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Gradual erosion of judicial independence in Sri Lanka concerns IBAHRI

The International Bar Association’s Human Rights Institute (IBAHRI) is concerned about the increasing erosion of judicial independence in Sri Lanka. In a confidential letter, dated 19 May 2011, the IBAHRI outlined its concerns to the Government of Sri Lanka in regard to the 18th Amendment to the Constitution and the proposed 19th Amendment – which limits the term of the Chief Justice to five years and gives the President of Sri Lanka the authority to appoint the Secretary to the Judicial Services Commission.

‘We believe that it is by providing judges with a permanent or long-term mandate that their independence will be maximized, as will public confidence in the judiciary’, said Sternford Moyo, IBAHRI Co-Chair. ‘We do not consider the five years proposed by the 19th Amendment to equate to appropriate security of tenure. Further, we are concerned that the appointment of the Secretary to the Judicial Services Commission, a key judicial institution, will make it vulnerable to political influence, perceived or otherwise’.
The passage of the 18th Amendment through Parliament last year repealed the 17th
Amendment that provided for the establishment of a Constitutional Council. This afforded independent supervision over appointments to key public institutions, including the Judicial Services Commission. In place of the Constitutional Council, the 18th Amendment provides for the establishment of a Parliamentary Council, whose members and Chair are appointed by the President, and is responsible for submitting observations to the President when appointing members to the Judicial Services Commission as well as other public institutions. In conjunction, the 18th Amendment and the proposed 19th Amendment represent a gradual erosion of judicial independence in Sri Lanka.
In 2009, the IBAHRI visited Sri Lanka on a fact-finding mission. In its subsequent report,
the IBAHRI found that the re-establishment of the Constitutional Council provided for in the 17th Amendment would ensure critical independent oversight of the proper functioning of public institutions and resolve several of the constitutional and governance issues facing Sri Lanka at the time. The Report concluded that: ‘The Government’s continuing failure to fully implement the 17th Amendment and reestablish the Constitutional Council has reduced public confidence in its commitment to independent institutions and the rule of law. ‘We consider the 18th Amendment to be far inferior to the 17th Amendment, in terms of the important provision of checks and balances. We are concerned that presidential control over the Parliamentary Council significantly reduces the possibility of independent scrutiny of appointments to public institutions, including the Judicial Services Commission,’ commented Hans Corell, IBAHRI Vice-Chair. ‘As Sri Lanka moves to build a sustainable peace and to maintain public confidence in the fair administration of justice, we invite the Government to send out a clear message that it is committed to ensuring strong and independent institutions. We hope that the Government will consider introducing appropriate safeguards to the 19th Amendment to guarantee judicial independence and that it will revisit the 18th Amendment with the provision for independent oversight as initially envisaged by the 17th Amendment’.
For further information please contact:
Romana St. Matthew – Daniel
International Bar Association
Press Office
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom
Direct Line: +44 (0)20 7691 6837
Main Office: +44 (0)20 7691 6868
Mobile: +44 (0)7940 731915
Fax: +44 (0)20 7691 6544
Website: www.ibanet.org
About the International Bar Association
the global voice of the legal profession
The International Bar Association (IBA), established in 1947, is the world’s leading
organisation of international legal practitioners, bar associations and law societies. Its
membership includes over 40,000 lawyers and almost 200 bar associations and law societies spanning every continent. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.
The IBA’s administrative office is in London; regional offices are located in São Paulo, Brazil and Dubai, United Arab Emirates.
Grouped into two divisions – the Legal Practice Division and the Public and Professional
Interest Division – the IBA offers its members access to leading experts and up-to-date
information across all areas of legal practice and professional interest. Through a network of specialised committees, the IBA enables an exchange of information and opinions regarding laws, practices and professional responsibilities pertaining to the practice of law globally. High-quality publications and world-class conferences further provide unrivalled professional development and networking opportunities for legal practitioners and professional associates.
The IBA’s Bar Issues Commission provides a forum for IBA member bar associations and law societies to discuss any matter relating to law at an international level.
The IBA’s Human Rights Institute works to promote, protect and enforce human rights
under a just Rule of Law, and to preserve the independence of the judiciary and the legal
profession worldwide.
In partnership with the Open Society Initiative for Southern Africa, the IBA created the Southern Africa Litigation Centre, based in Johannesburg, South Africa, to promote human rights and the Rule of Law in Angola, Botswana, the Democratic Republic of Congo, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia and Zimbabwe.
The IBA was instrumental in establishing the International Legal Assistance Consortium in Stockholm, Sweden. This global consortium of non-governmental organisations provides technical legal assistance to post-conflict countries.
Through a grant-funded project, the IBA also maintains an office in The Hague which
manages the IBA’s International Criminal Court (ICC) Monitoring and Outreach
Programme. This office follows the work and proceedings of the ICC, focusing primarily on the fair trial rights of the accused and the manner in which the Rome Statute and other legal documents of the Court are implemented as well as promoting greater understanding of the work of the Court among the IBA membership network worldwide. It works in partnership with bar associations, lawyers and civil society organisations disseminating information and promoting debate on the ICC in different jurisdictions across the globe. The programme also produces a dynamic news magazine about the ICC called Equality of Arms Review or EQ which is available on the IBA website.
Contact information:
International Bar Association
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom
Tel: +44 (0)20 7691 6868
Fax: +44 (0)20 7691 6544
Website: www.ibanet.org


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