Image Source: freeimages.com
June 23, 2017
REGION: South Asia

The report of the Special Rapporteur on the independence of judges and lawyers on her mission to Sri Lanka, released in June 2017, outlines the country’s political context and justice system; describes multiple challenges to a competent, independent and impartial justice system; and provides various recommendations to address those challenges.

Various emergency regulations, alongside provisions of the Prevention of Terrorism Act, granted Sri Lankan authorities the power to act outside the Constitution and other Sri Lankan laws during the period surrounding and throughout the country’s Civil War (1983 – 2009). Specifically, the laws permitted the detention of individuals for long periods without charge or trial, violating the right to freedom from arbitrary arrest and detention. Although the war ended in 2009, the extended powers of the government remained until 2011, when the state of emergency was lifted.

Presidential and parliamentary elections were held in 2015, which held promise of rebuilding the country’s rule of law, as well as trust between the people of Sri Lanka and their government. Soon afterward, the new government presented a 100-day program of constitutional reform and political transformation, which culminated with the adoption of the 19th amendment to the Constitution. The amendment served to decrease executive power and included the reestablishment of the Constitutional Council. This Council provides the President with recommendations for the appointment of members for several independent commissions and approves presidential appointments of various high-ranking officials, including the Chief Justice and judges of the Supreme Court; the President and judges of the Court of Appeal; members of the Judicial Service Commission; the Attorney-General, who acts as the government’s chief legal advisor and primary lawyer in the Supreme Court; and the Inspector-General of Police, the country’s most senior police officer, responsible for managing all other police personnel. The new government later supported the adoption of the Human Rights Council’s resolution 30/1, which notes the proposal of the government to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights, and violations of international humanitarian law. The resolution also asserts that “a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality.” In 2016, the government initiated the process for drafting a new Constitution. As part of this process, the Subcommittee on the Judiciary submitted a report on issues related to the independence of the judiciary, the structure and jurisdiction of the courts, and the establishment of the Constitutional Court.

The report identifies several challenges to a competent, independent and impartial justice system in Sri Lanka, and makes various recommendations to resolve these issues. The following summarizes a selection of these challenges and recommendations.

Implementation of human rights treaties. Although Sri Lanka is a party to many international human rights treaties, the content of many of these treaties has not yet been enacted in domestic legislation, making it unenforceable in national courts. The report recommends that authorities should work to enact the rights protected in international human rights treaties.

Strengthening the independence of the judiciary. Although noted that this situation has been improving since the change of government in 2015, the impartiality and competence of the judiciary was a prominent concern. For instance, it was reported that the executive would regularly attempt to influence judges’ decision making or control their actions. Attention was also brought to the fact that judges are frequently “offered government or other political offices after retirement,” raising concerns about potential conflicts of interest. Specific areas of concern also include a lack of transparency in the selection and appointment of judges, the high degree of discretion granted to the Judicial Services Commission in awarding promotions to judges, poor working conditions for judges, resulting in the inability to recruit the top candidates, and inadequate training opportunities for judges, which are often offered in an inconsistent and non-transparent manner. Moreover, transfers between jurisdictions are required at least every four years among first instance court judges. While this can bolster judicial independence, it has reportedly been used as retaliation, and has also negatively impacted the flow of cases through the courts. In light of these issues, the report recommends the fundamental principles of the separation of powers be clearly recognized in the Constitution, which should also establish checks and balances to guarantee the independence of the judiciary and the courts; the selection, appointment, and promotion of judges be transparent, and made based on objective factors; and the Judicial Service Commission’s policy on the transfer of first instance court judges be reviewed in light of the hindrance that such transfers can have on the efficient flow of cases through the courts.

Judicial accountability. Though a procedure is in place for removal of judges of the superior courts, it is “extremely politicized and characterized by a lack of transparency, by a lack of clarity in the proceedings and by a lack of respect for fundamental guarantees of due process and a fair trial….” Disciplinary procedures for first instance court judges also appear to not protect against arbitrary disciplinary measures, and disciplinary measures were reportedly used inappropriately against judges who did not cooperate with the government. To improve the current situation, the report recommends that impeachment procedures be regulated by a law approved by parliament, and that due process should be respected in all disciplinary proceedings, which should also allow for an independent review of the decisions.

Attorney-General’s department, investigations and prosecutions. First, the inadequacy of police investigations leads to serious due process violations. Second, once investigations are complete, it often takes years for the Attorney-General’s department to file an indictment. In addition to this, it was reported that certain types of cases often are stalled, or go without investigation at all, and that in many cases of traumatic victimization of women and children, “State counsels have displayed a shocking lack of sensitivity.” The report recommends that these extended delays in investigations and indictments be researched and addressed, and that guidelines for both investigations and prosecutions that include “victim-oriented protocols that respect women’s and children’s rights” be developed.

A justice system that reflects the diversity of society. Aside from a gender imbalance, the large majority of judicial staff are Sinhalese. While Sri Lankan society is predominantly Sinhalese, there are regions in which the Tamil population is the majority. This often leads to a language barrier, and translation services for investigations, as well as judicial proceedings, are often of poor quality or simply do not exist. This results in potential inaccuracies in investigation records and undermines confidence in the quality and even the legality of investigations, as well as situations where the accused do not understand judgments or their rights. Therefore, the report recommends quality interpretation and translation services be available in every court, at every stage of proceedings, and be available for police forces.

Independence of lawyers. The Supreme Court is responsible for the admission, enrolment and discipline of lawyers; however, it is not possible to appeal Supreme Court decisions, including the disciplinary measures of lawyers, making lawyers vulnerable to the influence of the Supreme Court. Further, prior to 2015, lawyers defending alleged members of the Liberation Tigers of Tamil Eelam or individuals accused of terrorism-related offenses were labeled as traitors and regularly faced threats of violence. While this situation has reportedly improved since 2015, it is important to ensure the safety and security of lawyers at all times. To do so, the report recommends that the safety and security of lawyers be a high priority. All threats, acts of violence, or other improper interference toward lawyers should be investigated and sanctioned in a timely manner. Additionally, the law should recognize the independence of lawyers, as well as their strong impact on the rule of law and protection of human rights.

Right to a fair trial, due process of law and judicial delays. Lawyers reported difficulties in accessing clients held at the Terrorism Investigation Division and other detention centers primarily used for those accused of terrorism-related offenses. Accessing these clients requires authorization, a process that reportedly could last for months, meaning that many detainees were unable to reliably access their lawyers. The Special Rapporteur also noted that, at the time of writing, the Prevention of Terrorism Act was still in place, which “imposes severe restrictions on courts’ jurisdiction and authority to prevent abusive detention and torture and seriously undermines the fundamental right of defendants to a fair trial.” Extreme judicial delays (up to 15 years), potentially coercive plea bargaining, and a lack of sentencing guidelines were also among the issues of concern. The report recommends that the Prevention of Terrorism Act be immediately repealed, that the Constitution guarantee the right of access to counsel immediately upon arrest, and that legislation be amended to reflect this right. Additionally, the use of plea bargains should be regulated by law, and pressure or coercion should never be used to obtain a confession of guilt.

Access to justice, protection of victims and witnesses and impunity. Currently, complaints of executive or administrative violations of fundamental rights are handled by the Supreme Court. The report notes, however, that access to the Supreme Court is unrealistic for the most vulnerable portions of the population. Specifically, many are unable to travel to Colombo or hire a lawyer, and many refuse to file a complaint out of fear of retribution for doing so. Access to this system is also restricted due to language barriers and time limits. Moreover, police allegedly offer money to victims to not file complaints, and when a complaint is filed, it gets added to the roughly 3,000 applications that are currently backlogged. The Assistance to and Protection of Victims of Crime and Witnesses Act, which was adopted in 2015, is another problem. Criticism surrounds the fact that the operating body is located within the institutional hierarchy of the police, though security forces have often been involved in many cases regarding human rights violations and abuses. Lastly, during the period of conflict, “there was virtual impunity for any abuse committed by the police or the security forces,” which caused serious distrust toward the judiciary among the public. Improvements in this area have occurred since the change of government, and many cases are currently being investigated. The report recommends an analysis of the backlog of tribunals to determine the causes of judicial delays, the results of which can be used in developing a “comprehensive plan to improve the efficiency of the administration of justice…,” as well as a review and modification of the victim and witness protection mechanism that focuses on providing more meaningful protection.

Transitional justice. Various ad hoc commissions have inquired into politically sensitive crimes and provided insights on past atrocities. It is noted, however, that reports from these commissions are rarely made available to the public, and the Rapporteur states that such commissions “jeopardized the development or reinforcement of competent and independent institutions.” Concerns regarding the ability of the justice system to deliver justice, even in non-sensitive cases, were also expressed, based on the incapacity of police, and lack of independence and professionalism among State counsels and judges. The report recommends that the public be informed at all stages of the constitutional reform process, which should include all relevant stakeholders and entail a maximum degree of transparency.


NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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