By Nagananda Kodituwakku –

Nagananda Kodituwakku

Dismal failure of the judiciary ends up with people’s demand for hybrid justice mechanism 

In the co-sponsored UN Resolution (A/HRC/RES/30/1) adopted on 01st October 2015, the government conceded that that people of Sri Lanka have no trust and confidence in the justice system and was compelled to agree for a hybrid justice system with an international dimension, to try alleged serious crimes committed against humanity.

However at a recent BBC interview President Sirisena vehemently refused to set up such a hybrid system and now the former Justice Minster GL Peiris says that the President Sirisena has not been properly briefed on the content of the Geneva Resolution. This is a baseless argument, that effectively undermines President Sirisena’s ‘wisdom and knowledge’ as the executive head of the State.

Then Prime Minister Ranil Wickremesinghe, in a damage-minimising exercise, conceded to BBC Channel 4 that the government would respect its obligations under the Geneva Resolution.

However, the Daily Mirror on 28th Jan 2016 reported a contradictory speech made by the Prime Minister in the parliament, which states as follows, “… He had stated that he had never told such a thing during the interview he gave to Channel Four…” exposing the total lack of integrity in the government business and raising concerns in the international community.

Rights groups express concerns

In this backdrop Prof. Savitri Gunasekera, representing the Friday Forum, a pressure group, issued a statement on 29th Jan 2016, justifying an independent and credible inquiry process, and stressing that ‘the joint resolution is a reminder that truth-seeking and justice, however complex, ensure social integration, and that their absence is detrimental to civic order and the rule of law and that the citizens must support efforts to establish an impartial inquiry process, to probe the events’.

The Prof emphasised the importance of such a mechanism and expressed her concerns as follows.

‘… if we are serious about a non-recurrence of the human rights abuses of the past, we should acknowledge that those guilty of criminal behaviour under our law must be brought before the courts, and held responsible. This is an issue of individual accountability for unlawful conduct, and must not be thought of as punishment for heroism or as political vengeance. We cannot condone impunity or amnesty for brutal acts of violence and abuse…’

Honour the undertaking to establish a hybrid judicial process

One cannot deny the fact that the people of Sri Lanka have sought the assistance from the international community for a valid reason. After having lost their trust and confidence in the justice system, and with no further options available they were compelled to turn to the world community for a credible and independent inquiry process to inquire into war crime allegations.

People have repeatedly expressed their views about the poor state of affairs of the government, which holds absolute control over the judiciary from effecting judicial appointments to the decision making process. One cannot deny the truth that there is an undue interference with the affairs of the judiciary essentially denying its right to dispense justice as required by law, which has resulted in the violation of judiciary’s own constitutional obligations to the people.

Bar Association concedes the dismal failure in the administration of justice

The Bar Association itself, in a statement issued on the matter on 28th Nov 2015 expressed its concerns about the dismal failure in the administration of justice in Sri Lanka, which states as follows.

“… It is unfortunate that existing judicial and prosecutorial system have not met the confidence of many concerned. It is undeniable fact that over a period of time the independence and credibility of the many of these institutions have suffered due to many reasons, resulting in an erosion of the confidence in the system as a whole…”

Consistent violation of the Constitution by Apex Court

Any prudent person with common sense would agree that people have every right to demand for speedy disposal of justice through an independent and credible judicial mechanism and that the people would not tolerate failure on the part of the judiciary in protecting and upholding their judicial power exercised purely on trust.

Blatant failures on the part of the Judiciary

The Constitution requires the Supreme Court, the apex body of the judicial mechanism, to hear and determine all cases of alleged violation of human rights within two months (Article 126 of the Constitution), which however habitually is being violated by the apex Court. There are some cases idling in court for a period of well over five years, probably one of the primary reasons for people to raise their concerns about the integrity and competence of the justice system in Sri Lanka.

The Chief Justice K Sripavan himself has expressed his opinion on the role of the Supreme Court in his ceremonial address made on 09th Jan 2015 as follows.

“… It is for the Judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the Rule of Law … Credibility of the Judiciary rests in the faith of the people, indispensable to that faith is the independence of the Judiciary…”

There are many more similar concerns, which demonstrate serious flaws in the administration of justice for a long period of time.

The Constitution requires the Supreme Court to hear and determine cases of paramount importance within a specified time scale, predominantly the cases affecting the sovereign rights of the people.
The alleged violation of people’s sovereign right of franchise by the executive is another instance where the law requires the court to hear and determine such cases within two months (Article 104).

This time limit has been created with due recognition of the importance of dispense without inordinate delays. Therefore, there exists a bounden duty on the part of the judiciary to respect its constitutional obligation.

There is grave public concern on the appointment of defeated candidates at the General Election 2015 as MPs through the National List. Obviously this is a clear violation of people’s sovereign right of franchise, which has never been surrendered by the people to party secretaries with a mandate given at a referendum. The whole nation, mass media, election observers, election commissioner, and other public figures including the Madulawe Sobitha thero raised their concerns and condemned this abuse since it is a clear betrayal of trust placed in the executive by the people. Yet, it has now been decided by the Chief Justice of Sri Lanka that in his opinion this abuse is not a matter of national importance.

There are number of cases now pending before the Supreme Court for well over the specified period of two months within which the court is required to dispense with them. This has effectively permitted the rejected candidates to consolidate their positions, and to hold important cabinet portfolios and also to occupy the office of the speaker.

Government’s futile claim that there exists a vibrant justice system

It is amusing that with all these gross failures of the system, the government wants people to believe that there exists an independent, vibrant, and fearless justice system in Sri Lanka.
Naturally people are tired with this pathetic state of affairs and demands either that the government should be honest of its conduct and firmly commit itself to free the judiciary from all forms of interference or respect the people’s right to seek remedial actions elsewhere with a judicial mechanism with international dimension to try their cases.

Stop meddling with office of the Chief Justice

Considering the above, the government should seriously reconsider the unacceptable practice of the meddling with the affairs of the Judiciary, or accept the people’s right to seek remedies elsewhere including intervention by the international community.

The government conceded that the removal of the Chief Justice Shirani Bandaranayake by the Rajapakse administration was unlawful and that the appointment of Mohan Peiris to the office of the Chief Justice was ab initio void. Accordingly Mohan Peiris was unceremoniously removed and the Chief Justice Shirani Bandaranayake was reinstalled. But her appointment was lasted only for 24 hours as she was removed from office prematurely 7 years before her due date of retirement. This action, in the eyes of the peoples, is tantamount to an act of ‘constructive dismissal’ of the Chief Justice from office, undermining the integrity and independence of the justice system of Sri Lanka.

Official submission of constitution-making proposals

In this scenario I consider it is pertinent to draw the readers attention to my official submission to the Public Representations Committee on Constitutional Reforms created by the Prime Minister to accept the constitution-making proposals, wherein this particular issue too has been addressed as follows.

“… It is proposed that there shall be a transitional provision in the proposed Constitution to cease all the offices in the Court of Appeal and the Supreme Court from the date of commencement of the operation of the proposed Constitution with a right guaranteed to those holding office at the superior court system to be considered for reappointment purely on merits, impartiality and competence.
There are several judges in the Supreme Court and the Court of Appeal, appointed to office purely at the whims and fancies of the former President Mahinda Rajapaska with no due process being followed for their appointments.

Considering the recent (30th Jan 2015) statement made by the Prime Minister in the parliament, wherein the disgraceful conduct of the serving Chief Justice was revealed to the nation, that the Chief Justice callously compromised the judicial power of the people with the Executive, agreeing to make any Court Order to please the executive and also to appoint judges to please the executive, it is strongly proposed that the insertion of transitional provision in the proposed constitution to reconstitute the composition of the judges in the Superior Court system is of paramount importance to restore people’s trust and confidence in the judiciary. This fact has been already conceded (paragraph 6) by the Government of Sri Lanka in the UN Human Rights Counsel Resolution (A/HRC/RES/30/1) adapted on 01st October 2015 without a vote…”.

Stop fooling people

Shamelessly deceiving of the people has become a common occurrence in this country by the successive regimes. At least now the current regime should rethink the warnings given by Maduluwawe Sobitha Thero, who spearheaded the campaign to defeat Mahinda Rajapakse regime and was instrumental in installing the Sirisena administration. The abuse of National List for petty political benefits had been one of the major concerns of the Thero and his Movement for Social Justice, which however was totally ignored by the regime.

The Sirisena-Wickremesinghe regime should realise that it can fool all the people some of the time and some of the people all the time but it cannot fool all the people all the time.