Independence of judiciary maintained - Rauff Hakeem
By Uditha KUMARASINGHE
Justice Minister Rauff Hakeem said the Darusman Report itself is
riddled with many inaccuracies and inexactitudes by reaching to
conclusions without affording a proper opportunity
to verify facts. The
Minister in an interview with the Sunday Observer said Sri Lanka is a
country which has acceded to various international conventions and has
ratified a variety of protocols which show that we pride ourselves as a
very keen and responsible member of the international community. Even
some powerful countries did not accede to some of these conventions or
protocols and took a long time to accede or ratify them.
The Minister said these are matters that the UN and its few members
who are trying to push an agenda which hopefully will be resisted and
finally we would be given credit and that is what we are sincerely
attempting to do. Even before the LLRC report is released, some Western
countries and INGOs have made certain premature comments. At least they
must be patient to wait until we are able to do our own domestic fact
finding and devise an acceptable home grown solution to this problem.
The Minister said well-meaning friends of Sri Lanka are aware of the
sincere efforts that the Government is taking and they will be patient
enough to give us sufficient time to address this issue.
Q: The European Union has commented on the lack of
independence of Sri Lanka’s judiciary and urges to ensure restorative
justice. Could you elaborate on this?
A: For the EU to comment on the independence of our judiciary,
it appears they have perhaps assumed that some of these reports by NGOs
are credible. As a matter of fact, the situation relating to the
independence of the judiciary and the constitutional provisions to
ensure its independence has not been changed. I do not understand as to
how the EU could come to these assumptions. It proves to some extent
some judgements were critical as it happens in many jurisdictions that
have been happening ever since independence. Freedom is there for juries
and legal luminaries to criticise a judgement after it has been
delivered. But to say that the independence of the judiciary is not
there, is a total fallacy. As a matter of fact the concept of separation
of powers as it obtains in different parts of the Commonwealth has been
observed very diligently and different branches of Governments have
mutual respect for each other and have avoided getting into any
unnecessary conflicts.
Except of course during the period of the Former Chief Justice,
Sarath N Silva, we had certain instances of the different arms of
Government clashing with each other. That episode has passed now and all
of us are heaving a sigh of relief. Thereafter things have worked out
well and we can confidently say that our judicial independence is very
much intact now.
Q: After LTTE terrorism was wiped out, the Sri Lankan
Government has writ over the Northern and Eastern territory. How is the
administration of justice in the North and the East today?
A: During the CFA period and several years leading up to the
CFA, a large portion of the North and the East was under the grip of the
LTTE and they had set up their own structure of government including
their system of Kangaroo courts. To the Government’s utter dismay in the
post CFA period they expanded their so called Kangaroo court system to
cover areas under their control which virtually created a situation
where the writ of the Government was not running in the areas under
their control.
Thankfully now with the LTTE defeated, the people of the area are
heaving a sigh of relief. We have begun to construct new Court houses,
establish and expand judicial administration to every nook and corner in
the North and the East. During the past two years alone, we have
established new Court houses and provided necessary infrastructure and
appointed Tamil speaking judges to enable the people of the North and
the East to experience normalcy through an efficient judicial
administration with easy access to Court houses. In the next two years
we will introduce further reforms and increase the setting up of Court
houses to cater to the needs of the people of the North and the East.
Q: A backlog of cases pending in Courts is a serious matter
for litigants as well as the Courts itself. What remedial action would
you contemplate?
A: Several plans are under way in this regard. We have looked
at the case management techniques in several jurisdictions and have
identified bottlenecks which have to be cleared. We are in the process
of introducing some amendments to the Civil Procedure Code as well as to
coordinate matters between various government agencies whose cooperation
is needed to efficiently and expeditiously dispose of cases in our Court
system. This will require the cooperation of the Police Department,
Attorney General’s Department and the Government Analysts Department. Of
course the cooperation from the Bar Association of Sri Lanka and the
judiciary is paramount to ultimately achieve the objective. We are
discussing reforms with the stakeholders concerned and have already put
in place certain measures which we could introduce within the system of
Court administration. The necessary legislative changes have been
drafted and would be introduced within the next two months through
Parliament.
Q: The appointment of a female Chief Justice for the first
time is a momentous event in our judicial history. How do you see this
event?
A: This indeed is a crowning glory for women’s empowerment.
Chief Justice Shirani Bandaranayake was a distinguished law professor
before she was appointed to the Supreme Court and is widely respected by
juries and had immense experience which would be an asset. She has also
delivered many landmark judgements which speaks volumes for her incisive
legal mind which had brought to there. By appointing the most senior
Supreme Court Judge to the position of the Chief Justice, President
Mahinda Rajapaksa has followed the hallowed traditions and have put to
rest unnecessary speculation about meddling with the judiciary.
Q: There are repeated calls for the reinstatement of the death
penalty to reduce killings and murders. How do you view this?
A: This is an ongoing debate in many jurisdictions and we are
no exception. But since the 1970s, though capital punishment is there in
our penal code and they are automatically converted to life sentence
since we have not carried out this punishment as a matter of convention
which we feel should not be reverted to the earlier system of the
hangman’s noose. However, the issue relating to the re-introduction of
capital Punishment becomes a debating point whenever multiple murders
and very gruesome premeditated killings are reported. For us politicians
we cannot jump to emotional conclusions. An ultimate decision will have
to be made. Only there is an exceptionally high rate of crime and that
too would be a very sensitive issue. I don’t think there is any need for
us to rush to an immediate conclusion on this issue.
Q: Are you taking steps to expedite cases against former LTTE
members some of whom have been in detention for many years?
A: Definitely. A special team of officers have been set up in
the Attorney General’s Department to expedite all pending cases. The
long-term detainees about whom there was no records available are being
interviewed continuously to ascertain the background to their detention.
Those who were found to be languishing unnecessarily in remand for long
periods are being identified and are being released periodically. In the
meantime some of them who are identified as active LTTE cadres are also
being sent to rehabilitation camps. They will be released after the
Commissioner General of Rehabilitation finds it suitable for them to be
released on whatever conditions that are imposed. A coordinated system
between the Defence Ministry, Justice Ministry, Attorney General’s
Department and the Prison Reforms Ministry has also been set up to
expedite this matter.
Q: The talk about 19th amendment that would limit the term of
the Chief Justice is not going away. What is the situation with regard
to this?
A: This is mere speculation. The Government does not have any
intention to introduce piecemeal reforms. Any constitutional amendments
will have to be considered by giving sufficient time for everyone to
consider the merits and demerits of the amendments. In this case the
Government had no such intention to bring in any change to limit the
term of office. But of course the experience under the former Chief
Justice Sarath N Silva may have prompted some lobbies to bring up this
theory. But I must categorically say that the Government did not
contemplate such change.
Q: There is a lot of attention on human rights and
reconciliation in Sri Lanka. What is the role played by the Justice
Ministry in this regard?
A: Whatever rights that are enshrined in the Constitution, the
responsibility to uphold and safeguard them is not only a task vested on
our Ministry. Such responsibility extends to all branches of the
Executive meaning every Ministry and every Government department will
have to be mindful of the people’s rights enshrined in our Constitution
which are justiciable. The fundamental rights jurisdiction that is
vested in the Supreme Court is being invoked by every citizen to get
relief. Of course there is a lobby which believes that jurisdiction must
be conferred either to the Court of Appeal or even to the High Courts so
that there will be a right of appeal in cases where parties not
satisfied with the ruling will have an option to appeal which is not
their right now. But these are suggestions which could be considered
along with reforms to the constitution if all parties find it suitable.
Q: All minorities are assured their rightful place in society
as guaranteed by the constitution. Are any rights or privileges enjoyed
by the majority denied to minorities?
A: Ours is a country which celebrates its diversity. The fact
that minorities are there and their specific cultural and religious
rights should be respected has been an established fact.
Whenever issues arise which result in conflict situation either they
are solved through political intervention or if anyone is dissatisfied
they could always resort to suitable litigation including filing a
fundamental rights case to advance his/ her cause. We have ample
evidence to show that our cause has been very sensitive to this issue.
We were able to resolve most of these issues through political
intervention.
We are not different to any other multi ethnic country when it comes
to upholding and respecting the rights of minorities.
Q: What sort of safety and security is assured to the Muslims
in the East compared to the days of LTTE terror when over hundreds of
Muslim devotees were massacred?
A: That sordid past is behind us. The post LTTE period has
helped not only the Muslims but also everyone to return to normalcy
particularly the economic activities relating to fisheries and
cultivation where there were restrictions in the past due to LTTE terror
and those imposed for security reasons by Security Forces have all been
almost dismantled.
This has resulted in having a bumper harvest when it comes to
cultivation. On the other hand, fisheries activities too have been
increased by several fold. The Government’s development initiative which
was pursued even while the war was being prosecuted has resulted in the
North and the East receiving equal or more attention to improvement to
their infrastructure. The only unfortunate thing was that both due to
tsunami and subsequent floods, there were some serious setbacks for a
period of time. But the resilience of the people and the intervention by
the Government and the donors have helped overcome these hurdles.
Q: Muslims who were evicted from Jaffna could now go back but
they prefer to be in Puttalam and maintain their titles to property in
Jaffna. Could you enlighten on this?
A: Those who have been displaced 20 years ago with no
certainty about their right to return being insured have been allowed to
relocate themselves in many parts of the country. Due to miserable
conditions they were subjected to live in camps which had meagre
facilities out of their perseverance, they spent their own money and
bought lands and settled down. It was only thereafter that for a brief
period during the peace talks and finally with the conclusion of the war
on terrorism, the issue of return to their areas of original habitation
became a possibility.
They have opted to exercise their right to return. But there are
certain difficulties. Proper infrastructure facilities are needed and
the assistance that has to be given for them to resettle have also got
to be provided. But then this will only be a gradual process. But the
fact remains that resettlement will have to be a voluntary process. In
the middle of this there is another controversy relating to their voting
rights where there are some misgivings since the Elections Department
insists on their complete returns, in order to be able to exercise their
voting rights in areas of original domicile. We have discussed this
matter with the Elections Department and hopefully some compromise
solution could be found for them to assert their right to return with
dignity and finally to maintain their livelihood without a serious
violation of the provisions relating to the freedom of movement.
Q: Has the Government done enough for Eastern development or
do you have your own plans?
A: The Government is having a massive development plan which
all purposes is a top down process. In most areas this to be converted
to a bottom up process so that the people in the localities will know in
advance and would be able to make a contribution from the very
conceptual stage. Concerns regarding their livelihood and the lands
bought for the purpose of habitation and the cultivation would also be
respected and promoted.
Q: What’s wrong with the Opposition today of which you were a
one-time prominent activist?
A: When there is a Government with such steamroller majority,
naturally the Opposition would be weak. But that should not lead us to
complacency. The political situation can suddenly change. President
Mahinda Rajapaksa is someone with very sharp political achievements. We
welcome a very vibrant and effective Opposition to be there. But
unfortunately they are riddled with some internal bickering. That is
their own undoing. We can only hope that they will resolve their
internal issues. But the fact that there are internal problems have not
seriously deterred them from taking up issues that needs a lively public
debate and we welcome that. A proper democracy could function only if
you respond positively to constructive criticism. We are always willing
to take any constructive criticism of our policies so that we can
ultimately implement what is best in a very consensual way.
Q: Western countries, INGOs and their buddies hint at the
inadequacy of the LLRC’s mandate. Would you like to comment on this?
A: Even before the report was out, they made certain premature
comments. But as a matter of fact, the composition and terms of
reference of the LLRC was discussed to a certain extent with many who
matter in this case. As an afterthought now to criticise its mandate is
very futile.
But we do not want to summarily dismiss all these allegations and
this seems to be unnecessarily combative knowing fully well that we have
our own responsibility to ensure that proper reconciliation and
reconstruction takes place after the war. The issue of accountability is
something that we as a responsible member of the international community
would always adhere to those countries which have reservations about the
post conflict situation here. At least they must be patient enough to
wait until we are able to do our own domestic fact-finding and devise an
acceptable home grown solution to this problem.
I don’t think the solutions could be imposed on a sovereign country
and we are not being unnecessarily intransigent either. I am sure the
well meaning friends of Sri Lanka are aware of the sincere efforts we
are taking and they will be patient enough to give us sufficient time to
address this issue.
Q: A prima facie case against Sri Lanka has not been
established in the Darusman Report. Apart from being a Minister how do
you view the entirety of the report as a lawyer?
A: The report itself is riddled with many inaccuracies and
inexactitudes and reaches conclusions without affording a proper
opportunity for us to verify facts. It appears that they rushed into a
compilation of such a report without proper verification.
We don’t want to be seen to ridicule anyone. We have utmost respect
for the UN Secretary General. I am sure he will be guided by good
counsel to have regard for us as a responsible member of the
international community. We are a country which has acceded to various
international conventions and have ratified a variety of protocols which
goes to show that we pride ourselves as a very keen and responsible
member of the international community.
Even some very powerful countries did not accede to some of these
conventions or protocols and took a long time to accede or ratified
them.
They took inordinately a long time to accept them. These are matters
that the UN and few other members who are trying to push an agenda which
hopefully would be resisted and finally we would be given credit in what
we are sincerely attempting to do.
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