( December 11, 2012, Colombo, Sri Lanka Guardian)
(This document contains recent developments affecting independence of judiciary Sri Lanka)
01. Threatening the Mannar Magistrate and attack on the Manner Magistrate Court and High Court
a) On 16th July 2012 case bearing number B 396/12 was filed by the police in the Magistrate court Mannar where the learned Magistrate made certain orders against named suspects.
b) On the following day a cabinet minister of the government Risad Badhiutheen telephoned the Magistrate and demanded that the Magistrate reversed the said order. The Magistrate declined to change his order and complained to Judicial Service Commission (JSC)about the interference. There were further threats made by the minister and Magistrate made police complaints.
c) On 18th July 2012 the Minister personally met the Secretary of the JSC and required that Magistrate of Mannar be transferred forthwith.
d) Thereafter on or about 17th of July 2012 a mob instigated by the said Minister attacked the Magistrate Court and High Court of Mannar and part of the Court house was burnt.
e) This led all the court of Sri Lanka striking court sittings on 20th July 2012 from their work and all the courts were closed. In the meantime Bar Association of Sri Lanka (BASL) passed a resolution condemning the intimidation and urging stern action against the minister.
f) Lawyers for Democracy (LfD)issued a statement on 21st July 2012condemning the interference and urging that the minister be removed forthwith from the cabinet minister to create conducive atmosphere for an impartial investigation.
g) Soon thereafter the President of Sri Lanka made a statement to the effect that he regrets that the judges have no confidence in one of his minister. Neither the President nor the government apologised for the attacks and instead state media was extensively used to criticise the Mannar Magistrate, even suggesting that he was a LTTE sympathiser.
h) On 25 June 2012 seven senior lawyers with high standing and reputation in the profession moved the Court of Appeal under the Article 105(3) of the Constitution of Sri Lanka to deal with the Minister for contempt of Court. On 26th July 2012 court issued a Rule Nisi requiring the Minister to show cause as to why should not to be punished with contempt of court. The case is still pending. BASL in the meantime decided to move for contempt of court or to intervene into the contempt of court case. Thereafter series of demonstrations were held instigated by the Minister himself to support the minister portraying him as a saviour of certain displaced people in Mannar. In strange move several intervention papers were filled into the pending Contempt of Court case but the decisions on interventions have not been made.
i) Investigations into the attack were initially conducted by the Mannar Police but later it was handed over to the Criminal Investigation Department (CID). While the investigations were pending, strangely several officers who were conducting the investigation were transferred.
02. Response of the Government on the Supreme Court determination on “Divineguma Bill”
a) Draft law (Bill) was presented to the parliament on 10thof August 2012. The purpose of the draft law was to centralize the provincial rural development programme and to be brought under a cabinet minister.
b) Several petitions were filled in the Supreme Court challenging the validity of Bill and the matters were taken up in the Supreme Court before Chief Justice (CJ) and two other judges. The determination of the Supreme Court was communicated to the President and the Speaker of parliament. The judgment of the Court was to the effect that the Bill cannot be passed by the parliament without the sanction from all the provincial councils as required under Article 154G of the Constitution.
c) On the 18th September 2012 the determination was placed in the parliament. There were about 3000 protestors, organized and transported by the government, kept outside parliament indirectly critical of the Supreme Ccourt’s determination. In the meantime, the government media mounted an attack on the Supreme Court.
03. Interference with the JSC
a) On 12th September 2012the media reported that a District Court judge had been interdicted by the JSC on the ground of financial impropriety. i.e. not settling series of loans obtained from banks and his name appearing in the Credit Information Bureau (CRIB) and still hearing cases against the banks etc.
b) The President had requested the JSC members to come for a meeting, scheduled by the President, but disclosing reasons in a written communication and upon the insistence of the JSC, the request was made thereafter in writing. There were however little doubt that the meeting was to discuss few important case and the above mentioned disciplinary case against a district judge who is politically connected.
c) Thereafter the JSC officially decided not to meet the executive and informed the President about their decision as such a meeting would amount to an unconstitutional conduct.
d) These event took place in the backdrop of several people attempting to influence the decisions of the Judicial Services Commission.
e) Thereafter the Secretary to the President had informed the JSC that the scheduled meeting had been concluded.
f) Thereafter in a clear afterthought that the President has informed the JSC that the meeting was to decide the financial allocation for the Judiciary. However there had never been such precedents before and such allocations are generally handled by the Ministry of Justice.
g) On 18th September 2012, JSC issued a statement to the effect that there were attempts to interfere with judiciary and particularly JSC and that there were unfair malicious propaganda against the judiciary. The statement also suggested that a high official had attempted to influence the JSC in relation to disciplinary matter that JSC had taken.
h) In response to the JSC statement LfD and several other lawyers made public pronouncements supporting JSC and judges. On or about 22thSeptember 2012 BASL passed three resolutions supporting the JSC and resolving to deal with the state media organizations who were maliciously inciting against the Judiciary.
04. Attack on Secretary JSC
a) In late September the Secretary of JSC issued a statement that his family is under threats. There were no responses from the police or the Executive on this matter though it received wide publicity.
b) On 7th October 2012, the Secretary to the JSC was attacked by a group of people, who had first identified him as the Secretary to the JSC. He was held at gun point and was subsequently assaulted causing injuries to him. The crowd had taken one of his mobile phones. He was admitted to the Colombo National Hospital with the injuries.
c) There were wide condemnation on the attack and the judges struck work on 8th October. The Judicial Services Officers Association decided to strike work on 8th and the BASL decided to follow whatever the decision taken by the Judicial Services Officers Association. On 8th there was a protest march near the main court complex. The Government had condemned the attack and insinuated that there is a conspiracy by an unknown party. No successful investigations are taking place upto now.
05. Bribery Investigation against Chief Justice’s Husband
a) The Media in early 2012 revealed a share scandal, involving the Central Bank of Sri Lanka and a state bank (National Savings Bank – NSB) and several high worth investors. At the time material, husband of the CJ was the Chairman of the NSB bank.
b) There was a complaint filed by a political party at the Commission to Investigate Allegations of Bribery and Corruption (CIOBAC) requesting them to investigate into the scandal without naming the suspects.
c) When the Divinaguma Bill (supra) came up before the Supreme Court, on the same day, CJ’s husband had been summoned before the CIOBAC to record a statement. There does not seem to be any information on whether there was a frank investigation into a scandal. In the meantime CJ’s husband resigned on 21st May 2012.
d) Several judicial pronouncements were made to the effect that the tension between the executive and judiciary was growing. Thereafter CJ’s husband was summoned before the CID to recall a statement.
e) The Media reportedthat the President has addressed the Cabinet on the above statement of the JSC and that the Cabinet is considering disciplinary actions against the JSC Secretary. However under the law the JSC Secretary is only subject to the disciplinary control of the JSC and neither the President nor Cabinet has any such powers. In this instance, the Secretary to JSC had issued the statement on the instructions of the JSC.
f) There was also a report that the government had made allegations against JSC Secretary that he had sexual advancements against a Lady Magistrate. The allegation was not only unsubstantiated but also clearly fabricated to silence him. There had been no official complain or an inquiry on such allegation.
g) On 28thSeptember 2012the Secretary of JSC issued a statement that he and his family is under threat and the lawyers logged strong protests.
h) Around the same time, the group leader of a political party (JVP), that made the complaint at the CIOBAC against the CJ’s husband, made a public announcement at a press meeting that their complaint is not being properly investigated but instead it is being used to twist the arm of the CJ. There were several public announcements made by various individuals to the effect that share scandal is not have been investigated because politically connected high worth investors and The Central Bank was involved in the deal.
i) The state media carried several programs ridiculing that judges and suggesting that CJ should resign. It appears that government is taking extra judicial measures to compel the resignation of CJ whose tenure is guaranteed until 65 years.
The JSC 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 of Sri Lanka. For more information about the JSC refer to http://www.jsc.gov.lk/
Lawyers for Democracy (LfD) is a representative body of legal practitioners throughout the island. Conveners include Lal Wijenayaka, Chandrapala Kumarage, K.S. Ratnavale, J.C. Weliamuna, Sudath Netthisinghe ,Sudarshana Gunawardana and Lakshan Dias. It was established on 10th December 2009