Untitled - International Commission of Jurists

This point was directly in issue, however, in Velu v. Velu. 490 In that case, the Supreme
Court considered its powers of revision to circumvent a Magistrate’s discharge order;
as well the Attorney General’s decision not to intervene. The Supreme Court was
asked to substitute its own decision, committing the accused to stand trial. Justice
Weeramantry refused the application for revision, stating that while the Supreme
Court
[…] may in theory have the power to revise an order of discharge made by the
Magistrate, the Court would in so doing be entering upon the field where,
another authority, namely the Attorney General, enjoys the concurrent
jurisdiction. 491
The Supreme Court did not respond to the question avoided by this puzzling
reasoning; that is, the applicable standard governing its powers to revise orders of the
Attorney General, particularly where it was shown that a positive miscarriage of
justice would otherwise result. For the better administration of the law, and in
response to this uncertainty, the Code of Criminal Procedure Act, No. 15 of 1979
could be amended explicitly to clarify the revisionary jurisdiction of the Court of
Appeal over decisions by the Attorney General where precise criteria are fulfilled,
consistent with Article 138 of the Constitution of Sri Lanka. 492
More recently, in an important decision, the Supreme Court held that the exercise of
the Attorney General’s discretionary powers to prosecute was subject to review based
on the Court’s powers to examine violations of fundamental rights under Article 126
of the Constitution. The Court concluded that such a power of review existed where,
inter alia, the evidence had been plainly insufficient, where there had been no
investigation, or where the decision had been based on constitutionally impermissible
factors. 493 In the specific case however, investigating officers rather than the Attorney
General were found primarily responsible for the lack of a proper investigation and
other lapses regarding the filing of an indictment for criminal defamation.
4. Witness protection
Acquittals of prosecutions related to enforced disappearances by the High Courts of
Sri Lanka 494 tend largely to be based on the purportedly inconsistent testimony of the
witnesses. This becomes the source of ‘reasonable doubt’ as grounds for acquittal. A
second main factor is the delay in lodging complaints relating to the enforced
disappearances.
Explanations for these patterns in victims and witness behaviour are not difficult to
discern. At all points, victims and members of their families are trapped by the
extraordinarily brutal context in which grave human rights violations occur as well as
490 [1968] 76 NLR 21.
491
ibid.
492 De Almeida Guneratne, Jayantha, ‘The Role of Commissions of Inquiry in Sri Lanka’s Justice
System’, State of Human Rights Report 2007 Law & Society Trust, at page 194.
493 Victor Ivan v. Sarath Silva, AG [1998] 1 Sri LR 340, per judgement by M.D.H. Fernando J (with
Wadugodapitiya J and Bandaranayake J. agreeing).
494 H.C. Case No. 94/99, High Court of Hambantota, H.C. Minutes 04.02.2004; H.C. Case No. 14/2001,
High Court of Hambantota, H.C. Minutes 25.08.2003 and H.C. Case No. 24/2002, High Court of
Hambantota, H.C. Minutes 19.06.2003.
138