- Concerns expressed about attacks on the independence of the Judiciary in SL under the cover of Parliamentary privilege
On 22 August 2023, retired Rear Admiral, former Minister and incumbent Sri Lanka Podujana Peramuna (the country’s ruling political party) Government Member of Parliament (MP) and Chairman of the Parliamentary Sectoral Oversight Committee on National Security, Dr. Sarath Weerasekera, made an inflammatory speech with racist undertones in Parliament, referring to Mullaitivu Magistrate T. Saravanaraja, repeatedly, as “a mentally-ill person”, and criticising a Mullaitivu Magistrate’s Court order that Magistrate Saravanaraja had made, while making personal remarks about him, including a mention of his wife - “Archaeology is the current major national issue of the country. Archaeology is our right. And archaeology is our national identity. Attempting to destroy that kind of national identity is an act of treason. A Mullaitivu Court Magistrate has given permission to engage in the Pongal Hindu worship at the Kurundur Hill. The said Mullaitivu Court Magistrate is acting against the Antiquities Ordinance. The Antiquities Ordinance should not allow activities that affect the minds of Buddhists. Such activities are mentioned as punishable offences. In the presence of such clear orders, it is highly problematic that the said Magistrate has issued wrong orders. On 18 August, thugs who visited the Kurundur Hill along with Tamil politicians insulted the Chief Incumbent of the Kurundur Hill, Ven. Shantha Bodhi Thera, with inappropriate words and kicked him out. Will not the minds of Buddhists be affected by such activities? We are patient and make it clear that that patience should not be taken as cowardice. Racial conflicts will arise due to orders issued in a farfetched manner. If such incidents happen, the responsible Magistrate and Tamil politicians should be held accountable. The Mullaitivu Court Magistrate is referred to as a psychopath. The Magistrate’s wife told the Mullaitivu Police that the Magistrate is a mental patient, so she is taking him to a psychiatric hospital. So, if the Magistrate is mentally ill, we will help him recover. How a person suffering from a mental illness can act as a Magistrate is problematic. He will not accommodate Buddhists but will accommodate Pongal. This Magistrate cannot take the correct decision. I urge the Minister of Justice and the Judicial Service Commission [JSC] to appoint another Magistrate to the Mullaitivu Magistrate’s Court because he is mentally ill. There are many non-racial Tamil judges in the country. So, they should be appointed as the Mullaitivu Court Magistrate. The Sinhalese Buddhist Police saved the life of Jaffna High Court Judge M. Elancheliyan. Sarath Hemachandra gave his life to protect Judge Elancheliyan. Judge Elancheliyan has taken full responsibility for the education expenses of the Policemen’s children and is still helping them today. There is no racism or religion among us. I request Tamil politicians not to create non-existent contradictions. Former Opposition Leader A. Amirthalingam founded the Liberation Tigers of Tamil Eelam. Eventually, the Tigers killed him. Amirthalingam’s wife and two children were protected by Sinhalese Buddhist guardians. The Sinhalese Buddhists themselves have defended those who are harshly critical of those who act against the Sinhalese race. Such a race does not exist anywhere in the world. Sinhala Buddhists are the ones who are protecting Tamil politicians who are working against the Sinhalese and Buddhist heritage. If the country’s harmony is not a thing, how can they be? Fundamentalists should refrain from laying hands on the Kurundur Hill. Sinhalese Buddhists have their patience. I emphasise that the Director General of Archaeology should act responsibly. After my speech, instead of acting against me, the Sri Lankan lawyers should act responsibly to solve the real problem.”
Magistrate Saravanaraja has been the target of this invective following an order that he made upholding the right of religious worship of Hindu devotees at a Hindu shrine on Kurundur Hill, a contested religious site in the North of the country.
With respect to this, Weeresekera also stated that the Mullaitivu Magistrate should keep in mind that Sri Lanka is a Buddhist nation, and that there is a limit to the patience of Sinhala Buddhists, and that if any racial violence were to occur, it is the Magistrate in question and the Tamil politicians who should bear the burden. He urged the Judicial Service Commission (JSC) and the Bar Association of Sri Lanka (BASL) to replace the Magistrate.
Weerasekera delivered his attack against the Magistrate during a Parliamentary debate on tourism in violation of Standing Order 83 of the Sri Lankan Parliament, according to which the personal conduct of any person “engaged in the administration of justice shall not be raised except upon a substantive motion” (83. [1] The personal conduct of the President, or the Acting President, MPs, Judges {Chief Justice, the President of the Court of Appeal {CoA} and every other Judge of the Supreme Court {SC} and CoA appointed by the President of the Republic by warrant under his/her hand.} or other persons engaged in the administration of justice shall not be raised except upon a substantive motion; and in any proceedings, question to a Minister, or remarks in a debate on a motion dealing with any other subject reference to the conduct of any such person shall be out of order). This is the second time that Weerasekera has commented on Magistrate Saravanaraja and made reference to his ethnicity within the Parliament ("Despite the Mullaitivu Magistrate's Court's order, the Police, the military, and the Department of Archaeology have all been involved in the construction of the Buddhist monument. We cannot accept the Mullaitivu Magistrate's Court Magistrate removing us from the Kurunthurmalai site. He does not have the authority to conduct an investigation related to archaeology. He needs to understand that Sri Lanka is a Sinhala Buddhist nation. Some Tamil judges are acting against the interest of the Buddhist archaeological heritage in the North - East. The Sinhala people need to unite to protest our heritage. They say that there is evidence of Tamil Buddhists having lived in the North and the East of the country, if so, why did they destroy the existing Buddhist archaeological remains and place a trident on top of them? These Tamil judges do not have a right to question the archaeological Buddhist heritage of Kurunthurmalai. Nor does he have the right to ask us to leave. Tamil judges should keep in mind that Sri Lanka is a Sinhala Buddhist nation.”).
These speeches constitute a serious and unwarranted encroachment on the independence of the Judiciary and an attack against a Judge, solely for his exercise of his judicial functions.
The most recent order Magistrate Saravanaraja made is one of several orders that the Magistrate issued relating to the Kurundur Hill site. A number of previous orders had been flouted by the Department of Archaeology.
Previously, on 7 July, Weerasekera had made similar remarks within the Parliament, stating that the Mullaitivu Magistrate cannot remove the Sinhalese from the Kurundur Hill religious site as he does not have the authority to make that decision. Weeresekera mentioned that Tamil judges were acting against the interest of the Buddhist archaeological heritage in the North - East and that they do not have a right to question the archaeological Buddhist heritage of the Kurundur Hill religious site.
The BASL issued a public statement on 10 July, 2023, condemning the MP’s speech as an “unfounded, brazen attack on the Judiciary and the social fabric of the country.” On 11 July, 2023, the Mullaitivu District lawyers protested against the MP’s remarks.
The latest speech by Weerasekera was made a few days after another Government MP Jayantha Samaraweera, lodged a complaint against the same Magistrate with the JSC by stating that the Magistrate was acting unilaterally without heeding the instructions of the Department of Archaeology which is a State institution.
On 25 August, 2023, lawyers in the Northern Province held a protest condemning the remarks made by MP Weerasekera as a misuse of the Parliamentary privilege and an attack on the independence of the Judiciary. Criticising this protest, on 26 August 2023, the MP stated that he would respond to the lawyers in the Parliament.
There is a developing trend to use the cover of Parliamentary privilege to engage in rhetoric that interferes with the independence of the Judiciary. This sets a dangerous precedent.
The United Nations Basic Principles on the Independence of the Judiciary state that, “it is the duty of all Governmental and other institutions to respect and observe the independence of the Judiciary”, and “there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”
Previously, this year (2022), concern was expressed about another statement made by yet another MP calling into question an interim order of the SC, and requesting the Speaker of the Parliament to refer the conduct of the Judges of the SC to the Parliamentary Committee on Ethics and Privileges.
The independence of the Judiciary is a fundamental principle of the rule of law and therefore, any form of undue interference by political actors with judicial independence is extremely serious and should be condemned.
(The ICJ is a non-Governmental organisation advocating for justice and defending human rights and the rule of law worldwide)
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The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication.