Untitled - International Commission of Jurists

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assembly and association of trade unions were severely curtailed. After the insurrection, about fourteen thousand people were arrested. Charges of conspiracy to wage war against the Queen, ‘conspiracy to overawe by means of criminal force’ the Government of Ceylon, waging war in various places in Ceylon and abetment of the waging of such war were served on the suspects. A particular feature of this period was the enactment of the Criminal Justice Commission Act No. 14 of 1972 (‘the CJC Act’). The drafting of the CJC Act commenced in 1971 and was assented to by the Governor-General on 8 April, 1972, a little over a year after the insurrection. None of the several thousands in custody were brought to trial until the CJC Act had been passed. The principal purpose of the Act was two fold: to deal with the persons involved in the insurrection and with persons who committed offences in relation to currency or foreign exchange on such a scale as to endanger the national economy. In the exercise of these two functions, the CJC sat as the Criminal Justice Commission (Insurgency) and Criminal Justice Commission (Foreign Exchange). The CJC was brought into being on the basis that the practice and procedure of the ordinary courts were inadequate “to administer Criminal Justice for the purpose of securing trial and punishment of the persons who committed such offences.” 21 It was established by a warrant of the Governor-General being of the opinion that the offences against the State committed either during a rebellion or insurrection or exchange control offence could not be dealt with by the normal laws. 22 Section 11 stipulated that an inquiry before a Commission was to be free from the formalities and technicalities of the rules of procedure ordinarily applicable to a court of law and was to be conducted in a manner not inconsistent with the principles of natural justice. Under Section 25, the findings made or sentence imposed by a Commission were decreed to be final and conclusive and could not be called into question “in any court or tribunal, whether by way of action, application in revision, appeal, writ or otherwise.” Section 11(2) (g) permitted the admission of a report of a person pertaining to the committal of the offences in question and made in the course of his official duties, the only restriction being that the report should not contain specific reference to the suspect on trial. 23 The provisions of Section 11 opened the door to the introduction in evidence, as substantive evidence, of confessionary statements made to police officers by suspects. This constituted a radical departure from the normal law, which had prohibited the leading of evidence of statements made by a suspect to a police officer that even suggested an inference of a confession. 24 The provisions of the CJC Act evoked criticism for politicizing the judicial system. 25 21 Criminal Justice Commission Act, No. 14 of 1972, Section 2(1)(b). 22 ibid, Section 2(1)(a). 23 However, at the inquiry the authors of these reports were called as witnesses and after being called upon to read their reports before the Commission, were subjected to cross’examination. 24 Evidence Ordinance, Sections 24, 25(1) and (2) and 26(1) and (2) shut out, in the normal course of events, three categories of confessions: confessions caused by an inducement, threat or promise, confessions made to a police officer, a forest officer or an excise officer and confessions made by any person while in the custody of these three categories of officers. The old cases went so far in their liberal reasoning as to affirm that the concept of ‘police custody’ does not ‘necessarily connote the 21
Thousands were tried under the Commission of Inquiry appointed in terms of this Act. Its five judges, presided over by the then Chief Justice H.N.G. Fernando, adhered to self-imposed standards of fairness in their inquiries despite the expansive powers bestowed on them by the statutory provisions. However, enacting an ad hoc law solely for the purpose of trying the 1971 youth insurrectionists set an unfortunate precedent. Many of its undemocratic provisions were reproduced in the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 (‘the PTA’), which afforded legal cover for abuses of human rights in the succeeding decades. On 22 May, 1972, Sri Lanka’s First Republican Constitution (‘the 1972 Constitution’) came into effect. It decreed state patronage for the protection and fostering of the Buddhist religion 26 and constitutionally enshrined the Sinhala language as the single official language of the courts and the administration. 27 The 1972 Constitution declared that the use of the Tamil language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958. 28 The 1972 Constitution represented a radical shift from the past. It displaced the constitutional safeguards specified for minorities under Section 29 (2) of the Independence Constitution (1948-1971) and weakened the judiciary in favour of what was proclaimed to be the overriding power of Parliament. Opposing the 1972 Constitution as anti-minority, the Tamil United Front (TUF) was formed by the Federal Party and the Muslim United Front on the basis that Tamils included all those in Sri Lanka whose mother tongue is Tamil. Later, the Tamil Youth League (TYL) was formed. One of its main causes of disaffection was the introduction of the ‘district quota’ system giving rural students an advantage over the urban student population. While this change in education policy adversely affected students of all ethnicities in the main cities, including Colombo and Jaffna, Jaffna-based students reacted with feelings of outrage against what they perceived to be an act of overt discrimination. Hostility between the government and the Tamil community increased when police attacked a gathering of the fourth conference of the International Association of Tamil Research in Jaffna, resulting in nine deaths. Thereafter, the tide of events turned quickly to open violence. An incipient Tamil militancy declared its first ‘victory’ by assassinating Jaffna Mayor Alfred Duriappah on 27 July, 1975. Duriappah had been targeted as a ‘government collaborator’ by the TUF senior politicians, who inflamed communal tensions with their express approval of the assassination. Such rhetoric was used to similar divisive effect by some of the immediate presence of police officers so long as the accused persons are aware that the place where they are detained is readily accessible to the police.’ R v. Gnanaseeha Thero [1968] 73 NLR 154. 25 In a 1975 Amnesty International report, it was pointed out that the judicial process had been ‘diluted to serve political purposes and that there should never have been a ‘compromise of justice’ of this nature which inflicted a ‘second –class system of justice for political offenders.’, see Amnesty International, ‘Report of An Amnesty International Mission to Sri Lanka,’ 9-15 January 1975, May 1976. 26 Article 7 of the 1972 Constitution. 27 ibid, Article 11. 28 ibid, Article 8(1). 22
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 16 and 17: investigative function that could m
Page 18 and 19: measures recommended in regard to r
Page 20 and 21: and Bandaranaike became the prime m
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
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: 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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