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any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt. The burden should accordingly be on the prosecution to prove that the confession was made without duress. The Government of Sri Lanka was called upon to amend Section 16(2) of the PTA. 546 However, this recommendation remains unimplemented. A review petition was then filed before the Supreme Court on the basis that legal thinking in relation to the admissibility of confessions had changed since the initial judgment in the Singarasa Case and citing the Committee’s Communication of Views as persuasive precedent. This petition was dismissed by a Divisional Bench of the Court, which affirmed that the very act of accession to the Optional Protocol to the ICCPR was unconstitutional. 547 In ironic counterpoint to the admittance of confessions to police officers above a particular rank under emergency law, these confessions are excluded under ordinary law with which alleged perpetrators of grave human rights violations who commit these crimes under cover of their office are prosecuted. Sections 24, 25(1), (2) and 26(1), (2) of the Evidence Ordinance declares inadmissible three categories of confessions: those caused by an inducement, threat or promise; confessions made to a police officer, a forest officer or an excise officer; and confessions made by any person while in the custody of the these three categories of officers. Previously, the High Court had taken the position that confessions made to officers of the military police are not encompassed within this absolute bar and consequently went on to test the voluntary nature of the confession in terms of Section 24 of the Evidence Ordinance, holding it admissible if the voluntary nature was proven. However, the Supreme Court, in a Divisional Bench judgment in the Krishanthi Kumaraswamy Case examined above, ruled that confessions made to military officers attract the absolute bar as they come within the term ‘a police officer’ as referred to, in the Evidence Ordinance. While this ruling had no practical effect in the Krishanthi Kumaraswamy Case, as the conviction and sentencing was upheld on the basis that the evidence was strong enough even without the confessions in issue, the same may not be the case of each and every prosecution in such instances where the criminal law and procedure is, in any case, weighted in favour of the accused. Based on the Krishanthi Kumaraswamy precedent, a confession made to a military police officer was ruled to be inadmissible in the pending Mirusovil case. 548 7. The Trial Process 7.1. Jury Trial/Trial by Judge/Trial-at-Bar In some cases, the option currently given to the accused to elect for a jury trial or a trial by judge only has increased the possibility of the trial being weighted in favour of the accused. In the Mylanthanai Case, examined above, the accused Sinhalese 546 ibid. 547 Nallaratnam Singarasa v. Attorney General and Others, S.C. SpL (LA) No. 182/99, SCM 15.09.2006, per former Chief Justice Sarath N. Silva. 548 Interviews with attorneys-at-law monitoring the case, 12.04.2009. 153
soldiers opted for a jury trial with a Sinhala speaking jury and witnesses were brought all the way from Trincomalee in the Eastern province to the capital Colombo for the trial. The accused were acquitted on 25 November 2002. The acquittal occurred despite overwhelming evidence to the contrary as buttressed by the High Court Judge, S. Sriskandarajah’s observations urging the jury to reconsider its decision in the light of several factors in the evidence placed before it. However, the same verdict was returned by the jury. 549 As contrasted with the option of trial by jury or trial by a single judge, the general consensus is that a trial-at-bar is a fairer judicial procedure to try ethnically and politically charged cases. Justice T.S Fernando acknowledged this back in the early 1960s. The reason for the introduction into our law of the system of trial without jury in cases which up to that time had been triable by jury was understandable as the chances of ensuring an unbiased jury at times when public feeling is profoundly disturbed, whatever be the cause, are considerably lessened. (J) 550 In certain instances such as the Krishanthi Kumaraswamy Case discussed above, the trial–at-bar was constituted as a result of the information submitted by the Attorney General under subsection 450(4) of the Criminal Procedure Code, No. 15 of 1979 (as amended) in order to conduct a special judicial hearing in the High Court before a three judge bench without a jury. The nomination of the trial-at-bar is left to the discretion of the Chief Justice. The nomination of a trial-at-bar in this manner has, however, led to problematic situations at times, as is seen in the contrasting treatment of the trials into the assassination of a high court judge and a torture victim in cases examined below. 7.2. Long delays Delays evidenced at all stages of the pre-trial and trial process are not peculiar to trials of grave human rights violations. Rather, they are a common feature of the prosecutorial process. Indeed, departure from rules of procedure in the criminal justice system that were formerly enforced strictly, currently characterizes almost every aspect of the trial process. For example, an average trial generally takes three to four days and the trial is heard from beginning to end. However, even though it is not legally permissible, there are instances where jury trials are not conducted from day-to-day but instead, 549 Centre for Human Rights and Development, ‘CHRD in 2002; CHRD provides legal assistance to those without help,’ Sentinel Special Issue, Colombo, 2002, at p. 9. 550 The Queen v. Liyanage and others (TAB) [1962] 64 NLR 313. It was held in this case that section 9 of the (old) Criminal Law (Special Provisions) Act was ultra vires the Constitution because (a) the power of nomination conferred on the Minister in respect of nomination of judges for a trial-at-bar was an interference with the exercise by the Judges of the Supreme Court of the strict judicial power of the State. The power of nomination is one which has hitherto been invariably exercised by the Judicature as being part of the exercise of the judicial power of the State, and cannot be reposed in anyone outside the Judicature. Subsequently, on 14.11.1962 Parliament enacted the Criminal Law Act, No. 31 of 1962 which, inter alia, empowered the Chief Justice to name the judges of a trial-at-bar. These provisions were brought over to the current Criminal Procedure Code Act, No. 15 of 1979 as amended. 154
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In exploring what constitutes a ver
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3
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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focused on allowing within its purv
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3.1.3. Reflections on the Procedure
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However, the weak process of re-ref
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ouster) clause ruling out judicial
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(g) The relief if any that should b
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Interdiction from service of allege
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The Batalanda Commission recommende
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3.3.3. The Bindunuwewa Commission D
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ecommendation to this effect by the
Page 104 and 105: As of 31 December 2000, according t
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Page 108 and 109: Chapter Four - Evaluating Sri Lanka
Page 110 and 111: pattern of harms, to recommend meas
Page 112 and 113: justified and spelled out in the ma
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Page 116 and 117: analysis, these pillars of the judi
Page 118 and 119: competence. Their findings must be
Page 120 and 121: Regardless of the amendment however
Page 122 and 123: It was recorded by at least some of
Page 124 and 125: 6.4. Affording alleged perpetrators
Page 126 and 127: Chapter Five - Sri Lanka’s Crimin
Page 128 and 129: to the attention of the Court in an
Page 130 and 131: 2.1. First Information Reports In a
Page 132 and 133: arrests. In consequence, most of th
Page 134 and 135: Lengthy delays in filing indictment
Page 136 and 137: officers who were prepared not only
Page 138 and 139: prosecutor’s office would be to i
Page 140 and 141: y the byzantine and unfair burdens
Page 142 and 143: […] while those in authority hold
Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
Page 148 and 149: as to why specific reform of the cr
Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
Page 160 and 161: The Human Rights Committee affirmed
Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
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