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Independence of judiciary maintained - Rauff Hakeem

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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