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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: Landslide win for the Rajapaksa puts democracy and pluralism at risk
Sri Lanka: Landslide win for the Rajapaksa puts democracy and pluralism at risk
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: Landslide win for the Rajapaksa puts democracy and pluralism at risk

Originally published in LSE South Asia Centre

Twice postponed because of COVID-19, Sri Lanka's parliamentary election finally took place on 5 August. The SLPP's electoral victory should be understood not simply as a result of dissatisfaction with rival party UNP, but of the failure of its internationally-backed liberal reform agenda to gain lasting traction with Sri Lankan voters.

Wednesday, 5 August saw the landslide general election victory of the Sri Lanka Podujana Peramuna (SLPP), led by President Gotabaya Rajapaksa and his brother, Prime Minister Mahinda Rajapaksa. The vote sets Sri Lanka on a path likely to bring fundamental political and social change. With 59 percent of the vote, the SLPP won enough seats – together with allied parties – to achieve the two-thirds parliamentary majority they requested from voters in order to change the constitution. With executive power shared between the Rajapaksa brothers, the family and their party have the power to reshape Sri Lanka’s political institutions in fundamental – and potentially dangerous – ways.

The Sinhala nationalist ideology the Rajapaksas and the SLPP promote has long structured Sri Lankan politics, marginalising Tamils (about 15 percent of the population) and, in different ways, Muslims (who make up ten percent). The explicitly pro-Sinhala and anti-minority rhetoric of the SLPP’s campaign, the Rajapaksas’ demonstrated commitment to centralised and authoritarian rule – Mahinda’s presidency from 2005-2015 saw widespread human rights violations and numerous well-documented atrocities –  and the comprehensive defeat of the political voices supporting a more liberal, pluralist and tolerant vision of Sri Lanka – together these threaten to entrench a more dangerously intolerant form of majoritarianism than Sri Lanka has seen before.

Following Gotabaya’s decisive victory in the November 2019 presidential election, and in light of the continued popularity of his elder brother Mahinda, few political observers doubted the SLPP would win a big victory. Given the mostly proportional nature of Sri Lanka’s electoral system, however, few expected it would win a two-thirds majority, something no party had achieved before in a single election. That it was able to cross this threshold is due in part to the long and bitter infighting that hobbled its main rival, the United National Party (UNP), which eventually split it in two just before the election campaign began. The historic decimation of the UNP – it gained just one seat from two percent of the vote, while its splinter formation, the Samagi Jana Balawegaya (SJB), won 24 percent and 54 seats – was a public rebuke for the party’s disastrous incompetence when in power from 2015-2019.

Crippled by the dysfunctional cohabitation between President Maithripala Sirisena, leader of the Sri Lanka Freedom Party (SLFP) and his prime minister, UNP leader Ranil Wickemesinghe, the government ignored intelligence warnings and failed to prevent the ISIS-inspired Easter bombings that killed 279 people and injured hundreds more. The SLPP ran on Gotabaya’s trademark promises of security and competent technocratic rule, the strong performance of his minority government in limiting the spread of COVID-19, and its aggressively Sinhala and Buddhist agenda. All this resonated widely with Sinhalese voters who had seen little improvement in their economic situation under the UNP and had received a steady diet of nationalist, often anti-Muslim, rhetoric from the overwhelmingly pro-SLPP and pro-Rajapaksa state and private media. The SLPP also capitalised on its strong local party structures and its sophisticated and unrivalled use of social media.

But the SLPP’s victory goes deeper than current and recent party dynamics. It expresses the exhaustion – and the Sinhalese public’s rejection – of the liberal, largely western-oriented elite that dominated the UNP and, until at least 2005, had strong influence within the SLPP’s predecessor, the Sri Lanka Freedom Party (SLFP). Promises of inter-ethnic reconciliation, constitutional reform for greater devolution of power to Tamil-majority regions, strengthened rule of law and human rights protections and accountability for past abuses – this was a political reform agenda encouraged by western governments and taken up, if rather timidly, by the last UNP administration, after being endorsed on paper by other governments before it. That agenda is now dead. Badly packaged to the public, linked to no clear or tangible benefits to average Sinhalese during the UNP’s 2015-19 government, and undercut by the economic liberalisation policies that accompanied it, the liberal reform agenda was no match for the relentless nationalist rhetoric and framing of issues by the Rajapaksas and their media allies since the formation of the SLPP in 2016. The UNP’s back-to-back defeats in 2019 and 2020 express the decisive victory of nationalist narratives and policies that have been promoted for decades.

Sri Lanka’s democracy has always been incomplete and deeply flawed. Tamils have been excluded from effective power-sharing and their collective identity undermined. Muslims’ economic and cultural security is at growing risk. But even as an ethnocracy, rather than a full democracy, important elements in Sri Lanka have resisted the full flowering of a Sinhala Buddhist hegemonic project. The island’s embattled pluralist traditions, and the occasional attempts to give institutional form to Sri Lanka’s multicultural and multi-religious demographic reality, however, are now so severely weakened as to be politically irrelevant. Under Gotabaya Rajapaksa’s presidency the state has abandoned any pretence of Sri Lanka as a multi-cultural nation. Even as the country suffered repeated periods of insurgency, brutal counter-insurgency and mass atrocity – culminating in the tens of thousands of Tamil civilians killed in the final stages of the war with the Tamil Tigers in 2009 – Sri Lanka retained genuine democratic energies and traditions of questioning and contesting the ruling powers. These traditions – and those who wish to maintain them – are now under intense pressure.

What this is likely to mean in practice is a deepening of developments already begun during Gotabaya’s first nine months in office. The president’s preference for centralised rule with little oversight is clear: he has ruled without parliament for the previous five months – despite the constitution’s explicit limit of three months – relying instead on a series of ad hoc presidential task forces to set and implement policy. The SLPP’s central campaign pledge was to abolish or drastically rework – they never proposed specific changes – the nineteenth amendment. Approved by parliament in 2015 with only one vote against, the amendment limited the president’s previously near-absolute powers. It expanded the powers of the prime minister and strengthened a series of independent oversight commissions – e.g., on police, human rights, judiciary and right to information – and the constitutional council that appoints them. All this is certain to change. Gotabaya and Mahinda might, quite naturally, disagree over how to distribute their respective powers as president and prime minister, and intra-family tensions could shape policy, but it is clear that the executive as a whole will be made significantly stronger and the power of the Rajapaksa family consolidated for the long term.

The military and the Buddhist clergy will also continue to enjoy the expanded prestige and power they have received so far under Gotabaya. The ministry of defence has taken over numerous non-military agencies, and serving and retired military personnel have been appointed to at least twenty senior civil administrative positions, including the presidential task force on controlling the COVID-19 outbreak, chaired by the serving army commander. A separate presidential task force “to build … a disciplined, virtuous and lawful society” is staffed entirely by military and police officers and has sweeping powers to oversee and direct government agencies outside of established procedures. A number of the retired and serving generals are implicated by the UN and others in gross human rights violations during the final months of the civil war. A third task force on preserving archaeological heritage in the multi-ethnic and majority Tamil-speaking eastern province features senior defence and police officials and prominent nationalist Buddhist monks, but no Tamils or Muslims.

Tamils and Muslims in the north and east feel their land rights are increasingly vulnerable to seizures by a range of government initiatives, often through the construction of military camps and Buddhist temples, or through environmental and archaeological regulations. The government is also expected to propose new legislation to regulate Muslim religious education and marriage laws – done in the name of curbing “extremism” – as part of a wider set of policies widely seen by Muslims and rights activists as designed to weaken the community and assert the primacy of Sinhalese and Buddhists. Soon after coming to power, Gotabaya established a Buddhist Advisory Council, which he meets once a month, and his inauguration ceremony in November and Mahinda’s swearing-in as prime minister on 9 August were both held at important and politically-powerful Buddhist temples.

The first nine months of Gotabaya’s presidency has seen a concerted attack on the rule of law and the independence of the police and judiciary. Police investigations into corruption, murder and abduction cases implicating officials serving when Mahinda was president, including Gotabaya and senior military officials, have been stopped, with the key investigators either transferred or in some cases themselves charged with crimes on flimsy grounds. There are increasing reports of lawyers involved in human rights cases facing intimidation by police or military, and there are growing fears of a return to the active repression of dissent experienced during Mahinda Rajapaksa’s presidency, when scores of media personnel, humanitarian workers and political activists, particularly but not only Tamils, were killed, assaulted or forced into exile. With the government now possessing new technologies that provide radically expanded powers of surveillance, and enjoying unprecedented influence in both traditional and social media, democratic space is at real risk.

In this environment, the opposition – divided on ideological and ethno-religious lines – has its work cut out for it. Following the collapse of the UNP, the SJB will face a major test in becoming an effective opposition. Led by long-time UNP leader-in-waiting Sajith Premadasa, the party will need to find a way of distinguishing itself from the failed liberalism of the UNP while effectively challenging the hyper-nationalism of the SLPP. The election also weakened the position of the leftist Janath Vimukthi Peramuna (JVP), which once again failed to emerge as a strong third force, despite the hopes and growing support of progressive intellectuals and activists. Thanks in part to savvy government moves, the Tamil vote was increasingly splintered, with smaller parties eating considerably into the support of the largest grouping, the Tamil National Alliance. Muslim parties, and community as a whole, remain divided and have yet to devise an effective response to the years of anti-Muslim violence and hate-speech and the rising levels of distrust that followed the Easter bombings, which Gotabaya and the SLPP have skilfully exploited.

Despite the Rajapaksas’ overwhelming victory and essentially unbridled power, the next months and years will bring major challenges.  Most urgent is a looming economic crisis. Prior to the arrival of COVID-19, the government was facing major difficulties paying back its large foreign debt, with some $3-4 billion in loan payments due over the next year. Chronic fiscal deficits, which make it hard to maintain Sri Lanka’s beleaguered welfare state, has already grown under Gotabaya’s watch and are expected to grow further. The COVID-19 crisis, while surprisingly well-controlled domestically, has crippled the nation’s main sources of desperately needed hard currency: tourism, remittances from overseas workers, and exports. To date, the government has presented no concrete proposals for bridging its financial gaps, other than appealing to creditors for debt relief and deepening its ties with China, which offered a $500 million emergency loan in March. While the economic pain has yet to reach breaking point, popular expectations of government relief are high. Should they be disappointed, political unrest is not out of the question. Many Muslims fear they could be made scapegoats, and a convenient target for displacing popular anger.

It remains uncertain whether China has the resources or the will to bail out Sri Lanka single-handedly. The new government is certain to repeat its previously successful strategy of using fears about China’s growing political – and possible military – role in Sri Lanka to encourage increased financial support from India, Japan and Western governments. With hostility to China rising sharply among all these actors, Sri Lanka’s ability to play the two blocs off against each other may not be endless, however. Should economic and military competition with China continue to grow, it remains possible the anti-Chinese bloc could choose to collaborate more closely and challenge Sri Lanka’s move further into the Chinese orbit by using their collective political and economic leverage in more punitive ways. Given the increased use of human rights-related targeted sanctions against Chinese officials, this could be accompanied by renewed challenges on the unfinished human rights and accountability agenda left-over from the brutal end to the civil war. This could either be through the UN Human Rights Council, which once again considers Sri Lanka in March 2021, or through attempts to assert universal jurisdiction or impose targeted sanctions against some of the key military and political leaders – including Gotabaya – against whom there are credible allegations of serious violations of international criminal law.

For the moment, however, all of Sri Lanka’s key international partners appear willing to work with the newly-elected government. Western governments and the UN in particular hope it can be cajoled into moderating its more authoritarian and hardline nationalist policies, while successfully managing the economic crisis that appears to be just on the horizon. Sri Lanka’s international partners will ultimately need to develop more effective ways to support its pluralist traditions and protect its democratic space than has been the case to date. In the meantime, one has to hope that Sri Lanka’s embattled rights activists, independent journalists and other democratic and pluralist voices are able to develop the new strategies that will be required to resist the country’s complete collapse into nationalist authoritarianism.