[Editor’s Note]

Judicial independence, both in terms of the courts’ institutional separation from the legislature and the executive, and in terms of the judiciary’s ability to arbitrate conflicts and protect human rights, is essential to the proper administration of justice. Yet despite the existence of institutional safeguards that attempt to ensure such independence, many structural problems continue to undermine the integrity and authority of the Sri Lankan legal system. Verité Research legal team points to political influences in the appointment, promotion, and removal of judges, and challenges to the courts’ financial independence as shortcomings of Sri Lanka’s judicial independence framework. This, in addition to general inefficiencies in the court system and the erosion of public trust, has led to the Sri Lankan court system falling short of its duty to uphold democratic values and safeguard individual rights. Verité Research concludes by outlining measures that could improve judicial independence, such as instituting more transparent judge appointment, promotion, and removal processes, and addressing the current lack of public accountability.

※ The following are excerpts from the article. For the full text, please check the attached file at the top of this page.

Judicial independence can be simply understood as the judiciary administering justice separately from other branches of government. To reach this end, institutional and operational arrangements, such as (i) procedures and qualifications for the appointment of judges; (ii) security of tenure until mandatory retirement age or the expiry of term; (iii) conditions governing promotion, transfer, suspension, and cessation of judges’ functions; and (iv) financial security of judges and justice institutions; are guaranteed (UNHRC 1985).

With the evolution of democratic values, the judiciary has taken on a wider role as a key institution that serves as a custodian of public power and protector of the people’s sovereignty. Thus, the judiciary is expected to safeguard human rights and function as the sole mediator between conflicting interests (Swart 2019). Therefore, both positive and negative duties are cast on political and non-political actors to respect and promote judicial independence and integrity.

This working paper examines the Sri Lankan court system through the lens of judicial independence. This paper is divided into five sections. First, it introduces the court structure of Sri Lanka. Second, it explores the current institutional and operational measures for protecting judicial independence. Third, it analyzes challenges to judicial independence in Sri Lanka and their consequences. Fourth, it provides a brief account of Sri Lanka’s judicial performance on advancing democratic values and fundamental rights. Finally, it identifies areas for improvement for existing laws and institutions with the goal of enhancing the independence of the judiciary.

1. Overview of the Court Structure in Sri Lanka

Sri Lanka has a mixed legal system comprising of Roman-Dutch Law (RDL), English Common Law, and personal laws. The administration of justice is carried out through an adversarial system. The current court structure is as follows:

i. Appellate courts, comprising the Supreme Court (SC), the Court of Appeal (CA), and Provincial High Courts, which are established under the Constitution.

Courts of First Instance, including High Courts, District Courts, and Magistrate's Courts, which are established by the Judicature Act, No. of 2 of 1978.

The SC is the highest and final court of civil and criminal appellate jurisdiction in Sri Lanka. The SC also holds the sole and exclusive jurisdiction on constitutional interpretation, determining the constitutionality of bills, protection of fundamental rights, matters relating to presidential elections, and breach of parliamentary privileges.

The CA has the appellate jurisdiction to correct all errors in fact or in law committed by the High Court or by any Court of First Instance. The CA also has jurisdiction to issue writs and injunctions against administrative action.

The High Courts exercise original criminal jurisdiction to hear, try and determine an offense wholly or partly committed in Sri Lanka. The High Courts also have the authority to adjudicate habeas corpus applications.

Magistrate Courts exercise original criminal jurisdiction and District Courts exercise original civil jurisdiction.

Apart from the aforementioned courts, other tribunals perform functions of a quasi-judicial nature. These include Boards of Quazis and Labor Tribunals. Their decisions are subject to judicial review by appellate courts by way of writs or appeals.

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■ Typeset by Juhyun Jun Research Associate
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