11 December 2012, 10:34 pm | dbsjeyaraj
(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 Court02. Response of the Government on the Supreme Court determination on “Divineguma Bill”
03. Interference with the JSC
04. Attack on Secretary JSC
05. Bribery Investigation against Chief Justice’s Husband
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 2012 condemning 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 10th of 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 2012 the 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 22th September 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 reported that 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 28th September 2012 the 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.
