SRI LANKA: Lawyers make recommendations for the improvement of judicial proceedings

August 17, 2013 At a recently held seminar, a group of 20 lawyers made the following recommendations for the improvement of court proceedings, particularly on human rights matters. 1. When an FR (Fundamental Rights) application is supported for Leave to Proceed, and the Respondents have not yet filed any objections, none of the Respondents (which include the Attorney General) should, at that stage of the case, be permitted to make submissions controverting the facts stated in the petition of the Petitioner. 2. If the Supreme Court makes order refusing Leave to Proceed in an FR application, or refusing Leave to Appeal or Special Leave to Appeal in an application for Leave to Appeal or Special Leave to Appeal, the Supreme Court should give reasons for the refusal. 3. The Supreme Court should not force parties to settle FR applications. The Supreme Court also should not terminate proceedings in an FR application merely because the Respondents are to settle the matter by paying some compensation to the Petitioner. The Supreme Court should proceed to decide whether the Respondents violated a fundamental right of the Petitioner or not. 4. Suspended sentences of imprisonment should not be given as punishment for the serious offences of murder and rape. 5. Malpractices at the AG's Department: (a) Failure to implement the CAT Act, No.22 of 1994. (b) AG should not permit the dragging on of Magistrates' Court cases by delaying advice sought by the police in such cases. (c) AG should not show leniency in criminal cases towards suspects/accused who are connected to the Government or politicians of the party in power. 6. AG's lawyers should not be treated by the Courts as being of a higher level than lawyers of the unofficial bar. Judges should not privately see and discuss pending cases with State Counsel in the absence of the counsel for the opposing party. Such conduct of the court or judge would be a violation of Article 14 (1) of the ICCPR. 7. Parliament should, without delay, enact a statute defining the different types of contempt of court and related punishment. The Law Commission and the Bar Association of Sri Lanka (BASL) have already submitted draft legislation in this regard. 8. Judges should not harass lawyers for personal reasons that have no connection to the parties to the case or the facts of the case. 9. A Judge should not pre-judge a case. He/she should be open to persuasion by submissions made by counsel in the case, either on the facts of the case or the applicable law. 10. The Court should recognize and always uphold the principle that their judgments can be criticized so long as no bad faith is attributed to the judge who wrote the

judgment. 11. Judges should not proceed to act on what the police or other state officer says merely because they are state officers. Judges must always give due consideration to whatever evidence is given and/or submissions are made by the opposing parties. 12. Steps should be taken to stop touting by police officers, prison officers and court staff. 13. Judges should never be made to depend on the favour of the Executive arm of Government in obtaining vehicles for their use, in obtaining temporary appointments in foreign countries while they are still judges in Sri Lanka, and in obtaining other perks or advantages for themselves or their families. 14. Lawyers should not be reluctant to take up cases against the police or other state officers merely due to fear of incurring their wrath. 15. Serious notice should be taken of the public perception about the abuse of the office of the Secretary of the Judicial Service Commission, even in terms of obtaining sexual favours from female judges or female aspirants for appointments to be made by the JSC. 16. Serious notice should be taken of the public perception that judges could be bribed. 17. The assignment of the Department of the Attorney General to the President should be changed. That department should continue to be assigned under the Ministry of Justice. 18. Police Department must be removed from the Ministry of Defence. Policing is a different concept from defence. Assignment of the Police Department to the Ministry of Defence undermines public confidence in the Police and concentrates too much power in the Secretary to the Ministry of Defence. 19. Judges should show more concern regarding extra-judicial killings and torture by the Police. 20. The UDA should be removed from the Ministry of Defence. 21. The Department of Immigration and Emigration should be removed from the President. 22. Unnecessary issues relating to the security of the State should stop being raised in objection to bail applications and the Attorney General must strictly supervise the grounds of such objections to bail. 23. After the lifting of the emergency, with no emergency regulations in force now, the Police and security services should not abuse the provisions of the Prevention of Terrorism Act. 24. Serious note should be taken of the public perception that judges and magistrates are appointed for political reasons and not on merit. 25. Serious note should be taken of the public perception that judges and magistrates who do not comply with demands and wishes from politicians are victimized, such as by being subjected to immediate transfer to a distant and inconvenient station. 26. Serious note should be taken of the public perception that there is abuse of the disciplinary process against judges for political reasons, and that some are favoured while others are falsely implicated. 27. Serious note should be taken of the public perception that the JSC is politicized.

28. The period of one month allowed by law to file an FR application is grossly inadequate. 29. The JSC must, without delay, make and publish in the Gazette, regulations relating to the substantive law and procedure relating to disciplining of judges and magistrates, as well as court staff over whom they have disciplinary power. 30. Serious note should be taken of the perception among lawyers that judges, even in the highest courts, seriously lack an adequate knowledge of the law, especially the civil law, which is essential for the proper and satisfactory discharge of their duties; this has been partly brought about by appointing too many officers of the Attorney General's Department to the Court of Appeal and the Supreme Court. 31. Serious note should be taken of the perception among lawyers that judgments, even in the highest courts, do not show an adequate appreciation of submissions of counsel, and lack adequate reasoning and adequate quality. 32. There should be intervention into unethical and uncalled for comments by some judges on lawyers, even in the highest courts - such as calling a lawyer a liar without adequate reason - and the failure of the judge to apologize even when it is shown that the judge resorted to such conduct due to an inadequate knowledge of the law applicable to the case under consideration. The meeting was sponsored by the Asian Human Rights Commission. Posted by Thavam