Rape suspicions against a senior judge and implications on the rule of law system

Statement issued by the Asian Human Rights Commission

(August 25, Colombo, Sri Lanka Guardian) In July of this year a web newspaper, the Sri Lanka Guardian reported an alleged case of sexual abuse by an appeal court judge. Last weekend, Lakbima reported that the CID has submitted its report of inquiries into the incident and that the investigation found adequate evidence against the judge. The CID has submitted the report to Inspector General of Police who forwarded it to the Attorney General. According to the report CID has not proceeded to arrest the judge in order to avoid complications and awaits instructions from the AG. Earlier the Chief Justice has ordered an inquiry into the case and according to the Lakbima report the Chief Justice ordered the judge not to attend court.

The arrest of a rape suspect does not require clearance from the AG. Many persons have been arrested under such charges by the police and judges are subjected to the law as much as anyone else. (The only exception to this rule is the Executive President who has been placed above the law by the Constitution. No other head of a state in the world enjoys such wide immunity from prosecutions). Thus the delay in arresting the suspect is, in itself, a violation of the law. However, the precautions taken by the CID is understandable under the present circumstances.

As the CID report contains adequate evidence against the suspect judge there is no reason for the AG to delay giving clearance for the police to carry out their normal duties as required by law. It is to be hoped that no political pressure would be exercised at this stage to stop the proceedings. The due process of law would require speedy action in this case, even more so than in the case of a common criminal. Any delay will further damage the citizen's faith in the rule of law in the country.

Perhaps this is the first time in the 200 year history of the country's judiciary that a judge of a superior court is suspected of such a serious crime. This, more than anything else, must be the reason to strictly follow all the rules relating to due process in order to assure the public that serious corrective measures are being taken. Months of delay in this case has given rise to serious suspicion about the state of affairs at the highest places.

It is up the top judiciary itself to reflect on the implications of this situation and to take appropriate measures to overcome whatever damage that has resulted from this situation. It is one of the most serious issues that country’s judiciary has faced and it is likely that in future there would much interest in studying the manner in which judiciary dealt with this issue.

As for CID it has once again shown that it has the competence and capacity to deal with serious investigations without any use of torture and other illegal methods. What hinders the performance of the CID is not limitations of the department's competence but rather the political pressure that obstructs the department from carrying out its legal duties.

While the process of arrest is being carried out it is vital to provide protection to the victim and witnesses in order to ensure that they are not intimidated or harassed. Often witnesses are harassed to the extent where they withdraw their testimonies. The draft law on witness protection is before the parliament but seems to have been forgotten. It is up to judiciary itself to make representations to the government about the speedy passing of this law. Even the opposition is not taking much interest in getting this important law passed.