Untitled - International Commission of Jurists

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.
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