Independence of Sri Lanka’s Judiciary
By Lakshman I. Keerthisinghe
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, Judges who can make decisions independent of the political winds that are blowing” Caroline Kennedy-US Celebrity With the Twentieth Amendment Bill about to be debated in Parliament there has been much discussion among the legal fraternity and civil society in Sri Lanka regarding the impact of the provisions in the Bill on the independence of Sri Lanka’s judiciary.
It is relevant to note that as adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders which was held in Milan from 26 August to 6 September 1985 and endorsed by the United Nations General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985 (The United Nation-Human Rights, 2015), there are six basic principles declared on the independence of judiciary. They are as follows:
1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the Courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
5. Everyone shall have the right to be tried by ordinary Courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary Courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
It has also been stated that: “It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.” (The United Nation-Human Rights, 2015) The gist of the aforementioned basics emphasises that the principle of separation of powers provides the base for the judicial independence which means that the judiciary would ensure that judicial proceedings be kept separate from the influences of other limbs of the Government i.e. the legislature and the executive.
The Constitution provides that the Judges in Sri Lanka are able to creatively interpret or re-interpret the provisions of the Constitution which leads to judicial activism. This constitutionally granted power is beyond the contemporary role of Judges. Thus, legislative actions and executive actions are subject to the active review by the judiciary which connects judicial activism with judicial review. It is thus evident that the concept of judicial activism is the polar opposite of judicial restraint. However, it has been observed that in Sri Lanka there exists a considerable level of the effects of judicial activism due to the creativity of Bench & the Bar. Under the Fundamental Rights Jurisdiction provided in Chapter 3 of Sri Lanka’s Constitution 1978 there have been many judgements depicting the creativity of the Bench & the Bar of Sri Lanka as seen in cases such as Wimal Fernando v. SLBC (1996) 1 Sri LR 157, Karunathilaka and Another V. Dayananda Dissanayake, Commissioner of Elections and Others SC Application No. 509/98 (1999) 1 Sri LR 157.)
As stated by Stanley de Smith in his doctoral thesis, “...it has become clear that judicial review is not merely about the way decisions are reached but also about the substance of those decisions themselves. The fine line between appeal on the merits of a case and review still exists...towards a ‘culture of justification’ (Stanley de Smith, 6th edn 2007). However, as the Professor of law of the University of Iowa in US, John C. Reitz, (2008) has stated: ‘...judicial review of statutes on constitutional grounds tends to raise issues of high political importance’
In conclusion, it is paramount that Sri Lanka’s Parliament would ensure the independence of the judiciary in Sri Lanka when provisions of Twentieth Amendment to the Constitution are debated and passed in Parliament with the necessary amendments at committee stage in the near future.
The writer is an Attorney-at-Law with LLB, LLM, MPhil - [email protected]