Untitled - International Commission of Jurists

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