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