Untitled - International Commission of Jurists

The Court’s reasoning at times appeared to stretch the limits of a constitutional bar
against petitions unless filed within one month of the occurrence of the alleged
infringement (Section 126(2) of the Constitution). 109 In NWM Jayantha Wijesekera
and Others v. Attorney General and Others, 110 the Supreme Court ignored the 20-year
delay in bringing the petition on the questionable basis that the alleged infringement
was a ‘continuing violation.’ 111 Such flexibility in disregarding the constitutional time
bar was not evidenced by the Court in relation to allegations involving torture and
other such violations to life and liberty. Judgments on arbitrary arrests and detentions
during the years 2000-2006 were rare and failed to articulate significant principles in
the protection of these rights. 112
An international investigation commented on the personalized and politicized nature
of the Court’s jurisprudence:
“The judiciary is currently vulnerable to two forms of political influence: from
the Government and from the Chief Justice himself. The nature and degree of
influence oscillates between the two and depends on the relationship between
them at the time. The perception that the judiciary suffers from political
influence has arisen in recent years due to the excessive influence of the Chief
Justice, the apparently inconsistent jurisprudence of the Supreme Court in
relation to certain issues and through tensions between the judiciary and the
executive… The perceived close relationship between the Chief Justice and
the Government has from time to time made individual judges reluctant to
return judgments that may be perceived to be critical of the executive. This
may be illustrated by the scarcity of dissenting judgments during his tenure in
office.” 113
The exceptions to the above negative trend by one or two judges known to be
consistent in their judicial approach in this regard included bringing in an implied
right to life 114 as well as efforts to further rein in emergency laws 115 and the
unconstitutional actions, the Court directed that the hotel which had been built on the acquired land
should be used for government institutions and for a research institute.
109 Where knowledge on the part of the petitioner is required in the circumstances of the case, time
would begin to run from the point that the requisite knowledge and intention come together -
Gamaethige v Siriwardene [1988] 1 Sri LR 385. Also, Hewakuruppu v GA de Silva, Tea Commissioner
et al, (SC FR No 118/84 SCM 10.11.1984), Mahenthiran s AG (SC FR No 68/1980 SCM 05.08.1980).
These cases are authority for the principle that it is only in exceptional circumstances that the time limit
can be relaxed, including inter alia, where there is no delay on the petitioner’s part and applying the
principle of lex non cogit ad impossiblia where, for example, a petitioner has been held
incommunicado.
110 FR Application Nos 243-245/06, SCM 16/10/06, judgment of Chief Justice Sarath Silva.
111 ibid, at p. 22 of the judgment.
112 Pinto-Jayawardena, Kishali and Kois, Lisa in ‘Sri Lanka – the Right not to be Tortured; A Critical
Analysis of the Judicial Response’, Law & Society Trust, 2008, at pp. 7-9.
113 See “Justice in Retreat: A report on the independence of the legal profession and the rule of law in
Sri Lanka” IBAHRI Report May 2009 at p.7. The socio-religious impartiality of the Chief Justice’s
office was further affected during this period by Sarath Silva commandeering a television programme
to himself where he proceeded to regularly pronounce on Buddhist religious precepts.
114 Sriyani Silva v. Iddamalgoda, [2003] 2 Sri LR 63 per Justice Mark Fernando and Wewalage Rani
Fernando (wife of deceased Lama Hewage Lal) and others v. OIC, Minor Offences, Seeduwa Police
Station, Seeduwa and eight others, S.C. (FR) No. 700/2002, SCM 26.07.2004, per Justice Shirani A.
Bandaranayake). Both decisions are important for the Court’s recognition that (in the absence of an
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