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Published On:Thursday, November 15, 2012
Posted by Sri Lanka Guardian

Speak out in defending judicial independence, before it is too late

An Open Letter from the Asian Human Rights Commission to the Judges of Sri Lanka 

| by Bijo Francis 

Honourable Judges:

( November 15, 2012, Colombo, Sri Lanka Guardian) I am writing on behalf of the Asian Human Rights Commission (AHRC) under extraordinary circumstances as the gravity of the issues involved compels me to do so.

The issue that I wish to seek your attention is the impeachment proceedings of the Chief Justice of Sri Lanka, which violates the principles of separation of powers, due process and the right to a fair trial that the Chief Justice is entitled to. All of this is denied to the Chief Justice in the impeachment procedure as set out in Article 107 of the Constitution and the related Standing Orders.

It is the duty of the Supreme Court and all other judges in Sri Lanka to protect the dignity and the liberty of every individual. This is the exclusive prerogative of the judiciary. It is a universally recognised principle in all countries where independence of the judiciary exists and is valued. This is also a principle well enshrined in Sri Lankan law as so beautifully expressed by Sir Sydney Abraham in the Mark Anthony Lyster Bracegirdle case.

Defending the liberty of an individual and the independence of the judiciary weighs heavily on the shoulders of all the judges in the country, more importantly upon the Supreme Court. If the judiciary falters or fails in this, it will not only destroy individual liberty and also the very existence of an independent judiciary.

History is proof to the fact that in the past decades, the Sri Lankan judiciary has on crucial occasions failed to protect its own independence. Two of those crucial moments were when the Constitution itself was changed in 1972 and further in 1978, attacking fundamentally judicial independence. Had the judiciary used its inherent powers and constitutionally resisted these attacks, judicial independence and the entire nation would not have suffered the setbacks, Sri Lanka has suffered so badly, in the recent times.

In the very vocation of being a judge is the duty to be courageous, even at the expense of great personal sacrifice at crucial moments when the integrity of one's position is challenged.

The Sri Lankan judiciary is facing one such crucial situation at the moment. Perhaps a time in history that is so important, that if it is lost, the very independence of the judiciary will suffer a setback so devastating, from which it would be difficult to recover.

The independence of the Chief Justice's office is being challenged, and the Chief Justice is deprived of the basic right, which every citizen of Sri Lanka is entitled to, in defending oneself within a framework of fair trial, observing standards that are universally recognised. If the Chief Justice falls, the entire judiciary will fall with her.

It is within the powers of the judiciary in Sri Lanka to prevent this by demanding justice for the Chief Justice, who is also a colleague. It is not a mere act of solidarity or friendship, but a step so vital to the survival of an independent profession.

History will question whether the judges of Sri Lanka rose to the occasion and faced it with courage in defending the very foundation of their own profession and their independence. If the judiciary is not willing to shoulder this responsibility, that too will be on record and generations to come will suffer the loss of their liberty as a consequence of this failure.

Global support for just causes often begins from bold initiatives of a few individuals, who make the first move from the frontline of defence. It is equally the responsibility of the global human rights community to support initiatives in Sri Lanka in defence of fundamental freedoms.

I therefore, on behalf of the global human rights community and in the name of the best ideals on which human rights and human liberty rest, most humbly call upon all the judges of Sri Lanka, more importantly the judges serving at the Supreme Court of Sri Lanka, to face this moment of destiny, boldly, and with the farsightedness the situation warrants, in defending the Chief Justice in her right to just and fair treatment.

Sincerely

Bijo Francis
Interim Executive Director
Asian Human Rights Commission

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