Published On:Sunday, January 6, 2013
Posted by Sri Lanka Guardian
AHRC declares a week of concern for threats against the independence of the judiciary in Sri Lanka
( January 6, 2013, Hong Kong, Sri Lanka Guardian) The Asian Human Rights Commission alerts all concerned persons in and outside of Sri Lanka to the possibility that a five days from now there may not be a judiciary that can exercise judicial power with independence in Sri Lanka. In all likelihood, the judiciary will be brought under the direct control of the Executive President, in the same way that other institutions in Sri Lanka, including the Attorney General’s Department, have been brought under the direct control of the Executive President. This is no false alarm.
According to state media, the government will defy the interpretation of law given by the Supreme Court of Sri Lanka last week (1st January 2013) which declares that:
“It is mandatory under Article 107(3) of the Constitution for the Parliament to provide by the matters relating to the forum before which the allegations are to be proved, the mode of proof, burden of proof and the standard of proof of any alleged misbehaviour or incapacity and the Judge's right to appear and to be heard in person or by representative in addition to matters relating to the investigation of the alleged misbehaviour or incapacity."
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The Supreme Court also declared that,
“In a State ruled by a Constitution based on the rule of Law, no court, tribunal or other body (by whatever name it is called) has authority to make a finding or a decision affecting the rights of a person unless such court, tribunal or body has the power conferred on it by law to make such finding or decision. Such legal power can be conferred on such court, tribunal or body only by an Act of Parliament with is “Law” and not by Standing Orders which are not law but are rules made for the regulation of the orderly conduct and the affairs of the Parliament. The Standing Orders are not law within the meaning of Article 170 of the Constitution which defines what is meant by "law"”.
However, the government, according to the state media, will ignore this interpretation of the law by the Supreme Court and will proceed to impeach the Chief Justice on the basis of the report filed by the Parliamentary Select Committee. Thereafter, the incumbent Chief Justice will be forcibly removed from the position and a new Chief Justice, who is chosen by the government, will be appointed.
The government has now guaranteed impunity to the state media from contempt of court and a massive media campaign is being carried out, not only against the incumbent Chief Justice, but also against the very notion of the independence of the judiciary.
With the removal of the incumbent Chief Justice and the appointment of the new Chief Justice, the two-hundred-year-old tradition of the independence of the judiciary in Sri Lanka will come to an end. The courts will be directly brought under the control of the executive and any judge who acts independently will face the same consequences (removal) as the incumbent Chief Justice.
The Sri Lankan court system will be reduced to a mere administrative mechanism, deprived of the power to take any measure that is contrary to the wishes of the government. Thus, the capacity of the Supreme Court and the other courts to safeguard the dignity and the rights of the individual against the assaults by the state on individuals will come to an end. Deprived of the power to protect individuals from the assaults of the government, the fundamental rights provisions of the constitution and other legal provisions, such as the writ jurisdiction of the court, will lose all significance.
Once the judicial system lacks independence, the rule of law system cannot function anymore. Thus, Sri Lanka will walk out of the rule of law orbit. The people will be victims of whatever directives the executive prefers to make, irrespective of its impact on the basic human rights of the people.
This is even more dangerous in Sri Lanka as the Ministry of Defense has developed into a ‘shadow state’ and acts through paramilitary forces and the intelligence services to suppress the rights of citizens. Forced disappearances, illegal arrests, illegal detentions, the practice of torture and ill treatment, denial of fair trial, suppression freedom of expression and publication, suppression of the freedom of assembly and the denial of the right to free and fair elections are now very much part of the Sri Lankan experience. With the total eclipse of the independence of the judiciary, the people will be totally trapped within the schemes of the Ministry of Defense.
Thus, the coming five days are historically crucial for Sri Lanka. If the government’s declared intention to abide by the PSC report succeeds, Sri Lankan democracy will sink. The people will lose the protection of the rule of law and will be under a virtual dictatorship.
How long that will last will depend on when and how people learn to resist a dictatorship.
We therefore wish to bring to everyone’s notice the crucial importance of the coming five days and request them to open their eyes and to see the changes that are taking place, to use their judgment and act in every possible way to protect their democracy, the system of rule of law, separation of powers and the independence of judiciary, and their civil liberties.
There are countries where courts are mere administrative bodies and are obligated to facilitate the government’s schemes however contrary this may be to the rule of law and the rights of the individuals. In Asia, Myanmar, since the military coup of General Ne Win, and Cambodia, despite constitutional recognition of independence of judiciary since 1993, are two glaring examples.