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NewsIndependence of the Judiciary is Under Threat

Independence of the Judiciary is Under Threat


 Laksiri Fernando
“They see governments come like water and go with the wind. They owe no loyalty to ministers, not even the temporary loyalty which civil servants owe…” – Jag Griffith
The judiciary in Sri Lanka is under threat. There cannot be any doubt about it. The extent and gravity might be the dispute, if any. First it was a Minister threatening the Mannar Magistrate. Now it is the President insinuating threats to the Supreme Court. This should be a concern of all right minded Sri Lankans, including the so-called ‘patriots’ and those who live abroad, and also the ‘international civil society,’ if anyone is allergic to the so-called ‘international community.’

Sri Lankans should be concerned about the issue because the muzzling of the judiciary is the death knell for the remaining democracy. How many have so far received redress for violations or imminent violations of their fundamental rights from the Supreme Court? The mere existence of an independent judiciary is a deterrent against violations. One of the most significant recent cases is the Z-score fiasco. If not for the independent judiciary, the verdict would have been in favour of the pathetic politicians and bureaucrats manning the ministries of higher education and education who are completely unconcerned about the fate of the innocent children.  

Another example is the Divinaguma decision which undoubtedly angered the President and/or his brother about the judiciary’s independent resolve. If not for this decision, the government was planning to stream role its legislation quite detrimental to the spirit of devolution and in violation of the 13th Amendment, and that means the Constitution of the country.

Still the intent is the same, although the procedure is followed until it reaches the approval of the ‘non-existing’ provincial council in the North. It is a controversial matter whether it is constitutional for the Governor alone to approve it, instead of the elected provincial council, and particularly in the context that the election is arbitrarily withheld for political reasons. This is obvious to the whole world. This is one immediate reason why the government requires a ‘coerced judiciary’ for its arbitrary, if not evolving tyrannical governance.

The international civil society, to mean the international legal profession (including the International Bar Association and the International Commission of Jurists) and democratic and human rights constituencies at large should be concerned about the situation as a matter of principle. If the judiciary in Sri Lanka is muzzled and if democracy is further turned back in the country then there will be repercussions on other countries and internationally.

Even the regime might ‘showcase and sell’ the ‘model of the muzzled judiciary’ to other countries like they did or try to do in the case of the ‘victory over terrorism’ no matter how many innocent civilians were killed, deliberately or otherwise, in the process without any accountability. The regime’s external affairs are so reactionary headed by a corrupt legal ‘luminary.’ He is the author of the so-called “good measures for the judiciary” to prescribe how the judiciary should behave and deliver decisions with ‘patriotism’ in a ‘patriarchal democracy’ in Sri Lanka. 


Let me preface the events or the controversy with some quotes from Jag Griffith (The Politics of the Judiciary, 1985) more appropriately. In a democracy, ‘the judiciary or the judges are not beholden to the government of the day.’ This is something many people cannot understand or they are prevented from understanding.

The ‘governments come like water and go with the wind.’ The judges owe no loyalty to ministers; not even the temporary loyalty which civil servants owe. Judges are lions under the ‘democratic republic’ and in the eyes of the judges ‘the republic is not the President or the Ministers, but the law and their conception of public interest.’ ‘It is to that law and to that conception alone that they owe allegiance. In that lie their strength and their weakness.’   

I will not refer to the Mannar controversy but to the most recent events.

President’s Secretary called the Chief Justice (CJ) and summoned her and other two members of the Judicial Services Commission (JSC) for a meeting. The ‘summoning’ in itself was an insinuated threat. The CJ rightly asked for the request to be sent in writing. The letter was sent on 13 September yet without giving any particular reason. The meeting could have been on anything. The CJ declined the request in writing highlighting the ‘implications of that kind of a meeting on the independence of the judiciary.’ The President obviously does not have a constitutional mandate to summon the Judicial Services Commission (JSC) or the Chief Justice whatever the reason.

In the principle of separation of powers, there can be and should be coordination between the executive and the legislative branches and/or functions. But there is no need of coordination between the judiciary and the executive or the judiciary and legislature. Any attempt at coordination is against the principle of independence. There is no such a principle of independence between the executive and the legislature. Instead the executive should be responsible to the legislature. It is this principle which has considerably eroded under the presidential system since 1978 and in fact encroaching on the matters of the judiciary throughout years.

There is another fundamental structural reason for the erosion of the independence of the judiciary, and the rule of law that it is supposed to uphold. That is the removal of the post-enactment judicial review from the Constitution since 1972, and the limited time given (only one week) including the urgency provision for an incumbent government to curtail the proper judicial review even in the case of the existing (limited) post-enactment judicial review. A major aberration that has occurred in my view is the draconian 18th Amendment.

First, by declaring it as an ‘urgent bill,’ no proper opportunity was given to the citizens or the people in the country to submit their constitutional objections; or the Supreme Court to review them properly. This was in addition to the curtailment of a proper public debate on the issue. The passage of the 18th Amendment revealed a clear dictatorial turn of the Rajapaksa regime.

Second, there are certain legal texts, such as the 18th Amendment, the constitutional inconsistencies or implications of which cannot hardly be evident form the text alone. Those could be judged only through the passage of time and the way those enactments are actually implemented in constituency with or contrary to the constitutions and public interest.

The present encroachment or attempted encroachment on the judiciary is exactly a result of the 18th Amendment, in violation of both the letter and spirit of the ‘democratic (socialist) republican constitution.’

Proof of Threats

On 18 September, the Secretary to the Judicial Services Commission (JSC) was compelled to issue a public statement on the advice of the Chief Justice and the Commission, declaring very clearly the threats to the independence of the judiciary. Some of the important matters are quoted below from that statement translated by the Sunday Times (23 September 2012) with emphasis added.

“It is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regarding decisions taken by the Commission keeping with the service requirements. Recently the JSC was subjected to various influences after the Commission initiated disciplinary action against a judge.”

“Moreover an attempt to convince the relevant institutions regarding the protection of the independence of the judiciary and the JSC over the attempt to call for a meeting with the chairperson of the JSC, who is the Hon Chief Justice and two other Supreme Court judges, was not successful. The JSC has documentary evidence on this matter.”

“It is the JSC that is the superior institution which is empowered with the appointment of Magistrates, District judges, their transfers, dismissal from service and disciplinary action against them. It is an independent institution established under the Constitution. Under the Constitution any direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence which could be tried in a High Court.”

“‘It should be emphasized that the JSC is dedicated and it is its responsibility to protect the independence of the judiciary and discharge its service without being intimidated by influences, threats or criticism. I have been instructed by the Commission to issue this media release to keep the majority of the public who value justice informed about an attempt by conspirators to destroy the credibility of the JSC and the Judiciary. — Manjuala Tilakaratne, Secretary, JSC.

It has to be admitted that the JSC should not issue public statements ordinarily. This is not a statement by the Secretary, but on the instructions of the Commission. As I have highlighted, it talks about the “attempts to destroy the credibility of the JSC and the Judiciary.” It talks about ‘threats and intimidation,’ and ‘various influences’ from ‘persons holding different positions.’ These are apparently on the ‘decisions taken by the Commission’ in pursuant of its constitutional obligations as outlined in the third paragraph above. A recent decision on ‘disciplinary action against a certain judge’ is specifically mentioned that created the ire of certain politicians.      

More generally, while asserting that the Commission is the constitutionally appointed institution to take decisions on the appointments and discipline of all judicial officers, it emphasises that such influences or intimidation constitute an offence. This is given in Article 115 of the Constitution.

Since the Bracegirdle decision of the Supreme Court headed by the Chief Justice Sir Sydney Abrahams in 1937, against an arbitrary deportation order of the then Colonial Governor (largely equivalent to the authoritarian President today!), the judiciary in Sri Lanka has resolved to safeguard the ‘independence of the judiciary’ whatever the later constitutional restrictions (1978 Constitution) and limitations (18th Amendment). The Supreme Court so far has withstood by and large the intimidation, encroachments and threats, including the stoning of the residences of its judges at one time. It is hoped that the judiciary today would withstand similar threats and intimidation, outlined by a second statement by the Secretary to the JSC on 28 September (Colombo Telegraph, 29 September 2012). He has said,

“A situation has arisen where there is a danger to the security of all of us and our families beginning from the person holding the highest position in the judicial system.”

Further Evidence

After the failed attempt to summon the JSC by the President, a letter was sent on 25 September to the CJ stating that the intent of the proposed meeting was to discuss the ‘salaries, financial benefits and scholarships to the judiciary in view of the forthcoming budget.’ This appears ‘a second thought,’ but confirms the attempts to influence the judiciary in financial terms or using the ‘carrot.’ As an authority on the subject, Clifford Wallace, once said:

“Budgetary decisions are usually made by the political branches of the government; it is essential that the budget not be used as a means to undermine the independence of the judiciary.”

There is no question that the salaries and facilities to the judges are extremely poor. This is something that a former Chief Justice strongly raised without a proper response from the President, the Treasury or Parliament. I once remember a senior police officer stating that ‘when they go for cases in official vehicles with assistants, it was embarrassing to see some magistrates come by bus carrying large folders of documents themselves.’ However, there are and there should be correct procedures to rectify these salary and other anomalies without making the judiciary dependent or obliged to the executive on these matters. This is why the salaries of the judges of the Supreme Court and the Court of Appeal are set aside usually through the consolidated fund and not the annual budget.

Much worse was the President’s salvo on the JSC, and more particularly on the Secretary, with the Media Heads on 26 September. If the President cares for the independence of the judiciary then his statements and discussions at that meeting were completely unwarranted. He has said “as a lawyer by profession who had practised for nearly two decades, he was an ardent advocate of an independent judiciary” (The Island, 27 September 2012); but has proved completely the contrary. He must have been in the past, but not now. His has claimed that “it was the UNP which had got judges’ houses stoned and tried to impeach Chief Justices,” which is true, but not an excuse for his present behaviour.

There were personal remarks made by him on the Secretary to the JSC. If the comments came from a person other than the President, then those could have been construed as defamation. Unfortunately, the President has his constitutional immunity; he can defame anyone!

In the Constitution, there are certain protections to the Commission and its Secretary. Otherwise, the duties of those positions cannot be properly performed with dignity. If there are genuine allegations against the Secretary, then those should be referred to the Chief Justice, not by the father of the aggrieved party but by the relevant party herself. There is no business for the President or the Presidential Secretariat to take disciplinary action against the Secretary to the JSC as it has been mentioned.

This is very much similar to the ‘corruption charges’ against the husband of the incumbent Chief Justice, who was the government appointed former Chairman of the National Savings Bank. The appointment should not have been done or accepted in the first place. After he resigned over a controversial decision, most likely the decision dictated by the government itself, he is now charged on the same matter on corruption. There is no question about investigating the charges through the correct procedure. But the concerted efforts at ‘blackmailing the judiciary’ for political purposes are abundantly clear.

It is reported that the efforts at what they call ‘taming of the shrew’ is coordinated by a secret committee of some ministers and high or low level lawyers. The names and conspiracies of these people will be revealed very soon.

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