Untitled - International Commission of Jurists

order principles, and the rule of law as the means to uphold that commitment, then the
question remains as to the content of those higher-order rules. Sri Lanka has seen a
gradual erosion of fundamental rights – including the right to life. This section
examines the part that the judiciary has played in weakening constitutional guarantees
and protections.
The pre-independence period had seen some assertive decisions cautioning the
executive in regard to the limits of its powers with regard to fundamental rights:
• the celebrated Bracegirdle Case, 62 in which a habeas corpus application was
decided in favour of the petitioner with Chief Justice Abrahams famously
rejecting the argument that an order of arrest made in the public interest by the
government could not be reviewed by court;
• the Thomas Perera alias Banda Case, 63 in which the Court affirmed its
authority to order the discharge of a prisoner where a warrant of a
Commissioner of Assize remanding a prisoner to custody was found to be ex
facie defective.
It is worth noting that in the earlier W.A. De Silva Case, 64 in an application for a writ
of habeas corpus for the production of the body of W.A. de Silva, the court did not
venture beyond deciding on its right and duty to consider whether an “actual state of
war” existed or not, on basis that domestic disturbances presented all the features of
warfare and posed a threat to public security. Citing the Privy Council’s order in Ex
parte Marais, 65 it was held by the Court that once it is of the view that ‘an actual state
of war’ existed, then the acts of the executive, in this case the military authorities, in
the exercise of their martial law powers cannot be questioned in a court of law.
3.1. The Independence Constitution
The Independence Constitution in 1947 was rigorous in its rationale that the judiciary
must be established as a body separate from the executive and the legislature. The
Chief Justice and the Judges of the Supreme Court were appointed by the Governor
General, held office during good behaviour and could not be removed from office
except by the Governor General upon an address of the Senate and the House of
Representatives. A Judicial Service Commission consisting of the Chief Justice, a
judge of the Supreme Court and any other person who shall be or shall have been a
Judge of the Supreme Court was authorized to appoint, transfer, dismiss and exercise
disciplinary control over all judicial officers, except a judge of the Supreme Court and
a Commissioner of Assize. The appointments of judges of the apex court were in the
hands of the Governor General, a representative of the Queen and as such, the
appointments were sought to be distinguished from considerations that may govern
national politics.
From 1947-1972, when this Constitution was in place, the illegality of any usurpation
of judicial power by the executive or the legislature was affirmed in unequivocal
62 [1937] 39 NLR 193.
63 [1926] 29 NLR 52.
64 [1915] 18 NLR 277.
65 (1902) AC 109.
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