Untitled - International Commission of Jurists

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The Court of Appeal dismissed petitions challenging the refusal of the President to make the appointments to the CC in the manner stipulated by the Constitution on grounds that presidential immunity precluded legal challenges to his actions while in office. 44 The immunity bar has been held not to apply to actions of past Presidents 45 or to those public officers who rely on Presidential acts to justify their own transgressions of the law. In some instances, the judicial view has inclined towards holding that even the direct actions of the President are reviewable, as was the case in Silva v Bandaranayake 46 , where the majority examined the Presidential act of appointment of a Supreme Court judge though ultimately desisting from striking down the appointment. The law in respect of presidential immunity therefore remains inchoate and efforts have been made to delete this constitutional provision on the fundamental principle that no one should be above the law. The integrity and independence of several oversight mechanisms meant to supervise rights adherence by government bodies, including the Human Rights Commission of Sri Lanka (HRCSL) and the National Police Commission (NPC) in particular, suffered as a result. In 2007, the Human Rights Commission of Sri Lanka was downgraded from category A to category B by the United Nations International Coordinating Committee (ICC) of National Human Rights Institutions. 47 The several reasons that led to the downgrading included concerns regarding the independence of the Commissioners, given their unconstitutional appointments by the President, the actual practice of the Commission lacking the requisite balance and objectivity, and the Commission’s inability to ensure its political independence, and its failure to issue annual reports on human rights as required by the Paris Principles.. In mid-2009, the National Police Commission and the Public Service Commission (PSC) were rendered unable to function due to lack of quorum after the terms of several commissioners lapsed. Reportedly, the duties of the NPC and the PSC are being exercised by the relevant ministry secretaries even though their offices continue to be maintained on public funds. The terms of the current members of the Human Rights Commission have also lapsed. The President’s willingness to bypass democratic checks on his authority, combined with sweeping executive powers under expanded emergency laws, further centralized the power of the Executive Presidency. Against this background of disregarding minimum standards of constitutional governance, it was unsurprising that demands to the government to secure accountability for serious human rights violations were left unattended. In 2006, a commission of inquiry was established under the COI Act of 1948 to investigate fifteen selected incidents, later increased to sixteen, 48 that had occurred 44 Article 35 (1)of the Constitution. In Public Interest Law Foundation v. the Attorney General and Others, CA Application No 1396/2003, C.A. Minutes of 17.12.2003. [1997] 1 Sri LR 92 at 95. 45 The Waters Edge Case referred to later on. 46 [1997] 1 Sri LR 92 at 95. 47 Report and recommendations of the Sub-Committee on Accreditation, December 2007. 48 Commission of Inquiry appointed by President Mahinda Rajapakse in November 2006 to inquire into “alleged serious violations of human rights arising since 01.08.2005” (hereafter, the 2006 Commission) to Inquire into Serious Human Rights Violations. These cases include the assassinations of Minister Lakshman Kadirgamar, MP Joseph Pararajasingham, Kethesh Loganathan, the execution style shooting of 17 aid workers in Mutur and killings in Mutur, Trincomalee, Sancholai, Pesalai Beach, Keyts Police area, Pottuvil, Kebithagollawa, Welikanda, Digapathana and the disappearance of Rev Jim Brown. 29
during 2005 and 2006 as a result of the conflict in the North and East. Responsibility for these crimes had been attributed to one or the other of the warring parties: government forces, the LTTE and paramilitary forces, specifically, the Karuna faction. The fact that the Commission was ‘observed’ by eleven ‘eminent persons’ known as the International Independent Group of Eminent Persons (IIGEP) on a mandate issued by the Presidential Secretariat was considered to be an innovative part of this process. The Commission commenced its formal sittings in March 2007 and the team of observers, including many well-known international jurists, commenced their work thereafter. While the Government maintained that the Commission would be an effective force in ensuring accountability for rights violations, the investigations were systematically undermined by the lack of political will to secure responsibility for the violations under investigation. 49 The IIGEP’s queries were directed towards the integrity of the Commission process as well as the conflict of interest posed by the officers of the Attorney General’s Department assisting the Commission, given the fact that the Attorney General is a key defender of the government’s policies and often accompanied government delegations to international fora. These queries were met by indifference or hostility by government authorities, and as a result the IIGEP terminated its involvement with the Commission process in April 2008. 50 The Commission’s investigations were hampered by an absence of legal protections for witnesses and victims; a bill drafted for this purpose, though unsatisfactory in several respects 51 , has been pending in Parliament for two years. In June 2009, the Commission wound up its proceedings prematurely when its mandate was not extended by the Presidential Secretariat. This experience dealt a blow to what began as an innovative effort to uphold principles of accountability. Meanwhile, the government’s military offensive had continued unabated, leading to the decimation of the senior leadership of LTTE and its military forces by the end of May 2009 amidst allegations of widespread human rights violations by both parties to the conflict. What remains, despite the end to active fighting, is the question of justice for victims of decades of past violations that have shattered lives, families, communities and the society. This report sets out in detail the undermining of both the prosecutorial 49 Apart from Amnesty International’s ‘Twenty Years of Make-Believe, Sri Lanka’s Commissions of Inquiry,’ June 2009 and University Teachers for Human Rights (Jaffna) ‘A Travestied Investigation, Erosion of the Rule of Law and Indicators for the Future of Minorities in Lanka’ Special Report No 33, 2009, see also Civil Society letter to Chairman of the Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights Re Retirement from the Commission by Civil Society with Standing in Case No 2, 06.11.2008 and Centre for Policy Alternatives, ‘Commission of Inquiry and the International Independent Group of Eminent Persons; Commentary on developments’, CPA Policy Brief No 2, Colombo, 2007. 50 IIGEP public statement of 15.04.2008, http://www.iigep.org/prerelease/estatement7.pdf 51 For an analysis of the deficiencies in the Bill see Pinto-Jayawardena, Kishali, ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009 at p.142 and Law & Society Trust, ‘Objections to the assistance and protection to Victims of Crime and Witnesses Bill’, Position Paper, 17.06.2008. 30
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 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 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
Page 74 and 75: Notwithstanding these consideration
Page 76 and 77: The Commission’s recommendation t
Page 78 and 79: 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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