Untitled - International Commission of Jurists

More documents

Recommendations

Info

however, linked the habeas corpus application with the disclosed violation of a fundamental right in terms of Article 13(4) of the Constitution and, reversing the order of the Court of Appeal, held the State liable in the absence of individual responsibility being proven. Justice Shirani Bandaranayake stated: “Considering the contents of Article 13(4), this Court has taken the position that no person should be punished with death or imprisonment except by an order of a competent court. Further, it has been decided […] that if there is no order from Court no person should be punished with death and unless and otherwise such an order is made by a competent court, any person has a right to live. Accordingly Article 13 (4) of the Constitution has been interpreted to mean that a person has a right to live unless a competent court orders otherwise. […] It is reasonable to conclude that the corpora were kept in the Army Camp with the knowledge and connivance of the Army officers. Hence, Army authorities are responsible to account for the whereabouts of the two sons of the appellant...” 122 These decisions by a few judges committed to the protection of rights were, however, overshadowed by contrary tendencies that undermined the integrity of the Court. In response to the Court’s failure to consistently protect fundamental rights, the United Nations Human Rights Committee accepted a number of individual communications filed under the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Up to mid-2009, twelve Communications of Views had been delivered in which the Committee found that Sri Lanka had violated its obligations in terms of the ICCPR, 123 effectively meaning that Sri Lanka’s Supreme Court had failed in its constitutionally-vested jurisdiction to protect rights. In fact, in two Communications, the Court’s own actions were put in issue when the Committee declared that the use of contempt powers by the Supreme Court abused civil liberties and called upon Sri Lanka to enact a contempt of court legislation. 124 In one Communication pertaining to the judicial process in particular, the Committee found that the Judicial Service Commission was engaging in the arbitrary disciplining of 122 Justice Bandaranayake, Kanapathipillai Matchavallavan v. OIC, Army Camp, Plantain Point, Trincomalee and others S.C. Appeal No. 90/2003, S.C. (Spl) L.A. No. 177/2003, SCM. 31.03.2005. The State was ordered to pay a sum of Rs.150,000 for each of the two sons of the appellant, who had disappeared in detention as compensation and costs. 123 Anthony Michael Emmanuel Fernando v. Sri Lanka, CCPR/C/83/D/1189/2003, adoption of views, 31.03.2005; Nallaratnam Singarasa v. Sri Lanka, CCPR/C/81/D/1033/2001, adoption of views, 21.07.2004; Jegetheeswaran Sarma v. Sri Lanka, CCPR/C/78/D/950/2000, adoption of views, 31.07.2003; Jayalath Jayawardena v. Sri Lanka, CCPR/C/75/D/916/2000, adoption of views, 22.07.2002; Victor Ivan Majuwana Kankanamge v. Sri Lanka, CCPR/C/81/D/909/2000, adoption of views, 27.07.2004; Sister Immaculate Joseph and 80 Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka v. Sri Lanka, CCPR/C/85/D/1249/2004, adoption of views, 21.10.2005; Sundara Aratchige Lalith Rajapakse v. Sri Lanka, CCPR/C/87/D/1250/2004, adoption of views, 14.07.2006; Raththinde Katupollande Gedara Dingiri Banda v. Sri Lanka, CCPR/C/D/1426/2005, adoption of views, 26.10.2007; Dissanayake Mudiyanselage Sumanaweera Banda v. Sri Lanka, CCPR/C/93/D/1373/2005, adoption of views 22.7.2008, Vadivel Sathasivam and Parathesi Saraswathi v. Sri Lanka, CCPR/C/93/D/1436/2005, adoption of views, 08.07.2008, Soratha Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, adoption of views, 24.07.2008 and Weerawansa v. Sri Lanka, CCPR/C/95/D/1406/2005, adoption of views, 17.03.2009). 124 Anthony Michael Emmanuel Fernando v. Sri Lanka, CCPR/C/83/D/1189/2003, adoption of views, 31.03.2005; Dissanayake Mudiyanselage Sumanaweera Banda v. Sri Lanka, CCPR/C/93/D/1373/2005, adoption of views 22.7.2008. 45
subordinate judicial officers, often not affording them a fair hearing or informing them of what the charges against them were. 125 The Government of Sri Lanka has not acted on Human Rights Committee’s recommendations. In some cases, such as Fernando v Sri Lanka, which involved a violation of ICCPR 9(1) as a result of the arbitrary sentencing for contempt by the Supreme Court, the government replied to the Committee saying that it could not implement the Views since it would be construed as an interference with the judiciary. In a 2006 judgment, Nallaratnam Singarasa v. Attorney General and Others, 126 a divisional bench of the Supreme Court ruled that Sri Lanka’s accession to the Optional Protocol to the ICCPR was unconstitutional. The opinion was based on the misconception that Human Rights Committee Views are binding on states. 127 A later advisory opinion of the Court, 128 again presided over by Chief Justice Silva, pronouncing that Sri Lanka’s legal regime conformed to international standards, was an indirect result of the furore caused by the Singarasa decision. 129 3.4. Writs by the Court of Appeal Insofar as the Court of Appeal is concerned, it has on occasion intervened proactively. One such instance was in 2002 when the Court quashed a circular issued by the DIG, Personnel and Training, dated 5 January 2001, directing all DIGG Ranges, SSPP Divisions (Territorial and Functional) to reinstate all officers who have been interdicted following the inquiries conducted by Disappearance Investigation Unit (DIU) and charged in courts but subsequently bailed out in connection with the cases of the enforced disappearance of persons. 130 Although the decision was undoubtedly important in the context of judicial developments pertaining to accountability for enforced disappearances, it applied only to a selection of police officers who had actually been indicted in connection with alleged crimes of enforced disappearances. Large numbers of police officers who had managed to escape the reach of the law remained unaffected; many of them serve in senior positions in the police force currently. 125 Soratha Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, adoption of views, 24.07.2008. 126 S.C. SpL (LA) No. 182/99, SCM 15.09.2006, per Chief Justice Sarath N. Silva who summarily brushed aside the views of the Committee in Nallaratnam Sinharasa v. Sri Lanka, (Communication No. 1033/2001, CCPR/C/81/D/1033/2001, adoption of views, 21.07.2004) which called upon Sri Lanka to amend Section 16(2) of the Prevention of Terrorism Act in order that the burden is not passed upon an accused to prove that his/her confession was involuntary. 127 Human Rights Committee Views issued in response to individual communications under the Optional Protocol are of normative and institutional significance as advisory opinons to States parties to the ICCPR and Protocol, but are not legally binding (which is the precise reason that the word “Views” is used in the Convenant). 128 In the Matter of a Reference under Article 129(1) of the Constitution, SC Ref No 01/2008, hearing on 17.03.2008. 129 Article 27(15) of the Directive Principles of State Policy (instructions binding on legislature and executive) in Chapter VI of Sri Lanka's 1978 Constitution mandates the State to "[…] endeavor to foster respect for international law and treaty obligations in dealings among nations." 130 Pathirana v. DIG (Personnel & Training) and others, C.A. Writ Application No. 1123/2002, C.A. Minutes 09.10.2006, per judgment of Justice S. Sriskandarajah. The court order was on the basis that the circular was ultra vires the Establishments Code which stipulated that where legal proceedings are taken against a public officer for a criminal offence or bribery or corruption the relevant officer should be forthwith interdicted by the appropriate authority. 46
Page 2 and 3: In exploring what constitutes a ver
Page 4 and 5: 3
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
Page 24 and 25: majority pro-Sinhala political lead
Page 26 and 27: The violence reached a crescendo in
Page 28 and 29: enforced disappearances were report
Page 30 and 31: The Court of Appeal dismissed petit
Page 32 and 33: process and commissions of inquiry
Page 34 and 35: Declaration on Upholding Human Righ
Page 36 and 37: terms, 66 and clear guidelines laid
Page 38 and 39: Though the drafters of second Repub
Page 40 and 41: • Perera v. AG 89 and Wickremeban
Page 42 and 43: was also spared the distinction of
Page 44 and 45: The Court’s reasoning at times ap
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
Page 64 and 65: confession made to the military pol
Page 66 and 67: Chapter Three - Commissions of Inqu
Page 68 and 69: excesses that had preceded the acti
Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
Page 74 and 75: Notwithstanding these consideration
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
Page 86 and 87: focused on allowing within its purv
Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
Page 92 and 93: ouster) clause ruling out judicial
Page 94 and 95: (g) The relief if any that should b
Page 96 and 97:
Interdiction from service of allege
Page 98 and 99:
The Batalanda Commission recommende
Page 100 and 101:
3.3.3. The Bindunuwewa Commission D
Page 102 and 103:
ecommendation to this effect by the
Page 104 and 105:
As of 31 December 2000, according t
Page 106 and 107:
much affected by the awareness that
Page 108 and 109:
Chapter Four - Evaluating Sri Lanka
Page 110 and 111:
pattern of harms, to recommend meas
Page 112 and 113:
justified and spelled out in the ma
Page 114 and 115:
against any particular soldier or s
Page 116 and 117:
analysis, these pillars of the judi
Page 118 and 119:
competence. Their findings must be
Page 120 and 121:
Regardless of the amendment however
Page 122 and 123:
It was recorded by at least some of
Page 124 and 125:
6.4. Affording alleged perpetrators
Page 126 and 127:
Chapter Five - Sri Lanka’s Crimin
Page 128 and 129:
to the attention of the Court in an
Page 130 and 131:
2.1. First Information Reports In a
Page 132 and 133:
arrests. In consequence, most of th
Page 134 and 135:
Lengthy delays in filing indictment
Page 136 and 137:
officers who were prepared not only
Page 138 and 139:
prosecutor’s office would be to i
Page 140 and 141:
y the byzantine and unfair burdens
Page 142 and 143:
[…] while those in authority hold
Page 144 and 145:
5.2. Language Issues at Trial Stage
Page 146 and 147:
enforced disappearance; (ii) Exerci
Page 148 and 149:
as to why specific reform of the cr
Page 150 and 151:
6.3. Absence of a Specific Crime of
Page 152 and 153:
camp. Scrutiny of the evidence in t
Page 154 and 155:
any direct or indirect physical or
Page 156 and 157:
have been adjourned by the relevant
Page 158 and 159:
fact, acknowledged. 563 The accused
Page 160 and 161:
The Human Rights Committee affirmed
Page 162 and 163:
Thavaneethan v. Dissanayake [2003]
Page 164 and 165:
Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167:
Vadivel Sathasivam and Parathesi Sa
Page 168 and 169:
Criminal Courts Commission, Session
Page 170 and 171:
Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173:
Principles on the Effective Prevent
Page 174 and 175:
United Nations Human Rights Committ
Page 176:
Pinto-Jayawardena, Kishali, ‘Furt
show all

Untitled - International Commission of Jurists

Create successful ePaper yourself

Delete template?

Save as template?