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have been adjourned by the relevant High Court judge for weeks. 551 In instances where trial is by a judge sitting alone, due to the large number of cases to be heard, the witnesses are not given sufficient time to record their statements and are required to attend court on several occasions. Quite often the adjournment between two trial dates where the same witness gives testimony can range from a couple of months to even to two years. Also, it is usual for differences in testimony to occur due to forgetfulness as a result of long delays and this leads inevitably to acquittals. 552 Delays are also occasioned by the lackadaisical nature of prosecutions as well as by the failure of other government departments, such as the Government Analyst’s Department, to submit necessary reports to court on time. 553 This shortcoming was illustrated in the Kumarapuram Case even after the lapse of two years. The long delay in the Chemmani Case examined above is another illustration of such delayed trial processes. Indeed, the long pending nature of such prosecutions, which can amount to up to several years, has been a prevalent feature from the 1980’s onwards. 554 Delay in the trial process is a major reason for acquittals in prosecutions of grave human rights violations. The delayed prosecutorial process in such cases is contrasted with other instances where the prosecutorial and the judicial systems have functioned with remarkable speed. This is exemplified in the manner in which the respective trials into the shooting of a High Court judge and the shooting of a torture victim on 21 November 2004 were conducted. (The killing of the first victim occurred coincidentally two days prior to the killing of the second victim.) The trial concerning the assassination of Judge Sarath Ambepitiya was conducted day-to-day before a trial-at-bar, consequent to immediate police investigations and apprehension of the suspects, and was concluded within seven months (the accused were found guilty and the convictions were upheld on appeal). In contrast, the indictments against the suspects in the killing of the torture victim, Gerald Perera was only issued after the lapse of several months and the murder trial is still pending. 555 7.3. Judicial approaches in acquittal cases This section focuses on some stark contrasts historically in the willingness of the judiciary to convict in cases such as Bindunuwewa, discussed above. 556 In that case, the Supreme Court overturned the High Court conviction of the accused. This example appears to be part of a pattern that prevailed across many High Court cases, in which there is a tendency to acquit where enforced disappearances are alleged, and 551 de Silva, Samith, op. cit. 552 ibid. 553 Delays in this instance are commonly attributed to lack of resources. 554 Amnesty International, ‘Sri Lanka; An Assessment of the Human Rights Situation’, AI Index, ASA/37/1/93, 1993, at p. 3. 555 Pinto-Jayawardena, Kishali ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009. 556 See section 3.7, Chapter Two, above (Illustrative Cases). 155
particularly where the complaint is filed late. 557 Acquittals have also ensued on the basis that the indictment had been wrongly framed in that given that the facts disclosed unlawful detention with the intention of causing his death, then, the charge should have been under Section 355 of the Penal Code (kidnapping or abducting in order to murder) rather than under Section 356 (kidnapping or abducting with intent to secretly and wrongfully confine a person.) 558 In this case, the High Court studiously abstained from exercising its legally conferred authority 559 to amend the indictment charges. The Attorney General, too, might have been expected to call for an amendment of the indictment. 560 A stark contrast is evident between the judicial approach in these cases and different judicial reasoning in response to almost similar factual situations brought before the High Courts where convictions were handed down 561 instead of acquittals. This is reflective of the inconsistency in the judicial approach. In the cases handing down convictions, judges adopted a set of reasons that hold the use of police authority to account, even where their illegal acts and omissions may have been ordered by superiors. In one such case, 562 the fact that the police complaint was made after a wait of four years and was in any event not produced at the trial did not serve to undermine the credibility of the witness. The fact that this witness had testified before the 1994 Central, North Western, North Central and Uva Disappearances Commission is, in 557 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. Legal precedent is instructive in this respect. In Jayawardene v the State, [2000] 3 Sri LR 192, it was held that, given the fact that normalcy prevailed in the country by 1991, it was not reliable to act on a complaint made in 1995 in regard to an alleged incident of enforced disappearance in 1989. A far more rational judicial view was expressed in Sumanasekara v AG, [1999] 3 Sri LR 137, wherein the Court said that if a valid reason is given for the delay, this must be accepted. In all the cases of acquittals, the reasons given by the complainants relating to their fear that they would be harassed by the police, are not accepted. In many of the acquittals the ratio in Sumanasekara v. AG (supra) has been applied rigidly. 558 H.C. Case No. 94/99, High Court of Hambantota, H.C. Minutes 04.02.2004. 559 Section 167(1) of the Code of Criminal Procedure Act – “Any court may alter any indictment or charge at any time before judgment is pronounced or, in the case of trials before the High Court by a jury, before the verdict of the jury is returned.” 560 Section 160(3) of the Code of Criminal Procedure Act confers the authority on the Attorney General to substitute or include in the indictment any charge in respect of any offence which is disclosed in evidence. In the Krishanthi Kumaraswamy Case, an objection that the Attorney General has no power to add the charge of rape to the indictment (which charge was not on the indictment before the Chief Justice, on the basis of which a trial-at-bar was directed to be constituted) was dismissed out of hand by the Supreme Court, referring to Sections 167 and 160(3) of the Act. 561 H.C. Case No.1284/99, High Court of Kandy, H.C. Minutes 30.08.2000. per (then) High Court judge Samith de Silva; H.C. Case No. 1947, High Court Galle, H.C. Minutes 01.08.2003. per (late) High Court judge Sarath Ambepitiya. See also a recent decision of the Court of Appeal affirming one such conviction at the High Court stage in Liyanadeniya Aratchilage Tikiri Banda v. Attorney General, 2007(1) Appellate Law Recorder (ALR), at p.40, per Eric Basnayake J. (with Jagath Balapatabendi J. agreeing). In this instance, the Court of Appeal ruled that a defence that a policeman had acted on superior orders cannot be accepted as a valid defence ad further queried as to why the officer in charge of the police station had not been indicted by the Attorney General. For another recent decision, see ‘Appeal Court doubles sentence’, BBC News of 4 th August 2009 where the Court of Appeal doubled the sentence of six years rigorous imprisonment imposed by the Panadura High Court in 2001 on a soldier for abducting and ‘disappearing’ two brothers in the late 1980s. These decisions illustrate the strict approach taken by the Court of Appeal in this regard in recent times. 562 H.C. Case No.1284/99, High Court of Kandy, H.C. Minutes 30.08.2000. 156
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In exploring what constitutes a ver
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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
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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
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Page 132 and 133: arrests. In consequence, most of th
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Page 146 and 147: enforced disappearance; (ii) Exerci
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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Page 158 and 159: fact, acknowledged. 563 The accused
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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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