Untitled - International Commission of Jurists

• Perera v. AG 89 and Wickremebandu v. Herath, 90 in which finality or ouster
clauses in respect of emergency regulations were held not to preclude the
power of courts to scrutinize the constitutionality of the same;
• Premachandra v. Jayawickreme, in in matters of political decision-making
was distinguished from a case in which the appointment of a Chief Minister by
a Governor was declared not to be a purely political act and therefore open to
judicial review. 91
In 1994, the new Kumaratunge administration was expected to cement the foundation
of its electoral mandate for a changed political culture by preserving the independence
of the judiciary. What actually occurred was quite the reverse. Immediately after the
elections, several judgments of the Court offered a glimpse into what may have been
possible made if the judiciary had been allowed to continue to work unhindered. 92 In
particular, attempts by the executive to abuse emergency powers were consistently
struck down. 93 This was the high point of the Court’s integrity and determination to
assert its independence in regard to safeguarding the liberty of citizens.
However, by the late 1990s, increasingly assertive judgments by the Court had begun
to anger President Kumaratunge and her Ministers. An International Commission of
Jurists’ Mission to Sri Lanka in 1997 observed these worrying trends.
“There are (however) some matters of concern. […] [We] are worried that the
President has made a number of public statements critical of the judiciary – for
example- after the Cooray case, 94 she made what was described to us as
intemperate remarks about the judiciary during a question and answer session
on television.” 95
Also relevant in this context was the open disparagement of judges by senior
Ministers of the Government following adverse judgements by the Supreme Court. 96
89 [1992] 1 Sri LR 199.
90 [1990] 2 Sri LR 348.
91 Premachandra v. Jayawickreme [1993] 2 Sri LR 294 - CA) and [1994] 2 Sri LR 90 at p. 105 - SC).
The Court claimed the power to decide whether the Governor’s action was reasonable and stated that in
the instant case, the appointments should be set aside and fresh appointments made. ‘This case, in
particular, is interesting as the court could have chosen an easier option by pleading political
discretion as a reason for non interference’ see Pinto-Jayawardena, Kishali in ‘Protecting the
Independence of the Judiciary: A Critical Analysis of the Sri Lankan Law’, op. cit.
92 See for example, among a plethora of decisions in this regard, the Broadcasting Authority Bill case,
(Atukorale v. The Attorney General, SD no 41-15/97) in which a bill which sought to set up a state -
aligned broadcasting authority with extensive powers to grant or refuse licenses to
private broadcasters was declared unconstitutional; Fernando v. Sri Lanka Broadcasting
Corporation, [1996] 1 Sri LR 157 declaring an infringement of the freedom of speech of a participatory
listener to a radio programme when this was abruptly cancelled.
93 The landmark Wadduwa Case, (Channa Peiris v. AG [1994] 1 Sri LR 1) and the Sirisena Cooray
Case (Sunil Rodrigo v. de Silva [1997] 3 Sri LR 265) both of which upheld inter alia the rights of
freedom from arbitrary arrest and detention under emergency rule.
94 Sunil Rodrigo v. De Silva, [1997] 3 Sri LR 265.
95 ‘Judicial Independence in Sri Lanka,’ Report of a Mission, 14-23 September 1997, International
Commission of Jurists, 1998, at p 54.”
96 Remarks made by the late Jeyaraj Fernandopulle following the Court’s decision in De Silva & Others
v. Jeyaraj Fernandopulle and Others,[1996]1 Sri LR 22. Immediately prior to the deliverance of the
judgement in Silva v. Bandaranayake (1997 1 Sri. L.R. 92) where the Presidential appointment of a
Supreme Court judge was challenged, then Minister of Justice G.L. Peiris speaking in Parliament at the
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