Attacks and interference regarding
independence of judges and lawyers in Sri Lanka[1]
Today, lawyers and judges in Sri Lanka are subject to
systematic political and physical attacks.[2]
The independence of the judiciary is widely recognized as a safeguard with
respect to the protection of human rights and the rule of law, and serves as an
essential check on the other branches of the State. As such, these attacks, and
the coercive climate they engender, constitute a significant threat to the
independence of the Sri Lankan judicial system, the maintenance of the rule of
law, and the protection and promotion of human rights.
Sri Lanka’s legal
obligations
Sri Lanka, as a State Party to the International
Covenant on Civil and Political Rights, is bound to provide a “competent,
independent and impartial tribunal [or court] established by law”[3] -
“an absolute right that is not subject to any exception”.[4]
The Human Rights Council has emphasized that the integrity of the judicial
system, namely the independence and impartiality of the judiciary, are essential
prerequisites for the protection of human rights and the non-discriminatory
administration of justice.[5]
Under international human rights law, the Government has a duty to not only
guarantee the “independence of the judiciary from political interference by the
executive branch and legislature”,[6]
but to take special measures secured by law, including “security and physical
protection,”[7] to
protect members of the legal system from conflicts of interest and
intimidation,[8]
Attacks against the
Judiciary
The judiciary in Sri Lanka is currently subject to
widespread interference, including, but not limited to: written and verbal
threats, bribery, unjustified transfers, and violence. The Asian Human Rights
Commission reports that high-ranking officials, including President Rajapaksa,
may be responsible for some of these activities.[9]
Contemporary instability in Sri Lanka is illustrated
by the events surrounding the impeachment of the Chief Justice, discussed
below. In 2012, Parliament began proceedings to impeach the Chief Justice. This
process was opposed by the Supreme Court and ruled unconstitutional.[10]
During and after these proceedings attacks against lawyers and members of the
judiciary, particularly those seen as opponents to the Government or tied to
the Chief Justice’s defense efforts, “dramatically
increased”[11] and
turned violent, escalating to physical assaults and attempted assassinations.[12]
The International Commission of Jurists notes that
this interference has eroded accountability and the rule of law and caused a
“constitutional crisis of unprecedented dimensions”.[13]
The situation in Sri Lanka may be illustrated by reference to a number of
contemporary case studies.
Attack on the Magistrate’s
Court of Mannar and Threats to the Magistrate
On 17 July 2012, a day after the Magistrate of Mannar
made an order regarding a dispute between Tamil and Muslim fishermen,
Government Minister, Rishard Badhiudeen, telephoned the Magistrate and demanded
that the he reverse the order, accusing the Magistrate of “working against the
Muslims”.[14]
According to an interview with the Asian Tribune, the Minister threatened that
“Mannar town would burn”[15]
and that the Magistrate would “face severe consequences”;[16]
allegations denied by the Minister. On 18 July 2012, after another failed
attempt to persuade the Magistrate to change his decision, the Minister met
with the Secretary of the Judicial Services Commission and demanded the
Magistrate be transferred,[17]
prompting the Magistrate to file a complaint with the Judicial Service Commission.[18]
The Magistrate Court and High Court of Mannar were subsequently attacked by a
mob, purportedly instigated by the Minister, which threw stones and set fires,[19] while
State media labeled the Magistrate a Liberation Tigers of Tamil Eelam (LTTE) sympathizer.[20] Mr.
Badhiudeen has denied the allegations against him[21]
and his case for contempt of court is still pending.
Attack on the Secretary of
the Judicial Service Commission
After the Judicial Services Commission was subjected
to threats, intimidation and a vilifying public campaign run by
State-controlled media,[22]
the Commission’s Secretary, Manjula Tillekaratne, issued a statement on 28
September 2012 expressing concern for “the security of all of us and our
families beginning from the person holding the highest position in the judicial
system.”[23] On 7
October 2012, the Secretary was accosted by gun-wielding assailants while
stopped in his car on a public road, and beaten with a pistol, an iron rod, and
bare fists.[24] The
President ordered a police investigation into the attack, but it was never
completed.
Impeachment of the Chief
Justice
On 23 November 2012, impeachment proceedings on
charges of professional and financial misconduct and abuse of power began
against Chief Justice, Shirani Bandaranayake.[25]
Lawyers and Sri Lankan civil society suspect that the proceedings are connected
to Bandaranayake’s opposition to the Divinaguma Bill – a bill that would
centralize power, limit checks and balances, and give more authority to the
Ministry of Economic Development, the President’s brother.[26] The
Supreme Court held that Parliament was unable to hold such an inquiry against a
judge without passing a specific law to that effect. Further questions
regarding the proceedings arose when it was reported that when asked by a
former Chief Justice why he was moving to impeach Bandaranayake the President
responded: “I didn’t want to, but she got too big for her boots.”[27]
Bandaranayake was found guilty on three of the five
charges and impeached by Parliament on 11 January 2013.[28]
The Court of Appeal declared the impeachment unconstitutional.[29]
Despite significant opposition, the President’s senior advisor, Mohan Peiris was
appointed and sworn in as the new Chief Justice.[30]
The impeachment and subsequent appointment of the Chief Justice has drawn
criticism from the US, UK and the Commonwealth, among others,[31]
condemnation from the International Commission of Jurists, and public
declarations from the Bar Association of Sri Lanka and the Lawyers Collective
that they refuse to recognize the legal standing of the new Chief Justice.[32]
Threats and Attacks Against
Lawyers
The Lawyers Collective allege that the Government of
Sri Lanka is engaged in a campaign intended to instigate adverse public opinion
against lawyers and judges, the consequences of which leaves them open to
physical attacks.[33]
An example presented in this regard is the attempted assassination of Gunaratne
Wanninayake – a lawyer who worked against the impeachment of the Chief Justice
– on his way home from work on 18 December 2012.[34]
In similar incidents, gun shots were fired at the
houses of MP Wijayadasa Rajapake, President of the Bar Association, and
Parliamentarian Wijedasa Rajapaksa, in the early morning of 20 December 2012.
Both victims retrieved three ammunition cartridges from outside their homes,
but police insist the incidents can be attributed to firecrackers, and not
gunfire.[35]
Investigations are pending.
During the week following the Chief Justice’s impeachment,
four prominent lawyers involved in the Chief Justice’s defense – Romesh de
Silva PC, Jayampathi Wickremarathna PC, MA Sumanthiran MP and JC Weliamuna –
received threatening letters, naming them as traitors and declaring that
drastic measures would be taken to silence them.[36] On 17
January 2013, it was also announced that a plot to assassinate JC Weliamuna had
been uncovered.[37]
Threats have also been made against those protesting
against the Government’s actions. On 21 January 2013, a female lawyer who
supported the impeached Chief Justice, was leaving a police station after
filing an assault complaint when her vehicle was stopped and an unknown man
attempted to strangle her. The lawyer was able to call attention to the
situation and the assailant fled before the attack turned fatal.[38]
No suspect has been arrested or charged.
On 5 February 2013, the International Bar Association
Human Rights Institute released a statement voicing its concern regarding the
decision by the Sri Lankan Government to deny its high-level delegates entry to
the country.[39] The delegation,
consisting of respected international figures and headed by a former Chief
Justice of India, was scheduled to meet with legal professionals,
representatives of Government, media and civil society to discuss the
development of the legal profession, rule of law, and the independence of the
judiciary. Each delegate had been issued a visa for the February visit, but these
were revoked or suspended.[40]
The Government claims that the information provided regarding the reasons for
the country visit was inaccurate. The International Bar Association “wholly
refutes”[41] this
allegation, and expressed its disappointed at the lack of cooperation by the
Sri Lankan authorities.[42]
The Government’s lack of transparency and unwillingness to have objective
parties look at current threats to its judiciary brings its commitment to
upholding the rule of law into question.
Conclusion
International standards, including those put forward
by the Human Rights Council, such as the ‘UN Basic Principles on the
Independence of the Judiciary’, stress that judicial independence is critical
for upholding the rule of law and promoting and protecting human rights. The
threats and physical attacks currently being carried out against lawyers and
members of the judiciary in Sri Lanka indicate an attempt to interfere with
legal proceedings and decisions. The impunity which the perpetrators of these
attacks have enjoyed, the Government’s lack of transparency, and failure to
ensure the required protection with respect to lawyers and judges, stands in
conflict with Sri Lanka’s binding obligations under international human rights
law and should be addressed urgently by the UN Human Rights Council.
[1] The
Human Rights Centre Clinic at the University of Essex undertook research and
analysis in preparation of this submission.
[2] ‘UN
independent expert concerned over reports of intimidation of judges in Sri
Lanka’ (UN News Centre, 31 December 2012) <http://www.un.org/apps/news/story.asp?NewsID=43859#.URBiRULF_ww>
accessed 28 January 2013. See also: Authority
without accountability: The crisis of impunity in Sri Lanka (International
Commission of Jurists, 2012)
[3]
Article 14, ICCPR, entered into force
23 March 1976 and Sri Lanka acceded on 11 June 1980.
[4] HR Committee General Comment 23,
CCPR/C/GC/32, 23 August 2007, par. 19.
[5] Human Rights Council resolution,
‘Integrity of the judicial system’,
A/HRC/RES/19/31, 18 April 2012; see also UN Human Rights Council resolution 17/2
of 16 June 2011; Report of the Human
Rights Council on its Tenth Session A/HRC/10/29, 20 April 2009. See also:
Principle 2, UN Basic Principle on the
Independence of the Judiciary, adopted by the Seventh UN Congress on the
Prevention of Crime and the Treatment of Offenders held at Milan from 26 August
to 6 September 1985; Principle 4, UN
Guidelines on the Role of Prosecutors, adopted by the Eighth UN Congress on
the Prevention of Crime and the Treatment of Offenders held at Havana from 27
August to 7 September 1990.
[6] HR Committee General Comment 23,
CCPR/C/GC/32, 23 August 2007, par. 19.
[7]
Statement 40, Beijing Statement of
Principles of the Independence of the Judiciary in the LAWASIA Region,
adopted by the Sixth Conference of the Chief Justices of Asia and the Pacific
held in Beijing on 19 August 1995.
[8]
Ibid. See also: Principle 11, UN Basic
Principles on the Independence of the Judiciary.
[9]‘Judicial
independence in a coffin’ (Asian Human Rights Commission, 8 October 2012) <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-194-2012>
accessed 28 January 2013.
[10] ‘Sri
Lanka: The Supreme Court requests the PSC to withhold the impeachment inquiry’
(Asian Human Rights Commission, 23 November 2012) <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-239-2012>
accessed 28 January 2013.
[11] ‘UN
independent expert concerned over reports of intimidation of judges in Sri
Lanka’ (UN News Centre, 31 December 2012) <http://www.un.org/apps/news/story.asp?NewsID=43859#.URBiRULF_ww>
accessed 28 January 2013.
[12] see
examples below
[13]‘ICJ
condemns impeachment of Sri Lanka’s Chief Justice’ (ICJ, 11 January 2013) <http://www.icj.org/icj-condemns-impeachment-of-sri-lankas-chief-justice/>
accessed 28 January 2013.
[14]
Hemantha Warnaulasuriya, ‘How a cabinet Minister threatened a Magistrate cum
Additional District Judge’ (23 July 2012) <http://dbsjeyaraj.com/dbsj/archives/8427>
accessed 4 February 2013.
[15]
‘Goons behind attacks on Tamil settlement and the Judge in Mannar’ (Asian
Tribune, 20 July 2012) <http://asiantribune.com/news/2012/07/19/goons-behind-attacks-tamil-settlement-and-judge-mannar>
accessed 4 February 2013.
[16]
Ibid.
[17] S.S.
Selvanayagam, ‘Court of Appeal rules out preliminary objections in Badiudeen
case, fixes trial for 13 February’ (Daily FT, 6 September 2012) <http://www.ft.lk/2012/09/06/court-of-appeal-rules-out-preliminary-objections-in-badiudeen-case-fixes-trial-for-13-february/>
accessed 4 February 2013.
[18] Arthur
Wamanan and Sandun Jayawardana, ‘Mannar incident puts Rishad in hot water’ (The
Nation, 22 July 2012) <http://www.nation.lk/edition/news-online/item/8571-mannar-incident-puts-rishad-in-hot-water.html>
accessed 4 February 2013.
[19] Authority without accountability: The crisis
of impunity in Sri Lanka (International Commission of Jurists, 2012) p. 6.
[20]
‘Recent developments adverse to independence of judiciary’ (The Sri Lankan
Guardian, 11 December 2012) <http://www.srilankaguardian.org/2012/12/recent-developments-adverse-to.html>
accessed 4 February 2013.
[21] ‘Sri
Lanka minister gets bail in fishing settlement case’ (BBC News, 27 August 2012)
<http://www.bbc.co.uk/news/world-asia-19392456>
accessed 7 February 2013.
[22] Sri
Lanka: ICJ deplores attack on the Secretary of the Judicial Services
Commission’ (ICJ, 9 October 2012) <http://www.icj.org/sri-lanka-icj-condemns-attack-on-the-judicial-services-commission/>
accessed 28 January 2013.
[23]
Ibid.
[24] Authority without accountability: The crisis
of impunity in Sri Lanka (International Commission of Jurists, 2012) p. 6.
[25] ‘Sri
Lanka chief justice walks out of impeachment hearing’ (Australia News Network,
7 December 2012) <http://www.abc.net.au/news/2012-12-07/an-slanka-impeach/4414076>
accessed 4 February 2013.
[26] ‘Sri
Lanka: An overview of the state of human rights in Sri Lanka in 2012’ (Asian
Human Rights Commission, 14 December 2012) <http://www.humanrights.asia/resources/hrreport/2012/ahrc-spr-011-2012.pdf/view>
accessed 4 February 2013.
[27] ‘Impeachment:
‘She Got Too Big For Her Boots’ – Mahina Rajapaksa Talked to Former CJ Sarath
Silva’ (Colombo Telegraph, 2 November 2012) <http://www.colombotelegraph.com/index.php/impeachment-she-got-too-big-for-her-boots-mahinda-rajapaksa-talked-to-former-cj-sarath-silva/>
accessed 4 February 2013.
[28] ‘Sri
Lanka Chief Justice Shirani Bandaranayake is Impeached’ (BBC News, 11 January
2013) <http://www.bbc.co.uk/news/world-asia-20982990>
accessed 28 January 2013.
[29] ‘Sri
Lanka: The President and the parliament should desist from any actions that are
unconstitutional and illegal by proceeding further on the impeachment’ (Asian
Human Rights Commission, 8 January 2013) <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-008-2013>
accessed 28 January 2013.
[30] ‘Sri
Lanka: appointment of new Chief Justice undermines Rule of Law’ (ICJ, 15
January 2013) < http://www.icj.org/sri-lanka-newly-appointed-chief-justices-long-record-of-blocking-justice/>
accessed on 4 February 2013.
[31] See
for example: ‘Sri Lanka: Impeachment of Chief Justice Shirani Bandaranayake’
(Lawyer’s Rights Watch Canada, 16 January 2013) < http://www.lrwc.org/impeachment-of-chief-justice-shirani-bandaranayake/>
accessed 5 February 2013.
[32]
‘Mahinda removes chief justice after assassinated all norms of the State’ (The
Sri Lanka Guardian, 13 January 2013) <http://www.srilankaguardian.org/2013/01/mahinda-removes-chief-justice-after.html>
accessed 5 February 2013.
[33] The
Lawyers Collective, ‘Sri Lanka: Lawyers collective urges protection for
lawyers’ (Asia Human Rights Commission, 18 December 2012) <http://www.humanrights.asia/news/forwarded-news/AHRC-FPR-065-2012>
accessed 5 February 2013.
[34]‘Lawyers
Collective condemn attack on Wanninayake’ (Daily FT, 19 December 2012) <http://www.ft.lk/2012/12/19/lawyers-collective-condemn-attack-on-wanninayake/>
accessed 28 January 2012.
[35]‘BASL
president warned’ (Sri Lanka Brief, 20 December 2012) <http://www.srilankabrief.org/2012/12/wijedasa-rajapaksha-shooting-in-front.html>
accessed 28 January 2013.
[36] ‘Sri
Lanka: Romesh de Silva PC, Jayampathi Wickremarathna PC, MA Sumanthiran MP and
JC Weliamuna (a senior lawyer) receive threatening letters’ (Asian Human Rights
Commission, 18 January 2013) <http://www.humanrights.asia/news/ahrc-news/AHRC-STM-024-2013>
accessed 28 January 2013.
[37]
Ibid.
[38]‘Female
lawyer supporting ex-CJ strangled’ (Sri Lanka Brief, 21 January 2013) <http://www.srilankabrief.org/2013/01/female-lawyer-supporting-ex-cj-strangled.html>
accessed 28 January 2013.
[39]
‘IBAHRI seriously concerned by decision of Sri Lankan government to block entry
of high-level delegates’ (International Bar Association Human Rights Institute,
5 February 2013) <http://www.ibanet.org/Article/Detail.aspx?ArticleUid=785d2595-46be-4221-810c-4571b6ab02cf>
accessed 7 February 2013.
[40]
Ibid.
[41]
Ibid.
[42]
Ibid.