The lack of judicial independence in Sri Lanka is a concern strongly reiterated by the International Bar Association’s Human Rights Institute (IBAHRI), in light of recent comments made by President Mahinda Rajapakse that Sri Lanka’s legal system is capable of responding to human rights violations.
Baroness Helena Kennedy QC, IBAHRI Co-Chair commented ‘In order to have an effective investigation into war crimes and human rights violations, it is essential for any legal system to have an independent judiciary. However since the end of the armed conflict, the Sri Lankan government has been systematically dismantling checks and balances on independent justice institutions, as has been exemplified by the unlawful impeachment of Chief Justice Shirani Bandaranayake. The IBAHRI considers that the lack of an independent judiciary will prevent the Sri Lankan legal system from providing an effective investigation into war crimes and human rights violations committed by Government forces and the Liberation Tigers of Tamil Eelam at the end of the armed conflict in 2009.’
President Rajapakse’s comments that, ‘We have a legal system in Sri Lanka… If anyone wants to complain about the human rights violations in Sri Lanka, whether it is torture, whether it is rape… we have a system’, were made at a press conference in Colombo earlier this week, in response to the United Kingdom Prime Minister David Cameron’s public announcements that legitimate accusations of war crimes in Sri Lanka have not been properly investigated.
Baroness Helena Kennedy QC further stated ‘In addition to the erosion of the independence of the judiciary in Sri Lanka, human rights lawyers, defenders and activists are often subject to intimidation, harassment or attacks. If Sri Lanka’s legal system is to be capable of effectively investigating war crimes and human rights violations, sincere and systematic reforms are required, in order to salvage the independence of the legal profession.’ She added ‘If Sri Lanka is not capable of conducting an independent and credible investigation into alleged war crimes and human rights violations then there needs to be an international independent investigation as called for this year by the UN High Commissioner for Human Rights.’
The IBAHRI report A Crisis of Legitimacy (April 2013) found that the 18th Amendment of the Sri Lankan Constitution ‘grants the President an almost unrestricted right to select all judges of the Supreme Court and Court of Appeal, rendering the superior judiciary highly vulnerable to politicisation’ (page 19).
The 18th Amendment was passed in 2010 and authorises President Rajapaksa to appoint the Attorney-General, the Auditor-General, the Ombudsman, the Secretary-General of Parliament and the members of eight important bodies, including the Judicial Service Commission, the National Police Commission, the Human Rights Commission, the Election Commission and the Permanent Commission to Investigate Allegations of Bribery and Corruption.
Furthermore, the IBAHRI Report found that the impeachment of Chief Justice Bandaranayake violated rules of natural justice that are intrinsic to the common law and Sri Lanka’s Constitution, as well as international legal obligations to which Sri Lanka is committed and the Commonwealth (Latimer House) Principles on the Three Branches of Government (the ‘Latimer House Guidelines’).
Her appointed successor, Mohan Peiris, is a recent Attorney-General who did not prosecute a single crime against lawyers, journalists and human rights defenders during his 33-month tenure.
The IBAHRI report enumerates at least nine specific high-profile cases that Mr Peiris failed to investigate involving threats, attacks, arsons, disappearances or murders.
Twenty-two journalists have been murdered in the past seven years and there has not been one successful prosecution.
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