Untitled - International Commission of Jurists

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.
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