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Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights
Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights
Table of Contents
  1. Executive Summary
Sri Lanka’s Transition to Nowhere
Sri Lanka’s Transition to Nowhere
Report 172 / Asia

Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights

Sri Lanka’s judiciary is failing to protect constitutional and human rights.

Executive Summary

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.

Colombo/Brussels, 30 June 2009

Op-Ed / Asia

Sri Lanka’s Transition to Nowhere

Originally published in The Diplomat Magazine

The bloom is off two years of hope that the rule of law can be restored for all and that a 60-year failure to grant Tamils a fair share of power, in the Sinhala majority island, can be rectified.
 

 

In January 2015, the shock electoral defeat of President Mahinda Rajapaksa by his former ally, Maithripala Sirisena, rescued Sri Lanka from a slide into increasingly harsh nationalist authoritarianism. The victory of a broad coalition representing Sinhalese, Tamils, and Muslims gave hope that the country could begin to address its longstanding political challenges: remedying the 60-year failure to grant Tamils a fair share of power in the Sinhala majority island and restoring for all the rule of law, damaged by decades of politicization, bitter ethnic bias, and impunity for grave abuses committed during the civil war with the Tamil Tigers.

The momentum of the early months soon slowed, as deep political dysfunctions reasserted themselves in the face of reforms meant to shake up entrenched political practices and policies. Two years on, the bloom is off. Time is running out for any reform at all. Government leaders should remember how easily they were sidelined when Rajapaksa’s triumphalist majoritarian politics held sway. For their own survival and to deliver on at least some of their big promises, they must collectively reject narrow chauvinistic politics and daily bickering and invest their remaining political capital in promoting an inclusive vision to build a more accountable political order and mitigate the risk of future conflict.

Sirisena’s first nine months as president saw real progress. With his electoral coalition, anchored around the United National Party (UNP), strengthened by the support of a large section of his – and Rajapaksa’s – Sri Lanka Freedom Party (SLFP), he won the needed two-thirds parliamentary approval for a key electoral pledge: a constitutional amendment to reduce the presidency’s enormous powers and restore the independence of oversight commissions for the police, judiciary, and human rights. The government ended censorship and intimidation of the media and partially scaled back the heavy military presence in Tamil-majority areas in the north and east of the island. The military was convinced, reluctantly, to return some of the huge swathes of private land it had seized during and after the war.

Sirisena’s election was followed in August 2015 by the narrow victory of a UNP-led coalition over a grouping led by former President Rajapaksa and including much of the new president’s Sirisena’s own SLFP. This allowed Sirisena to reassert enough control over the fractured SLFP to convince the majority of the parliamentary group to form an unprecedented national unity government with its long-time rival UNP, headed by Prime Minister Ranil Wickremesinghe. The grand coalition reaffirmed the parties’ ambitious agenda to revive the beleaguered economy, investigate alleged corruption and political murders under the previous regime, promote reconciliation and, most important, draft a new constitution. Key aims of constitutional change were to check centralization of power in presidential hands, adopt a new electoral system and expand the powers devolved to provinces to address Tamils’ long-standing demands for autonomy in the north and east.

Read the full text at The Diplomat Magazine