The IBA voices concern over independence of judiciary
By Kishali Pinto Jayawardene
In one of the most devastating international monitoring
reports on Sri Lanka in recent times, a fact finding mission of the International
Bar Association (IBA) which visited Sri Lanka in August 2001, has concluded
that there is an "overwhelming need for an independent credible judicial
system" and that Sri Lanka is now in great danger of failing to fulfil
its international law obligations relating to the independence of the judiciary.
The Report notes that the mission is firmly of the view that the perception
of a lack of independence of the judiciary was in danger of becoming widespread
and that this was extremely harmful to respect for the rule of law by ordinary
citizens. It points out that these are serious concerns which do not however,
appear to be the subject of any inquiry by the government and observes
that, given the regard in which the Sri Lankan judiciary was once held,
this is a worrying development.
The fifty four page report by a delegation of three leading international
lawyers of the IBA's Human Rights Institute (HRI) was released this Saturday.
The IBA is the world's largest lawyers' organisation with members in 183
countries. Its Human Rights Institute was established in 1995 under the
honorary Presidency of Nelson Mandela.
The fact finding mission focused on examining the guarantees for the
independence of the judiciary and the practical respect these guarantees
receive in Sri Lanka and engaged in a detailed investigative mission with
senior Government ministers, judges, lawyers and academics in the country
for this purpose.
Its Report traces the history of constitutional and judicial developments
in Sri Lanka since 1999 and expresses the concern of the delegation that
not only is there a perception that the judiciary is not independent but
that there may indeed be some basis in fact, for the existence of such
a viewpoint in relation to a minority of the judiciary.
These comments are made in the foreground of its observations that Sri
Lanka is a working democracy with a highly literate population and that
an independent judiciary and a national respect for the rule of law has
been central to its progress in the past. The delegation recognises that
the majority of Sri Lankans respect a constitutional government that serves
the people and looks to the judiciary to uphold the law and ensure that
justice is done.
Sri Lanka's ability to effectively deal with the war, faltering economic
development and urgent constitutional reform is however mandated to rest
on three particularly vital pre conditions. 'A better future for Sri Lanka
depends on a stable democracy', says Lord Brennan QC. who headed the delegation.
'This requires an independent judiciary, a free media and a constitutional
framework that commands confidence. Constitutional reform must take place
through constitutional means.'
'Our report recommends ways in which the leading institutions of Sri
Lanka should be changed to strengthen and protect the rule of law. Today
we are not satisfied either of the presence of sufficient safeguards, or
of the absence of interference.'
The Report particularly focuses on the discipline, retirement, appointment,
transfer and promotion of judges by the Judicial Services Commission (JSC)
in recent times. It details six instances where there had been an apparent
lack of accountability, a breach of natural justice, the potential for
undue interference and disregard of appropriate and equitable procedures
shown in disciplinary measures taken by the JSC against members of the
judiciary. The mission points out that it was appalled to note that a number
of people were, in fact, fearful of meeting the IBA delegation for fear
It states that Sri Lanka is now in great danger of failing to fulfil
its obligations under international law and failing to follow the Beijing
Statement of Principles on the Independence of the Judiciary.
The Report makes a number of recommendations, including proposals for
a complete overhauling of the process of appointments, transfers and dismissals
of members of the judiciary.
Interestingly, it suggests that the judiciary should, at all levels,
be the subject of an annual report, signed by the Chief Justice and setting
out for public information, full details of the functioning of courts,
data on the number and type of cases and their disposal and of the detailed
functioning of the JSC. It is also recommended that the administration
of the Supreme Court collate and publish data on the number and type of
fundamental rights cases disposed of and in regard to particular panels
of the bench in order to clarify the basis on which jurisdiction is presently
being exercised qualitatively and quantitatively. The IBA Report observes
meanwhile that no responses to its Report had been received from the Government
of Sri Lanka even though an extended deadline for responses had been requested
by the government prior to its official release.
The IBA Report identifies the independence of the judiciary to be the
most serious issue facing Sri Lanka in the short term. Perhaps its most
damning indictment is with regard to the manner in which institutions and
offices, which should be protecting the rule of law, are acting to undermine
it. That its observations would have severe impact on Sri Lanka's already
heavily damaged international image as a functioning democracy respecting
the rule of law, is without a doubt.
Campaign ends tonight with final rallies
With election campaign for the December 5 parliamentary elections ending
midnight tonight, political parties will hold their final rallies today.
The PA will hold its final rally at Yakkala, close to its Attanagalle
stronghold, the UNP will hold its rally in Nivitigala and the JVP in Colombo
while the Sihala Urumaya's final rally will be held at Kadawatha.
Killing of journalist: arrest warrant after 14 months
The Jaffna Magistrate has ordered the arrest of two EPDP members in connection
with the killing of journalist Mailvaganam Nimalarajan in October last
The magistrate's order came after fresh evidence was submitted by the
CID who had questioned former EPDP employees and obtained statements which
led them to the suspects.
Mr. Nimalarajan, a freelance journalist for the BBC and other agencies,
was killed after last year's elections during which he had reported alleged
malpractices by the EPDP.
Reports said one of the suspects to be arrested was also allegedly involved
in Wednesday's attack on TNA members in Kayts. Two people were killed and
some top TNA candidates were injured.
This suspect had been produced before the magistrate and released on
Rs. 50,000 surety bail.
Police pay compensation to photojournalists
Police have paid compensation to photo-journalists allegedly assualted
by the Presidential Security Division (PSD) members while covering a UNP
protest rally more than two years ago.
Accordingly five photographers have been awarded compensation amounting
to more than Rs. 600,000.
The photographers had filed fundamental rights cases in the Supreme
Courts claiming damages for their photographic equipment that was damaged
during the PSD attack.
After the Police Headquarters informed the Supreme Court early this
week that the payments for the victims were ready, the court informed the
petitoners, saying the case would be taken up tomorrow with the view to
reaching a settlement.
The Bench comprised Justices Sriyani Bandaranayake, P.A. Edusuriya and
Hector S. Yapa.
Thee five petitioners are Sajeeva Chinthaka (Lakbima), Asoka Fernando,
Lakmal Spencer (The Sunday Leader), Buddhika Weerasinghe (Lakbima) and
Janapriya Samaradhiwakara (Yukthiya).