Corruption in The Judiciary In Sri Lanka – Can The United Nations Intervene?

Mr. Kodituwakku is right: The United Nations can certainly use its influence (through its member States) to try to persuade the government of Sri Lanka to abide by the Resolution.  However, that is as far as this august body could go.

by Dr. Ruwantissa Abeyratne- Dec 28, 2017

( December 28, 2017, Montreal, Sri Lanka Guardian) I was both appalled and intrigued when I read Mr. Nagananda Kodituwakku’s article in this journal titled:  Violation of the Government’s commitment to the UN Resolution and the failure of the judiciary to combat corruption (December 27, 2017).  Appalled that there is, according to Mr. Kodituwakku,  corruption in all three powers of the State: the legislature; executive; and the judiciary, and  that a government  purporting to rule on the basis of virtuous governance (Yahapalanaya) has allowed this to happen.  Intrigued, that this sort of thing occurs so blatantly in a long standing democracy. Before I get into Mr. Kodituwakku’s suggestion  in his article that “Therefore, unless the UN System stresses the government of Sri Lanka to abide by the UN Resolution A/HRC/RES/30/1 along with the implementation of a program to address the issues mentioned herein, an independent and upright judiciary can never be put in place in Sri Lanka” – which clearly articulates two facts: that the United Nations can “stress” the government of Sri Lanka to comply with the Resolution; and that the judiciary in Sri Lanka is not independent and upright – I must commend him for his  forthright and courageous initiative of apprising the reader of facts hitherto unknown, particularly to those domiciled overseas.

Mr. Kodituwakku is right: The United Nations can certainly use its influence (through its member States) to try to persuade the government of Sri Lanka to abide by the Resolution.  However, that is as far as this august body could go.  Before we get into the legalities of the issue, let’s examine the terminology contained in the Resolution.  The operative words in the Resolution are “encourages” and “welcomes”.  These are hardly coercive, let alone mandatory.  For instance, it “welcomes the commitment of the Government of Sri Lanka to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the Government to address all reports of sexual and gender-based violence and torture”.  Furthermore it “Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future”.  These are just two examples from a host of “encourages” and “welcomes”.

The legal issue is “what are United Nations Resolutions and what compelling force do they have”?  Generally, United Nations Resolutions are nothing but the result of political compromises reached by States, and it would be  incorrect to ascribe legal force or legitimacy to them. The record of the United Nations over its six decades of history is that member States have on occasion, but in a consistent manner, refused to automatically comply with the corporate will of the Organization.  Professor Ian Brownlie, an eminent authority on international law, has expressed the view that decisions by international conferences and organizations can in principle only bind those States accepting them (Principles of Public International Law, Fourth Edition, Clarendon Pres: Oxford, 1990, 691). Malcolm Shaw, another authority, referring to the binding force of United Nations General Assembly Resolutions states: “…one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly.  Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms.  Great care must be taken in moving from a plethora of practice to the identification of legal norms” (International Law, Fifth Edition, Cambridge University Press: 2003, 110).

Nagananda Kodituwakku

The only coercive resolutions of the United Nations arise from Chapter VII of the UN Charter (Action with Respect to Threats to The Peace, Breaches of The Peace, and Acts of Aggression) which empowers the Security Council to determine the existence of any threat to the peace, breach of the peace, or act of aggression and make recommendations, or decide what measures are to be taken to maintain or restore international peace and security. According to Chapter VII, the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.  Should the Security Council consider that measures provided for would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. 

It is obvious that UN Resolution A/HRC/RES/30/1 is not a Resolution emerging from Chapter VII of the Charter.

That being said, what is most concerning is the statement that the judiciary in Sri Lanka is corrupt.  Sri Lanka is a constitutional democracy in which the separation of powers (Legislature; Executive; and Judiciary) is constitutionally recognized and good governance is embodied in the Constitution of the country.  The World Bank in its World Bank, Governance Matters, 2008 has defined governance as consisting of: “the traditions and institutions by which authority in a country is exercised. This includes the process by which governments are selected, monitored and replaced; the capacity of the government to effectively formulate and implement sound policies; and the respect of citizens and the state for the institutions that govern economic and social interactions among them”.   More importantly, the essential driver of a democracy is the Rule of Law, which, as defined by The Report of the UN Secretary General on the rule of law and transitional justice in conflict and post-conflict societies, August 2004,  refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Corruption has been defined by USAID Anticorruption Strategy, December 2005 as: “the abuse of entrusted authority for private gain”.  USAID in its Report Reducing Corruption in The Judiciary Office Of Democracy And Governance USAID Program Brief (2009) stated: “Against this background, judicial corruption is an especially pernicious phenomenon. When the judiciary – which is expected to serve as the guardian of the rule of law – is itself corrupt, anticorruption strategies are deprived of essential measures that are needed to increase the risks and reduce the benefits of corruption and to punish corrupt acts. The resulting distortions, including the impunity of corrupt individuals, undermine the rule of law, foster public cynicism about the integrity of government, and thus impair essential capacities for sound economic, social and political development. Conversely, strengthening judicial integrity and related capacities to combat corruption can have enormous benefits”.

I must say I was somewhat confused by the purport of Mr. Kodituwakku’s message in his article.  On the one hand he clearly says the Judiciary in Sri Lankas is corrupt.  On the other, he seemingly says that the government, by its actions, is effectively precluding the judiciary from being independent.  Either way, it is for the judiciary to assert itself in accordance with the expectations of the Rule of Law and dispense justice against infractions of the law.

I need say no more.

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The author is former Senior Legal Officer, International Civil Aviation Organization – The specialized agency of The United Nations for civil aviation.