Untitled - International Commission of Jurists

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terms, 66 and clear guidelines laid down for the restrictions of life and liberty. 67 However, the Sri Lankan judiciary generally refrained from authoritative pronouncements on the protection of minorities. There are noticeable examples of this judicial caution. In 1948, the Citizenship Act was passed, disenfranchising Tamils of Indian origin, most born in Sri Lanka and living in the hill country tea plantations, and lacking Indian or any other citizenship. The Act was ruled invalid in the District Court on the basis of constitutional protections under Section 29(2), but its constitutionality was upheld by the Supreme Court in Mudanayake v. Sivanandasunderam. 68 The Court stated obiter that even if it was the intention of the framers of the Independence Constitution to have included Section 29(2) as a safeguard for minorities, such intention has not been manifested in the words chosen by the legislature. Section 29(2) decreed that Parliament could not enact any legislation that made persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religion were not made liable and similarly for privileges and advantages. Considering this question in the Privy Council, 69 the Councillors pointed out that it was a perfectly natural and legitimate function of a legislature of a country to determine the composition of its nationals and that the Citizenship Act No. 18 of 1948 could not be said to be legislation intended specifically to disenfranchise the Indian Tamils. Whatever may be the legal mores of these decisions, there is no doubt that the psychological and political effect of the Citizenship Act No. 18 of 1948 on the minorities was tremendously negative. Further attempts to utilize Section 29(2) to practically benefit the minorities also came to naught. It was argued in AG v. Kodeeswaran 70 that the Official Language Act was invalid due to Section 29(2) of the Independence Constitution and that a treasury circular stopping all payments to public servants who could not pass a proficiency test in the Sinhala language was consequently also invalid. The Supreme Court avoided the main question in issue in the case and decided the matter on the principle that the petitioner, being a public servant, could not sue the Crown for arrears of salary. This ruling was reversed by the Privy Council, 71 wherein an earlier assertion in Bribery Commissioner v. Ranasinghe, 72 was affirmed that section 29(2) of the Independence Constitution “represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution and are therefore unalterable under the Constitution”. The Privy Council sent the case back to the Supreme Court for determination of its constitutionality. However, the matter was not pursued further. In 1972, the interpretation of Section 29(2) of the Independence Constitution became an academic matter with the enactment of the First Republican Constitution, which eliminated Section 29(2) in its entirety. 66 Queen v. Liyanage [1962] 64 NLR 313; Liyanage v. the Queen [1965] 68 NLR 265; The Bribery Commissioner v. Ranasinghe [1964] 66 NLR 73; Senadheera v. the Bribery Commissioner [1961] 63 NLR 313. 67 Muttusamy v Kannangara [1951] 52 NLR, 324; Corea v. the Queen [1954] 55 NLR 457. 68 Mudanayake v. Sivanandasunderam, [1951] 53 NLR 25. 69 Koddakkan Pillai v. Mudanayake [1953] 54 NLR 433. 70 [1967] 70 NLR 121. 71 [1969] 72 NLR 337. 72 [1964] 66 NLR 73, at p. 78. 35
In the early 1970s, several judicial decisions validated executive actions restricting liberty rights during emergency in what was to be a troublesome precursor of things to come. 73 3.2. The First Republican Constitution of 1972 With the enactment of the First Republican Constitution in 1972, even the minimum guarantees of judicial independence in the 1948 Independence Constitution were swept away and the judiciary was openly subordinated to the political structures of the day. The National State Assembly was declared to be the sole and supreme repository of power. Article 3 stated that the judicial power of the people through courts and other institutions created by law may be exercised directly by the National State Assembly. The right of appeal to the Privy Council was done away and by Article 122, the appointment of judges of the higher courts was vested in a non-elected President acting on the advice of the Prime Minister. The earlier Judicial Service Commission was replaced by a politicized Judicial Services Advisory Board (JSAB) and a weak Judicial Services Disciplinary Board (JSDB). The JSAB was not mandated to appoint judges of the minor courts but could merely recommend their names. The appointment was by the Cabinet of Ministers. The JSDB meanwhile exercised disciplinary control and dismissal of judges of the minor courts and state officers exercising judicial power but two members of this five-member commission were the Secretary to the Ministry of Justice and the Attorney General, thus effectively ensuring executive control over the judiciary. Even more significantly, judicial review of enacted laws was abolished. Instead, a Constitutional Court was established with the limited power to scrutinize bills within twenty-four hours when the bill was certified as being urgent in the national interest. The declaration of a state of emergency was allowed to be passed without a debate. Though the protection of specified rights was constitutionally declared, these provisions were rendered nugatory by the absence of an enforcement procedure. 74 Clashes between the judiciary and the executive became common. Illustratively the judiciary and the Bar united to protest against “invitations” being sent out by the then Justice Minister Felix Dias Bandaranaike on the inauguration of a subordinated Supreme Court under the 1972 Constitution. The newly set up Constitutional Court clashed head-on at the first sitting of the Court over the Press Council Bill when the legislature decreed that the court had no discretion to give a liberal interpretation to a specified time limit within which to determine the constitutionality of the Bill. The entire court resigned and a fresh court had to be appointed. 3.3. The Second Republican Constitution of 1978 73 Hidramani v. Ratnavale, [1971] 75 NLR 67; Gunasekera v. Ratnavale, [1972] 76 NLR 316 - where the disallowing of a habeas corpus application against the Secretary of Defence was made all the more ironic by the fact that earlier, in Gunasekera v. De Fonseka ([1972] 75 NLR 246), a similar plea on behalf of the same corpus (but this time with the important distinction that it was made against a lower ranking Assistant Superintendent of Police) was judicially allowed on the basis that the police officer was not personally aware of the actual offence of which the person arrested. 74 Only a single case alleging violation of fundamental rights was filed during this time in the District Court, Ariyapala Guneratne v. The Peoples Bank, [1986] 1 Sri LR 338. This case was in fact decided after the 1972 Constitution was replaced by the 1978 Constitution. 36
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 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 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
Page 80 and 81: (f) the measures necessary to preve
Page 82 and 83: were SLFPers. I was told, that area
Page 84 and 85: 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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