INTRODUCTION
Wijenayake says, ‘Independence of the judiciary is the independence to hold the scales evenly in adjudication between man and man and the, man and the state.’ (Wijenayake, 2004) The Sri Lankan Constitution has upheld the principle of Separation of Power by clearly demarcating the powers and responsibilities between the three organs of the states namely executive, legislature, and judiciary. The judiciary has a significant role in upholding the rule of law, protecting human rights, and ultimately ensuring peace and justice. The judiciary has to be independent for the effective functioning of its role.
As a State party to the International Covenant on Civil and Political Rights (ICCPR) Sri Lanka is obliged to establish a competent, independent and impartial tribunal or court. (UNGA, 1966) The Government has a duty to not only guarantee the independence of the judiciary from political interference by the executive branch and legislature but also to take special measures secured by law, including security and physical protections for the members of the legal system from conflicts of interest and intimidation. The United Nations Human Rights Council also has emphasized the integrity of the judicial system namely independence and impartiality of the judiciary. (UNGA, Basic Principles on the Independence of the Judiciary, 1985).
WHAT IS MEANT BY THE INDEPENDENCE OF THE JUDICIARY?
The independence of judiciary has a wider meaning. It is not only being free from interference in the decision-making of individual cases but also independence and impartiality of individual judges concerning their appointment, removal, transfer and payment of salaries which will altogether make the institution of judiciary free from the interference of executive and legislature.
JUDICIARY UNDER SRI LANKAN CONSTITUTION
Article 105 of the Constitution establishes the Supreme Court and the Court of Appeal as the superior courts of the country. Supreme Court has unlimited and final appellate jurisdiction and importantly it has the power to hear cases on breach of fundamental rights. Court of Appeal has appellate jurisdiction from the high court and has writ jurisdiction as well.
The Chief Justice and other judges of the Supreme Court and the President and other judges of the Court of Appeal are appointed by the President. The members of the Judicial Service Commission are also appointed by the President. Under the 19th Amendment to the Constitution, the President was bound to the decision of the Constitutional Council when making such appointments. But after the 20th Amendment, he is not bound to the observations of the Parliamentary Council and is free to make appointments. This enables the President to keep his puppets in the higher position of judiciary. The President may remove a Chief Justice only if one-third of all sitting members of the parliament sign a resolution for removal and then pass by a simple majority.
The salaries of the judges will be charged on the consolidated fund and will not be diminished. We could see reasonable and handsome salaries for judges in Sri Lanka. This ensures that they are not tempted by favors from economically powerful members of society. The President has the power to grant a pardon to a person convicted by any court. Arbitrary use of this power is a great threat to the independence of the judiciary and the rule of law.
CASE STUDIES: INTERFERENCE IN JUDICIARY
Former President Kumaratunga swore in the attorney-general Sarath Silva as Chief Justice in 1999 who was subject to two pending complaints of misconduct. (Ivan, 2007, p. 221). Two petitions filed in the Supreme Court challenging the appointment were dismissed by the bench appointed by the Silva CJ which was a clear conflict of interest. (Ivan, 2007, p. 245) This incident highlights how the power to appoint by the President is arbitrarily exercised in Sri Lanka.
In 2012, Chief Justice Shirani Bandaranayake was impeached by former President Mahinda Rajapaksha. (Centre for Policy Alternatives, 2012) It was even ruled unconstitutional by the Court of Appeal. (BBC, 2013). It was considered that her opposition to the "Divinaguma" Bill resulted in the impeachment. (Centre for Policy Alternatives, 2012) During and after this incident many lawyers and judicial officers who voiced against the government action had to face physical violence. An assassination was attempted on lawyer Gunaratne Wanninayake. (Samarawicckrama, 2012) Gunshots were fired at the house of MP Wijayadasa Rajapaksa, President of the Bar Association. (Bastians, 2012) Ramesh de Silva PC, Jayampathi Wickremarathna PC, MA Sumanthiran MP and JC Weliamuna received threatening letters. (AHRC, 2013) There was an attack on the Magistrate Court in Mannar and a threat to the Magistrate. (Colombo Telegraph, 2012) Judicial Service Commission's Secretary Manjula Tillekaratne was accosted by gun-wielding assailants while stopped in his car on a public road. (International Commission of Jurists, 2012)
In 2023, Saravanarajah, the Magistrate and the District Judge of Mullaitivu resigned and fled the country citing threats to his life due to his involvement in the contentious Kurunthurmalai archaeological site cases. (Srinivasan, 2023)
CONCLUSION
The judiciary is the last hope of people in need of legal redress and if the judiciary is not given freedom or acts partially, the entire government is considered failed in serving the public. Thus, the government of Sri Lanka must take effective steps to protect the members of the judiciary and ensure that its activities are not interfered with by other branches of the state.
To reduce political bias and prevent arbitrary interference in the judicial process, it is recommended that the Sri Lankan Constitution be amended. In particular, the authority currently held by the president and parliament in appointing and removing judges should be transferred to an Independent Commission. Members of the Independent Commission may be appointed by the President as per specific criterion prescribed by law and removed by the parliament with a 2/3rd majority voting in favor of the removal.
The rule of law and the independence of the judiciary underpin our democracy and lie at the heart of our way of life; they are the very cornerstone of our freedoms. (Lidington, n.d.) By safeguarding the judiciary from political influence and guaranteeing its independence, these reforms are essential steps toward establishing a fair, unbiased, and accountable legal system that prioritizes the best interests of the Sri Lankan people and contributes to peacebuilding in Sri Lanka.
References
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- Ivan, V. (2007). An Unfinished Struggle: An Investigative Exposure of Sri Lanka’s Judiciary and the Chief Justice (2nd ed.). Ravaya Publishers.
- Lidington, D. (n.d.). Brainy Quote. Retrieved 10 10, 2024, from https://www.brainyquote.com/lists/topics/top-10-judiciary-quotes#:~:text=The%20bedrock%20of%20our%20democracy,political%20winds%20that%20are%20blowing.&text=I%20believe%20that%20an%20independent,jewel%20of%20our%20constitutional%20republic.
- Samarawicckrama, C. (2012, 12 17). Attempted attack on Attorney. Retrieved December 17, 2024, from Dailymirror: https://www.dailymirror.lk/breaking-news/attempted-attack-on-attorney/108-24325
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- UNGA. (1966, Decembr 16). International Covenant on Civil and Political Rights.
- UNGA. (1985, September 6). Basic Principles on the Independence of the Judiciary.
- Wijenayake. (2004). Independence of the Judiciary in Sri Lanka since Independence. Stamford Lake.