Governance Report 2011 - Transparency International Sri Lanka

Regulations that limit the strength of the judiciary
It is not only judiciary-specific regulations that impact judicial independence.
Any regulation that reduces the scope of the judiciary’s power can have
a significant effect. In Sri Lanka, the Emergency Laws and the Prevention
of Terrorism Act (PTA) passed in 1979 eroded the role of the judiciary in
enforcing the fundamental rights pertaining to arrest and detention, arguably
as a necessary element of fighting a protracted civil war. Unfortunately, the
cessation of conflict and the subsequent repeal of the Emergency Laws in
August 2011 did nothing to reverse this trend and enhance the independence
of the judiciary. Instead, the 1979 PTA continues to severely curtail the courts’
jurisdiction and authority to prevent abusive detention and torture. 36 The
PTA actively prohibits the judiciary from deciding on the legitimacy of the
regulations for any reason other than constitutionality. There also remains a
lack of clear definitions for offences under the PTA that further erodes judicial
independence and discretion while increasing reliance on the Executive. The
Executive and the police can, therefore, effectively override the judiciary on
core issues of criminal procedure. The impact of these regulations is visible
today: Political influence is seldom necessary as judges rarely challenge the
government’s position enforcing the PTA. 37
Supporting independent judges: The role of individuals and the public
Although regulatory reform can weaken the judiciary, in the end it is the
action of individual judges and the lack of oversight by the citizenry that allow
for the collapse of judicial independence. However, political interference in
the judiciary has led to changes in the judicial culture in Sri Lanka, thereby
undermining the capacity of individual judges to stand up to the changes in
the regulatory framework. The steady erosion of independence and integrity
of the judiciary undermines the profession and expectations of judges and
36. International Crisis Group Asia Report N°172, 2009. at 14.
37. See, Part II, § 5, Public Security Ordinance, No. 25 of 1947. Section 7 of the PSO states that such
regulations override laws, and Section 9 precludes criminal prosecution for acts done pursuant to any
emergency regulation. Information on judicial discretion drawn from TISL interviews Oct. 7, 2011.
Notes with Author; See also, Nallaratnam Singarasa v The Hon. Attorney General. S.C. SpL(LA) No.
182/99, 15.09.2006; 68 Art. 154j(2) of the 1978 constitution, which states that a proclamation under
the PSO “shall be conclusive for all purposes and shall not be questioned in any Court”, was adopted
through the Thirteenth Amendment in order to overrule a Supreme Court decision – Joseph Perera v.
Attorney General (1992) 1 SLR 199 – allowing such challenges.
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