( September 24, 2012, Hong Kong, Sri Lanka Guardian) The Asian Human Rights Commission
(AHRC) is not surprised by the government's confrontation with the Judicial
Service Commission (JSC) and the courts, as it is part of a consistent pattern
that has been going on ever since the executive presidential system was
established in 1978. The constitution was established in order to undermine the
independence of the judiciary. The recent call by President Mahinda Rajapaksa
on the JSC to meet him to discuss its functions, which the JSC refused, only
indicates an attempt by the president to establish his patronage over the
judiciary. Through the 1978 Constitution the basic structure of the 1948
Constitution was fundamentally altered, by replacing a democratic system with a
patronage system, where the very idea of the independence of the judiciary was
treated as an alien concept.
The AHRC calls on the Sri Lankan people to come to an
understanding, even belatedly, that the independence of the judiciary and the
very basic structure of democracy cannot coexist with the executive
presidential system. The recent gathering of mobs to protest against the
judiciary and otherwise intimidate it is only a reminder of similar attacks in
the past.
While appreciating the JSC's determination not to meet with
the president to discuss the functions of the JSC and their determination to
defend the rights of the JSC, the AHRC reiterates once again that the very
existence of the judiciary in Sri Lanka as an independent institution is under
severe threat and it is the duty of the Supreme Court itself, above all others,
to defend the institution against the patronage system which will continue to
attempt to bring the judiciary under its thumb.
The JSC issued a press statement detailing many attempts by
the government of President Mahinda Rajapaksa to trample on its independence.
The attack on the JSC came directly after the Supreme Court expressed its
determination on the Divineguma Bill, which the Supreme Court held to be
unconstitutional until the provincial councils are consulted on the matters
involved in the bill. The Supreme Court determination was immediately followed
by a protest, which the newspapers reported to be by a crowd sponsored by the
government. The 3,000 people who assembled near the parliament included
Minister Basil Rajapaksa (one of the brothers of the president) and several
other ministers.
The Bar Counsel of Sri Lanka (BaSL) condemned this mob
protest as an attack on the independence of the judiciary and stated that it
will initiate legal action for contempt of court against the organisers of this
demonstration. The BaSL also condemned the use of the state media to attack the
judiciary and announced that it will take legal action against the state media
concerned.
President Rajapaksa called on the JSC to meet him in order
to discuss the functions of the JSC but the JSC, in an official meeting, decided
not to meet the president or anyone else regarding its official functions, as
such discussions are unconstitutional.
The JSC in its press release stated that it is paying
serious attention to the baseless attacks made by both electronic and print media
on it recently. It stated that the aim of those who are engaged in such attacks
attempting to belittle the functions of the JSC is to destroy the independence
of the judiciary and the rule of law in Sri Lanka.
The JSC press release further stated that attacks and
pressures have been exercised by people of various positions regarding some of
its basic activities. There had been attempts to influence the JSC regarding
some of the decisions it has taken. On one occasion, the JSC took disciplinary
action against a particular judge, and there have been several attempts to
influence it regarding this decision. The JSC reference here is to the
disciplinary action against the District Judge Aravindra Perera, who was interdicted
following many complaints of corruption. The newspapers mentioned Aravindra
Perera as a close friend of Namal Rajapaksa, the president' son.
The government is also angered by the action taken against
Minister Rishard Bathurdeen, who is accused of an attempt to pressurise the
magistrate of Mannar, and the action against the attack on the Magistrate's
Court and the High Court of Mannar. These attacks led to a boycott of the
courts by judges and lawyers throughout the island. The minister is now facing
criminal charges at the Magistrate's Court and an inquiry into contempt of
court at the Court of Appeals. The government has not taken any action against
this minister and is engaged in a showdown with the courts regarding this case.
While appreciating BaSL's initiatives to defend the
independence of the judiciary with regard to the attacks on the JSC and
regarding the attacks on the courts in Mannar, AHRC is compelled to point out
that, given the magnitude of danger to the very existence of the independence
of judiciary and the independence of the legal profession itself, the actions
taken by BaSL so far are inadequate. Things have reached a point at which it is
dangerous for the Supreme Court to declare a bad law as bad or to interdict a
bad judge or to take legal action against intimidation of a magistrate and
attacks on courts. The system of patronage that is established through the 1978
Constitution demands absolute submission to the president’s authority.
Therefore, the attacks on the courts and the lawyers, as independent
professionals, will continue. It is time for the BaSL, representing the
interests of the lawyers in Sri Lanka -- whose existence depends on the
existence of an independent judiciary -- to develop a consistent strategy for a
continuous struggle to save the judiciary and itself from attacks from the
patronage system, which is entrenched through the 1978 Constitution.
For more on the conflict of the executive presidency with
the judiciary please see: Gyges' Ring - The 1978 Constitution of Sri Lanka
 The Asian Human Rights Commission (AHRC) is not surprised by the government'...){kind=link}