Two very important observations on the Judiciary in Sri Lanka were published last week. One of them appeared in the latest report published by the Human Rights Committee which functions under the American State Department. The report says that the Chief justice of Sri Lanka has curtailed the number of human rights cases investigated by the judiciary on the pretext of preventing the piling up of cases. This action of the chief justice has denied the right of seeking redress through the judiciary even to those subjected to physical torture.
The other observation has been made by Justice D. Vigneswaran who has been recently appointed to the Supreme Court Bench. He stated that there isn’t much room for promotions on the basis of age, experience, seniority and democracy in the field of justice and that there is no room for anybody to hold a high post without the approval of the executive. The picture made by these two observations is extremely fearsome.
Although there were occasions even during the UNP regime when the executive interfered with the judiciary and occasionally threatened it in public, the judiciary itself was able to maintain its independence and proceed with its work regardless of those interferences. In particular it was able to effect a striking progress in the sphere of human rights. Today, the situation is entirely different. The executive has been able to bring the judiciary into its grasp in such a manner that even an attempt to protect the independence of the judiciary has become impossible. Consequently the possibility of those who were denied human rights to go before the courts and seek redress is obstructed to a great extent. Although lawyers complain about this situation in private, none of them are prepared to speak in public. The Bar Association too is completely silent on the matter.
There is now a system by which almost every human rights case with some political importance is brought before a panel of judges which include the Chief Justice. The possibility of getting any redress from the Supreme Court for any wrong done on the part of the government is almost nil.
When the last parliamentary election was announced, former President of the UNP filed two fundamental rights cases (FR 577/2000 and FR 578/2000) against Associated Newspapers of Ceylon Limited and Sri Lanka Rupavahini Corporation for their direct support to the PA against the law. However, the case against ANCL was dismissed and the other was referred to the Human Rights Commission.
The action taken regarding the 17th amendment to the Constitution too, was contrary to law. The Chief Justice, while he was the Attorney General, had not only contributed to the preparation of the new draft law actively, but he had also taken part in the campaign launched by the government. The manner in which the panel of judges were appointed aroused opposition and doubt.
The policy followed by the Chief Justice in regard to cases relating to alleged illegal appointments and promotions given for political reasons (FR 607/99, FR 608/99 and FR 579/95) too were against the norms of justice.
When a fundamental rights petition was filed by a doctor (FR 681/99) the Chief Justice, not only dismissed the petition, but also made this statement in open court. “This is a government medical officer. The government medical officers never do any work. They are never found at their places of work. What they know is only to strike. It is therefore necessary to punish government medical officers”. Consequently the G.M.O.A. had to condemn that statement of the Chief Justice by a public announcement.
The policy followed in connection with the human rights cases relating to those subjected to cruel torture violates not only the international convention signed by Sri Lanka in 1994 but also the Torture Act.
Pararajasekaran Balasekaran who was allegedly arrested in Vavuniya and was subjected to inhuman torture filed a fundamental rights case (FR 547/98) in the Supreme Court. According to the report of the judicial medical officer, a PVC pipe had been inserted through his anus and his penis had been burnt at several places. There were a number of scars caused by injuries on his head and on his chest. The redress granted him by the Chief Justice was Rs. 15,085/=. That too was without any recommendation regarding the action that should be taken against those who were responsible for the torture.
In the fundamental rights case filed by media persons in connection with the alleged attack made by the Presidential Security Division against media persons who covered the UNP’s protest movement, too, the Chief Justice appeared to be interested in getting a compensation for media persons who lost their cameras and thereby settling the question lightly rather than in inquiring whether there has been a violation of human rights. Does it mean that although smashing is illegal, assault is not illegal?
According to justice Vigneswaran, factors like seniority, excellence and competence have no bearing on promotions in the judiciary. Only those who can have the approval of the executive may get promotions. Apparently rights are not for those who act according to law but to those who act after considering facts from a political point of view. The result of bringing the judiciary to the position of a branch of the ruling party cannot be justified under any circumstances.