Sri Lanka: Catholic Bishops on independence of judiciary
A Statement from the Asian Human Rights Commission
SRI LANKA: Catholic Bishops on independence of judiciary and independent Commissions
Following is an extract from the Pastoral Letter of the Catholic Bishops' Conference of Sri Lanka, entitled 'Towards Reconciliation and Rebuilding of the Nation'.
In this exercise the independence of the Judiciary should be preserved and defended at all cost. The Judiciary which has the sacred role of interpreting and applying the meaning of a given law should be totally free from interference by the other stake holders of power, the legislature and the executive. The contention that the Legislature is above the Judiciary is seriously flawed and is untenable. It is true that the Legislature draws up or approves laws which enter into the statute books of a country but it is the Judiciary that applies such laws to a given context. And its independence is the guarantor of true justice. The Legislature should not assume the role of both framing the laws and then interpreting them which is an invasion of the role of the judiciary. Besides, no one should be placed above the laws of the country and no immunity from prosecution for anyone should be permitted in the Constitution as that would hinder any citizen from challenging any undemocratic or illegal actions of the executive. The cardinal principle in this matter should be that absolutely no one is above the law. All those who are elected to power are at the service of the people and are firmly bound to follow the laws of the country in an exemplary manner. The legislature should not usurp the role of the judiciary and if the constitution allows for that, such authority should be removed.
The Independent Commissions
It is our firm conviction that in order to further strengthen the rule of law and Justice in Sri Lanka, constitutional provision should be made for a totally independent Elections Commission, Police Commission, Public Service Commission, Bribery and Corruption Commission and the Human Rights Commission as well as a Constitutional Council. These will ensure a totally transparent form of Governance which a true democracy demands. This country has suffered much in the last few decades from political interference in these areas of public life casting serious doubts on the credibility and fairness of the public service.
The Elections Commission should have total independence of action at all times especially during elections as the past record of Sri Lanka on this matter has left much to be desired. Once elections are declared officially in a given area or-nationally in the matter of the Presidential or general elections or even local Government elections, the incumbent office holders whether it be the President, the Prime Minister and his or her Government, the Provincial or Pradeshiya Councils or Municipal Councils should cease their administration and an alternative Council of independent state officials like the Chief Justice, the Speaker of Parliament and the Elections Commissioner as well as the IGP and the Secretary of Defence, the Secretary of the Ministry of Internal Affairs should take over the administration of the State or the Governor of a given province or the Secretary of a Pradeshiya Sabha of a given area or the Municipal Commissioner should take over the care of these bodies and man the day to day administration until the newly elected office bearers take their respective oaths and are installed In office. This alone would ensure a free and fair election, The elections should be conducted in every case, freely without violence and above all allowing for total independence from State or other political manipulations. During this interim period the normal administrative matters should be handled by that caretaker administration or caretaker Government. The people should be allowed the fullest freedom to exercise their sacred duty and democratic right. If this principle is not maintained strictly the rule of law itself would suffer. The need for an independent elections commission is absolutely vital not only in order to ensure the credibility and the moral authority of the elected persons but also as a requirement of justice and fair play. The Machiavellian principle of "might is right" should be shunned altogether iii this matter.
The Police Commission should ensure that all the officials in the service of peace, justice and the fair implementation of such justice to all, carry on with their duties impartially, honestly and in keeping with their dignity and that there be no political interference in this service, keeping up to the highest standards of fair play for everybody. This Commission should also ensure that elections are conducted freely and fairly rendering vital assistance to the Elections Commission in this matter. Police officials should be adequately compensated, rewarded and promoted strictly on merit and on the principle of efficiency, people friendly attitudes and fairness. All law enforcement authorities should be free of corruption or abuse of power and any person resorting to such behaviour be brought to justice and dealt with according to the law of the land. No political or other interference should be allowed to tarnish the role of this all important component of a true democracy.
The role played by the Public Service in any country determines not only the efficient functioning of its system of Government and Administration but also ensures its smooth running and people friendly attitudes. It also enhances transparency and public trust. Political interference in the public service oftentimes renders it a stumbling block to progress, kills efficiency and initiative, leads to corruption and lethargy and scuttles appreciation of service and promotions on the basis of merit.
We call upon our political leadership to take steps to ensure that the dignity of this all important component of public life is maintained, rendering it the subject of an independent commission.
One of the disastrous consequences of political bungling in this country, in its post independence history has been the gradually increasing and endemic orientation towards corruption in all strata of political life and in the public service. This has become even worse with the introduction of free market policies. All efforts to stem the tide in this national malaise had been weakened largely by political interference and the watering down of the structures that could effectively control and completely eradicate this cancer
There was a time when even members of Parliament found guilty of corruption were removed from office but this process too had been reduced to infectivity through the different constitutions introduced lately. Political interference has destroyed the credibility even of the existing structures for the eradication of corruption. And so it is necessary that a sufficiently strengthened Bribery and Corruption eradication commission be established in Sri Lanka. It should be guaranteed freedom from political and other interference, be established with the necessary legal and punitive authority in order to eradicate this malaise nationally and should also be called upon to carry out a nationwide campaign against corruption at all levels.