A fatal traffic accident in the jurisdiction of Wellawaya Magistrate’s Court, Sri Lanka, has caused a lot of public confusion. It all started with an important question: who caused the accident? Media reports inform us that some family members of the deceased have accused a Senior Superintendent of Police, not the constable who has been charged. When the magistrate hearing the case issued a warrant against the senior officer, however, the latter appealed to the Judicial Service Commission (JSC), which reversed the order and suspended the magistrate on the ground that he committed an error.
Both the recalling of the warrant and suspension of the magistrate are of very serious concern. As the JSC is not an appellate body, under what authority has it overruled the decision of the magistrate? One lawyer was reported in a newspaper as asking as to in what cases in the future litigants will be able to appeal directly to the JSC against orders by magistrates. The ruling appears to be a challenge to the appellate courts, which exist for the purpose of revising and overruling the orders of lower courts. The confusion created by this decision has raised serious doubts requiring a proper explanation.
The magistrate’s suspension is itself particularly troubling. Under the common law tradition, which applies in Sri Lanka, judges enjoy immunity for errors of judgement relating to facts or law that they make in good faith. No evidence has so far been brought before the public to suggest an act of bad faith by the magistrate concerned. Therefore, is it now sufficient for a judge to be suspended because of a mistake in law? The issue is serious enough to have warranted a strike by lawyers in the Wellawaya court, and other protest actions. Again, the public has a right to know whether there were any valid grounds for the order to suspend the magistrate. As this order threatens the very concept of judicial independence, there are legitimate reasons for concern.
According to newspaper reports, the Bar Association subsequently wrote to the Chief Justice raising questions about the case. It is said that the president read a letter of reply in a meeting in which the Chief Justice inferred that any interference in the case could amount to contempt of court. This is now perhaps the most complex problem that the association has had to deal with in its entire history: serious enough for it to appoint a committee of past presidents to inquire into the matter.
Given that the very independence of the legal profession is at stake, the Bar Association Committee could have been expected to meet immediately. However, a week has passed since it was appointed, and as yet it has not been issued the documents required for its sitting: the letters understood to have been exchanged between the association and the Chief Justice, and the relevant court documents. No one except the president of the Bar Association is said to have even seen the letter by the Chief Justice.
The public doesn’t know whether to laugh or cry at such a pathetic situation. The whole farce speaks to the exceptional collapse of the rule of law identified by the Asian Legal Resource Centre, sister organisation of the Asian Human Rights Organisation, in a report on Sri Lanka submitted earlier this year to the UN Sub-Commission for the Promotion and Protection of Human Rights. That document concluded, “Implementation of domestic mechanisms with regard to the protection of human rights within Sri Lanka is now lost in a vacuum of confusion, inefficiency and utter desperation.” The series of incidents stemming from the accident in Wellawaya epitomise this observation.
None of the problems that Sri Lanka is today faced with can be resolved without addressing the exceptional collapse of the rule of law. We are reminded of remarks by Kofi Annan, Secretary General of the UN, to the General Assembly in September of this year: “We must start from the principle that no one is above the law and no one should be denied its protection.” We call upon all persons concerned about human rights in Sri Lanka to pay serious regard to this observation, and in light of these most recent troubling developments, fight back to assert the rule of law in the country.