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Monday, July 15, 2024

Executive Must Cease Intimidating and Undermining the Independence of the Judiciary

On 18th June 2024 President Ranil Wickremesinghe, speaking in Parliament, criticizing the recent Supreme Court determination on the Gender Equality Bill referred to the court as having engaged in ‘judicial cannibalism’. The President went on to say that Parliament ‘could not agree with the Supreme Court ruling’ and that he while he doesn’t propose to summon judges before parliament, he proposes the appointment a Parliamentary Select Committee to review the determination. Previously, the President also demanded the appointment of a parliamentary Select Committee to investigate the workings of the Constitutional Council when it did not approve his nominee to the Supreme Court.

On 19th June 2024, the Minister of Justice, Wijedasa Rajapakse, in Parliament, stated that the Supreme Court Orders in effect suspend parts of the Constitution and drew comparison between the orders of the Supreme Court and Adolf Hitler suspending the civil rights prior to the outbreak of World War II. These statements are aimed at instilling fear and confusion in the minds of citizens.

The Minister levelled serious allegations naming specific judges and lawyers. Any such allegation of corruption involving judicial officers must be taken extremely seriously however these public statements are a misuse of Parliamentary privilege. Allegations should be confined to formal complaints before the proper fora. Every allegation must be dealt with due process and with a view to strengthening institutions. It is disappointing and extremely concerning that the Minister, a senior member of the legal profession, a President’s Counsel, levels allegations against the District Court judge who issued a stay order against the Minister regarding an issue on the office bearers of the SLFP. Further the Minister of Education, Susil Premjayantha and Dayasiri Jayasekare, Member of Parliament also made comments on the cases for which they have certain interests.

The above remarks are an assault upon the independence of the judiciary, a cornerstone of our Constitution. The President, Minister of Justice, Minister of Education are representatives of the entire Executive.  The President also exercises a critically important Constitutional power and responsibility in appointing judges to our highest judicial forum- the Supreme Court and the Minister of Justice controls resources to the judiciary. Such high executive office making insidious sweeping remarks about the judiciary using parliamentary privilege is a clear abuse of their power. It sends strong signals to judicial officials that certain judicial decisions will not be tolerated by this executive. It implies complicity with the executive may receive career advancement and support. By using the nationally televised platform afforded to speeches in Parliament, the President and Minister of Justice to make disparaging remarks on the judiciary demeans this important public institution central to a functioning democracy. It undermines the public confidence in the authority and impartiality of the judiciary. Foundational concepts of the rule of law, separation of powers and balance of powers are founded on maintaining public confidence. Public confidence among the sovereign   People legitimizes the entire State. The People support and legitimize State powers of governance when they have confidence in the judiciary. As such, these statements directly threaten the political stability of the country.

Constructive critique, fair comment and difference of opinions are all valid forms of the right to freedom of expression. However, given the Executive’s equal role in ensuring the balance of power among organs of government, and protecting the sovereignty of the People as guaranteed by the Constitution. It is incumbent on the Executive in a democracy to refrain from eroding the powers and responsibilities of the other key institutions and express disagreement due care. Disagreement cannot cross into threat or intimidation. Restraint must also be exercised in any comments or actions made about the judiciary even in Parliament in direct recognition of the fact that judges do not have a right of reply and cannot defend themselves.

The Lawyers’ Collective views this attack on the judiciary, which in the context of mounting litigation before courts, is the last recourse and refuge against abuse of State powers. The Collective has observed increased participation in democracy, whereby citizens have challenged decisions on appointments to high posts, corrupt decisions, undemocratic and repressive legislation initiated by the executive and Executive measures mounting hardships on the lives of the People. We have also seen repressive measures by the Executive against public protests and dissent. In this context, and the mounting evidence of executive interference with the judiciary, these statements are not isolated excesses, but now form a clear pattern of intimidation by politicians holding executive power. It is a pattern of authoritarian conduct by a President who serves without a direct mandate from the people and a Minister in the Cabinet of such a President.

The Lawyers’ Collective condemns the above statements made by the President, the Minister of Justice, the Minister of Education and Dayasiri Jayasekare MP. We are of the view that any allegation against the judiciary must be made in the form of a formal complaint before the appropriate forum and not by way of a statement in the Parliament under the cover of Parliamentary privilege. The Collective believes such statements, immediately prior to an election, to be politically expedient and aimed to cause uncertainty and loss of confidence in the People in the judiciary and democratic processes. The Collective requests the public to stand up in protection of the independence of the Judiciary at this time and always.

Yours faithfully,

On behalf of the Lawyers’ Collective

Mr. Upul Jayasuriya, President’s Counsel

Mr. M.M. Zuhair, President’s Counsel

Dr. Jayampathy Wickramaratne, President’s Counsel

Professor Savitri Goonesekere, Attorney-at-Law

Mr. Anura B. Meddegoda, President’s Counsel

Mr. Saliya Pieris, President’s Counsel

Professor Deepika Udagama

Professor Camena Gunaratne

Mr. S.T. Jayanaga, President’s Counsel

Mr. Upul Kumarapperuma, President’s Counsel

Rev. Fr. Noel Dias, Attorney-at-Law

Mr. Jagath Kularatne, Attorney-at-Law

Mr. Lakshan Dias, Attorney-at-Law

Mr. Srinath Perera, Attorney-at-Law

Mr. K.W. Janaranjana, Attorney-at-Law

Ms. Ermiza Tegal, Attorney-at-Law

Mr. Darshana Kuruppu, Attorney-at-Law

Mr. Sandamal Rajapakse, Attorney-at-Law

Lawyers’ Collective Statement – 22nd June 2024

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