( September 27, 2012, Hong Kong,
Sri Lanka Guardian) This distress call is not from a sinking ship but from the
supreme body that represents the Judicial Service Commission (JSC) of Sri
Lanka, which is desperately stating that the independence of the judiciary is
under threat from the executive. The Asian Human Rights Commission has for
years warned that democracy in Sri Lanka is sinking and this distress call from
the JSC is one of the final indications of how fast it is sinking. If Sri Lanka
has any friends left in the democratic world, it is time now for them to
respond.
The JSC, through its secretary
Manjula Tilakaratne, complained on September 18, 2012 about threats to its
independent functioning. This is the first time in the history of Sri Lanka
that the JSC, which is the highest body dealing with appointments, dismissals,
disciplinary actions and promotion of judges in the country, has made a public
complaint about attacks on its independence.
A translation of the full
statement is given below. (A copy of the Sinhala original published in
Lankadeepa, a well known Sinhala newspaper is also attached).
"The attention of the
Judicial Service Commission (JSC) has been drawn to baseless criticism of the
JSC and in general on the judiciary by the electronic and print media. The main
objective of those behind the conspiracy of those trying to undermine the JSC
and Judiciary is to destroy the independence of the judiciary and the rule of
law.
"It is regrettable to note
that the JSC has been subjected to threats and intimidation from persons
holding different status. Various influences have been made on the JSC
regarding decisions taken by the Commission keeping with the service
requirements. Recently the JSC was subjected to various influences after the
Commission initiated disciplinary action against a judge.
"Moreover an attempt to
convince the relevant institutions regarding the protection of the independence
of the judiciary and the JSC over the attempt to call for a meeting with the
chairperson of the JSC, who is the Hon Chief Justice and two other Supreme
Court judges, was not successful. The JSC has documentary evidence on this
matter.
"It is the JSC that is the
superior institution which is empowered with the appointment of Magistrates,
District judges, their transfers, dismissal from service and disciplinary
action against them. It is an independent institution established under the
Constitution. Under the Constitution any direct or indirect attempt by any
person or through any person to influence or attempt to influence any decision
taken by the Commission is an offence which could be tried in a High Court.
‘It should be emphasized that the
JSC is dedicated and it is its responsibility to protect the independence of
the judiciary and discharge its service without being intimidated by
influences, threats or criticism. I have been instructed by the Commission to
issue this media release to keep the majority of the public who value justice
informed about an attempt by conspirators to destroy the credibility of the JSC
and the Judiciary. -- Manjula Tilakaratne, Secretary, JSC."
This translation was reproduced
in the Political Column of the Sunday Times on September 23, 2012.
This official statement refers to
the following matters:
1. A call for the three-member commission (JSC) consisting of
the Chief Justice and two other judges of the Supreme Court to meet the
Honourable President of Sri Lanka to discuss the functions of the JSC. The JSC
declined to attend the meeting as they found it unconstitutional to discuss the
decisions of the JSC with anyone else.
2. Attempts to pressurize through the interventions of several
powerful persons to remove the interdiction of a particular judge, who was
interdicted by the JSC as a part of inquiries into very serious allegations of
corruption. According to newspaper reports, this judge is said to be a close
friend of the president's family.
3. A media campaign through state media channels against the
judges of the Supreme Court and members of the JSC on baseless allegations and
the unethical use of language for the purpose of belittling the judges and to
undermine the independence of the judiciary.
Many will already be aware that
there was a previous incident of a cabinet minister, Rishad Bathiudeen,
attempting to intimidate the magistrate of Mannar, followed by two attacks on
the High Court and the Magistrate's Court of Mannar, which caused serious
damage to both premises. That minister is now facing charges of contempt of
court at the Court of Appeal and he and some others are also facing criminal
charges before the Magistrate's Court. The attempt to intimidate the magistrate
and the attacks on the courts led to a nation-wide boycott on the courts by the
judges and lawyers of Sri Lanka. Despite of the public outcry, the government
has taken no action against this minister for his behaviour in relation to the
interference with the independence of the judiciary.
A further event of importance is
that, following an order by the Supreme Court in reviewing a bill placed before
it, the court held that the particular bill was unconstitutional until
consultations are held by the Central Government with the provincial councils
about the matters taken up in the bill. The court made its ruling known to the
Speaker, who read the court's ruling to the parliament as is required by the
Constitution. However, following this ruling, three members of the cabinet and
a crowd, reported in the newspapers to consist of about 3,000 persons, held a
protest against the Supreme Court in front of the parliament.
All these recent events are a
part of a chain of events that have been taking place since 1978, with the
promulgation of a new constitution that placed the executive president outside
the jurisdiction of the courts. The new constitutional order proposed by the
1978 Constitution is unique and has no parallel anywhere else in the world. It
established the executive president with absolute power and ever since there
has been a constant conflict between the judiciary established under the
earlier constitution of 1948, which recognised the separation of powers and
which incorporated the independence of the judiciary as an integral part of the
constitutional order, and the executive presidential system. Several attempts
to get over this problem, such as the 17th Amendment to the Constitution, were
abandoned and the president's power was even more strengthened by the 18th
Amendment passed in 2010.
This conflict has now reached a
proportion that the Supreme Court through the JSC has had to make a public
complaint of interference into the independence of the judiciary.
Over several decades, the Asian
Human Rights Commission (AHRC) has pointed out that the independence of the
judiciary in Sri Lanka is facing peril due to the operation of the 1978
Constitution.
The AHRC has consistently
commented on the conflict created by the executive presidential system, which
replaced the democracy in Sri Lanka with a system of patronage. The executive
presidential system has wrapped itself around all democratic institutions,
including the judiciary, like a python and has broken bones.
Saving the independence of the
judiciary now is almost an impossible task. Unless the people of Sri Lanka
themselves and their friends in the democracies throughout the world rise up
now, very soon the functions of Sri Lanka's judicial institutions will be
reduced to nothing more than rubber stamping. Such things have happened in several
other countries, for example, Cambodia and Myanmar.
For More Details Please contact : Basil Fernando at basil.fernando@ahrc.asia
