25 September, 2018

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Who Will Respond To The Distress Call Of The JSC Of Sri Lanka?

By Asian Human Rights Commission –

CJ

This distress call is not from a sinking ship but from the supreme body that represents the Judicial Service Commission (JSC) of Sri Lanka, which is desperately stating that the independence of the judiciary is under threat from the executive. The Asian Human Rights Commission has for years warned that democracy in Sri Lanka is sinking and this distress call from the JSC is one of the final indications of how fast it is sinking. If Sri Lanka has any friends left in the democratic world, it is time now for them to respond.

The JSC, through its secretary Manjula Tilakaratne, complained on September 18, 2012 about threats to its independent functioning. This is the first time in the history of Sri Lanka that the JSC, which is the highest body dealing with appointments, dismissals, disciplinary actions and promotion of judges in the country, has made a public complaint about attacks on its independence.

A translation of the full statement is given below. (A copy of the Sinhala original published in Lankadeepa, a well known Sinhala newspaper is also attached).

“The attention of the Judicial Service Commission (JSC) has been drawn to baseless criticism of the JSC and in general on the judiciary by the electronic and print media. The main objective of those behind the conspiracy of those trying to undermine the JSC and Judiciary is to destroy the independence of the judiciary and the rule of law.

“It is regrettable to note that the JSC has been subjected to threats and intimidation from persons holding different status. Various influences have been made on the JSC regarding decisions taken by the Commission keeping with the service requirements. Recently the JSC was subjected to various influences after the Commission initiated disciplinary action against a judge.

“Moreover an attempt to convince the relevant institutions regarding the protection of the independence of the judiciary and the JSC over the attempt to call for a meeting with the chairperson of the JSC, who is the Hon Chief Justice and two other Supreme Court judges, was not successful. The JSC has documentary evidence on this matter.

“It is the JSC that is the superior institution which is empowered with the appointment of Magistrates, District judges, their transfers, dismissal from service and disciplinary action against them. It is an independent institution established under the Constitution. Under the Constitution any direct or indirect attempt by any person or through any person to influence or attempt to influence any decision taken by the Commission is an offence which could be tried in a High Court.

‘It should be emphasized that the JSC is dedicated and it is its responsibility to protect the independence of the judiciary and discharge its service without being intimidated by influences, threats or criticism. I have been instructed by the Commission to issue this media release to keep the majority of the public who value justice informed about an attempt by conspirators to destroy the credibility of the JSC and the Judiciary. — Manjula Tilakaratne, Secretary, JSC.”

This translation was reproduced in the Political Column of the Sunday Times on September 23, 2012.

This official statement refers to the following matters:

 

  1. A call for the three-member commission (JSC) consisting of the Chief Justice and two other judges of the Supreme Court to meet the Honourable President of Sri Lanka to discuss the functions of the JSC. The JSC declined to attend the meeting as they found it unconstitutional to discuss the decisions of the JSC with anyone else.
  2. Attempts to pressurize through the interventions of several powerful persons to remove the interdiction of a particular judge, who was interdicted by the JSC as a part of inquiries into very serious allegations of corruption. According to newspaper reports, this judge is said to be a close friend of the president’s family.
  3. A media campaign through state media channels against the judges of the Supreme Court and members of the JSC on baseless allegations and the unethical use of language for the purpose of belittling the judges and to undermine the independence of the judiciary.

Many will already be aware that there was a previous incident of a cabinet minister, Rishad Bathiudeen, attempting to intimidate the magistrate of Mannar, followed by two attacks on the High Court and the Magistrate’s Court of Mannar, which caused serious damage to both premises. That minister is now facing charges of contempt of court at the Court of Appeal and he and some others are also facing criminal charges before the Magistrate’s Court. The attempt to intimidate the magistrate and the attacks on the courts led to a nation-wide boycott on the courts by the judges and lawyers of Sri Lanka. Despite of the public outcry, the government has taken no action against this minister for his behaviour in relation to the interference with the independence of the judiciary.

A further event of importance is that, following an order by the Supreme Court in reviewing a bill placed before it, the court held that the particular bill was unconstitutional until consultations are held by the Central Government with the provincial councils about the matters taken up in the bill. The court made its ruling known to the Speaker, who read the court’s ruling to the parliament as is required by the Constitution. However, following this ruling, three members of the cabinet and a crowd, reported in the newspapers to consist of about 3,000 persons, held a protest against the Supreme Court in front of the parliament.

All these recent events are a part of a chain of events that have been taking place since 1978, with the promulgation of a new constitution that placed the executive president outside the jurisdiction of the courts. The new constitutional order proposed by the 1978 Constitution is unique and has no parallel anywhere else in the world. It established the executive president with absolute power and ever since there has been a constant conflict between the judiciary established under the earlier constitution of 1948, which recognised the separation of powers and which incorporated the independence of the judiciary as an integral part of the constitutional order, and the executive presidential system. Several attempts to get over this problem, such as the 17th Amendment to the Constitution, were abandoned and the president’s power was even more strengthened by the 18th Amendment passed in 2010.

This conflict has now reached a proportion that the Supreme Court through the JSC has had to make a public complaint of interference into the independence of the judiciary.

Over several decades, the Asian Human Rights Commission has pointed out that the independence of the judiciary in Sri Lanka is facing peril due to the operation of the 1978 Constitution.

The AHRC has consistently commented on the conflict created by the executive presidential system, which replaced the democracy in Sri Lanka with a system of patronage. The executive presidential system has wrapped itself around all democratic institutions, including the judiciary, like a python and has broken bones.

Saving the independence of the judiciary now is almost an impossible task. Unless the people of Sri Lanka themselves and their friends in the democracies throughout the world rise up now, very soon the functions of Sri Lanka’s judicial institutions will be reduced to nothing more than rubber stamping. Such things have happened in several other countries, for example, Cambodia and Myanmar.

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Latest comments

  • 0
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    Where is that Bum Obama? The so called President of the self appointed Nation of a Police man? Big Chief No Shit. Very soon Big Shit, No Chief.

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      Do not get angry with Obama, gamini … Obama has many many things to attend … Events after Arabian spring, election, Iraq, Afganistan, QE3 … JULIAN ASSANGE of wilkieleaks …
      By the way, does Asian Human Rights Commision has any view on Julian ASSANGE?
      Or just keep the tail tightly behind legs as usual with dealing powerful countries …

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        Today Sovereignity of a country, does not stand if the leadership openly flout and violate Human Rights of it’s subjects. The United Nation has the right to intervene. The problem is when the very UN is acting at the behest of the very forces that violate the rules, then to whom else can a Nation complain to.

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    It is funny some people want The American president to intervene and change the government of Sri Lanka, this is a sovereign nation, there are rules and regulations under the international law, certainly Mr Obama has no desire to break the law. Sri Lanka has started loosing the indepence of judiciary since the establishement of JR’s 1978 New constituion and his absolute executive power, greatest challenge is how can we change this?

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      Merril honestly people of your calibre who are blind to facts certainly amazes me. Is it JR who closed the Court House in 1972 preventing the Ceremonial sittings of the Supreme Court was prevented? Have you seen the film ‘Sagarayak Meda’ by Gamini Fonseka, who acted the role of Felix Dias Bandaranayake as Minister of Justice 1970 -1977? Why are you so dunce? or is it habit?

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    President has defended his position; the meeting was called to discuss some mundane matters!!! Shouldn’t the JSC clarify matters?

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    Gamini-I have nothing against JR as a man but his policies and irresponsible behaviour hurting the country for a long time. Here we are still trying to find a way to get out of the situation that he put us into, I strongly believe that would be a very difficult task because political climate, the players and their thinking patterns are same as usual. As you have a mentioned people are entitled to make their complaints to those world organizations like the UN but it is a time consuming and they have priorities also devided. By the way I have seen many films by Gamini Fonseka when my teens, he was my favourite acter and comming from neigbouring city Dehiwala but this film does not ring a bell because I left Sri Lanka around that time. Good luck and take care..

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      Merril, Why blame JR for the present set up? The powers concentrated in the hands of the Executive was for a Right President to Govern this country Rightly, without being pulled by his legs as history has proved. It is our mistake in allowing a Tsunami Fund embezzler, a Rogue elected as the President in the first place. I believe it is not JR who created the mess, but we ourselves have created the mess. As usual the Sri Lankans can not see beyond their noses and blame every one else other than the person concerned. Now see how many blame Ranil Wickremasinghe for the present chaos, but not MR who is directly responsible?

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    All these were expected when Mahinda implemented the 18th amendment we should have stopped him like the present demonstration of FUTA & ISUF.

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    Just like various civil organizations, learned individuals, political parties,trade unions and most importantly the people of this country supported the just call to save education in this country by rallying around FUTA, it is time for us to rally around the JSC. This is no time to be silent. Enough is enough! We cannot wait for outsiders to do it.

  • 0
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    The Chief Justice was present with two other justices,at the private celebration of Namal Rajapakse after taking oaths as a lawyer.
    This is unprecedented.
    She thus demeaned the Supreme Court.
    But the president, by this gesture appears to think that the court will approve any legislation which may not be in the interest of the nation and tax-payers – like the Divineguma Bill.
    The Court failed to strike down the “Secresy Clause” in the Bill, which allows plunder of state assets without the knowledge of even the parliament.

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    Gamini -They blame Ranil because of his position and his image, he does not come as a strong leader, when the person is there for a long period of time with very little success that would be a liability to the party other wise he sounds very decent. Any how we have to face the facts there is no one else there to hold the position right now, this is only my opinion.

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      Merril, I believe when you state a strong leader, you refer to a verbose character who will use similar rhetoric and lies to sway the masses. Will such a person help the cause? He may be successful in ousting MR, but we will have to find another to oust him when he starts his gimmicks. With RW, one is assured that he will never try to influence to save anyone from misdeeds and allow the Law to apply equally to all. There will be a sense of Honesty and Justice to all. Further he will not try to make money for himself or for his family as the need is not there. He will not try to flood the system with his cronies as is happenning now. Is this not what the masses look forward to, other than those who want to be VIPs in the system.

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    Gamini- I have no desire for a magician or a liar but if you think RW is your man go for it, all the best and good luck!

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      Merril, RW is not my man alone. The problem is that many in society hates RW for no known reason, as you do. This situation has been created by the crafty opponents as MR who have taken this society for a Right Royal Ride. They have been ably assisted by individuals as yourself who keep condemning RW for no aparent reason but for personal satisfaction of going with the trend. Doing so you all do not realise the damage you are doing yourself and the society at large. I am no close friend or relative of RW and do not expect personal favours either and RW is the last to do so. I speak on behalf of RW judging from his performance and conduct so far and it is our bounden duty to sellect someone of his calibre if we are genuinely interested in OURSELVES. So please do not think that I am canvassing votes to RW. I have spent my life and in the evening of my life it little matters as to who rips this country, because my offspring are comfortably placed outside. I was only pointing reality and if you differ it is your business. Only thing is just berating who are dead and gone for the short comings of society today blaming falsely, for which you are responsible by not sellecting the Right Individuals is your FAULT. Have a Good Day and take care!

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