Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights
Asia Report N°172
30 Jun 2009
EXECUTIVE SUMMARY AND RECOMMENDATIONS
Sri Lanka’s judiciary is failing to protect constitutional and human rights. Rather than assuaging conflict, the courts have corroded the rule of law and worsened ethnic tensions. Rather than constraining militarisation and protecting minority rights, a politicised bench under the just-retired chief justice has entrenched favoured allies, punished foes and blocked compromises with the Tamil minority. Its intermittent interventions on important political questions have limited settlement options for the ethnic conflict. Extensive reform of the judicial system – beginning with a change in approach from the newly appointed chief justice – and an overhaul of counterproductive emergency laws are essential if the military defeat of the LTTE is to lead to a lasting peace that has the support of all ethnic communities.
At independence in 1948, Sri Lanka had a comparatively professional and independent judiciary. New constitutions in 1972 and 1978, however, cut back on the judiciary’s protection from parliamentary and presidential intrusions. The 1978 constitution vested unfettered control of judicial appointments in presidential hands. Unlike other South Asian countries, no strong tradition or norm of consultation between the president and the chief justice developed. Nor did predictable rules immune from manipulation, such as promotion by seniority, emerge.
The Seventeenth Amendment, enacted in October 2001, attempted to depoliticise a range of public institutions, including the judiciary, by establishing a constitutional council. The council limited the power of the president to make direct appointments to the courts and independent commissions. Since 2005, however, Presidents Chandrika Kumaratunga and Mahinda Rajapaksa have wilfully ignored this constitutional limit by refusing to convene the constitutional council. An increasing proportion of President Rajapaksa’s appointees to the higher court have been from the attorney general’s office. The result is benches stacked to favour the government. The 1978 constitution’s system for removing judges is also broken. Vested in parliamentary control, impeachment is only ever threatened on thinly veiled political grounds against judges who have broken with a ruling coalition. No effective mechanism exists to sanction corrupt or abusive judges.
At the same time, the recently retired chief justice, Sarath N. Silva, chose to exercise his powers in ways that further sapped the independence of the lower courts and the Supreme Court. Through the Judicial Service Commission (JSC), he controlled appointments, transfers and removals of lower court judges. He used those administrative powers to punish judges out of step with his wishes and to reward those who toed the line. Police and other politically influential constituencies used their close ties to the chief justice to influence judicial decisions. Fear of sanction by the JSC has undermined judges’ willingness to move aggressively against the police or the military, particularly in cases involving the rights of Tamil detainees. Entrenching this problem are informal local networks of contacts and collaboration between police, judges and the bar. In part as a result of these ties, there are no effective checks on endemic torture in police custody.
Formal constitutional and statutory rules further undermine judicial independence, deepening Sri Lanka’s political and ethnic crises and compounding harms to human and constitutional rights. Most importantly, Sri Lanka has two sets of emergency laws – regulations issued under the Public Security Ordinance, No. 25 of 1947, and the 1979 Prevention of Terrorism Act (PTA) – which impose severe limits on courts’ jurisdiction and authority to prevent abusive detention and torture. Emergency regulations and the PTA are used disproportionately in Tamil areas and against Tamil suspects. Without the repeal or radical reform of these laws, continued political alienation of Tamils is virtually assured.
Neither the local magistrate courts nor the provincial high courts provide remedies for illegal or abusive detention under either the emergency laws or the criminal code. Threshold review of detention decisions by magistrates is superficial. The “habeas corpus” remedy putatively available in the high courts rarely succeeds in gaining releases. Some relief can at times be found by filing a “fundamental rights” application in the Supreme Court. But distance, the difficulty of travel, especially for Tamil litigants, and the cost of hiring one of a limited pool of Colombo-based Supreme Court lawyers create impassable barriers for most litigants.
The Supreme Court under Chief Justice Silva did little to alleviate this deficit of justice. To the contrary, its recent opinions tried to cut off options for raising claims in international forums. Silva’s court also intervened at crucial moments in the political process to strike down negotiated agreements designed to address Tamil concerns, thereby strengthening political hardliners among Sinhala nationalist parties and deepening the ethnic divide. While the court has been lauded for recent judgments protecting some rights and invalidating corrupt government contracts, these opinions do not pose a substantial challenge to excessive power of the executive presidency. Judicial interventions against corruption have been sufficiently unpredictable that they provide no real incentive to future office holders to refrain from misusing state resources.
The June 2009 retirement of Sarath Silva and the appointment of the most senior member of the Supreme Court, Asoka de Silva, as the new chief justice offer an opportunity for urgently needed reforms to begin. The new chief justice should take immediate steps to depoliticise the JSC, press for a speedy resolution of the constitutional council case currently pending before the court and begin to establish a more favourable climate in the courts for fundamental rights cases and for those challenging detentions under emergency laws. The JSC, chaired by the new chief justice, should order magistrates in areas where LTTE suspects are being held to use their wide powers to visit and monitor the conditions of the more than 10,000 surrendered or suspected members of the LTTE now in state custody. For any reforms to have lasting impact, however, they will need political support from an empowered bench and active bar willing to resist an executive that has shown little commitment to an independent judiciary.
1. Reconstitute immediately the constitutional council under the Seventeenth Amendment by appointing the slate of nominees already forwarded by the government and the opposition parties and commit to respecting the council’s judicial appointments until a more independent and effective mechanism for judicial selection is operational.
2. Negotiate with the opposition parties in good faith to amend the Seventeenth Amendment to reduce political parties’ involvement in the constitutional council, and instead include members of the Supreme Court selected by lot, president’s counsel of long standing and representatives of civil society organisations with demonstrated experience and knowledge concerning judicial selection, constitutional law and fundamental rights.
3. Repeal sections of the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005 and the Emergency (Prevention and Prohibition of Specified Terrorist Activities) Regulations No. 7 of 2006 (and all previous emergency regulations that may remain in force at present) that authorise detention without charge outside areas of ongoing military hostilities, that derogate from the criminal procedure code and that criminalise conduct involving the exercise of free speech and associational rights.
4. Move the administration of the legal framework set out in Emergency Regulations and the PTA from the defence ministry to the justice ministry, with clear civilian oversight over the national security apparatus, especially with regard to detentions and detainees’ access to justice.
5. Amend the provisions of the 1978 constitution concerning the judiciary in order to:
a) allow actions against the president for the non-performance of mandatory legal duties, e.g., by the way of writs of certiorari, prohibition or mandamus (Article 35);
b) prohibit by law sitting judges from holding other remunerative and/or administrative positions during their tenure on the bench or from securing such posts on commissions or otherwise after their retirement; and
c) create an independent judicial tribunal for the adjudication of charges of misconduct or incapacity of members of the judiciary, including the Supreme Court, where members of said tribunal would be chosen by lot and would exclude any judges who were alleged to be connected in any way with the alleged offences.
6. Enact a contempt of court law limiting and imposing procedural constraints on the imposition of contempt sanctions in line with the 2005 views of the UN Human Rights Committee.
7. Amend Chapter III (in particular Article 15) and Chapter XVIII of the constitution, the Public Security Ordinance, and the 1979 Prevention of Terrorism Act (Temporary Provisions) to state that derogations from and restrictions on constitutional and human rights are limited by law to be consistent with the constraints imposed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
8. Overrule the Singarasa judgment of the Supreme Court by legislation or constitutional amendment, clarifying Sri Lanka’s compliance with the Optional Protocol to the International Covenant on Civil and Political Rights and committing to following the views of the Human Rights Committee in past and future cases concerning compensation and other remedies.
9. Enact legislation requiring the immediate publication and wide public dissemination of any regulations (including emergency regulations) issued by the government and opinions of the Supreme Court and the Court of Appeal, with the provision of necessary funding.
10. Follow a rule of seniority in appointments to the higher judiciary except in cases where the constitutional council makes a public finding that compelling reasons exist for declining to promote a judge.
11. Place a moratorium on the promotion of officials from the attorney general’s office to the higher judiciary, permitting appointments from the attorney general’s office only after there is numerical balance between career-judge appointees and appointees from the private bar on the one hand, and members of the attorney general’s staff on the other in those courts.
12. Express publicly the party’s commitment to reforming the constitution’s judicial appointment and removal system and the elimination of the emergency powers of arrest, detention and prosecution without full due process protections under the Public Security Ordinance and the 1979 Prevention of Terrorism Act (Temporary Provisions) (PTA), until constitutional amendments can be passed to improve those processes.
13. Task publicly the registrar of the Supreme Court with independent responsibility for assigning judges to benches of the court in specific cases by random lot, and bar any judge of the court from taking any role in the selection of benches.
14. Publish clear rules for when benches of more than three judges will be formed in cases raising challenges to administrative or executive action and when appeals or re-hearings from three-judge benches will be heard by larger benches of the court.
15. Publish clear standards for the exercise of the Supreme Court’s discretionary fundamental rights jurisdiction, including rules that ensure that challenges to ongoing detentions are addressed speedily even pending the filing of any criminal charges, that victims of torture and their families receive adequate compensation, and that all petitioners are protected from improper coercion or violence while their cases are pending.
16. Even in the absence of legislation requiring the publication of Supreme Court opinions, direct the registrars of the higher judiciary to publish immediately and disseminate widely judgments from those courts in Sinhala, Tamil and English.
17. Order the expeditious adjudication of challenges to the president’s non-application of the Seventeenth Amendment.
18. Promulgate clear rules to ensure due process protections and publicity in proceedings against judges for misconduct in the JSC, including the requirements that judges be notified of the specific charges against them; that judges have an opportunity to respond in writing and with the aid of counsel; that any findings of misconduct be promptly made available to the judge; and that JSC decisions can be appealed to Supreme Court panels.
19. Publish a schedule of appointments and transfers for magistrate judges that minimises uncertainty or manipulation in the location and duration of appointments; derogations from the schedule should be open to appeal to the commission and allowed only under publicly stated exceptional circumstances.
20. Promulgate rules requiring all settlements between police and victims of torture to be subject to approval by a magistrate judge, who should ensure that victims are not subject to undue pressure in reaching settlements and that the settlement is fair.
21. Order magistrates to use their wide powers to visit and monitor conditions in detention centres housing surrendered and suspected LTTE members; and organise training workshops for magistrates to equip them to use their monitoring powers more effectively.
22. Expand the role of state counsel in the magistrate courts, tasking them with the role of providing a check on police prosecution of ordinary crimes to ensure against the use of torture or other forms of abusive treatment or discrimination.
23. Expedite investigations and prosecutions of disappearances, illegal detention, torture or killings by state actors.
24. Ensure that any further funds dispersed on the justice sector are not used as mechanisms for leverage by political actors or factions within the judiciary.
Colombo/Brussels, 30 June 2009