The singarasa case: Quis custodiet … ? a test for the bangalore principles of judicial conduct

Israel Law Review

Volumn 41, Issue 3, 2008, Pages 500-521

  Rodley, Nigel ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

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[No Author keywords available]

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EID: 79956110180     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700000340     Document Type: Article

References (64)

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).
3. Id.
4. Nallaratnam Singarasa v. Sri Lanka, Communication No. 1033/2001, U.N. Doc. CCPR/C/81/ D/1033/2001 (2004).
5. See RKW Goonesekere, The Singarasa Case—A Brief Comment, 17 (227–28) L. & Soc. Trust Rev. 25 (2006) (the author was lead counsel for Singarasa before the Supreme Court)
6. 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.
7. 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).
8. 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 Sarah Joseph, Jenny Schultz, & Melissa Castan, The International Covenant on Civil and Political Rights—Cases, Materials, and Commentary 56–57 (2nd ed. 2004)
9. Manfred Nowak, U.N. Covenant on Civil and Political Rights—CCPR Commentary 854–56 (2nd rev. ed. 2005).
10. 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 Dominic McGoldrick, The Human Rights Committee—Its Role in the Development of the International Covenant on Civil and Political Rights (with an updated introduction, 1994).
11. Singarasa v. Sri Lanka, The Human Rights Committee—Its Role in the Development of the International Covenant on Civil and Political Rights, ¶¶ 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.).
12. The petition is reproduced in 17 L. & Soc. Trust Rev., The Human Rights Committee—Its Role in the Development of the International Covenant on Civil and Political Rights, at 1–8.
13. 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/21/Rev.l/Add.l3 (2004): “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.
14. 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.”
15. 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).
16. Nallaratnam Singarasa v. Attorney General, Beyond the Wall—Q. J, at 17, Sarath N Silva, C.J.
17. Id. at 15.
18. Id. at 17.
19. Id.
20. Id. On the nature of Covenant Article 2 obligations
21. see General Comment 31
22. Id.
23. 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).
24. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331
25. reprinted in 8 I.L.M. 679
26. See 1 Oppenheim's International Law (Robert Jennings & Arthur Watts eds., 9th ed. 1996), at 1222 (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.
27. Vienna Convention, Oppenheim's International Law 19, art. 27.
28. This rule is also one of customary international law: Oppenheim's International Law, Oppenheim's International Law, at 84–85.
29. Anthony Fernando v. Sri Lanka, Communication No. 1189/2003, U.N. Doc. CCPR/C/83/D/1189/2003 (2005).
30. 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.”
31. Id. at 62.
32. Id.
33. Joseph et al v. Sri Lanka, Communication 1249/2004, U.N. Doc. CCPR/C/85/D/1249/2004 (2005).
34. Colombo: In the matter of a petition under Article 121 of the Constitution, S.C. SD No. 19/2003 (2003).
35. Id. ¶ 2.2.
36. Id.
37. Id. ¶ 2.3.
38. Kokkinakis v. Greece, App. No. 14307/88, 17 Eur. H.R. Rep. 397,419 (1994) (judgment of May 25, 1993).
39. Larissis v. Greece, 65 Eur. Ct. H.R. (Ser. A) (1998) (judgment of Feb. 24, 1998).
40. Joseph et al v. Sri Lanka, Eur. Ct. H.R, ¶ 7.3.
41. Id.
42. 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. 1 7.4).
43. 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).
44. Simon Gardner, Sri Lanka Court Blocks State Deportation of Tamils, Reuters, June 8, 2007, available at www.reuters.com/article/world News/IDUSSP4209420070608
45. Sri Lanka Court Limits Arrests as Rights Concerns Mount, AFP, Jan. 7, 2008, available at www.afp.google.com/ article/ALeqM5hsTEWlNLrCM6IHgxnn4igh2JOHIw
46. S. S. Selvanayagam, SC Bans Eviction of Tamils from Colombo, May 6, 2008, Daily Mirror, (Colombo), 1.
47. 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) (prepared by Dato Param Cumaraswamy).
48. The Principles are also annexed to Economic and Social Council Resolution 2006/23, July 27, 2006, by which the Council “[ijnvites 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).
49. 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 Michael Kirby, International Law—The Impact on National Constitutions, American Society of International Law Proceedings, 99th Annual Meeting (Jan. 1, 2005), 1. This is the Grotius Lecture of Justice Kirby, one of the architects of the Bangalore Principles.
50. The Bangalore Principles, International Law—The Impact on National Constitutions, American Society of International Law Proceedings, Principle 1.3.
51. 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)
52. G.A. Res.40/146, U.N. GAOR, 40th Sess., Supp. No. 53, U.N. Doc. A/RES/40/146 (Dec. 13, 1985).
53. According to ECOSOC Resolution 2006/2023, U.N. Doc, “the Bangalore Principles … represent a further development and are complementary to the Basic Principles on the Independence of the Judiciary”
54. id. ¶ 2.
55. The Bangalore Principles, id, Principle 2.1
56. Commentary, id, ¶ 57.
57. Sheldon Leader, Impartiality, Bias and the Judiciary, in Reading Dworkin Critically 241 (Alan Hunted., 1992).
58. Id.
59. Commentary, Reading Dworkin Critically, at 9.
60. 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.
61. 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).” Reading Dworkin Critically.
62. 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).
63. The Bangalore Principles, Id, Preamble.
64. Sri Lanka Constitution, art. 112.