| A Statement from the Asian Human
Rights Commission
( October 10, 2012, Hong Kong/
Colombo, Sri Lanka Guardian) On 7 October 2012 four persons attacked the
Secretary to the Judicial Services Commission of Sri Lanka (JSC), Mr. Manjula
Thilakaratne. Thilakaratne is a senior
high court judge. The Secretary, accompanied by his wife, had taken their son
to drop him at the St. Thomas' College gymnasium. After dropping his wife and
son at the college, he parked his car. Since he had to wait for some time, the
Secretary waited in his car reading a newspaper.
Suddenly Thilakaratne saw four
persons stopping near his car. One of them had a stick that was about
three-foot long and the other was armed with a pistol. The one with the stick
walked towards the passenger side door of the car and the other three took
position by the driver side. The three men ordered the Secretary to open the
car's door. But Thilakaratne refused.
Then they threatened to fire at
him. The JAC Secretary opened the door. One of them asked Thilakaratne whether
he was the boss (Lokka) at the JSC? Then without warning they started beating
Thilakaratne on his face and tried to drag him out of the car.
Thilakaratne resisted them.
Having realised that it would be difficult to pull Thilakaratne out of the car
the men tried to push Thilakaratne into the passenger's seat. At that moment
Thilakaratne realised that the men were trying to abduct him. At this stage he
shouted loudly.
On hearing his cry for help, some
residents in the locality came out. Some three-wheeler drivers and others
persons in the vicinity were also attracted to the noise.
At this stage the four assailants
ran towards the road behind the car and Thilakaratne lost sight of them. Later
the Thilakaratne was admitted to the hospital, and is receiving treatment for
his injuries.
A sequence of events prior to
this attack clearly suggests the reasons behind the attack and to those who
might have instructed the four assailants.
On 18 September the Thilakaratne
in the capacity as the Secretary to the JSC issued a statement on behalf of the
JSC to the effect that there were attempts to interfere with the judiciary and
particularly with the JSC. The statement also pointed out that there were
unfair and malicious propaganda against the judiciary and suggested that a high
official had attempted to influence the JSC in relation to the disciplinary
action that the JSC had taken against a particular judge.
Following this statement there
were several public statements that were given great publicity by the state
media against the Secretary to the JSC, against the JSC itself and the
judiciary in general.
The attack on the Secretary to
the JSC happened in this background.
The attack clearly shows that the
Thilakaratne's movements were watched and that he was under surveillance. On
the fateful day when Thilakaratne took his wife and son to the gymnasium, those
who directed the attack were aware of this usual routine and on that basis
directed the assailants to the location. It is obvious that the assailants
would have been directed through telephone communications.
The attack was directed with a
very high level of coordination. If the assailants had succeeded, Thilakaratne
would have been abducted and what might have happened after that is anybody's
guess. Abductions are a frequent occurrence in Sri Lanka and the public knows
many instances of such abductions and what happens to the victims. Many
abductions end in enforced disappearances but some victims have survived after
facing the ordeal. One of the best-known cases of one such abduction that
continues to receive international and local publicity is that of the
disappearance of Mr. Prageeth Eknaligoda.
Given the background of the
event, the high-level government involvement in this attack is obvious.
Further, although several days have passed after the event and despite the
highly publicised calls for investigations, nothing of any significance has
happened so far concerning the case. This again is a very clear indication of
the high-level of government involvement in the attack.
The significance of this event is
that the real confrontation is between the JSC headed by the Chief Justice and
composed of three other judges including two senior Supreme Court judges and
the government. The authority of the JSC to run its own affairs on the basis of
the position it holds is the crux of the issue. The government wants a JSC that
is subservient to it.
The direct issue of confrontation
is the interdiction of a judge accused of many acts of corruption that the
government wants to protect from legitimate inquiries. If this were to succeed,
then virtually there would be no avenue at all to ensure the integrity and
independence of the judges in the performance of their duties.
The attempt to suppress the JSC
is part of the wider objective of suppressing the Supreme Court itself and the
independence of the judiciary. The tensions between the governments in power
who have been uneasy about the independence of the judiciary in Sri Lanka go
back several decades.
The first major attack on the
power of the Supreme Court was in 1972 by the then coalition government that
put forward the doctrine of the supremacy of the parliament as against the
supremacy of the law. The claim that the parliament can legislate any law on
the basis of the absolute majority it might have has been the claim under which
the power of the courts to review legislations by way of judicial review was
drastically suppressed. Since that move, by way of the 1978 Constitution, the
executive president was placed outside the jurisdiction of any court. Added to
this; the ouster clauses in many legislations, particularly in relation to the
emergency powers and the anti-terrorism laws, have reduced the power of the
Supreme Court that it once had to intervene, to protect the rights of the citizens.
Compared to the position of the
Supreme Court in the 1930s when the absolute power of the Supreme Court to
intervene in matters relating to the protection of individual rights, as
asserted in the well-known Bracegirdle case. In that case the Court said that
the British Colonial Governor, Sir Reginald Stubbs, (today's Sri Lankan
equivalent is the Executive President) has no power to deport Bracegirdle from
Sri Lanka. Today however, the Supreme Court and the High Courts are in a much
weak position.
The move by the government now is
to reduce this weak power further and to trample upon the independence of the
judiciary. If this attempt succeeds, even the limited protection that the
citizens of Sri Lanka have against the executive will be reduced and may even
be lost altogether.
There are 'judiciaries' in some
countries that have no power to protect the rights of citizens. The courts in
Burma and Cambodia are examples of such courts that have only administrative
powers but no real juridical authority or role. Such courts are expected to
rubberstamp whatever the executive does.
Sri Lankan courts have been
pushed in that direction and gone a long way down the precipice. Now the
government is bent on pushing the authority and independence of the country's
courts further down.
The primary task to safeguard the
independence of the judiciary is with the Supreme Court itself. If the Supreme
Court does not jealously safeguard their independence, their integrity and the
inviolability of the judges from executive interference, there is nothing that
can save the judiciary.
The record of the higher courts
in the past few decades in safeguarding their own independence is not
impressive. The Supreme Court should have resisted the coalition government of
1972 when the power of judicial review was taken away from the Supreme Court.
The failure to resist on that occasion has led to the crisis that the
independence of the judiciary faces in Sri Lanka now and also to the loss of
many lives and the liberties of people during the last few decades. Had the
Supreme Court resisted the move by the coalition government then on the basis
of its own inherent powers and following the basic structure doctrine.
Had the Supreme Court resisted
the attempts by the governments in the last few decades to push the power of
the courts, the people of the country would have supported it wholeheartedly,
then and today. The ultimate losers when the independence of the judiciary is
attacked are the people themselves. Sri Lanka's history in the last few decades
amply proves this historical truth. The course of Sri Lanka's history could
have been different and many of the tragedies faced during the last 20 or 30
years may have been avoided if the Supreme Court courageously defended its own
independence and its right to be the ultimate protector of individual rights.
At this moment the JSC is
challenged even when it tries to interdict a judge who must face disciplinary
inquiries on serious charges. What this implies is that the executive would
tolerate corrupt or otherwise delinquent judges if they were loyal to the
government. If this were so, the judges would not be tested on the basis of
their judicial competence or integrity, but on their loyalty to incumbent
executive.
The Asian Human Rights Commission
(AHRC) condemns the attempts by the government to interfere with the
independence of the JSC and the judiciary in general. The AHRC joins hands with
everyone in their condemnation of the attack upon the Secretary to the JSC, the
independence of the judiciary and the JSC in general. We call upon everyone
including the international community to grasp the significance of this moment
and not to allow the judiciary in Sri Lanka to be pushed into the abyss.
 On 7 October 201...){kind=link}