Feature Article

Supreme Indiscretion

[TamilNet, Monday, 27 July 2009, 01:23 GMT]
While the U.S. voters closely followed the intense scrutiny at the recent Senate hearing to appoint Judge Sonia Sotomayor to the Supreme Court - the venerable institution that the U.S. public trusts will make decisions based on law to create a just society - Sri Lanka's Supreme Court and the judicial system where the justices are appointed at the whims of Sri Lanka's President, came under scathing attack by International Bar Association Human Rights Institute (‘IBAHRI’), and the International Crisis Group (ICG). IBAHRI report said, among other concerns, "[t]he lack of independent oversight and practice of executive presidential discretion over judicial appointments makes the judiciary vulnerable to executive interference and jeopardizes its independence."

"The Government’s continuing failure to fully implement the 17th Amendment and re-establish the Constitutional Council has reduced public confidence in its commitment to independent institutions and the rule of law. The prompt implementation of the 17th Amendment and the re-establishment of the Constitutional Council would ensure critical independent oversight of the proper functioning of Sri Lanka’s key institutions, including the Judicial Services Commission, and resolve several of the constitutional and governance issues currently facing Sri Lanka," the IBA report said.

PDF IconIBA Video: Edirisinghe, Weliamuna talk
on Sri Lanka's rule of law
The 17th amendement introduced in 2001 to the constitution was intended to redress the unchecked concentration of powers vested with the Executive President by the 1978 Constitution. The 17th amendment takes away the arbitrary power of the Executive President and to subject him, in the exercise of his power, to a constitutional process where appointments, transfers, promotions and the disciplinary control of officers of key public institutions were to be placed under the authority of independent bodies.

President Obama, nominee for associate Justice for US Supreme Court, Sonia Sotomayor, Sri Lanka's ou
President Obama, nominee for associate Justice for US Supreme Court, Sonia Sotomayor, Sri Lanka's outgoing Chief Justice Sarath N Silva, incoming Chief Justice Asoka de Silva
While U.S. Presidents nominate Supreme Court justices to recalibrate the Court not to move too far from center, in Sri Lanka's politicized judiciary, where the Chief Justice occupies the highest office at the condescending discretion of the President of Sri Lanka, the Chief Justice, once appointed, has exclusive authority in several key judical functions, including appointing of the bench to hear different cases.

The IBA report points out the "practice of allocating politically sensitive cases to himself [Sarath N. Silva] and to the most junior Supreme Court Judges available at the time," and that, "more senior judges, who are regarded as more independently minded, are routinely excluded from politically sensitive cases."

Criticisms remain, however, that in the U.S. confirmation process highly "coached" judges routinely evade providing explicit answers to key questions that will expose the judge's judicial philosophy. In the current Sotomayor hearing liberal intellectuals were reported disappointed on the near total absence of liberal doctrines articulated in the hearings.

But, these criticisms revolve around legally complex doctrinal matters about which Sri Lanka is light years away from engaging in any meaningful debate with the full spectrum of its population.

However, ill-educated local media often engage in commentaries to gain favor with the Sri Lanka Government officials, and by this exercise expose the low-level of discourse on serious matters that determine Sri Lanka's destiny. One article in a website recently compared the U.S. courts' legal struggle to resolve the tension between the constitutional guarantee of equal protection and the civil rights doctrine of disparate impact, to Sri Lanka's treatment of Tamils.

In a recent report from International Crisis Group (ICG), the group’s Asia Program Director, Robert Templer, said: “The [Sri Lanka's] judiciary has not acted as a check on presidential and legislative power but has instead contributed to the political alienation of Tamils...Under the former chief justice, the Supreme Court’s rulings strengthened political hardliners among Sinhala nationalist parties." The report accused the judiciary of failing to protect human rights and of blocking compromises with the Tamil minority.

Indicating the continuation of the status quo, and therefore, a bleak future for Sri Lanka's jurisprudence, the incoming Chief Justice, Asoka de Silva, responding to the criticisms leveled by the two criticial international reports, said, the rulings on NorthEast merger and Tsunami P-TOMS by his predecessor were given "according to constitution."

The Rajapakse family dynasty's grip on the judiciary, contributing to an inexorable deterioration of the State towards dictatorship and authoritarianism, is further exemplified by the following:
  • PDF IconSBS Interview: Gotabaya threatens
    Tamil Journalist Vithyatharan
    After the February 2009 abduction, arrest of popular Tamil editor Vithyatharan, Defense Secretary Gotabaya Rajapakse in an interview with Australia's SBS threatened that Vidyadaran is a "terrorist," and cautioned the reporter from not "covering up" for Vidyadaran. Defense Secretary made it clear who is in charge of the law, saying "I will arrest...we have arrested him." Vithyatharan was later released with all charges dropped.
  • Defence.lk website labeled as "traitors" three attorneys appearing for the Leader Publications against a defamation law suit filed by the Defense Secretary, Gotabaya Rajapakse. The site is controlled by Defense Secretary. The accusation still appears in the website despite protests from the bar association.
  • The International Independent Group of Eminent Persons (IIGEP) appointed by Sri Lanka's President to investigate rights violations in Sri Lanka terminated its observation mission reasoning that the proceedings of the Commission of Inquiry (CoI) setup by the Government of Sri Lanka (GoSL) to investigate and inquire into serious violations of Human Rights, have not been transparent and not satisfied basic international norms and standards.
  • Action Contre la Faim (ACF), after CoI exonerated the Sri Lanka Army (SLA) and navy (SLN) in the killing of 17 aid workers, accused Sri Lanka of failing to identify people responsible for the killings after "[t]hree Years of obstructionism, smokescreens, and politicized proceedings."
Finally, a note from an independent observer, aptly sums up the state of judiciary in Sri Lanka.

Alan Keenan, then a Mellon Post-doctoral Fellow in Peace and Conflict Studies and a visiting assistant professor of political science at Bryn Mawr College, US has this to say in his summer 2005 essay in Boston Review on the conduct of Sri Lanka Supreme Court judges sitting to adjudicate the Bindinuwewa massacre:
    "...the principal responsibility for the massacres of course lies with the Sri Lankan state, and here, despite years of studying and living in Sri Lanka, I was in for an unexpected shock. Last August I attended one of the final Bindunuwewa appeals hearings. Held before a five-member bench of the supreme court, the justices—addressed by counsel as “your lordships” and adorned in dark red judicial robes and stiff white collars—had all the markings of decorum. At previous hearings earlier in the summer I had been disturbed by the apparent sympathy of most of the justices for the arguments of the lawyer for the second police officer convicted of murder. (The first had earlier been acquitted when the prosecution admitted that its evidence against him was insufficient.) But the final hearing was truly shocking. As the solicitor general repeatedly referred to the ways the Tamil inmates had been murdered—“beaten, stabbed, and some even roasted alive” he would say with a flourish—one of the justices began to mock his emphasis on the word “roasted.” This brought much laughter from the other justices and the defense lawyers, and even, most disturbingly, from the government lawyers themselves.

    This conduct was only the most grotesque example of the judges’ utter disdain for the crimes under consideration and for the state’s responsibility to determine the truth. The proceedings were filled with bad jokes and undignified behavior, lacked any sense of gravity of the case, and indicated no awareness of the state’s obligation to protect the inmates whatever their political sympathies.

    Sitting quietly and scribbling in my notebook, I felt overcome with the desire to pick up a gun and join the Tigers. I could only imagine how Sri Lankan Tamils would feel. But the only Tamil in the hearing room that day was my friend and sometime translator, who had lived virtually her entire life outside of Sri Lanka. Not one justice, not one lawyer, not one courtroom observer—as far as I could tell—was Tamil.

Related Articles:
18.07.09   ACF calls for international inquiry into Moothoor massacre
01.07.09   Politicized courts, Compromised rights, says ICG on Sri Lank..
25.04.09   Colombo wanted to hide forced displacement of Tamils - Vithi..
14.04.08   IIGEP: Colombo lacks political will to investigate Human Rig..
03.06.07   Judicial Corruption
12.01.07   NorthEast demerger, breach of International Treaty- Sampanth..
16.10.06   NorthEast merger "illegal," rules SL Supreme Court
21.11.05   SL Supreme Court suspends P-TOMS inquiry
15.07.05   Sri Lanka's Supreme Court issues stay order against P-TOMS
03.07.05   Supreme Difference
27.05.05   All accused in Bindunuwewa massacre case discharged
08.03.01   S.C Judge says Tamil rights were snatched away

External Links:
AT: Sri Lanka Solution: Avoiding ‘disparate treatment’ of Tamils & ‘disparate impact’ on Sinhalese
AHRC: President Violates 17th Amendment to the Constitution
AHRC: 17th Amendment crisis
BostonReview: No Peace, No War by Alan Keenan
AHRC: Bypassing the 17th Amendment is a move towards the return to absolute power
AHRC: Two senior judges quit the Judicial Service Commission as a matter of conscience
DefenceLK: Traitors in black coats flocked together ?
DefenceLK: Secretary Defence responds to Bar Association's selective concerns


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