(
October 9, 2012, Colombo, Sri Lanka Guardian) The Friday Forum is a group of
citizens committed to the advancement of democracy, social justice and
pluralism in Sri Lanka. The Forum has
regularly issued public statements on issues of common concern in the spirit of
democratic engagement with a view to stimulating public debate and encouraging
action from state authorities and other relevant parties.
The
independence of the judiciary in Sri Lanka has seen consistent erosion for
decades. The unprecedented public statement by the Judicial Service Commission
of Sri Lanka (JSC) complaining of intrusions into its functioning is yet
another example of the incremental assault on democracy and judicial
independence in this country. The public protests against a recent attack by a mob on a court house and a member
of the judiciary in Mannar, allegedly instigated by a Cabinet Minister, appears
to have had no impact on governance which continues to display contempt for the
Rule of Law.
The
Judicial Service Commission (JSC) is created by the Constitution and is
composed of the Chief Justice and two other Judges of the Supreme Court. Its
function is basically the appointment, transfer and disciplinary control of
what is commonly referred to as the “minor judiciary”, consisting of District Judges,
Magistrates and other judicial officers. Its independence is protected by the
Constitution, which makes it an offence to influence the decisions of the JSC
otherwise than in the course of duty. The independence of the JSC is thus an
integral part of the independence of the judiciary. Giving a testimonial to an
applicant for a judicial appointment is expressly permitted, otherwise this
would be an offence.
We are informed by the JSC that its
members (ie the Chief Justice and the other two Supreme Court Judges) were summoned to a meeting by an unnamed
political authority. We are greatly encouraged that on this occasion that move
was strongly resisted by the JSC.
The
Friday Forum unequivocally condemns any attempt at violating the independence
and authority of the judiciary. We urge all sections of Sri Lankan society to
respond to this threat by reaffirming our commitment to preserve our democratic
rights. It is only an alert and active citizenry that can prevent this type of
abuse of power.
In
a democracy principles such as independence of the judiciary are not purely
theoretical propositions. Attacks on judicial independence are attacks on the
people. Article 4 of our Constitution recognizes that the judiciary exercises the judicial power of the people. The
judicial power of the people has to be exercised both independent of the
political authorities and also without partiality. Otherwise we, as citizens,
are left without equal protection of the law, particularly against violations
of our democratic freedoms and rights by political authorities. We need to do
all we can to safeguard judicial authority and independence.
We
emphasise the professional responsibility of the Bench and the Bar to actively
protect the integrity of the judiciary. We are impelled to point out that this
state of affairs did not come about suddenly and in isolation. Actions and
omissions of both the Bench and the Bar were strong contributory factors to
precipitating the current erosion of democratic values and assaults on judicial
independence.
We recall with deep regret the stunning
silence of the Bar and the Bench in the face of judicial appointments made by
the Executive in violation of the Seventeenth Amendment. The Bar Association
was duty bound to protest and take necessary action including enlightening the
public on the unconstitutional nature of such appointments and the negative
implications for the Rule of Law and judicial independence. It is doubtful that
the legal establishments in our neighbouring countries in South Asia would have
tolerated such a situation. Similarly, attempts at compromising judicial
integrity through political appointments and other benefits granted to
immediate family members of judges should have been strongly resisted through
public debate and demands for accountability on the part of both the political
authorities and the recipients. When a retired Chief Justice was appointed as a
presidential advisor and other retired justices were given diplomatic
appointments such moves too should have been forthrightly resisted as such
political appointments clearly compromise the integrity of the judiciary. The
weak response of the Bar when the Eighteenth Amendment Bill was rushed through Parliament
as an “Urgent” Bill was a blow to democratic governance and the rights of the
people of this country. Furthermore, controversial judgments impacting on our
constitutional rights do not receive the critical discussion and review in the
media by either the Bar or by academics that the public benefit requires.
Casting aspersions on officials of the JSC
through the media is totally unacceptable. There can be no defence for interfering with
judicial independence by either the Executive or the Legislature. Both these
organs of State are bound by the Constitution and by well-established constitutional
conventions to ensure judicial independence.
The government must also be mindful of Sri Lanka’s obligations under
international law. That these events are taking place just a few months from
the second cycle of the Universal Periodic Review of Sri Lanka by the UN Human
Rights Council is also significant. It sends a signal to the international
community that Sri Lanka does not take its international human rights
obligations seriously.
While
the Bar has done right by responding strongly to this latest intrusion on
judicial independence, we stress that consistent action is required in the
future to send a strong and unequivocal message to the political authorities.
We wish to remind legal academics too of the role they are expected to play in
educating their students, their peers and the wider community. We remind our fellow members of the public that
eternal vigilance is the price of freedom from tyranny.
An
appalling physical assault on former District Judge Mr Manjula Tillakaratne,
Secretary of the JSC, has taken place even as this statement was being
completed. This shockingly illustrates the gravity of the situation. It also
underlines the concern we have voiced at the public casting of aspersions on
this officer, whose independence of function is provided for in our
Constitution.
Jayantha
Dhanapala and Professor Savitri Goonesekere
On behalf of Friday Forum, the
Group of Concerned Citizens
Jayantha
Dhanapala, Professor Savitri Goonesekere, Rt. Rev. Duleep de Chickera, Professor
Arjuna Aluwihare, Anne Abeysekera, Dr. Jayampathy Wickremaratne, Tissa
Jayatillaka, Dr. Geedreck
Usvatte-aratchi, Professor Ranjini Obeysekere, Shanthi Dias, Damaris
Wickremasekera, Dr. Nelum Udagama, Sithie Tiruchelvam, Lanka Nesiah, Dr. A.C.Visvalingam,
Dr. Camena Gunaratne, Suriya
Wickremasinghe, Dr. Selvy Thiruchandran,
D Wijayanandana, Suresh de Mel, Dr.
Radhika Coomaraswamy, Professor Gananath Obeysekere, Faiz-ur Rahman,
Manouri Muttetuwegama, Daneshan
Casie Chetty, Rev. Dr. Jayasiri Peiris, J. C. Weliamuna, Ranjit Fernando, Mahen
Dayanada, Dr. Devanesan Nesiah, Ahilan Kadirgamar, Chandra Jayaratne
 The Friday Forum is a group of ...){kind=link}