committee urged that the impugned sections of the Prevention of Terrorism Act should be “made compatible with the provisions of the Covenant” (Id).

7 The petition is reproduced in 17 L. & Soc. Trust Rev., supra note 4, at 1-8.

8 See Human Rights Committee, General Comment 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 13, U.N. Doc. CCPR/C/2l/Rev.l/Add.13 (2004)Google Scholar: “Article 2,¶ 2 [“obligation to take steps to give effect to Covenant rights in the domestic order] … does not require that the Covenant be directly applicable in the courts, by incorporation of the Covenant into national law.” The Committee does consider that incorporation might ensure “enhanced protection” and so urges all relevant states to consider incorporation. General Comments of the Committee are non–country–specific texts, based on the Committee's experience, aimed at advising states parties and others of its understanding of the nature and scope of state obligations under the Covenant and the Optional Protocol.

9 As stated in the same General Comment 31, id. ¶ 4: “All branches of government (executive, legislative and judicial) … are in a position to engage the responsibility of the State Party.”

10 Petition, supra note 7. There were two further grounds of appeal (miscarriage of justice and unconstitutionality of the relevant emergency regulations on which the first charge was based) that were not connected to the case.

11 The Written Submissions of the Respondent (the Attorney General) are reproduced in Home for Human Rights, 4 (2) Beyond the Wall—Q. J. 26–31 (2006).Google Scholar

12 Nallaratnam Singarasa v. Attorney General, supra note 2, at 17, Sarath N Silva, C.J.

13 Id. at 15.

14 Id. at 17.

15 Id.

16 Id. On the nature of Covenant Article 2 obligations, see General Comment 31, supra note 8.

17 See Human Rights Committee, General Comment 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, ¶ 11, U.N. Doc. CCPR/C/GC/33 (2008)Google Scholar.

18 Accordingly, the Committee has established the function of Special Rapporteur on Follow-Up to Views, mandated to promote compliance with the Views.

19 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679, entered into force Jan. 27, 1980.

20 See 1 Oppenheim's International Law (Jennings, Robert & Watts, Arthur eds., 9th ed. 1996), at 1222Google Scholar (internal ordinary law) and 1287-88 (internal constitutional law). The customary international law status of the rule is relevant in view that Sri Lanka is not a party to the Vienna Convention.

21 Vienna Convention, supra note 19, art. 27. This rule is also one of customary international law: Oppenheim's International Law, supra note 20, at 84–85.

22 The Government is understood to have sought to resolve the problem by securing the adoption by Parliament of a law that would give partial effect to the Covenant, International Covenant on Civil and Political Rights (ICCPR) Act No. 56/2007, aimed at incorporating those provisions considered not already to be part of Sri Lankan law. According to the Supreme Court, the legislation has indeed attained its objective of full incorporation of the ICCPR: SC Ref. No. 01/2008; however, it is not clear how this would solve the problem of the “unconstitutionality” of the accession to the Protocol as declared by the Supreme Court.

23 Anthony Fernando v. Sri Lanka, Communication No. 1189/2003, U.N. Doc. CCPR/C/83/D/1189/ 2003 (2005).

24 A.M.E. Fernando v. Attorney General (2003) 2 Sri LR 52, at 57. R.I. stands for “rigorous imprisonment,” known otherwise in those Common Law countries that retain it as “imprisonment with hard labour.”

25 Id. at 62.

26 Id.

27 Joseph et al v. Sri Lanka, Communication 1249/2004, U.N. Doc. CCPR/C/85/D/1249/2004 (2005).

28 Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation), Clause 3 reads:

(a) The general objects for which the Corporation is constituted are hereby declared to be —

(b) to spread knowledge of the Catholic religion;

(c) to impart religious, educational and vocational training to youth;

(d) to teach in Pre-Schools, Schools, Colleges and Educational Institutions;

(e) to serve in Nursing Homes, Medical Clinics, Hospitals, Refugee Camps and like institutions;

(f) to establish and maintain Creches, Day Care Centres, Homes for the elders, Orphanages, Nursing Homes and Mobile Clinics for the infants, aged, orphans, destitutes and sick;

(g) to bring about society based on love and respect for one and all; and

(h) to undertake and carry out all such works and services that will promote the aforesaid objects of the Corporation.

Colombo: In the matter of a petition under Article 121 of the Constitution, S.C. SD No. 19/2003 (2003).

29 Id. ¶ 2.3.

30 Id.

31 Id. ¶ 2.3.

32 Kokkinakis v. Greece, App. No. 14307/88, 17 Eur. H.R. Rep. 397, 419 (1994) (judgment of May 25, 1993).

33 Larissis v. Greece, 65 Eur. Ct. H.R. (Ser. A) (1998) (judgment of Feb. 24, 1998).

34 Joseph et al v. Sri Lanka, supra note 27,¶ 7.3.

35 Id.

36 This was because of the absence of notification of the proceedings, while in other cases there had been notification (Id. ¶ 7.4). It also found a violation of Article 26 on the grounds of discrimination on the basis of religious belief, since other religious bodies “with objects of the same kind as the authors’ Order” had been provided incorporated status (Id. ¶ 7.4).

37 Dahanayake et al. v. Sri Lanka, Communication 1331/2004, ¶ 6.5, U.N. Doc. CCPR/C87/D/1331/ 2004 (2006) (villagers dispossessed of their property because of road development found not victims of discrimination under Article 26 as already awarded compensation by the Supreme Court for violation of Sri Lankan Constitution Article 12 that is drafted in similar terms to ICCPR Article 26).

38 Gardner, Simon, Sri Lanka Court Blocks State Deportation of Tamils, Reuters, June 8, 2007Google Scholar, available at www.reuters.com/article/worldNews/IDUSSP4209420070608; Sri Lanka Court Limits Arrests as Rights Concerns Mount, AFP, Jan. 7, 2008, available at www.afp.google.com/article/ALeqM5hsTEW1NLrCM6IHgxnn4igh2JOHIw; Selvanayagam, S. S., SC Bans Eviction of Tamils from Colombo, May 6, 2008, Daily Mirror, (Colombo), 1.Google Scholar

39 66 Harv. L. Rev. 616 (1949).

40 The Bangalore Principles were the work of a Judicial Group on Strengthening Judicial Integrity convened by the U.N. Centre for International Crime Prevention. At its first meeting, held in Vienna in April 2000 in conjunction with the Tenth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, the Group, consisting mainly of Common Law judges and the U.N. Commission Human Rights Special Rapporteur on the independence of judges and lawyers, identified the need for a code against which the conduct of judicial officers may be measured. A draft code was adopted at the second meeting in Bangalore (February 2001), by the Group (including at this point the Chief Justice of Sri Lanka). The Group felt that to have full international status, the draft needed to be scrutinized by judges of other legal traditions. After a consultative process a revised draft was adopted by a Round-table Meeting of Chief Justices from the civil law system. A number of judges from the International Court of Justice also participated. This is the text of the Bangalore Principles: see Report of the Special Rapporteur on the Independence of Judges and Lawyers, 26–29, Annex, Explanatory Note, U.N. Doc. E/CN.4/2003/65 (Jan. 14, 2003)Google Scholar (prepared by Dato Param Cumaraswamy). The Principles are also annexed to Economic and Social Council Resolution 2006/23, July 27, 2006, by which the Council “[i]nvites Member States, consistent with their domestic legal systems, to encourage their judiciaries to take into consideration the Bangalore Principles … when reviewing or developing rules with respect to the professional and ethical conduct of members of the judiciary” (Id. ¶ 1). In September 2007, the Judicial Integrity Group approved a commentary on the Principles: United Nations Office on Drugs and Crime, Commentary on the Bangalore Principles of Judicial Conduct (2007) [hereinafter Commentary]. For an interesting insight into the problems of judicial interpretation and the possible relevance of the Bangalore Principles, see Kirby, Michael, International Law—The Impact on National Constitutions, American Society of International Law Proceedings, 99th Annual Meeting (Jan. 1, 2005), 1Google Scholar. This is the Grotius Lecture of Justice Kirby, one of the architects of the Bangalore Principles.

41 The Bangalore Principles, supra note 40, Principle 1.3.

42 The U.N. Basic Principles on the Independence of the Judiciary were adopted by the Seventh U.N. Congress on the Prevention of Crime and the Treatment of Offenders in 1985 and endorsed by G.A. Res. 40/32, U.N. GAOR, 40th Sess., Supp. No. 53, U.N. Doc. A/RES/40/32 (Nov. 29, 1985), and G.A. Res.40/146, U.N. GAOR, 40th Sess., Supp. No. 53, U.N. Doc. A/RES/40/146 (Dec. 13, 1985). According to ECOSOC Resolution 2006/23, supra note 40, “the Bangalore Principles … represent a further development and are complementary to the Basic Principles on the Independence of the Judiciary” (id. ¶ 2).

43 Here the Bangalore Principles broadly track language from Principle 2 of the Basic Principles.

44 The Bangalore Principles, supra note 40, Principle 2.1

45 Commentary, supra note 40, ¶ 57.

46 Leader, Sheldon, Impartiality, Bias and the Judiciary, in Reading Dworkin Critically 241 (Hunt, Alan ed., 1992)Google Scholar.

47 Id.

48 Indeed, paragraph 59 of the Commentary (supra note 40), under the heading “Abuse of contempt powers is a manifestation of bias or prejudice,” explains in language evocative of the Fernando case (supra note 23):

The contempt jurisdiction, where it exists, enables a judge to control the courtroom and to maintain decorum. Because it carries penalties that are criminal in nature and effect, contempt should be used as a last resort, only for legally valid reasons and in strict conformity with procedural requirements. It is a power that should be used with great prudence and caution. The abuse of contempt power is a manifestation of bias. This may occur when a judge has lost control of his or her own composure and attempts to settle a personal score, especially in retaliation against a party, advocate or witness with whom the judge has been drawn into personal conflict.

49 Commentary. supra note 40, at 9.

50 The Commentary stresses the distinction, see id. ¶ 24:

The concepts of “independence” and “impartiality” are very closely related, yet separate and distinct. “Impartiality” refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word “impartial” connotes absence of bias, actual or perceived. The word “independence” reflects or embodies the traditional constitutional value of independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government that rests on objective conditions or guarantees.

51 Note also the observation at paragraph 51 of the Commentary: “Independence is the necessary pre-condition to impartiality …. A judge could be independent but not impartial (on a specific case by case basis), but a judge who is not independent cannot, by definition, be impartial (on an institutional basis).” Supra note 40.

52 The Commentary makes at least one reference to arbitrariness. In a section under the value of independence dealing with Principle 1.6 (high standards of judicial conduct to reinforce public confidence as a requirement for judicial independence), it affirms that “detention ordered in bad faith, or through neglect to apply the relevant law correctly, is arbitrary, as is committal for trial without an objective assessment of the relevant evidence.” (Id. ¶ 47).

53 The Bangalore Principles,supra note 40, Preamble.

54 Sri Lanka Constitution, art. 112.