Untitled - International Commission of Jurists

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majority pro-Sinhala political leadership. A prominent activist has since commented on the failure of senior Tamil politicians at that time to recognise the danger signs. “Those with nationalist sympathies had little difficulty in swallowing this propaganda [against Alfred Duriappah] and failed to ask where this was leading to. Planted in the minds of youth who were on the threshold of militancy, it was an instigation to kill.” 29 The senior Tamil leaders were accused by the government of practicing non-violence only in theory whilst encouraging violence against the State. Mainstream Tamil parties joined together to form the Tamil United Liberation Front (TULF). At its first National Convention, held at Vaddukoddai on 14 May, 1976 and presided over by S.J.V. Chelvanayakam, the TULF unanimously adopted a resolution calling for the formation of a separate state of Tamil Eelam. The politics of violence saw an upsurge after 1977 when the UNP, headed by J.R. Jayawardene, came into parliament on a two-thirds majority. With the electoral decimation of the SLFP, the TULF became the major opposition party after securing the North on a secessionist electoral campaign. Communal violence followed the elections. Tamils were killed in riots across the island, and large numbers were displaced. The killing of a police officer, Inspector Bastianpillai, led to the proscription of the militant movement later to become the Liberation Tigers of Tamil Eelam (LTTE). Using the COI Act of 1948, the Jayawardene government appointed a Commission of Inquiry into the incidents that took place between 13 August and 15 September, 1977, popularly referred to as the Sansoni Commission. The Second Republican Constitution (‘the 1978 Constitution’) came into effect on 31 August, 1978. It established the Executive Presidency and replaced the first-past-the-post electoral system with proportional representation. The 1978 Constitution recognised both Sinhala and Tamil as national languages while continuing to state that Sinhala will be the official language. 30 Tamil was eventually given official language status thorough constitutional amendments in the 1980s. 31 The Tamil community’s grievances might have been mitigated had these constitutional provisions been incorporated at the outset. That said, these provisions have been only weakly implemented to date. 32 29 Hoole, Rajan, op. cit, at p. 18. At p. 8, it is observed that “It is difficult not to be moved by Chelvanayakam. But on looking back, it is also difficult to avoid the conclusion that the isolation and exclusive sense of victimhood (that) Federal Party politics brought to the Tamils was unhealthy and ultimately tragic. There was little recognition by him that the Left which was then powerful in the South, took the same stand as the Federal Party on the key issues of the day- the citizenship and language issues. The possibility of an alliance was never taken seriously, if ever contemplated.” 30 Articles 18 and 19 of the 1978 Constitution in its unamended form. 31 2 nd , 4 th , 13 th and 16 th Amendments. 32 Shanthakumar, B. (ed.), ‘Language Rights in Sri Lanka – Enforcing Tamil as an Official Language,’ Law & Society Trust, 2008. The language issue is key in drawing lines between the Sinhala and Tamil people. A recent study done by the Official Languages Commission covering a population of over 3.5 million of which over 1.1 million were Tamil speaking people living outside the Northern and Eastern provinces found that, of the 6,626 public officials of all grades working there, only 627 or 9.5 per cent were proficient in Tamil. A similar study was conducted in the Northern and Eastern provinces found that (in respect of the over 1.5 million population in these provinces of which the Sinhala speaking population was a little over 365,000), only 98 or 18.1 per cent of the total of 540 public officials serving, were proficient in Sinhala - vide interview with Mr Raja Collure, ‘Official Languages Policy - 23
A chapter on justiciable fundamental rights protection was brought into the Constitution, but its impact was crippled by explicit provisions allowing for the continuation of laws enacted prior to 1978 even though unconstitutional. Judicial review of laws enacted after 1978 was disallowed except during a one-week period at bill stage. A number of key rights, including the right to life, were omitted, and it was stipulated that a challenge alleging a rights violation must be brought before the Court within one month of knowledge of such violation. Purportedly in response to the growing Tamil militancy, the Jayawardene government enacted the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979. 33 The PTA had a number of objectionable provisions. It prohibited engaging in ‘unlawful activity’, with retroactive effect; allowed preventive detention up to eighteen months on administrative orders, renewable every three months by detention orders; permitted confessions made to police officers at or above the rank of an Assistant Superintendent of Police (ASP) to be admissible as evidence; and put the burden of proving that confessions to a police officer were involuntary on the suspect. 34 Section 29 of the PTA limited its operation to a period of three years from the date of its commencement, but this provision was repealed in 1982, 35 transforming the ‘temporary’ law into a permanent statute. The first to be detained under the PTA in 1979 were not separatists but two Sinhalese activists of the (then) opposition SLFP in Kandy. This confirmed fears that the PTA would be misused to stifle opposition activity. Thereafter the PTA was used primarily in regard to the arrest and detention of alleged Tamil separatists. Meanwhile, ethnic tensions continued to increase. The killing of two police officers and a political candidate for the UNP in the North were followed by reprisal killings by the police. In what has become an eternal symbol of the historic breakdown in trust between the two communities, the Jaffna Public Library was burnt to the ground. By the early 1980s, Tamil militancy had become more violent and factionalized in competing groups: the Eelam People's Revolutionary Liberation Front (EPRLF), Tamil Eelam Liberation Organization (TELO), the People's Liberation Organization of Tamil Eelam (PLOTE), the Eelam Revolutionary Organization of Students (EROS) as well as the LTTE. Communal tensions were further heightened by the formation of a political party representing explicitly Muslim interests, the Sri Lanka Muslim Congress (SLMC). mere rhetoric?’ The Sunday Times, 05.07.2009. This interview also stressed the inefficacy of two circulars issued in early 2007, enhancing incentive payments for public servants acquiring proficiency in both Official Languages and making it necessary for all officers recruited to the public provincial public service with effect from 01.07.2007 to acquire proficiency in the other Official Language within a period of five years in addition to the official language through which they enter the service. 33 Soon after coming into power in 1977, the Jayawardene government repealed the Criminal Justice Commission Act No.14 of 1972 (CJC Act) (enacted by the previous United Front government) on the basis that its provisions were draconian. However, the PTA enacted by President JR Jayawardene proved how short lived these ambitions in ushering in a new era were; many of the problematic provisions in the CJC Act, particularly those admitting confessions made to police officers, were replicated in the PTA. 34 See s. 16, Prevention Of Terrorism Act [PTA], Parliament of the Democratic Socialist Republic of Sri Lanka Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 [Certified On 20 July, 1979]. 35 Section 4 of Act No. 10 of 1982. 24
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 22 and 23: assembly and association of trade u
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
Page 72 and 73: 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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