Testing the difference between the new and the old

In a notably pungent observation at the close of her mission visit to Sri Lanka this month, the United Nations Special Rapporteur on the independence of judges and lawyers Mónica Pinto took pains to remind Sri Lanka’s Constitutional Council of one fact.

This was that the Council, set up with great expectations under the 19th Amendment to the Constitution, must make its rules of procedure and functional regulations publicly available. As she pointed out in her preliminary findings, the criteria used to evaluate candidates’ suitability for a given position by the Council must be in the public domain. Such transparency would ‘contribute to dissipating possible accusations of deliberate opacity and arbitrariness’, it was noted.

Why this reluctance to adhere to basic rules?

Even though this recommendation was largely (and unsurprisingly) ignored by the media, it remains by far, one of the most important findings in this mission report. It homes in on a specific lynchpin of the regime change last year, namely the commitment of the ‘yahapalanaya’ (good governance) administration to ensure that the evils of the 18th Amendment to the Constitution are rolled back. For that objective to be achieved, the transparency and the public accountability of the Council is paramount.

Indeed, one can only be taken aback that it requires this amount of public pressure to emphasize the obvious. Should not formulating rules of procedure for the functioning of the Council and deciding the criteria which it uses when selecting individuals to key public posts and constitutional commissions have been the most immediate task on its very first day? Are these children who should be taught anew fundamental preconditions for the functionality of any body, let alone a constitutional body of such premier importance and in which such public trust was (vainly?) reposed? Or was this task left unaddressed due to the political necessity to have the process open to manipulation behind the scenes? This question has been often raised in these column spaces.

This is not an academic question either as seen by at least one example of an appointment letter to a purported Chairman of a Commission being sent and withdrawn for no good reason. In general terms and in another era of spirited public interest litigation, such a problematic incident would have promptly given rise to a fundamental rights challenge. It is perhaps fortunate that the Constitutional Council was not called upon to meet such a distasteful eventuality.

Unacceptability of simple propaganda

Quite apart from other factors, the absurdly different procedures adopted for the appointment of the Attorney General and the Inspector General of Police begs the question as to whether the Council is completely unaware of the monumental gravitas of its constitutional function. To be clear, it is not a question of the personalities in issue. Rather, it is the process. It is heartening therefore to see that this crucial point has been recognized and acknowledged in the Special Rapporteur’s report. The further recommendation that to avoid the politicization of the appointment processes by the Council and to increase its legitimacy, its composition should be changed so as to include more civil society representatives, including possibly representation from the Bar Association and academia is also laudatory.

This finding demonstrates the lack of success of simple propaganda that a purely superficial change in governance structures will suffice to meet Sri Lanka’s crisis of the Rule of Law. Indeed, the caution against superficiality underlines the general tenor of this report as well as the companion report of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Mr. Juan E. Mendez.

For example, Mr Mendez points particularly to the fact of the judicial oversight of police action being superficial, opining that magistrates merely accept what the police and state counsel inform the court. Instead, more diligence must be exhibited by judges to prevent infringement of the Rule of Law. It is based on this reasoning that he recommends the amendment of Sri Lanka’s Victim and Witness Protection Act to ensure that the protection of victims is not entrusted to the police.

Grave findings by both Special Rapporteurs

Both reports reflect a common theme. Sri Lanka needs urgent and comprehensive measures to ensure structural reform in the country’s key institutions. A piecemeal and superficial approach will not suffice. Mr Mendez, himself a lawyer and activist who experienced torture, concludes very significantly that ‘the current legal framework and the lack of reform within the structures of the armed forces, police, AttorneyGeneral’s Office and judiciary perpetuate the real risk that the practice of torture will continue.’ This is a grave finding that state authorities ought to take note of.

Meanwhile, the preliminary findings of the Special Rapporteur on the judiciary also focus attention on the public accountability of the Judicial Service Commission. Reviewing and publicizing the criteria for the appointment of judges and the causes for removal through disciplinary proceedings is emphasized as being crucial for ensuring that the administration of justice is more transparent, decentralized and democratic. It is therefore recommended that legislation should explicitly provide for specific criteria for the appointment of judges and their removal after a disciplinary proceeding whose grounds are set out in the law. These grounds should be substantiated with full respect for due process, including the right to a review.

Where the appellate judiciary is concerned, it is recommended that a special panel of independent and impartial individuals must be established under a law containing specific causes triggering misconduct and granting due process safeguards Corresponding sanctions must be proportionate and adequate.

Further, the use of contempt of court by past Chief Justices as a ‘favourite tool’ is noted. Sri Lanka is urged to enact legislation to define a clear and precise scope for the offence of contempt of court, identifying behaviour constituting contempt of the court, and setting up a procedure to deal with such cases.

Heeding the recommendations

The Government will do well to heed not only this recommendation but also several other points of concern contained in these mission reports before the two Special Rapportuers present their final observations to the United Nations next year. It is only in doing so that it will demonstrate its true difference from the previous regime.

That difference still remains to be tested.