Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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investigative function that could maintain its independence and effectiveness when<br />
investigating alleged human rights violations. Those <strong>of</strong>ficers attached to various units<br />
established for investigations are liable to be arbitrarily transferred at any given point<br />
<strong>of</strong> time. In an evident conflict <strong>of</strong> interest and faced with the prospect <strong>of</strong> arbitrary<br />
transfer, these <strong>of</strong>ficers are expected at times to investigate the actions <strong>of</strong> their own<br />
colleagues as the basis for the Attorney General Department’s decision on whether or<br />
not to file an indictment. This practice has resulted in poor investigations and<br />
lacklustre prosecutions.<br />
6. Conservative judicial attitudes<br />
It is a trite proposition, no doubt, that justice must be done according to the law. The<br />
law, in a criminal case, decrees that the prosecution is obliged to prove its case<br />
beyond a reasonable doubt. Reasonably, therefore, the Court cannot be expected to<br />
supply omissions on the part <strong>of</strong> the prosecution, ex mero motu, taking into<br />
consideration, a socio-political mores <strong>of</strong> the society at any given time. Yet the<br />
prevailing judicial attitude goes beyond this limitation, indicating a distinctly partial<br />
tendency to acquit the accused. This is exemplified in several acquittals in<br />
prosecutions in regard to the enforced disappearances <strong>of</strong> persons <strong>of</strong> both Sinhala and<br />
Tamil ethnicity examined in this research. Arguably, common to all these cases is a<br />
perception shared by prosecutors and the judges that these have been ‘extraordinary<br />
times’ and it would not be fair to impose strict standards <strong>of</strong> accountability on police<br />
<strong>of</strong>ficers and armed forces personnel. The higher judiciary therefore carries the<br />
enormous burden <strong>of</strong> restoring the values and principles <strong>of</strong> the rule <strong>of</strong> law as especially<br />
important to preserve in times <strong>of</strong> emergency, when principles <strong>of</strong> legal accountability<br />
have been proven vulnerable to patterns <strong>of</strong> impunity.<br />
7. Restoration <strong>of</strong> faith in the constitutional process<br />
Underscoring the above analysis, it is an imperative that public faith in the<br />
constitutional process is restored. This requires the restoration <strong>of</strong> constitutionalism as<br />
a measure <strong>of</strong> the Sri Lankan state’s commitment to foundational principles, including<br />
human rights and the rule <strong>of</strong> law. Adherence to the rule <strong>of</strong> law today in Sri Lanka –<br />
meaning adherence to the idea that in a democracy all stand equal before laws that<br />
protect fundamental rights - stands at its lowest point in post-independence history.<br />
The weakening and politicization <strong>of</strong> courts through constitutional amendments in<br />
1972 and in 1978, including the Supreme Court, the government’s bypassing <strong>of</strong> the<br />
17 th Amendment to the Constitution and loss <strong>of</strong> legitimacy in important monitoring<br />
bodies, such as the National Human Rights <strong>Commission</strong> and the National Police<br />
<strong>Commission</strong>, has resulted in a serious crisis <strong>of</strong> confidence in the judicial process and<br />
in constitutional institutions.<br />
The Constitution itself must be reformed, but without legitimating the practice <strong>of</strong><br />
constitutional change at executive whim. Despite many decades <strong>of</strong> enforced<br />
disappearances, we do not have a right to life constitutionally enshrined, unlike for<br />
example, the Indian Constitution, which has been used to good effect by India’s<br />
Supreme Court in the voluminous spread <strong>of</strong> public interest litigation. Very recently,<br />
Sri Lanka’s Supreme Court, due to the efforts <strong>of</strong> one or two <strong>of</strong> its liberal-minded<br />
judges, (in marked contrast to otherwise conservative judicial thinking), brought in an<br />
implied right to life, using the constitutional prohibition that no one should be<br />
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