Sri Lanka: Politicised Courts, Compromised Rights

Posted in Asia | 01-Jul-09 | Source: International Crisis Group

Colombo/Brussels, 30 June 2009: The Sri Lankan government must reform the country's judicial system urgently if the military defeat of the Tamil Tigers is to lead to a lasting peace.

Sri Lanka's Judiciary: Politicised Courts, Compromised Rights the latest policy report from the International Crisis Group, warns that the Sri Lankan judiciary is not working in a fair and impartial way that secures justice and human rights for everyone regardless of ethnicity. This risks undermining the government's recent military victory over the LTTE (Liberation Tigers of Tamil Eelam). A durable national reconciliation process is only possible if human and constitutional rights are fully restored.

"The judiciary has not acted as a check on presidential and legislative power but has instead contributed to the political alienation of Tamils", says Robert Templer, Crisis Group's Asia Program Director. "Under the former chief justice, the Supreme Court's rulings strengthened political hardliners among Sinhala nationalist parties".
Rather than assuaging conflict, the courts have corroded the rule of law and worsened ethnic tensions. They are neither constraining militarisation of Sri Lankan society nor protecting minority rights. Instead, a politicised bench has entrenched favoured allies, punished foes and blocked compromises with the Tamil minority. The judiciary's intermittent interventions on important political questions have limited settlement options for the ethnic conflict.
Today, neither the lower nor the higher courts in Sri Lanka provide any guarantee of personal security or redress against arbitrary state violence. Although torture in police custody is endemic, courts are unwilling to provide adequate remedies for illegal or abusive detention. Police, judges and government officials have acted in ways that further the goals of powerful political actors, undermine the rule of law and deepen the current political and humanitarian crisis. The possibility of transitional justice, which is necessary for society to break the cycle of violence, is still missing.The recent appointment of a new chief justic e is an opportunity for reforms to begin. A first step toward restoring judicial independence would be a return to an orderly appointment and transfer of judges. This needs to be done both in the lower and appellate judiciary. There should also be fundamental reform of Sri Lanka's extensive and often abused emergency laws, which are used disproportionately against Tamils. Provisions in the emergency laws concerning arrest, detention and derogation from routine criminal procedures need to be removed, as well as those that criminalise free speech and the exercise of associational rights.
"Fixing institutions and reforming laws will only have a limited effect until political actors, and especially the presidency, feel the cost of infringing on judicial independence", warns Donald Steinberg, Crisis Group Deputy President for Policy. "Without a concerted effort by the bench and bar, the political costs of interfering with the judiciary will remain minimal".

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