Attention – Bar Association of Sri Lanka
By Rear Admiral SarathWeerasekera VSV RWP USP
The Bar Association of Sri Lanka (BASL), under the chairmanship of U R De Silva PC, has made some important decisions regarding attacks on the SL Judiciary by websites, social media and tabloids. According to the news Upul Jayasuriya PC, a former president of the Bar Association, has said that certain organisations had insulted the Attorney General and insisted that corrective measures should be taken against such derogatory action. The immediate past president, agreeing with Mr. Jayasuriya, has said that BASL must initiate legal action against anyone who ridicule the AG who is a member of BASL. Ali Sabry PC, the Deputy president of BASL, has said that the BASL should file action before the Supreme Court for “contempt of court” against those media and websites who make disparaging remarks about the entire judiciary. HemanthaWarnakulasooriya PC and W Dayarathna PC too indicated their happiness about the present stand of BASL on this matter, but not before criticizing the past officials for their ” silence” when even the Supreme Court judges were attacked mercilessly by some websites, and when some of them were criticized and accused of working with the Rajapaksa government.
Hence, it appears that the BASL has taken a very important decision. That is, the consensus to take strict legal measures against those people/ institutions which insult or belittle the SL judiciary.
Most of the people who make disparaging remarks on the judiciary do it anonymously. It shows their “fear” towards the judiciary. In a way it amounts to “cowardice”. But some people insult and criticize the judiciary in a contemptuous manner in writing and in public!! It shows their audaciousness or nerve or scant respect to the judiciary and if the judiciary does not take any action against them it implies the “fear” of the judiciary towards such people or the unassuming/ meek character of the Judiciary in the face of such insults. Therefore, the above decision of BASL , albeit belatedly, in taking strict legal action against those who insult the judiciary, brought solace to the law-abiding public who respects the country’s judiciary.
The topic of a side event organized by pro-LTTE NGOs at the UN in the 34th UNHRC session in March 2017 was “The requirement of foreign judges in special courts in Sri Lanka”. This meeting was attended by foreign media, UN observers, Tamil Diaspora and also some Sri Lankans who call for foreign judges in special courts in SL. In this meeting all the speakers complained about the “inefficiency” and “politicization” of the SL judiciary and in order to convince the audience of the necessity of including foreign judges in special courts, showed the cases where the judiciary had favoured the ” Sinhala” forces and discriminated against Tamils. This writer, who was present in that meeting, during the Q/A session, objected and explained to the audience with examples how our judiciary had performed over the years and cited instances where it had even given verdicts against the State and “Sinhala” soldiers on many occasions. The incident that occurred thereafter, where the writer was blamed/insulted as a war criminal and demanded immediate arrest by Swiss police and how the writer responded is known to the public. This was mentioned to make the BASL aware of our role to safeguard the interest of the SL judiciary even in international forums, whilst the Sri Lankan representatives were watching cowardly!!
Now let’s see who are the people who have insulted the judiciary openly. The first one to do that was none other than the HC of UNHRC Zeid Al Hussein. On at least three occasions since Sept 15th 2015, the UN High Commissioner publicly accused the SL judiciary of lacking in competence, impartiality and independence as follows..
i. On 30th Sept 2015 statement by HC to UNHRC
” …The unfortunate reality is , however, that Sri Lanka criminal justice system is not currently equipped to conduct an independent and credible investigation into allegations of this breadth and magnitude , or to hold accountable those responsible for such violations………..That’s why I recommended the establishment of an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators mandated to try notably war crimes and crimes against humanity, with its own independent investigative and prosecutor organs, defence office and witness/victim protection programme…” ( www.ohchr.org 30th Sept 2015 )
ii. HC’s report A/HRC/32/CRP.4
” …The HC remains convinced that international participation in the accountability mechanism would be a necessary guarantee for the independence and impartiality of the process in the eyes of victims, as Sri Lanka’s judicial institutions currently lack the credibility needed to gain their trust … keeping in mind the magnitude /complexity of international crimes amounting to war crimes/crimes against humanity…” ( www.ohchr.org para32 32nd session June 2016 )
iii. HC’s report A/HRC/34/20 march 2017
” … cases pending in the courts are deliberately dragging their feet because of the ethnicity of the accused and strengthened the case for establishment of a special court supported by international practitioners as recommended by the Consultative Task Force in it’s final report. (www.ohchr.org para 42 34th session March 2017)
What is the response of the BASL towards these derogatory comments by the HC of UNHRC on the SL judiciary? The HC says our judges are incompetent to handle system crimes but what about our judges who have served at the Hague International Criminal Courts? Zeid Hussein condemns our judiciary without any rational basis.
As citizens of SL we consider that the credibility of the judiciary is essential to the due administration of justice, and hence the repeated assertions by the HC that SL judges lack impartiality and independence materially lowers the credibility of the SL judiciary in the eyes of the international observers and more importantly Sri Lankans.
Unfortunately, the HC has diplomatic immunity and is immune from lawsuit. But article 2(7) of UN Charter prohibits the UN and it’s subsidiary organs from interfering in matters which fall essentially within the domestic jurisdiction of the State. Hence, we have reported the HC to the Sec Gen of the UN about his behavior of ridiculing our judiciary, violating the above article of UN Charter and demanded that he issue a public apology to the SL people for the harm he has already caused for the good name of the SL judiciary and thereby country.
Although we , as patriotic citizens of the country, have taken the initiative to safeguard the interest of our judiciary, to date, we have never observed the BASL’s response in this regard. So under the legal maxim ” Qui tacet consentire videtur ” (he who is silent appears to consent), does that mean that the BASL’s inaction in this regard is an indication of their acceptance that the judiciary is in fact incompetent and inefficient as alleged by the HC?
Let us presume that the BASL does not protest against the HC’s derogative comments due to his diplomatic immunity. But a local team also has insulted the SL judiciary on the same line, as the HC of UNHRC, and in fact the HC has indicated that in his report to further substantiate his stand on foreign judges. The “Consultation Task Force on Reconciliation Mechanism” ( CTFRM) was appointed as per the Geneva resolution 30/1. The chairman and the secretary of that committee were Manouri Muttetuwegama and Pakyasothi Saravanamuttu, respectively. The observations and recommendations of this committee which comprised eleven people, including Gamini Viyangoda and K W Janaranjana, were highly derogative of the SL judiciary.
The CTFRM states that International participation is seen as vital to impart trust and confidence in the judicial mechanism in SL, which implies that as at present the people have no faith in our judiciary. She recommends foreign judges and prosecutors as spelt out in the UNHRC resolution of Oct 2015. In this committee’s lengthy report, there are a number of occasions where the judiciary is dealt with in an insulting and contemptuous manner. Hence, as Ali Sabry PC has proposed and approved, the BASL is now duty bound to file action before the Supreme Court for “contempt of court” against all the members of the CTFRM.
A Special Rapporteur on the “Independence and judges and lawyers in Sri Lanka”, Monica Pinto, has come to SL last year with the government’s blessings, and her report, which she is supposed to submit to the UNHRC, too, has criticized the judiciary as partial and politicised. She says that the AG’s department is described as “rather lethargic” with regards to sensitive cases and the department defends the interest of the government and not the public. The para 64 of her report says that the Bar Association had been strongly divided along political lines and politicization of the Association is a source of great concern!
The BASL must take serious note of the following observation of Monica Pinto. “The Special Rapporteur (SR) was told that judges frequently pushed defendants to plead guilty. Defendants were made to believe they could get a lighter sentence by pleading guilty. When defendants plead guilty, judges can expedite their case and improve their statistics. The Special Rapporteur is alarmed by this practice, which seems to demonstrate a disregard for the interests of justice.”
This is another observation of the SR. “Judges are reportedly often offered government or other political offices after retirement. This practice raises concerns regarding possible conflicts of interest and casts doubt on the independence and impartiality of judges who may be hoping to obtain such positions”
As Sri Lankans we ask how this SR has come to these conclusions. What proof has she got? This report is being submitted officially to the UNHRC session in Geneva in June and we are going to challenge it. In other words, it is us who are going to protect the interest of both the judiciary and the BASL in Geneva. We sincerely hope that the BASL would take serious note of this issue and support us in our endeavours.