Untitled - International Commission of Jurists

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
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