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Sabry to inquire JSC about ‘directive’ to judges

17 Aug 2021

  • Minister requests Parliament two weeks to revert
  • BASL expresses concern to JSC
  • JVP queries impact on democracy 
BY Pamodi Waravita The Justice Ministry is set to make an inquiry from the Judicial Service Commission (JSC) on reports that judicial officers, including Magistrates, have been instructed by the JSC to control protesters and public gatherings during the Covid-19 pandemic, while the Bar Association of Sri Lanka (BASL) has written to JSC expressing concern about these reports.  Responding to a question by Janatha Vimukthi Peramuna (JVP) led National People’s Power (NPP) Leader and Parliamentarian Anura Kumara Dissanayake in Parliament yesterday (17), Justice Minister, President’s Counsel (PC) M.U.M. Ali Sabry said that the Justice Ministry would make an inquiry from the JSC on this matter and requested for two weeks to revert.  “The JSC is independent and functions independently. The Government cannot influence it and we don’t plan on doing so either. We ask for two weeks to inquire from the JSC regarding the matter,” Ali Sabry PC said in Parliament.  The reports indicated that judicial officers, including Magistrates, have been instructed by the JSC during a webinar conducted on 13 August on “Matters relating to judicial proceedings in the context of the Covid-19 pandemic”, to use Sections 98 and 106 of the Code of Criminal Procedure as amended to control protesters and public gatherings due to the Covid-19 pandemic.  Section 98 of the Code deals with a conditional order for the removal or abatement of a public nuisance, while Section 106 of the same deals with the power to issue an immediate and absolute order in urgent cases of nuisance.  The Bar Association of Sri Lanka (BASL), in the letter to the JSC yesterday, had stated that it is deeply concerned about the contents of these reports which affect the rule of law, the independence of the Judiciary, and public confidence in the administration of justice.  The BASL has noted that “media reports claim that at this webinar, the issue of trade unions protests and the role of the courts also came up for discussion, and that judicial officers had been given instructions on the use of certain Sections of the Code of Criminal Procedure as amended to control public gatherings on account of the pandemic situation in the country and that there was a perception among judicial officers that there was an effort to impress upon them to give orders that the Police request in order to curb protests.”  Furthermore, the BASL has noted the need for both litigants and their attorneys-at-law to have confidence that judicial officers would decide freely on cases based on their own merits.  “These are fundamental aspects of judicial independence and the rule of law. The perception that these reports create, run contrary to the dictum laid down by the CJ of England and Wales, Gordon Hewart in the High Court of Justice case of R v. Sussex Justices, ex parte McCarthy that ‘justice must not only be done but must also be seen to be done’, a principle strongly ingrained in our legal system as well.”  Thus, the BASL has requested the JSC to ensure that these reports “do not in any manner negatively impact the esteem that the Judiciary must unreservedly maintain irrespective of the circumstances, however trying they may be.”  According to a letter circulating on social media, the JSC, comprised of Chief Justice (CJ) Jayantha Jayasuriya PC and Justices Buwaneka Aluwihare PC and L.T.B. Dehideniya, had, along with another Judge of the Supreme Court, namely Justice Mahinda Samayawardhena, had conducted the webinar on 13 August. Following the webinar, media reported that several Magistrates had expressed concerns about the discussion as it had implied subtle pressure being exerted on the judicial mind which should be independent.  Speaking in the Parliament, Janatha Vimukthi Peramuna (JVP) Leader Anura Kumara Dissanayake questioned the democratic nature and the independence of the justice system in light of these reports.  “At this webinar, the Magistrates hoped to discuss how the pandemic is affecting their duties and how to overcome these challenges in order to ensure that the justice system continues to function. However, we are learning that serious threatening implications were made to the independence of the Judiciary. The JSC Chairman CJ Jayasuriya PC had allegedly highlighted some of the recent decisions by Magistrates to not grant Court orders that the Police were seeking in order to halt protests and remand protestors. How is that democratic?” questioned Dissanayake.  A range of demonstrations took place throughout Colombo and around the country over the course of last month in protest over the controversial General Sir John Kotelawala National Defence University (KNDU) Bill and in demand of salary increments for school teachers. Protests also occurred due to the recent fuel price hike and the ban on chemical fertiliser over the last few months. Although reportedly the Police had sought Court orders to stop the protests, on a number of occasions, Magistrates had denied these requests.


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