FOR IMMEDIATE RELEASE
May 31, 2007
HUMAN RIGHTS COUNCIL
A Written statement submitted by the Asian Legal Resource Centre, supported by the Law and Society Trust, Sri Lanka
SRI LANKA: Serious Concerns Affecting Sri Lanka’s Judiciary
Sri Lanka’s legal system was originally a combination of the Roman-Dutch Law and English Law. The present system of judicial administration and organization is based on the current Constitution, introduced in 1978. The judiciary comprises the Supreme Court, Court of Appeal, Provincial High Courts, District Courts, Magistrates’ Courts and Primary Courts.
The Supreme Court is the country’s highest court, headed by the Chief Justice and comprising between six and ten judges. The Supreme Court’s major jurisdictions include constitutional, final appellate and fundamental rights jurisdictions.
2. Politicisation of the Office of Chief Justice
On September 16, 1999, then-Attorney General Sarath Silva was appointed Chief Justice by President Kumaratunga. There were serious substantive questions with regard to this appointment and two motions alleging misconduct and seeking to remove his name from the roll of Attorneys-at-Law were pending against him at that time. The Supreme Court had, in fact, appointed two inquiry committees to look into the allegations.
National and international experts expressed concerns about the appointment; among them Dato Param Coomaraswamy – the Special Rapporteur on Independence of the Judiciary – who advised the government not to proceed with the appointment pending the conclusion of the misconduct inquiries. This advice was disregarded by President Kumaratunge, with whom the Attorney General had close personal contact. Between October and November 1999, three petitions were filed challenging the appointment of the Chief Justice, which were also later dismissed by a bench of the Court that had been handpicked by the Chief Justice.
Two impeachment motions filed against the Chief Justice, alleging specific instances of abuse of power while in office respectively in 2001 and 2003, were rendered nugatory by President Kumaratunge having prorogued and then dissolved Parliament.
3. Arbitrary Conduct by Chief Justice Sarath Silva
3.1. Authoritarian powers in listing of cases and determination of Benches
The Supreme Court sits in Benches of three judges for the hearing of cases. The Chief Justice who approves the Bench list and nominates judges for Benches consisting of three judges or appoints a fuller bench (a bench of more than three judges) for special matters warranting a Divisional Bench. This power has been increasingly arbitrarily exercised by the Chief Justice. For example, with regard to the rights petitions challenging the Chief Justice’s appointment, he appointed a Divisional Bench of seven judges, in ascending order of seniority, excluding the four senior-most judges. The petitions were dismissed by this Divisional Bench, which relied on the concept of constitutional immunity afforded to presidential appointments in order to refuse relief.
The senior-most judge of the time, Justice M.D.H. Fernando, who had been bypassed as a result of the appointment of Sarath Silva as Chief Justice, was excluded in almost all important constitutional cases. This led to his premature retirement in early-2004, two and half years early. A letter written to the Prime Minister by 45 leading civil society organizations called for the appointment of a Parliamentary Select Committee to examine the circumstances that led to the resignation of Justice Fernando, but no action was taken either by the Executive or the Legislature concerning this issue.
3.2. Arbitrary control of the Judicial Service Commission
The Judicial Service Commission (JSC), headed by the Chief Justice, generally consists of two other senior-most judges of the Supreme Court. Since Sarath Silva became Chief Justice in 1999, he has exercised powers of virtually unilateral decision-making along with two other junior judges of the Supreme Court, despite the fact that the Court had senior judges including Justices M.D.H. Fernando and Dr. A.R.B. Amarasinghe serving on the Bench at that time, and despite judicial tradition that decrees that senior rather than junior judges should form a part of the JSC.
Under the Constitution, the JSC exercises the powers of appointment, promotion, dismissal and disciplinary control of judges of the lower courts. However, there are no disclosed criteria. The International Bar Association Report 2001, entitled Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary gives examples of instances where original court judges were arbitrarily disciplined and even dismissed by the JSC headed by the Chief Justice. The IBA Report concluded that the perception of a lack of independence of the judiciary was in danger of becoming widespread with extremely harmful effects on the rule of law in the country.
In his April 2003 report to the UN Commission on Human Rights, Param Coomaraswamy, then-United Nations Special Rapporteur on the Independence of the Judiciary wrote,
178. The Special Rapporteur continues to be concerned over the allegations of misconduct on the part of the Chief Justice Sarath Silva, the latest being the proceedings filed against him and the Judicial Service Commission in the Supreme Court by two district judges (which is set for hearing on 27 February 2003). E/CN.4/2003/65/Add.1 25, February 2003.
In January 2006, two senior judges from the JSC resigned from the Commission over, what was widely known as conflicts of opinion with the Chief Justice. Dr. Shirani Bandaranayake and T B Weerasooriya, had indicated that they had resigned their positions on the Commission in accordance with their conscience. No public explanation has yet been given for the reason for these resignations.
3.3. Undermining the Fundamental Rights Jurisdiction of the Supreme Court
In recent years, the flood of fundamental rights applications that had previously been filed before the Supreme Court, resulting in a rich body of jurisprudence enhancing rights of citizens even during times of emergency, has progressively decreased. The isolated rights friendly judgments that are now delivered, award small amounts of compensation, and in many cases settlements are evidenced by judicial coercion of lawyers and/or petitioners.
3.4. Arbitrary Use of Contempt Powers and Refusal of Sri Lanka’s Supreme Court to adhere to International Treaty Obligations
Contempt of court has become an increasingly powerful weapon used by the Court and in particular by the Chief Justice to stifle justifiable criticism. On February 6, 2003, a lay litigant, Anthony Michael Fernando, who made the Chief Justice a party in a fundamental rights case, was sentenced to one year hard labour by a bench comprising the Chief Justice and two other judges for raising his voice in court and filing applications. The United Nations Human Rights Committee, in considering a communication submitted by Mr Fernando under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), concluded that Mr. Fernando’s right to a fair trial under article 9(1) had been violated, (Sri Lanka, Case No 189/2003, Adoption of Views on 31, March, 2005). The Optional Protocol to the ICCPR enables the Committee to receive and consider individual communications from any individual that is subject to Sri Lanka’s jurisdiction.
The Government of Sri Lanka (GOSL) stated however that, at the time that Sri Lanka decided to become a Party to the Optional Protocol, it was not envisaged that the competence of the Human Rights Committee would extend to a consideration, review or comment of any judgment given by a competent Court in Sri Lanka, in particular on findings of fact and on sentences imposed by such a Court upon a full consideration of evidence placed before it, and regretted that it was unable to give effect to the views of the Committee under Article 2, Paragraph 3 (a) of the ICCPR.
Other such Communications include: Sarma v Sri Lanka No 950/2000, Adoption of Views on 31 July 2003; Jayawardene v Sri Lanka, Case No 916/2000 Adoption of Views on 26 July 2002; Ivan v Sri Lanka, Case No 909/2000, Adoption of Views on 26 August 2004; Sinharasa v Sri Lanka, Case No. 1033/2004 Adoption of Views on 23 August 2004 and Rajapakse v Sri Lanka Case No 1250/2004, Adoption of Views on 26 July 2006. However, there has been no implementation of any of these Views by the Sri Lankan Government.
In addition, a recent decision by the Supreme Court (SCM 15.09.2006, judgment of Chief Justice Sarath Silva) on a review petition filed with respect to the Sinharasa case, ruling that the presidential act of accession to the Optional Protocol to the ICCPR was an unconstitutional exercise of legislative power as well as an equally unconstitutional conferment of judicial power on the Committee, has proved to be extremely inimical to the domestic impact of the Committee’s decisions.
4. Ignoring Constitutional Provisions Safeguarding the Independence of the Judiciary
The 17th Amendment to the Constitution that was enacted in 2001, decreed that the President’s nominees to the Court of Appeal and Supreme Court need to be ratified by the Constitutional Council (CC), a ten-member body comprising six members appointed by parliamentary consensus and four ex officio members.
Since March 2005, the CC has been defunct due to President Mahinda Rajapakse’s refusal to fill the vacancies in the CC on the basis that the smaller parties have not yet nominated the body’s one remaining member. Currently, there is litigation pending in the Court of Appeal challenging this inaction. However, the Court of Appeal has refused interim relief in one petition invoking the constitutional principle of immunity for acts of the President and the other petitions have been pending before the Court for well over a year. In early June 2006, the President appointed one new judge to the Supreme Court and two other judges to the Court of Appeal, on the recommendation of the Chief Justice, bypassing the CC.
5. The Relevance of the Independence of the Judiciary and the Constitutional Process to Peace Negotiations
The deterioration in the independence of the judiciary during the past eight years has been of grave concern to academics, professionals and activists in the country. The constitutionality of any political proposals concerning the ongoing conflict between the GOSL and the Liberation Tigers of Tamil Eelam (LTTE) has ultimately to be taken before the Supreme Court. In the context of the current undermining of the independence of the Court, the ultimate fate of these proposals remain in the pale of political decision making and not in the sphere of objective judicial scrutiny.
The Human Rights Council is requested to urge the government of Sri Lanka (GOSL), a member of the Council, to take the following measures:
1). Issue standing invitations to all Special Procedures and ensure that the Special Rapporteur on the Independence of the Judiciary is able to visit without further delay. As part of such a visit, the Council should mandate the afore-mentioned Special Rapporteur to investigate the enactment of a Contempt of Court Act and the context in which such a law is urgently needed;
2.) Launch an impartial and independent inquiry into outstanding questions of abuse of power on the part of Sri Lanka’s Chief Justice. Currently, the only manner in which the Chief Justice or a judge of the superior courts can be questioned is through the process of impeachment by Parliament. However, this mechanism is manifestly unsatisfactory as a judge with political affiliation can always seek political support to prevent such moves. It is therefore advisable that such allegations are probed by an independent panel of judges from outside, as for example from the Commonwealth or a group of reputed jurists commissioned by the Human Rights Council;
3). Ensure the fair and effective control of the lower judiciary and put in place safeguards to ensure the accountability and transparency of the functioning of the Judicial Service Commission;
4). Take all necessary domestic measures, including the passing of laws where needed, to ensure the internal implementation of the Views of the UN Human Rights Committee delivered under the Optional Protocol to the International Covenant on Civil and Political Rights.
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About ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at local and national levels throughout Asia.