Untitled - International Commission of Jurists

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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 15
deprived of life unless through court order. However, these decisions remain vulnerable to later courts distinguishing or even departing from the principles so laid down. In any event, even where the Court has been bold in its interpretations, this has had minimal impact due to non-adherence by the political, law enforcement and military establishment. The need for the right to life to be incorporated as part of Sri Lanka’s constitutional framework and its protection secured through relevant government policies, institutions, and practices, remains a priority. 8. Limitations of Commissions of Inquiry In this context, foremost among this report’s recommendations is that commissions of inquiry must occupy their proper role vis-a-vis the prosecutorial system, and cease to be partisan mechanisms for punishing political opponents or for shielding perpetrators and institutions from responsibility for human rights violations. An analysis of the role of commissions of inquiry must begin from an appreciation of the way in which COIs have been used in customary international law, and their specific statutory and customary use in Sri Lanka. In the broadest terms, what is important to understand is that a commission of inquiry is a response to an extraordinary situation in which the regular justice system is unable otherwise to fulfill the State’s obligation to its citizens. In order to understand the way in which commissions of inquiry in Sri Lanka have failed to uphold these purposes and maintain the integrity of the prosecutorial system, one must begin with the statutory framework. As analyzed in more detail below, successive governments in Sri Lanka have relied upon the limited statutory framework of the Commission of Inquiry Act of 1948 (‘the COI Act’) in order to respond to public demands for accountability where grave harms have occurred. The framers of the statute, however, primarily sought to facilitate much more limited inquiries concerning the administration of any department of Government or the conduct of any member of the public service. In other words, the COI Act 1948 was never contemplated as a legal framework for large-scale inquiries into allegations of gross human rights violations that in which the State is the alleged perpetrator. The Act is therefore silent on ensuring that disclosures of criminal acts lead to prosecutions, and in ensuring victim and witness protection, as well as protecting the rights of those who may be later charged with criminal offences. Commissions of inquiry usually do not make final or binding determinations, nor are they focused on individual criminal responsibility. As a result, these inquiries are not bound by usual rules of evidence. While this allows greater flexibility in receiving testimony and establishing broad patterns and causes, it also can generate a contentious and politicized environment. Without adequate provision to safeguard the rights of alleged perpetrators and the safety of victims and witnesses, the commission can quickly become contentious and paralyzed by controversy and, frequently, threats and intimidation. In practice, the prosecutorial process in respect of some of the very cases investigated by these commissions has shown no regard whatsoever to the findings of these commissions. Similarly, where prosecutions against army and police officers have been recommended by these commissions, these have been disregarded. Detailed 16
Page 2 and 3: In exploring what constitutes a ver
Page 4 and 5: 3
Page 6 and 7: ABBREVIATIONS AC AG AHRC AI A-L ALR
Page 8 and 9: TAB TELO TUF TULF TYL UN UNHRC UNP
Page 10 and 11: government agencies may be unable o
Page 12 and 13: appointed under the Commissions of
Page 14 and 15: communities. Krishanthi Kumaraswamy
Page 18 and 19: measures recommended in regard to r
Page 20 and 21: and Bandaranaike became the prime m
Page 22 and 23: assembly and association of trade u
Page 24 and 25: majority pro-Sinhala political lead
Page 26 and 27: The violence reached a crescendo in
Page 28 and 29: enforced disappearances were report
Page 30 and 31: The Court of Appeal dismissed petit
Page 32 and 33: process and commissions of inquiry
Page 34 and 35: Declaration on Upholding Human Righ
Page 36 and 37: terms, 66 and clear guidelines laid
Page 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
Page 46 and 47: however, linked the habeas corpus a
Page 48 and 49: The ineffectiveness of the writ rem
Page 50 and 51: The Court of Appeal when sending th
Page 52 and 53: anything. We have received informat
Page 54 and 55: the findings of guilt against the a
Page 56 and 57: The Embilipitiya case is unique in
Page 58 and 59: police did not carry out the arrest
Page 60 and 61: sexual intercourse […].” 177 He
Page 62 and 63: accused even though the relevant do
Page 64 and 65: 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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much affected by the awareness that
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Chapter Four - Evaluating Sri Lanka
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pattern of harms, to recommend meas
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justified and spelled out in the ma
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against any particular soldier or s
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analysis, these pillars of the judi
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competence. Their findings must be
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Regardless of the amendment however
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It was recorded by at least some of
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6.4. Affording alleged perpetrators
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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