2nd December 2001

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Focus on Rights 

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 of repercussions. 

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 year.

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).

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