In a statement supported by Law and Society Trust, a member of FORUM-ASIA, the Asian Legal Resource Centre details the crisis in Sri Lanka's judicial system. They call upon the UN Human Rights Council to urge the government of Sri Lanka to take measures to ensure a functioning, accountable judiciary.
In a written statement to the fifth session of the UN Human Rights Council, the Asian Legal Resource Centre, supported by Law and Society Trust, Sri Lanka, detail serious concerns affecting the judiciary in Sri Lanka. The most pressing concerns include the politicisation of the Office of Chief Justice, the arbitrary conduct of the Chief Justice, ignoring constitutional provisions safeguarding the independence of the judiciary, particularly given its relevance to the peace negotiations.
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.
Arbitrary Conduct by Chief Justice Sarath Silva
Chief Justice Sarath Silva has been accused of a variety of misconduct, including authoritarian powers in listing of cases and determination of benches, arbitrary control of the judicial service commission, undermining the fundamental rights jurisdiction of the Supreme Court, arbitrary use of contempt powers and the refusal of Sri Lanka’s Supreme Court to adhere to international treaty obligations.
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). Since March 2005, the CC has been defunct due to President Mahinda Rajapakse’s refusal to fill the vacancies in the CC.
The Relevance of the Independence of the Judiciary and the Constitutional Process to Peace Negotiations
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 writers call on the HRC to urge the government of Sri Lanka to issue standing invitations to all Special Procedures, launch an inquiry into questions of abuse of power by the Chief Justice, ensure fair control of the lower judiciary and take domestic measures to ensure the views of the UN Human Rights Committee.
Read full text of Statement (in .pdf).
