Untitled - International Commission of Jurists

through constitutional amendments, particularly in 1972 and in 1978. Failures in the
criminal justice system are comprehensively evaluated and shown to owe a great deal
to the politicization of the justice system precisely through the strengthening of
executive power at the expense of an independent and effective judiciary.
The assessment underscores some commonly known and uncontroversial
characteristics of COIs and their relationship to the criminal justice system and to
government and the broader political regime:
1) That some COIs have been used by governments to expose the abuses of a
previous political regime for partisan reasons or, conversely, when they have been
appointed to inquire into abuses committed during that same administration, to escape
accountability.
2) That the recommendations of these bodies - even when they have been
functioning credibly - have had negligible impact insofar as actual prosecutions
emanating from these findings are concerned. The question of legal accountability for
grave human rights violations of civilians of the majority Sinhala ethnicity as well as
the minority Tamil and Muslim ethnicity and others has remained unaddressed for
decades.
3) That the lack of legal accountability for grave human rights violations has
been buttressed by the culpable omissions of the State in failing to amend and reform
its laws and regulations. Further, the provision of de jure impunity (laws providing
cover for violations if done in ‘good faith’ and attempting to shut out the jurisdiction
of the courts in the adjudication of possible violations) and de facto impunity (lack of
political and prosecutorial will to initiate and pursue cases to an effective conclusion)
has ensured that perpetrators of abuses are protected.
4) That the inadequacy of the judicial response to victims at all levels of the
legal system, from the Supreme Court to the High Court, has aggravated and formed
an integral part of these systemic failures. Even where individual judges have shown
greater sensitivity at times, these efforts have been negated by the nonimplementation
of judicial orders by successive political establishments. The
independence of the judiciary – the basis for securing the minimum standards for fair
adjudication of these cases - has been persistently undermined.
2. Absence of state accountability
The lack of state accountability for human rights violations in Sri Lanka crosses
ethnic divides. Civilians of predominantly Tamil ethnicity were caught up in the
conflict in the North and East, which intensified during most of the years from 1983
to 2009. Meanwhile, an estimated 40,000 Sinhalese youth were ‘disappeared’ during
insurrectionist violence in other parts of the country during the 1980s and early ’90s.
Impunity transcends ethnic boundaries, as did the outcry against some of the gravest
injustices in both contexts.
Out of these thousands of extrajudicial killings, only a few cases have been effectively
investigated and prosecuted to a successful conclusion. Poignantly, the two most vivid
cases in this regard claimed victims from both the minority and majority ethnic
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