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IBAHRI paper examines the ‘fragility’ of judicial independence across the globe today

In the latest International Bar Association’s Human Rights InstituteInternational Bar Association’s Human Rights Institute (IBAHRI) thematic paper, published today, Geoffrey Robertson QC reflects on some of the problems facing the ‘fragile reed’ of judicial independence across the globe, and calls on judges to speak out whenever they have reason to believe that their independence is under threat.

Judicial independence is fundamental to democracy and lip-service is paid to it by most states. However, it is a fragile reed, beset by problems of political appointments, government favours to compliant judges, prosecution powers over the court and the potential for misuse of the removal process of impeachment by populist politicians’ (page 3)

Geoffrey Robertson QC


While the 28-page paper, Judicial Independence: Some Recent Problems, addresses some of the most serious threats to judicial independence – citing cases from Bolivia to Zimbabwe – the body of the paper examines some of the more ‘subtle political influences’ on the judiciary, including: difficulties of detecting or dealing with judges who are under the influence of, or bending to the will of, the executive; confusion associated with methods of ‘impeachment’ or removal of senior judges; pressures on courts to cut costs in times of austerity; and the limited remedies available, both domestically and internationally, against governments that seek to influence judges according to their political will.

Within this context, Mr Robertson QC writes that ‘devotion to the rule of law’ and the ‘duty to defy the state’ calls for great courage: ‘Reprisal can come from a government-incited mob (in Zimbabwe, magistrates who have acquitted Mugabe critics have had their houses burned down) or a public dismissal from office (in Sri Lanka, the fate of Shirani Bandaranayake) or, more commonly and sinisterly, secret threats not to renew judicial contracts or to post the judge to an obscure court or simply to dismiss or overlook for promotion those jurists considered by politicians in power to be“unreliable”’ (page 26). Mr Robertson QC adds, ‘Those [judges] who do their daily, often plodding, duty without fear or favour are the mainstay of democracy, while those who do it despite the threat of danger to their lives are truly heroic’ (page 25).

The thematic paper, the fourth in the IBAHRI series, also argues the need for investigative journalism and the ability to criticise ‘bad judges’, in order to fully safeguard judicial independence. Mr Robertson QC writes, ‘There remains a lingering attraction for judges in Europe and elsewhere to cling to the power topunish their critics. This can be seen, most lamentably, in some of the decisions of the European Court of Human Rights, which applies a Convention that makes “freedom of expression” under Article 10 subject to an exception for “maintaining the authority and impartiality of the judiciary”. Instead of confining this exception to cases where attacks on judges are intended to put pressure on them to decide a case in a particular way, some decisions have upheld convictions of editors for making fair and accurate condemnations of biased or politicised judges’ (page 24).

IBAHRI Director Dr Phillip Tahmindjis AM commented, ‘This thematic paper provides a thought-provoking contribution to discussions surrounding judicial independence. Mr Robertson QC captures the complex and delicate nature of some of the problems facing the independence of the judiciary across the globe today.’

Click here to download Judicial Independence: Some Recent Problems
www.ibanet.org/Article/Detail.aspx?ArticleUid=15acea39-aeee-46ef-ab76-1cd18d7571cc 

Notes 

  1. Judicial Independence: Some Recent Problemsis an updated version of a paper first published by the Griffith Journal of Law and Human Dignity Volume 1(1) March 2013, subsequent to an earlier version of the paper presented by the author at the 2011 International Bar Association Annual Conference session ‘Independence of the Judiciary’.
  2. The author, Geoffrey Robertson QCis the founder and head of Doughty Street Chambers, London, England. He has appeared in many landmark cases in constitutional, criminal and media law, and has served as first President and appeal judge at the UN War Crimes Court in Sierra Leone and as a ‘distinguished jurist’ member of the UN Internal Justice Council. He is a Master of the Middle Temple and the author of The Justice Game and Crimes Against Humanity: The Struggle for Global Justice. He was counsel in Rees v Crane and appeared for Chief Justice Sharma before Lord Mustill’s commission. He wrote the Report for the Bar Human Rights Committee on the Removal of the Chief Justice of Sri Lanka. In 2011 he received the New York Bar Award for achievement in international law and affairs. His latest book is Stephen Ward was Innocent OK, and forthcoming An Inconvenient Genocide: Who Now Remembers The Armenians.

The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world. 

The IBA’s administrative office is in London. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, US, while the International Bar Association’sInternational Criminal Court Programme (IBA ICC) is managed from an office in The Hague. 

The International Bar Association’s Human Rights Institute (IBAHRI) works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

 

President Bar Association of Sri Lanka under siege

March 2013 – The 43rd Chief Justice Shirani Bandaranayake was invited to the induction of the President BASL instead of the 44th Chief Justice Mohan Pieris, contrary to the tradition of inviting the sitting Chief Justice as the Chief Guest of the Bar Association convocation. Article 3 – (http://www.sundaytimes.lk/130407/news/a-professional-apolitical-bar-association-40131.html)

 

July 2013 – A seminar titled “Making Commonwealth Values a reality was scheduled to be organised by the BASL in collobaration with the International Bar Association. The visas of the speakers who were due to visit in order to attend the said seminar was revoked by the Government of Sri Lanka. (Article 4) (http://www.telegraph.co.uk/news/worldnews/asia/srilanka/10435090/Sri-Lanka-revokes-human-rights-experts-visas-ahead-of-Commonwealth-summit.html )

 

President Upul Jayasuriyaand the Executive Committee of the BASL has continuously appeared as an observer in the case filed against the 43rd Chief Justice on trumped up charges in the Magistrates Court of Colombo. The BASL also faciliated the visit of international observers such as Law Asia in the said case.

 

The Bar Association appeared on behalf of the families evicted by the Urban Development Authority (under the Ministry of Defence) in Borella, Wanathamulla - http://www.therepublicsquare.com/politics/2014/01/30/bar-association-condemns-borella-evictions/(Article …… )

 

March 2014 - The Bar Association of Sri Lanka has continuously condemned a gazette notification that was passed, vesting police powers on armed forces. In this regard the BASL has upto now organised 3 public forums in Colombo, Kandy and Kegalle, the last of which was held on the 25th July 2014 which event President Upul Jayasuriya addressed and was highly critical of the actions of the Ministry of Defence and its Secretary. The BASL intends to continue this awareness campaign island wide. The first of such events that was scheduled to be held at the BMICH on 19th March 2014 was cancelled by the administration of the BMICH (Convention Hall) despite an advance being paid by the BASL in order to confirm the said reservation. There are reasonable doubts that the said event was cancelled by the BMICH administration at the intervention of the government. - http://srilankabrief.blogspot.com/2014/03/vesting-of-police-powers-in-armed.html

 

June 2014 – BASL appeared as an observer in the Matale Mass Grave Case where skeletons of more than 50 persons were unearthed. The Defence Secretary, Gotabhaya Rajapakse is said to have been the Commanding Chief in the Army in the said area when the crime is said to have been committed.

 

June 2014 – BASL appeared in an incident where a Police Constable killed a youth by shooting in broad day light.

 

June 2014 -BASL Chief wrote to the AG urging him to take appropriate action against the Bodhubala Sena, an organisation alleged to have strong ties with the Defence Secretary, Gotabhaya Rajapakse on a number of occassions in connection with the incident where the General Secretary of the Bodu Bala Sena stormed in, threatened and disrupted a press conference initiated by another monk who was promoting equality between races and religions -  (http://www.thesundayleader.lk/2014/06/29/the-ag-failed-to-take-action-against-the-bbs/ )

 

June / July 2014 - The BASL issued a strong statement condemning the Aluthgama incident urging the authorities to bring the perpetrators to justice. –

 

https://www.proxysite.com/process.php/_2FIUfUVgfzig7qcwK0KBH8OFTCRTz3E5W_2F23vBVWtKRLdcNvLQKhnjj_2FTSw6cFPkOPaRfiIDOesG53LgZcSmg4qatLtzHxwULpJe3ZG37mr0pklMwnYgnM0SpdPxhE6xkZQvZLVWtjw1fIRGV0_2BK1mwTjNJxslgl4IYlsl8FwN60_3D/b29/fnorefer/ -

 

July 2014 – BASL appeared in the Magistrates Court proceedings in connection with the Aluthgama incident and made application upheld by court to prevent the armed forces from clearing the carnage in the area where 2 youth were killed.

 

The President BASL was hosted at discussion in connection with the break down of the rule of law in the country - Link of the interview aired on Sirasa TV - http://www.vivalanka.com/newspage/683466ai-video-artha-tharka-sirasa-tv-08th-july-2014

 

Editorial of Daily Mirror Newspaper referred to statemnts made by Upul Jayasuriya at the above TV interview - http://www.dailymirror.lk/opinion/172-opinion/49510-editorial-are-we-waiting-till-they-come-for-us-.html (Article …. )

 

The BASL issued a strong statement vehemently condemning a circular issued by the Defence Ministry directing Non Governmental Organisations to preclude themselves from issuing any public statement –

 

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=106834 (Article …)

 

Three days following the issuance of the above statement Upul Jayasuriya was followed by 2 persons on a motor bike, on his journey from the court complex to an office on Flower Road, Colombo 07. On the way Upul stopped at the Hotel Galadari car park for about half an hour where he saw the motor bike doing a few rounds in the vicinity. The said persons were seen to be hovering around the road where the said office was located for a period of about 3 hours consequently. The two persons on the motor bike were joined by 2 other persons in a tri shaw. This fact was confirmed by police, based on CCTV camera footage, following a complaint lodged at the Cinnamon Gardens Police Station. The numbers of the bike and  the tri shaw were provided to the police. However, the Registrar of Motor Vehicles has stated that the there are no vehicles bearing the registration numbers produced, causing suspicion. This was a fact that was not even known to the police previously.

 

Another complaint was consequently lodged at the Thalangama Police Station as two unidentified persons were seen around Upul Jayasuriya’s residence as confirmed by the neighbours.

 

A 3rd complaint was lodged at the Cinnamon Gardens Police Station on 31st July as an unidentified person was seen at the entrance to Mr. Jayasuriya’s office at Flower Road. He was later seen to fled off in a red colour unregistered car, simply bearing the letters “CC”.

&nbs

Repression of Dissent in Sri Lanka (June 2014)
June 2014 will be remembered in Sri Lanka for the communal violence in the towns of Aluthgama and Beruwala in Southern Sri Lanka, that resulted in 4 persons (three Muslims and one Tamil) being killed, more than 80 injured and widespread damage to property, mainly of Muslims. The widely held belief, including by the Minister of Justice and several other Government Ministers is that the Buddhist extremist group, Bodu Bala Sena (BBS – meaning Buddhist Power Force) was primarily responsible for the rioting, particularly through an inflammatory speech by it’s leader, Ven. Galabodaatthe Gnanasara Thero, who said “In this country we still have a Sinhala Police; we still have a Sinhala Army. After today if a single Marakkalaya (derogatory term for Muslims) or some other paraya (alien) touches a single Sinhalese…..it will be their end.” Police had allowed the rally in which this speech was made to go ahead, despite appeals by Muslim religious and political leaders that it may lead to violence. The BBS and some government officials have claimed that the origins of the riots was an alleged attack by Muslim youth on a Buddhist Monk few days earlier. Others have reported that the Buddhist Monk in question was not attacked, but there was an incident involving Muslim youth and a Sinhalese – Buddhist driver of a Buddhist Monk. Three Muslim youth have been arrested for this incident. However, the Police and government institutions have been accused of inaction by those affected by the riots and the violence and eyewitnesses.
 
An opposition Parliamentarian and several journalists who went to cover the communal violence were attacked and threatened. A leading Sri Lankan journalist and a prominent citizen journalist website were accused of being “twitter/social media murderers” by the editor of a leading state controlled newspaper. This was after they exposed facts about the communal violence, in the absence of independent coverage in mainstream newspapers. The Defence Ministry was accused by the Leader of the Opposition of attempting to censor media institutions.  
 
A training workshop for Tamil journalists organized by a leading Sri Lankan NGO had to be cancelled for the second time due to protests by an unknown group and refusal of the Police to provide protection. Participating journalists were evacuated and housed in a leading Colombo hotel for safety, only to be driven out of the hotel rooms in the middle of the night by the hotel management following alleged threats by a “powerful” group. Media reports appeared about proposals by the Ministry of External Affairs to control events organized by NGOs, by demanding detailed information in advance and controlling visas for foreign visitors through the Ministry of Defence and other governmental authorities. The Military and Police also tried to stifle a protest by Tamil politicians and Families of Disappeared persons in the North.
 
Academics critical of the government received death threats. Repression of University students continued, with arrests, protests attacked and student activists being called lunatics, fools and foxes by the Minister of Higher Education in a speech publicized by mainstream TV in Sri Lanka. Even teachers and parents agitating about conditions in a school in Colombo were attacked. A report from “Students for Human Rights” claimed that a Magistrate has recommended to break necks of student activists while another Magistrate had advised female student activists to refrain from political activism.
 
Police protection was suddenly withdrawn for a Buddhist Monk who had been subjected to several attacks, threats and intimidation, and he was later found on roadside with injuries. The Police later arrested the Monk and accused him of having staged the abduction and inflicted the injuries on himself.
 
Overall, June was another month where minorities and those critical of the government faced numerous attacks and threats with impunity.
Ex-judges shouldn't be made governors, lawyers say

CHENNAI: Former Supreme Court judges should not be appointed to political offices such as governors, the All India Bar Association (AIBA) has said. "Judges, both serving and retired, should be totally insulated from political positions," said AIBA chairman Adish C Aggarwala in a letter to Prime Minister Narendra Modi on Tuesday.

Decrying ex-judges lobbying for political positions and referring to media reports that former Chief Justice of India P Sathasivam, who retired in April this year, is being considered for a gubernatorial assignment, Aggarwala said such "unprecedented proposal had created anxiety in the minds of jurists, lawyers and judges alike".

The letter also pointed out that the choice of Justice Sathasivam for governor's post would be viewed by the Bar and jurists with suspicion, as on April 8, 2013 he had delivered a judgment quashing an FIR against BJP president Amit Shah. He said neither the former CJI nor the government had clarified the issue so far.

Former judges could be considered only for judicial offices such as Lokpal and National Human Rights Commission (NHRC), AIBA said, adding that such adjudicatory functions would be befitting the stature of judges, more so because the appointment would be apolitical and not at the pleasure of the government. As for Justice Sathasiam, his vast experience on the judicial side could be so utilized for "common good", Aggarwala said.

"Justice Sathasivam has also publicly declared that he is open to accepting any position befitting the stature of a former CJI, including the chairmanship of National Human Rights Commission or Lokpal if the new government were to make an offer," the AIBA letter said.

It, however, welcomed the reported move to appoint senior advocates Soli Sorabjee and MN Krishnamani as governors saying they were doyens of the legal profession, and known for their acumen and high standard of ethics.

Statute amendment likely to change how judges are appointed

NEW DELHI: With the collegium system of judges' appointment under fire, the government proposes to end Supreme Court's monopoly by amending Articles 124(2) and 217(1) of the Constitution to broad-base the process for selection of judges to the SC and high courts.

The Centre is of the view that a law enacted to annul the judge-appointing-judge system, devised by the SC through two judgments in 1993 and 1998, will run the risk of getting struck down by the apex court.

It feels that since there is an ambiguity in the constitutional provisions about the process and mechanism for appointment of judges to the SC and HCs and the present practice, it would be better to adopt the constitutional amendment route to specify the procedure for selection and appointment of judges to constitutional courts.

Article 124(2) says, "Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years."

It also provides that "in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India shall always be consulted". For appointment of a high court judge, Article 217(1) mandates the President to consult the CJI, governor of the state and chief justice of the HC.

These two articles provide that the executive, through the President, would have primacy in appointment of judges. This is how it was till 1993, when a constitution bench of the Supreme Court held that the Chief Justice of India would have primacy in appointment of judges.


READ ALSO: Katju revelation — Row could hasten end of collegium system

Five years later, through another constitution bench judgment, the Supreme Court stripped the executive of any significant say in the appointment of judges to constitutional courts by devising the CJI-headed collegium system. The scheme, which has been called judicial usurpation by others but justified by judges by invoking judicial independence, has lately been under the scanner for opaqueness. So much so that former CJI J S Verma, author of one of the judgments by which the judiciary conferred upon itself the right to appoint judges, sought a review.

Efforts of the executive to do away with the collegium system began under UPA but failed to fructify. While in opposition, BJP supported the move but demanded that the Judicial Appointments Commission, which is proposed to select judges, should be fortified with a constitutional amendment in view of a likely challenge in judiciary.

It reiterated its support for JAC after coming to power, and the disclosure made by retired SC judge Markandey Katju about a former CJI acquiescing into political pressure to extend the tenure of a "corrupt" judge is likely to provide fresh justification for its plans.

READ ALSO: Collegium system for judges' appointment best option, Chief Justice P Sathasivam says


The Judicial Appointments Commission Bill, 2013 proposes replacing the collegium with a six-member panel headed by the CJI and comprising two SC judges, the law minister and two eminent citizens as its members. The bill provides for selection of eminent citizens through another high-level committee comprising the prime minister, the CJI and the leader of opposition in Lok Sabha.

A parliamentary standing committee examined the bill and recommended that the JAC panel, headed by the CJI, should be a seven-member committee instead of six as proposed. It had suggested for three eminent persons instead of two proposed in the bill, with one of them either a woman or from the minority community or from SC/ST community.

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Sports GALA 2014

Please join us with the Sports GALA 2014

LAWASIA Conference

3rd to 6th September : 27th LAWASIA Conference in Bangkok, Thailand.

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Seminars & Courses
TRAINING PROGRAM ON INTERNATIONAL LABOUR MIGRATION PROCESS FOR THE LEGAL PRACTITIONERS IN SRI LANKA

Since, Trafficking in persons has been recognized as an issue that cuts across national and international boundaries and jurisdictions due to the increase and ease of movement of people across borders in the modern era, the Bar Association of Sri Lanka has taken steps to organize a series of Training program in 05 Districts focusing on building the capacity of  legal practitioners on the International Labour Law Process in partnership with US-Aid under the Civil Society Initiatives to Promote Rule of Law (CSI-ROL) Program.

 

Under this program, the BASL aims to enhance the knowledge of participants on the legal frame work of International Human Rights Law related to Labour Migration, the national laws and policies with regard to the labor migration and identifying strategies for addressing gaps in national laws and mechanisms and the International and National regulations and enforcement related to the Trafficking in Persons and identifying the gaps

Continuing legal education seminar organized by the Bar Association of Sri Lanka for lawyers in coll

Key note address : Judge C.G.Weeramantry, Formeer vice president of the ICJ guest of honor: Mr. Upul Jayasooriya, (President, BASL)

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The president hosts SCBA for lunch

The President of the BASL hosted Mr. Pravin Parek, the President of the Supreme Court Bar Association of India (SCBA), and others members of the SCBA to l.unch while they were on a visit to Sri Lanka

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Upul Jayasooriya interview with Sirasa