Untitled - International Commission of Jurists

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.
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