SRI LANKA: Requirements for the removal in Australia

December 17, 2012

SRI LANKA: Requirements for the removal in Australia -- the views of two Australian experts

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.

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: http://www.humanrights.asia/resources/pdf/removal-of-judges/view

1 Australian Communist Party v Commonwealth (1951) 83 CLR 1.

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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ENDS

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