Untitled - International Commission of Jurists

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measures recommended in regard to reparations have also not been implemented beyond paying the victims small amounts of compensation. In addition, important limitations apply to their reports being made public. Consequently, public expectations in regard to the appointment of such commissions are minimal and invoke the most profound cynicism. 9. Methodology The analysis proceeds on an examination of published commission of inquiry reports together with confidential documentation that were part of these reports. In addition, it uses the vast resource base of information contained in other reports by government bodies (some of which are not easily accessible) and non-governmental organizations. This is supplemented by key interviews with those closely involved with the working of commissions of inquiry as well as with Sri Lanka’s justice system. As anticipated, analysis of the data in this regard was limited by the absence of an upto-date database of information as well as by inherent difficulties in accessing any information available in the first instance, given that there is no right to public information in court registries and/or information in the hands of the Attorney General. Access to court records in Sri Lanka is fraught with difficulties; court registries only entertain requests for information on a particular case from a lawyer appearing in the case or a party proven to have a sufficient interest. Applications made in the public interest are generally disallowed. A statutory right to information which addressed, inter alia, the public’s right of access to information held in government departments and courts still remains to be enacted into law though a draft bill was approved by the Cabinet as far back as 2003. In addition, though statistical information in relation to prosecutions for grave human rights violations is given in the periodic reports that Sri Lanka furnishes to the United Nations treaty bodies through the periodic reporting procedure, this information is, at times, incoherent and disjointed. Consequently, reference to such statistics is based on best available information, supplemented as much as possible through information supplied ad hoc by the Attorney General’s Department in the context of previous research engaged in by non-governmental organizations during alternative report writing to the UN treaty bodies. A further observation is that the alleged perpetrators implicated in many of the incidents of grave human rights violations examined in this report are still serving in official positions, including some who were subsequently promoted. Politicians implicated in these crimes are also still in active politics. Thus, caution has been taken in referring to these alleged perpetrators insofar as specific identification of individuals is concerned. 17
Chapter One – The Erosion of Judicial Remedies This section provides an overview of the history of political conflict in Sri Lanka, its relationship with constitutional developments, and the dynamic and changing independence, impartiality and effectiveness of the judiciary. 1. Violence and the Political Process Two singular legal events marked the early years of Sri Lanka’s independence. This was firstly, the passing of the Public Security Ordinance (‘the PSO’) No. 25 of 1947 by the then State Council, barely hours before Sri Lanka’s independence. 10 The PSO was passed not in an effort to suppress minority protests but rather to meet the threat of a general strike organised by leftist trade unions agitating against the failure of the Independence Constitution to secure workers rights. Members of these trade unions, including senior leftist leaders, were met with police violence when they attempted to hold meetings in the course of the protests. A number of protestors were seriously injured with one being killed in police fire. The second event occurred soon after the country gained independence in 1948 with power being vested in the hands of an elected United National Party (UNP) government comprising the English-educated Colombo elite, when the Ceylon Citizenship Act No. 18 of 1948 (‘the Citizenship Act’) provided that no person shall be qualified to have his name entered or retained in any register of election if he was not a citizen of the country. The practical effect of the Citizenship Act was to deny citizenship to approximately one-million Indian Tamil estate workers who were summarily deprived of the right to vote which they had been able to exercise since the grant of universal franchise in 1931. 11 Strong protests were articulated by Tamil politicians, most particularly, by S.J.V. Chelvanayakam who “foresaw in the legislation, dark times ahead for the minorities.” 12 In the following year (1949), Chelvanayakam and other Tamil politicians formed the Federal Party, with ‘Tamil self-determination within the state’, being one of their main demands. Communal divisiveness became more pronounced as both the Sinhala and Tamil political parties resorted to expedient communal politics. The Sri Lanka Freedom Party (SLFP) was formed by S.W.R.D. Bandaranaike in 1951 with its centre-left political orientation being buttressed by a mainly Buddhist Sinhala rural electoral base. Contesting from an electoral promise to establish the Sinhala language as the sole language of state, a SLFP-led alliance won the 1956 elections 10 The Public Security Ordinance (PSO) No. 25 of 1947 was passed on the eve of independence, on 16.06.1947, under the State Council (Order in Council) of 1931 (as amended subsequently by the State Council (Amendment) Orders in Council 1934 and 1935). It was passed under Article 72 of the Order in Council which enabled the Governor, “with the advice and consent of the Council to make laws for the peace, order and good government of the Island.” The Preamble to the Act states that it was passed with the advice and consent of the Council. 11 In the 1947 General Election, seven Tamil members of Parliament were elected by the workers in the hill country, see Sansoni Commission report, Sessional Paper VII – July 1980, at p. 71. 12 Hoole, Rajan, ‘The Citizenship Acts and the Birth of the Federal Party’, University Teachers for Human Rights (Jaffna), ‘Sri Lanka, The Arrogance of Power; Myths, Decadence and Murder’, Wasala Publications, Colombo, 2001, at p. 7. 18
Page 2 and 3: In exploring what constitutes a ver
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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
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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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