In a 155 page Report titled ‘Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka’, the International Bar Association’s Human Rights Institute (IBAHRI) has concluded that Sri Lanka’s justice system, legal profession and media are all under grave threat. The IBA is the world’s largest lawyers’ organisation with members in 183 counties. It is an independent, non political organisation that works to protect the rule of law and the independence of the judiciary and promotes the right of lawyers to practise freely without interference. The HRI was established in 1995 under the honorary Presidency of Nelson Mandela.
An IBAHRI delegation to Sri Lanka found that the widespread perception that the judiciary is not independent was of particular concern. This has led to a rapid decline of public confidence in judicial processes. It was observed that the lack of independent oversight and practice of exclusive presidential discretion over judicial appointments makes the judiciary susceptible to executive interference and jeopardises its independence. The current procedures for the disciplining and removal of judges are in urgent need of review. In particular, the Judicial Services Commission does not have adequate safeguards to ensure the transparency and independence of its decision-making process and is not able to guarantee a fair hearing for judges and judicial officers under investigation. The perception that the judiciary suffers from political influence has arisen in recent years due to the excessive influence of the Chief Justice, whom it is also believed has used the system of case allocation to sideline senior Supreme Court judges from hearing politically-sensitive cases.
The IBAHRI also found that the judiciary has become increasingly vulnerable to political interference, and was concerned that Sri Lanka’s counter-terrorism legislation, in particular the emergency regulations, has had a detrimental impact on basic due process guarantees as well as freedom of expression.
Meanwhile, in recent years there has been an escalation of threats and physical attacks against lawyers filing fundamental rights applications and representing terrorist suspects, as well as cases of intimidation and harassment by the Government and the police authorities. Lord Goodhart QC, who led the IBAHRI delegation to Sri Lanka between February 28 and March 6 2009, said: ‘The IBAHRI report details a number of great concerns from the independence of the judiciary to violence against lawyers. It is imperative that, for example, lawyers in Sri Lanka be allowed to conduct their professional duties without fear of being attacked. It is absolutely unacceptable that lawyers representing terrorist suspects should find themselves listed on a government website which inappropriately implies that they, the lawyers, are linked to terrorist activity.’ He added, ‘Naming individual lawyers is wholly irresponsible and leaves them open to an increased risk of attack.’
The IBAHRI concluded that far from being isolated incidents, attacks against human rights lawyers form part of a pattern of intimidation routinely expressed against members of civil society, NGOs and journalists who are perceived to be critical or challenging of the Government or its policies, particularly with respect to the conflict with the LTTE. The brazen nature of these attacks, the lack of effective investigations and prosecutions and the consequential sense of impunity surrounding these incidents have created a climate of fear amongst the legal profession, journalists and civil society.
With regard to the media, it appears that Sinhalese, Tamil and English language journalists have little room within the Sri Lankan media for dissenting viewpoints on ‘sensitive issues’, due to excessive governmental control and interference. The President reportedly holds monthly meetings with the editors and owners of all media institutions to maintain pressure on the media and to ensure compliance with the government position on issues relating to the armed conflict with the LTTE.
The IBAHRI reiterated the conclusion of the 2001 visit that Sri Lanka would benefit from an independent, pluralistic media which are free from state ownership and political influence. The use of criminal law, in particular under the counter-terrorism legislation, to detain and prosecute journalists who are considered to be critical of the Government is unacceptable.
The report contains detailed recommendations which the IBAHRI makes to the President, the new Chief Justice and the Government of Sri Lanka to implement as a matter of urgency in order to restore the rule of law in Sri Lanka.
The recommendations include the prompt re-establishment of the Constitutional Council in accordance with the 17th Amendment to the Constitution, thus ensuring critical independent oversight of the proper functioning of Sri Lanka’s key institutions including the Judicial Services Commission (JSC). The Report recommends a return to the system of independent oversight of appointments of superior court judges with nominations being made or approved by the Constitutional Council. The appointment, transfer, dismissal or retirement of judges at all levels should be determined by a transparent and accountable system. It has also stressed the need to create a judicial environment where all extraneous influences on judicial decision making – whether originating from the executive, the JSC, within the judiciary or from any other quarter – are strongly discouraged and successfully repelled.
Further, the Government is encouraged to expedite the police investigations into the threats and attacks upon lawyers, and to ensure that they are independent, thorough and effective. The Government is urged to take preventative steps to ensure the security of lawyers under threat. The Government must refrain from publishing potentially inflammatory rhetoric against lawyers representing terrorist suspects, and from identifying attorneys with their clients’ causes. The article entitled ‘Who are the human rights violators?’ must be withdrawn from the website of the Ministry of Defence with immediate effect and must also be removed from its archive. Independent, thorough and timely investigations, with a view to securing appropriate criminal charges, should be carried out in relation to each and every attack on journalists.
There should be proper coordination between the law enforcement agencies with respect to the current investigations into the assassinations of journalists with a view to ensuring prompt and effective prosecutions. In its recommendations to the legal profession, the IBAHRI has urged the Sri Lankan Bar Association to be more proactive in protecting the legal profession from political pressures.
Insofar as emergency law is concerned, it is suggested that planning should commence immediately for the gradual removal of the emergency regulations as quickly as possible after the cessation of the armed conflict in order to ensure that as little long-term damage as possible is caused to Sri Lanka’s democratic order. The Government should repeal any aspects of the Emergency Regulations and the Prevention of Terrorism Act which are not strictly necessary and proportionate to the apparently decreasing security threat currently being faced, with particular regard to basic due process guarantees. .
The full report, Justice in retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka can be downloaded from the International Bar Association website.