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Judicial Independence in Sri Lanka

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Judicial Independence in Sri Lanka Report of a Mission 1-4-23 September 1997 Centre for the Independence of Judges and Lawyers Geneva, Switzerland Established in 1978 by the International Commission of Jurists in Geneva, the Centre for the Independence of Judges and Lawyers: - promotes world-wide the basic need for an independent judiciary and legal profession; - organizes support for judges and lawyers who are being harassed or persecuted. In pursuing these goals, the CIJL: - works with the United Nations in setting standards for the independence of judges and lawyers. The CIJL was instrumental in the formulation of the UN Basic Principles on the Independence of the Judiciary and the UN Basic Principles on the Role of Lawyers endorsed by the UN General Assembly; - organizes conferences and seminars on the independence of the judiciary and the legal profes­ sion. Regional seminars have been held m Central America, South America, South Asia, South-East Asia, East Africa, West Africa and the Caribbean. National workshops have been organized in Cambodia, India, Nicaragua, Pakistan, Paraguay and Peru; - sends missions to investigate situations of concern, or the status of the bar and judiciary, in specific countries; - provides technical assistance to strengthen the judiciary and the legal profession; - publishes a Yearbook in English, French and Spanish. It contains articles and documents rele­ vant to the independence of the judiciary and the legal profession. Over 5,000 individuals and organizations in 127 countries receive the CIJL Yearbook; - publishes a yearly report on "Attacks on Justice: The Harassment and Persecution of Judges and Lawyers" world-wide. Appeals Network Jurists and their organizations may join the world-wide network which responds to CIJL appeals by intervening with government authorities m cases m which lawyers or judges are being harassed or persecuted. Affiliates - Contributors Jurists’ organizations wishing to affiliate with the CIJL are invited to write to the Director. Organizations and individuals may support the work of the CIJL as Contributors by making a payment of Swiss francs 200 per year. Contributors receive all publications of the CIJL and the reg­ ular publications of the International Commission of Jurists. Subscriptions to CIJL Publications Subscriptions to the Yearbook and the annual report on “Attacks on Justice: The Harassment and Persecution of Judges and Lawyers” are Swiss francs 25, each, or for combined subscription Swiss francs 43, including postage. Payment may be made in Swiss francs or m equivalent amount in other currencies either by direct cheque valid for external payment or through a bank to Societe de Banque Suisse, Geneva, account No. 142.548; National Westminster Bank, 63 Piccadilly, London W1V OAJ, account No. 11762837: or Swiss Bank Corporation, 4 World Trade Center, New York, N.Y. 10048, account No. 0-452-709727-00. Pro forma invoices will be supplied on request to persons in countries with exchange control restrictions. Centre lor the Independence of Judges and Lawyers 81 A, avenue de Chatelaine CH-1219 Chatelaine/Geneva Switzerland Tel: (4122) 979 38 00, fax: (4122) 979 38 01 Judicial Independence in Sri Lanka International Commission of Jurists (ICJ) Geneva, Switzerland Report of a Mission 1-4-23 September 1997 V Lord William Goodhart CD. C. Justice P. N. Bhagwati Attorney Phineas M. JVLojapelo JUST-RtP-2-LK Centre for tlie Independence of Judges and Lawyers Geneva, Switzerland C Glossary of Abbreviations CIJL Centre for the Independence of Judges and Lawyers HRTF Human Rights Task Force ICCPR International Covenant on Civil and Political Rights ICJ International Commission of Jurists IPKF Indian Peace-Keeping Force JVP Janatha Vimukthi Peramuna ( a left-wing nationalist party) LTTE Liberation Tigers of Tamil Eeelam (the "Tamil Tigers") PA People's Alliance (the coalition forming the present Government of Sri Lanka) PTA The Prevention of Terrorism (Temporary Provisions) Act, N° 48 of 1979 SLFF Sri Lanka Freedom Party (the main Government party) TULF Tamil United Liberation Front UNP United National Party (the main opposition party). 4 Centre for the Independence of Judges and Lawyers Table of Contents Glossary of Abbreviations 4 I Introduction 7 II Background 1 1 III Legislation and the Emergency 19 IV The Judiciary 39 V Lawyers and Legal Services 59 VI Disappearances and Extra-Judicial Executions 61 VII The National Human Rights Commission 83 VIII International Obligations 87 IX The Proposed New Constitution 93 Conclusions and Recommendations 103 Annexes 1 13 Chapter III of The Constitution of Sri Lanka J 15 Chapters XV and XVI of The Constitution of Sri Lanka 121 The Public Security Ordinance 151 Chapter XVIII of the The Constitution of Sri Lanka 157 Extract from the Emergency (Miscellaneous Provisions and Powers) Regulations, N° 4 of 1994 161 F Article 9 of the International Covenant on Civil and Political Rights 175 G Part III of the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 177 H Presidential Directions dated 18 July 181 I List of Interviewees 185 Judicial Independence in Sri Lanka 5 I - INTRODUCTION This is the Report of a Mission sent by the Centre for the Independence of Judges and Lawyers (CIJL) to Sri Lanka. The CIJL is a component of the International Commission of Jurists (ICJ) dedicated to promoting and protecting the independence of judges and lawyers throughout the world. The function of the Mission was to report on the status of the independence of the judiciary and the legal profession and the state of the administration of justice in Sri Lanka. The members of the Mission were Lord William Goodhart Q.C. (United Kingdom), a member of the Executive Committee of the ICJ (leader and rapporteur); Justice P. N. Bhagwati (India), former Chief Justice of India and Chairman of the CIJL Advisory Board; and Phineas M. Mojapelo (South Africa), a member of the Judicial Service Commission and Law Commission of South Africa. The Mission arrived in Colombo on Sunday 14 September 1997 and left on Tuesday 23 September 1997. During that time we held meetings with the Chief Justice, the Attorney General, the members of the Human Rights Commission, and other judges and holders of official positions. We were unable to meet the Minister of Justice, who was absent from Sri Lanka on official duties throughout the period of the Mission. The Mission received full and helpful cooperation from the Government. We met the Executive Committee of the Bar Association, representatives of several human rights organisations, and individual lawyers, journalists and politicians. A list of those whom we met (omit­ ting a small number who preferred their discussions with us to be off the record) is attached as an appendix to the Report as Annex I. We are grateful to all those who assisted us. In particular, we are grateful to Desmond Fernando (a Vice-President of the ICJ) and Suriya Wickremasinghe (a member of the Advisory Board of the CIJL) for their help in arranging our meetings. On 24 April 1998, the CIJL sent a letter to the Permanent Mission of the Democratic Socialist Republic of Sri Lanka before the United Nations in Geneva enclosing the report on confidential basis for its Judicial Independence in Sri Lanka 7 IB * comments on the issues we have raised. We added that if we were able to receive the response before 25 May 1998, we would include it in the published version of the report. No comments were received from the Government of Sri Lanka, however. For most of the period since 1983 there has been a state of conflict in the Northern and Eastern provinces of Sri Lanka between the Government and militant Tamil separatist groups (in particular, the Liberation Tigers of Tamil Eelam (LTTE), known as the Tamil Tigers). There has also been internal political violence within the majority Sinhalese community, which began in 1971 and reached a very high level between 1987 and 1990. As a result, the Government assumed emergency powers which have continued for almost all the time since 1971. During the course of these conflicts, many killings and other vio­ lations of human rights have been carried out both by Government forces and their opponents. The ICJ and the CIJL are organisations of lawyers. The Mission con­ centrated on matters in which lawyers and judges are likely to be directly involved - in particular, the state of legislation; the legal sys­ tem; the legal protection of human rights; the independence of the judi­ ciary and lawyers; and the investigation and prosecution of those suspected of violations of human rights. Some of these matters are directly linked to the state of emergency; others are broader. Chapter II of the Report sets out a brief historical and constitutional background. In Chapter III, we report on the legislative framework of emergency powers - in particular, the Emergency Regulations and the Prevention of Terrorism (Temporary Provisions) Act (PTA) - and on judicial responses to that legislation. In Chapter IV, we report on the structure of the court system; the appointment, training and removal of judges; the independence of the judiciary; and delays. Chapter V dis­ cusses the independence of lawyers and the availability of legal ser­ vices. Chapter VI deals with the investigation and prosecution of murders and disappearances for which the security forces are believed to have been responsible, and steps which have been taken to reduce the number of violations of human rights. Chapter VII reports on the newly established Human Rights Commission. Chapter VIII considers the extent to which Sri Lanka has complied with the International Covenant on Civil and Political Rights and the other international 8 Centre for the Independence of Judges and Lawyers human rights instruments to which it is a party. Chapter IX considers the Chapters of the proposed new Constitution for Sri Lanka which deal with fundamental rights, the legal system and the judiciary.
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