What role have Sri Lanka’s courts and judiciary played in the conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE)? How have formal constitutional and statutory rules and the practices of police, judges and government officials undermined the independence of the courts? This report from the International Crisis Group examines the role of Sri Lanka’s courts in the country’s violent political and ethnic conflicts. It argues that Sri Lanka’s judiciary is failing to protect constitutional and human rights.
Rather than assuaging conflict, Sri Lanka’s courts have corroded the rule of law and worsened ethnic tensions. Rather than constraining militarisation and protecting minority rights, a politicised bench has entrenched favoured allies, punished foes and blocked compromises with the Tamil minority. Its intermittent interventions on important political questions have limited settlement options for the ethnic conflict. Extensive reform of the judicial system and an overhaul of counterproductive emergency laws are essential if military success is to lead to a lasting peace.
Formal rules and the practices of officials have undermined the independence of Sri Lanka’s judiciary:
- New constitutions in 1972 and 1978 cut back on the judiciary’s protection from parliamentary and presidential intrusions. The 1978 constitution vested unfettered control of judicial appointments in the hands of the presidency.
- Since 2005, presidents have ignored limits on direct appointments to the courts by refusing to convene the constitutional council. The system for removing judges is broken and no effective mechanism exists to sanction corrupt or abusive judges.
- The recently retired chief justice, Sarath N. Silva, used his administrative powers to punish judges out of step with his wishes. Fear of sanction has undermined judges’ willingness to act against the police or military.
- Sri Lanka has two sets of emergency laws which impose severe limits on courts’ jurisdiction and authority to prevent abusive detention and torture. Emergency regulations are used disproportionately against Tamil suspects.
- Neither the local magistrate courts nor the provincial high courts provide remedies for illegal or abusive detention. Threshold review of detention decisions by magistrates is superficial. The ‘habeas corpus’ remedy in the high courts rarely succeeds.
- The Supreme Court under Chief Justice Silva tried to cut off options for raising claims in international forums. It also intervened in the political process to strike down negotiated agreements.
The appointment of a new chief justice offers an opportunity to begin reforms, which must have support form an empowered bench and active judiciary:
- The government of Sri Lanka should reconstitute the constitutional council and repeal sections of the emergency laws.
- The government and opposition in parliament should amend the provisions of the 1978 constitution concerning the judiciary. They should enact and amend legislation on the judiciary in line with international conventions.
- The new chief justice should act immediately to depoliticise the Judicial Service Commission and press for a speedy resolution of the constitutional council case. He should establish a more favourable climate in the court for fundamental rights cases.
- The JSC should promulgate clear rules to ensure due process in proceedings against judges for misconduct in the JSC. It should order magistrates to use their powers to visit and monitor the conditions of surrendered and suspected LTTE members.
