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was also spared the distinction of hearing socially or politically sensitive cases. Even if I was accommodated on a bench at the leave stage, once my views were known to be contrary to certain others, I would never be given that case thereafter. Therefore I am unable to refer to any rational basis except to come to the conclusion that particular objectives were the only rational basis adhered to!” 100 The nomination of junior judges in the constitution of benches to hear important matters was a particularly troubling feature of the judicial culture during this period. This practice was vividly illustrated in Victor Ivan v. Hon. Sarath Silva, 101 in which Chief Justice Silva, contrary to judicial practice hitherto held sacrosanct, nominated a Divisional Bench of the most junior judges on the Court to hear the petitions that had been lodged alleging that he was not competent to hold judicial office. The Court 102 decided that the impeachment was a question to be determined by Parliament and not by the Court as the constitutional remedy was in Parliament. This decision appeared to contradict an earlier case when Parliament was about to debate the first impeachment motion against the Chief Justice in 2001. On that occasion, the Supreme Court issued a stay order on Parliament seeking to restrain it from debating on the matter. In an order handed down by then Speaker Anura Bandaranaike, Parliament refused to accept the Court’s stay order. The impeachment motion was defeated by the President’s unilateral dissolution of Parliament. Beyond these specific matters that raised questions regarding the impartiality of the judiciary, a pattern of intimidation, unfair dismissal, and disciplinary action against subordinate judges of High Courts, District Courts and Magistrates Courts also became evident. International monitors warned that the independence of Sri Lanka’s judiciary was being seriously undermined. 103 Impeachment motions filed against the Chief Justice in 2001 and 2003 were prevented by the summary dissolution and prorogation of Parliament by President Kumaratunge. These developments had a deleterious impact on the Court’s jurisprudence. A further dimension of these developments was the marked shift in the Supreme Court’s relationship with the executive. From late 1999 onwards up to about late 2005, the Court, under then Chief Justice Sarath Silva, was characterized by deference 100 ‘Justice on a razor's edge’ The Sunday Leader, 31 0ct.2004.’ and also “Top judge hits out at judicial process” Daily Mirror, 20.10.2004. 101 [2001] 1 Sri LR 309. 102 per Justice S.W.B. Wadugodapitiya. 103 See Report by the United Nations Special Rapporteur on the Independence of the Judiciary, (April 2003), E/CN.4/2003/65/Add.1, 25.02.2003 and among several relevant press releases of the Special Rapporteur, see releases dated 27.02.2003 and 28.05.2003. See also Report of the Human Rights Institute of the International Bar Association, (IBAHRI) ‘Sri Lanka: Failing to protect the Rule of Law and the Independence of the Judiciary,’ November 2001. A more recent report following a second mission of the IBAHRI reiterated these concerns regarding the need to secure the independence of Sri Lanka’s judiciary, see “Justice in Retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka” May 2009. This second report of the IBAHRI takes note of the fact that though Chief Justice Silva had, during the last two years of his ten year term, presided over several judgments critical of the Rajapakse government’s record of good governance, some of these judgments raised concerns that the judicial reasoning thereof was not based on ‘any proper rationalization of the law in this area but appears to be a tool to provide the Chief Justice with the opportunity to pronounce on populist issues’, see at p. 35. . 41
to the government of the day, led by President Chandrika Kumaratunge. 104 In abrupt contrast, during the last three-and-a-half years of this Chief Justice’s term, he himself appeared to take the court in unpredictable directions. While this period was marked by several judgments holding the government to account, 105 other decisions were criticized for trespassing on legislative and executive authority. The government, further undermining the credibility of the judiciary, ignored the orders in many of these cases. For example, Rodrigo v. Imalka, 106 the right to be free from arbitrary arrest was upheld by the Chief Justice with the further, less predictable decision that all permanent checkpoints in the capital ought to be demolished as due process had not be followed in erecting them. This Court order led to consternation as the order came amidst the escalation of the war between the government and the LTTE. The authorities ignored the decision without apparent consequence. In Ashik v. Bandula, 107 popularly known as the ‘Noise Pollution Case,” the Chief Justice prohibited the earlymorning use of loudspeakers by religious institutions. The practice continued unchanged. In the ‘petroleum prices decision’, the Court ordered that petrol prices for consumers should be reduced, with no effect. 108 104 One such explicit example was in relation to Supreme Court Fundamental Rights Application No 633/2001, filed by the Free Media Movement against the Commissioner of Elections and main state electronic media, the Sri Lanka Rupavahini Corporation (SLRC) in regard to a forthcoming General Election scheduled to be held on 05.12.2001. The doctrine of Public Trust was invoked by the petitioners in urging that the state television channel should not be used for party propaganda purposes for a forthcoming election as it was run with state money and was therefore held in trust by the government for the public. However, when the matter was called for hearing on 26.11.2001, (ten days before the scheduled elections) the then Chief Justice refused to give an early date for the respondents to report back to court prior to the elections despite request of counsel, given the urgency of the matter. Costs were threatened to be awarded against the petitioner for coming before Court and the Chief Justice made the extraordinary observation that the petitioner should turn off the state television channel and switch to another channel if he found the former to be biased in its coverage. This case, and several other cases, had been listed in the aborted impeachment motions filed against the then Chief Justice during this period. Despite these orders rejecting the Doctrine of Public Trust during Kumaratunge’s term, the Chief Justice however, (during the last year of his term in particular), went on to deliver several decisions against Kumaratunge’s presidential successor, Mahinda Rajapakse precisely on this same doctrine of Public Trust. 105 Centre for Policy Alternatives v. Victor Perera (SC, FR Application No 177/2007, SCM 05/05/2008) where the mass scale evictions of lodgers of Tamil ethnicity from lodging houses in Colombo was halted and a case filed by the Ceylon Wokers Congress (SC Fr Application No 428/2007, SCM 19.12.2007) in relation to arbitrary arrests and detentions where the Court made several orders relating to the formulation of a scheme to be adhered to in respect of arrests and detentions and a new Court to be established to consider these arrests and detentions (SCM 27.02.2008 and SCM 02.04.2008). 106 SC, FR Application No. 297/2007, SCM 03.12.2007. 107 SC, FR Application No. 38/2005, SCM 07.11.2007. 108 “In this instance, the government publicly stated that it would not fully implement the initial order as this would be ‘contrary to the war effort’’ see IBAHRI Justice in Retreat: A report on the independence of the legal profession and the rule of law in Sri Lanka” May 2009, at p. 37. In early 2009, the Court was again rendered impotent when the government refused to implement its order in an oil hedging contract that was legally impugned. In another set of decisions, the Supreme Court appeared to enter into direct conflict with the President. In the “Waters Edge” Case, the actions of former President Chandrika Kumaratunge regarding a land acquisition during her term of office were impugned. The President was forced to pay a fine under a decision of the Chief Justice. Many observers related this decision, in marked contrast to the earlier deference shown the President, to a disputed judgment relating to the President’s term of office, as a result of which the presidential elections were held in November 2005 rather than (as Kumaratunge would have preferred) in 2006, reducing her term in office by one year. 108 In the Water’s Edge case, in addition to imposing a fine for 42
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
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Page 26 and 27: The violence reached a crescendo in
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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 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
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
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Page 66 and 67: Chapter Three - Commissions of Inqu
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Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
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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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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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