Sri Lanka: Parliamentary privilege used to undermine independence of the Judiciary

30 August 2023

The ICJ today expressed concern about attacks on the independence of the judiciary in Sri Lanka under cover of parliamentary privilege.

On 22 August 2023, Sarath Weeresekera, a former Minister and a Member of Parliament belonging to the Sri Lanka Podujana Peramuna, the country’s ruling political party, made an inflammatory speech with racist undertones in Parliament, referring to T. Saravanaraja, the Mullaitivu Court’s Magistrate repeatedly as “a mentally ill person”, and criticizing a court order Judge Saravanaraja had made, while making personal remarks about him, including a mention of his wife. Judge Saravanaraja has been the target of this invective following an order 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, Sarath Weeresekera also stated that the Mullaitivu Magistrate should keep in mind that Sri Lanka is a Buddhist nation, that there is a limit to the patience of Sinhala Buddhists, and if any racial violence were to occur it was the judge and Tamil politicians who should bear the burden. He urged the Judicial Services Commission and the Bar Association to replace the judge.

Sarath Weeresekera delivered his attack against the judge 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” — during a parliamentary debate on tourism. The ICJ notes with concern that this is the second time that Sarath Weeresekera has commented on Judge Saravanaraja and made reference to his ethnicity within Parliament.

“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”, said Santiago Canton, ICJ’s Secretary General.

The most recent order Judge Saravanaraja made is one of several orders 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 2023 Parliamentarian Weeresekera had made similar remarks within 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 archeological heritage in the North-East and they do not have a right to question the archeological Buddhist heritage of the Kurundur Hill religious site.

The Bar Association of Sri Lanka issued a public statement on 10July 2023 condemning the parliamentarian’s speech as an “unfounded, brazen attack on the judiciary and, the social fabric of the country.” On 11 July 2023, Mullaitivu District lawyers protested against the parliamentarian’s remarks.

The latest speech by Weerasekera was made a few days after another Parliamentarian, Jayantha Samaraweera, lodged a complaint against the same Magistrate with the Judicial Services Commission 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 the parliamentarian as misuse of parliamentary privilege and an attack on the independence of the judiciary. Criticising this protest, on 26 August 2023 the parliamentarian stated that he would respond to the lawyers in Parliament.

“There is a developing trend to use the cover of paliamentary privilege to engage in rhetoric that interferes with the independence of the judiciary. This sets a dangerous precedent,” said Canton.

The UN 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, the ICJ expressed concern about another statement made by yet another parliamentarian calling into question an interim order of the Supreme Court, and requesting the Speaker of Parliament to refer the conduct of the judges of the Supreme Court to the Parliamentary Committee on Ethics and Privileges.

The ICJ recalls that 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.