The International Bar Association’s Human Rights Institute (IBAHRI) is concerned about the increasing erosion of judicial independence in Sri Lanka. In a confidential letter, dated 19 May 2011, the IBAHRI outlined its concerns to the Government of Sri Lanka in regard to the 18th Amendment to the Constitution and the proposed 19th Amendment – which limits the term of the Chief Justice to five years and gives the President of Sri Lanka the authority to appoint the Secretary to the Judicial Services Commission.
“We believe that it is by providing judges with a permanent or long-term mandate that their independence will be maximised, as will public confidence in the judiciary”, said Sternford Moyo, IBAHRI Co-Chair. “We do not consider the five years proposed by the 19th Amendment to equate to appropriate security of tenure. Further, we are concerned that the appointment of the Secretary to the Judicial Services Commission, a key judicial institution, will make it vulnerable to political influence, perceived or otherwise”.
The passage of the 18th Amendment through Parliament last year repealed the 17th Amendment that provided for the establishment of a Constitutional Council. This afforded independent supervision over appointments to key public institutions, including the Judicial Services Commission. In place of the Constitutional Council, the 18th Amendment provides for the establishment of a Parliamentary Council, whose members and Chair are appointed by the President, and is responsible for submitting observations to the President when appointing members to the Judicial Services Commission as well as other public institutions.
In conjunction, the 18th Amendment and the proposed 19th Amendment represent a gradual erosion of judicial independence in Sri Lanka.
In 2009, the IBAHRI visited Sri Lanka on a fact-finding mission. In its subsequent report, Justice in Retreat: A Report on the independence of the legal profession and the rule of law in Sri Lanka, the IBAHRI found that the re-establishment of the Constitutional Council provided for in the 17th Amendment would ensure critical independent oversight of the proper functioning of public institutions and resolve several of the constitutional and governance issues facing Sri Lanka at the time. The Report concluded that:
“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.
“We consider the 18th Amendment to be far inferior to the 17th Amendment, in terms of the important provision of checks and balances. We are concerned that presidential control over the Parliamentary Council significantly reduces the possibility of independent scrutiny of appointments to public institutions, including the Judicial Services Commission,” commented Hans Corell, IBAHRI Vice-Chair. “As Sri Lanka moves to build a sustainable peace and to maintain public confidence in the fair administration of justice, we invite the Government to send out a clear message that it is committed to ensuring strong and independent institutions. We hope that the Government will consider introducing appropriate safeguards to the 19th Amendment to guarantee judicial independence and that it will revisit the 18th Amendment with the provision for independent oversight as initially envisaged by the 17th Amendment”.