By Asian Human Rights Commission –

On 7 October 2012 four persons attacked the Secretary to the Judicial Services Commission of Sri Lanka (JSC), Mr. Manjula Thilakaratne.  Thilakaratne is a senior high court judge. The Secretary, accompanied by his wife, had taken their son to drop him at the St. Thomas’ College gymnasium. After dropping his wife and son at the college, he parked his car. Since he had to wait for some time, the Secretary waited in his car reading a newspaper.

Suddenly Thilakaratne saw four persons stopping near his car. One of them had a stick that was about three-foot long and the other was armed with a pistol. The one with the stick walked towards the passenger side door of the car and the other three took position by the driver side. The three men ordered the Secretary to open the car’s door. But Thilakaratne refused.

Then they threatened to fire at him. The JAC Secretary opened the door. One of them asked Thilakaratne whether he was the boss (Lokka) at the JSC? Then without warning they started beating Thilakaratne on his face and tried to drag him out of the car.

Thilakaratne resisted them. Having realised that it would be difficult to pull Thilakaratne out of the car the men tried to push Thilakaratne into the passenger’s seat. At that moment Thilakaratne realised that the men were trying to abduct him. At this stage he shouted loudly.

On hearing his cry for help, some residents in the locality came out. Some three-wheeler drivers and others persons in the vicinity were also attracted to the noise.

At this stage the four assailants ran towards the road behind the car and Thilakaratne lost sight of them. Later the Thilakaratne was admitted to the hospital, and is receiving treatment for his injuries.

A sequence of events prior to this attack clearly suggests the reasons behind the attack and to those who might have instructed the four assailants.

On 18 September the Thilakaratne in the capacity as the Secretary to the JSC issued a statement on behalf of the JSC to the effect that there were attempts to interfere with the judiciary and particularly with the JSC. The statement also pointed out that there were unfair and malicious propaganda against the judiciary and suggested that a high official had attempted to influence the JSC in relation to the disciplinary action that the JSC had taken against a particular judge.

Following this statement there were several public statements that were given great publicity by the state media against the Secretary to the JSC, against the JSC itself and the judiciary in general.

The attack on the Secretary to the JSC happened in this background.

The attack clearly shows that the Thilakaratne’s movements were watched and that he was under surveillance. On the fateful day when Thilakaratne took his wife and son to the gymnasium, those who directed the attack were aware of this usual routine and on that basis directed the assailants to the location. It is obvious that the assailants would have been directed through telephone communications.

The attack was directed with a very high level of coordination. If the assailants had succeeded, Thilakaratne would have been abducted and what might have happened after that is anybody’s guess. Abductions are a frequent occurrence in Sri Lanka and the public knows many instances of such abductions and what happens to the victims. Many abductions end in enforced disappearances but some victims have survived after facing the ordeal. One of the best-known cases of one such abduction that continues to receive international and local publicity is that of the disappearance of Mr. Prageeth Eknaligoda.

Given the background of the event, the high-level government involvement in this attack is obvious. Further, although several days have passed after the event and despite the highly publicised calls for investigations, nothing of any significance has happened so far concerning the case. This again is a very clear indication of the high-level of government involvement in the attack.

The significance of this event is that the real confrontation is between the JSC headed by the Chief Justice and composed of three other judges including two senior Supreme Court judges and the government. The authority of the JSC to run its own affairs on the basis of the position it holds is the crux of the issue. The government wants a JSC that is subservient to it.

The direct issue of confrontation is the interdiction of a judge accused of many acts of corruption that the government wants to protect from legitimate inquiries. If this were to succeed, then virtually there would be no avenue at all to ensure the integrity and independence of the judges in the performance of their duties.

The attempt to suppress the JSC is part of the wider objective of suppressing the Supreme Court itself and the independence of the judiciary. The tensions between the governments in power who have been uneasy about the independence of the judiciary in Sri Lanka go back several decades.

The first major attack on the power of the Supreme Court was in 1972 by the then coalition government that put forward the doctrine of the supremacy of the parliament as against the supremacy of the law. The claim that the parliament can legislate any law on the basis of the absolute majority it might have has been the claim under which the power of the courts to review legislations by way of judicial review was drastically suppressed. Since that move, by way of the 1978 Constitution, the executive president was placed outside the jurisdiction of any court. Added to this; the ouster clauses in many legislations, particularly in relation to the emergency powers and the anti-terrorism laws, have reduced the power of the Supreme Court that it once had to intervene, to protect the rights of the citizens.

Compared to the position of the Supreme Court in the 1930s when the absolute power of the Supreme Court to intervene in matters relating to the protection of individual rights, as asserted in the well-known Bracegirdle case. In that case the Court said that the British Colonial Governor, Sir Reginald Stubbs, (today’s Sri Lankan equivalent is the Executive President) has no power to deport Bracegirdle from Sri Lanka. Today however, the Supreme Court and the High Courts are in a much weak position.

The move by the government now is to reduce this weak power further and to trample upon the independence of the judiciary. If this attempt succeeds, even the limited protection that the citizens of Sri Lanka have against the executive will be reduced and may even be lost altogether.

There are ‘judiciaries’ in some countries that have no power to protect the rights of citizens. The courts in Burma and Cambodia are examples of such courts that have only administrative powers but no real juridical authority or role. Such courts are expected to rubberstamp whatever the executive does.

Sri Lankan courts have been pushed in that direction and gone a long way down the precipice. Now the government is bent on pushing the authority and independence of the country’s courts further down.

The primary task to safeguard the independence of the judiciary is with the Supreme Court itself. If the Supreme Court does not jealously safeguard their independence, their integrity and the inviolability of the judges from executive interference, there is nothing that can save the judiciary.

The record of the higher courts in the past few decades in safeguarding their own independence is not impressive. The Supreme Court should have resisted the coalition government of 1972 when the power of judicial review was taken away from the Supreme Court. The failure to resist on that occasion has led to the crisis that the independence of the judiciary faces in Sri Lanka now and also to the loss of many lives and the liberties of people during the last few decades. Had the Supreme Court resisted the move by the coalition government then on the basis of its own inherent powers and following the basic structure doctrine.

Had the Supreme Court resisted the attempts by the governments in the last few decades to push the power of the courts, the people of the country would have supported it wholeheartedly, then and today. The ultimate losers when the independence of the judiciary is attacked are the people themselves. Sri Lanka’s history in the last few decades amply proves this historical truth. The course of Sri Lanka’s history could have been different and many of the tragedies faced during the last 20 or 30 years may have been avoided if the Supreme Court courageously defended its own independence and its right to be the ultimate protector of individual rights.

At this moment the JSC is challenged even when it tries to interdict a judge who must face disciplinary inquiries on serious charges. What this implies is that the executive would tolerate corrupt or otherwise delinquent judges if they were loyal to the government. If this were so, the judges would not be tested on the basis of their judicial competence or integrity, but on their loyalty to incumbent executive.

The Asian Human Rights Commission (AHRC) condemns the attempts by the government to interfere with the independence of the JSC and the judiciary in general. The AHRC joins hands with everyone in their condemnation of the attack upon the Secretary to the JSC, the independence of the judiciary and the JSC in general. We call upon everyone including the international community to grasp the significance of this moment and not to allow the judiciary in Sri Lanka to be pushed into the abyss.