Untitled - International Commission of Jurists

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Though the drafters of second Republican Constitution of 1978 professed to right the wrongs of the past where the independence of the judiciary was concerned, this promise was only theoretical, and the opposite result ensued. The 1978 Constitution established the Supreme Court as the highest and final superior court with special jurisdiction in respect of, inter alia, election petitions, appeals, constitutional matters, fundamental rights and breach of the privileges of Parliament. 75 The appointment of judges of the superior courts was by an elected President “by warrant under his hand”. 76 The security and tenure of the judges were guaranteed and judges of the superior courts held office during good behaviour and could be removed only by a majority of the total numbers of Members of Parliament. The address for removal should be on grounds of proved misbehaviour or incapacity, with the full particulars of such allegations set out. 77 The JSAB and the JSDB were replaced by a Judicial Service Commission vested with the same powers. The JSC was to consist of the Chief Justice and two other judges of the Supreme Court, named by the President, who could be removed only for cause assigned. 78 These changes notwithstanding, the subordination of the judiciary deepened. The appellate courts were reconstituted by President Jayawardene using a constitutional clause that specified that all judges of the appellate courts shall, on the commencement of the new Constitution, cease to hold office. 79 Three months after the promulgation of the 1978 Constitution, the government-dominated legislature reversed through constitutional amendment the Court of Appeal’s decision against vesting retrospective power to a Special Presidential Commission of Inquiry appointed to look into the actions of former Premier Sirimavo Bandaranaike. The shift in the status of the judiciary was evident in public abuse and official statements. “Procedural difficulties in judicial officers taking the oath of allegiance under the Sixth Amendment resulted in the police locking and barring the Supreme Court and the Court of Appeal and refusing entry to judges who reported for work. Following unpopular decisions, judges’ houses were stoned and vulgar abuse was shouted at them by thugs.” 80 At every stage thereafter, the judiciary was intimidated by executive authority. One such illustration was the attempted impeachment of then Chief Justice Neville Samarakoon allegedly due to criticism of the government by him during the course of a speech at a school prize-giving day. The findings of a Select Committee appointed to investigate his conduct decided that there was no proven misbehaviour that could justify the Chief Justice’s removal. 75 Article 118. 76 Article 107. 77 Article 107 (2). 78 Article 112. 79 Seven out of the nineteen judges holding office were not re-appointed in what was widely interpreted as a warning to those judges who weere spared this humiliation. 80 The Daily News, 05.02.1981, cited in Pinto-Jayawardena, Kishali ‘Protecting the Independence of the Judiciary: A Critical Analysis of the Sri Lankan Law’ State of Human Rights Report 1999, Law & Society Trust, 1999, at p. 178. One such decision which attracted executive anger was the seminal Vivienne Goonewardene’s Case (1983 (2) FRD 426) where the police were reprimanded by the Court for excessive force in exercising their powers of arrest. 37
During this period, judicial interventions to protect rights were few and far between. In 1982, the government substituted a referendum for the general election that was then due but the courts upheld this substitution. 81 In the Thirteenth Amendment case, a slim majority of the Court confined itself to approving constitutional amendments on the technical basis that they did not violate the unitary nature of the state. 82 In a later judgment, the expulsion of former key Ministers of the government was upheld on the problematic basis that observance of the rules of natural justice did not apply on the facts of the case. 83 This period saw some of the worst of the excesses committed by the government in response to the systematic killings and assassinations of government politicians and public servants by the LTTE in the North and East and the JVP in other areas in the country. Despite these excesses by state forces and bolder jurisprudence concerning procedures for lawful arrests and detentions, 84 the Court was generally reluctant to intervene in contentious issues where the state was directly challenged. “It is well recognized that individual freedom has in times of public danger to be restricted when the community itself is in jeopardy, when the foundations of organized government are threatened and its existence as a constitutional state is imperilled.” 85 However, this abdication of judicial responsibility changed for the better by the late 1980s. Decisions began to be delivered articulating constitutional rights and the judicial expansion of such rights protections began even before the then UNP government was overthrown in the 1994 elections. The Court’s fundamental rights jurisdiction was expanded in several exemplary decisions during these pre 1994 years: • Mohammed Faiz v. The Attorney General, 86 in which a ranger obtained relief from the Supreme Court not only against the police officers who violated his rights but also against two Members of Parliament and a Provincial Council member who had “instigated’ this violation; • Joseph Perera v. The Attorney General, 87 which struck down an emergency regulation as being unconstitutional; • JanaGosha Case, 88 where the Court admonished police officers for interfering in a non-violent citizen protest against the Government; 81 4 th Amendment to the Constitution Bill (1978/83) DSCPB, 157. 82 In Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill [1987] 2 Sri LR 312. 83 Dissanayake v. Kaleel, [1993] 2 Sri LR135. 84 Kapugeekiyana v. Hettiaratchi [1984] 2 Sri LR 153 (affirming that a suspect cannot be kept longer than 24 hours in police custody; Kumarasinghe v Attorney General, SC Application No 54/82, SCM 06.09.1982. 85 per Soza J. in Kumaranatunge v. Samarasinghe, 1982 (2) FRD 347 where it was stated that reasons for arrest and detention under a Detention Order made by the Secretary, Defence need not be stated at the time of arrest. In Yasapala v Wickremesinghe (1982 (1) FRD 143, at p. 155) it was stated that the existence of a state of emergency was not a justiciable matter that the Court be called upon to examine and that the Court cannot be called upon to examine the reasonableness of a emergency regulation in this context. Both views were later categorically dismissed in judicial orders of the Court in the 1990’s. 86 [1995] 1 Sri LR 372, at p. 383. 87 [1992] 1 Sri LR 199, at p. 230. 88 Amaratunge v. Sirimal, [1993] 1 Sri LR 264. 38
Page 2 and 3: In exploring what constitutes a ver
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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
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Page 34 and 35: Declaration on Upholding Human Righ
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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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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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