Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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subordinate judicial <strong>of</strong>ficers, <strong>of</strong>ten not affording them a fair hearing or informing<br />
them <strong>of</strong> what the charges against them were. 125<br />
The Government <strong>of</strong> Sri Lanka has not acted on Human Rights Committee’s<br />
recommendations. In some cases, such as Fernando v Sri Lanka, which involved a<br />
violation <strong>of</strong> ICCPR 9(1) as a result <strong>of</strong> the arbitrary sentencing for contempt by the<br />
Supreme Court, the government replied to the Committee saying that it could not<br />
implement the Views since it would be construed as an interference with the judiciary.<br />
In a 2006 judgment, Nallaratnam Singarasa v. Attorney General and Others, 126 a<br />
divisional bench <strong>of</strong> the Supreme Court ruled that Sri Lanka’s accession to the<br />
Optional Protocol to the ICCPR was unconstitutional. The opinion was based on the<br />
misconception that Human Rights Committee Views are binding on states. 127 A later<br />
advisory opinion <strong>of</strong> the Court, 128 again presided over by Chief Justice Silva,<br />
pronouncing that Sri Lanka’s legal regime conformed to international standards, was<br />
an indirect result <strong>of</strong> the furore caused by the Singarasa decision. 129<br />
3.4. Writs by the Court <strong>of</strong> Appeal<br />
Ins<strong>of</strong>ar as the Court <strong>of</strong> Appeal is concerned, it has on occasion intervened proactively.<br />
One such instance was in 2002 when the Court quashed a circular issued by the DIG,<br />
Personnel and Training, dated 5 January 2001, directing all DIGG Ranges, SSPP<br />
Divisions (Territorial and Functional) to reinstate all <strong>of</strong>ficers who have been<br />
interdicted following the inquiries conducted by Disappearance Investigation Unit<br />
(DIU) and charged in courts but subsequently bailed out in connection with the cases<br />
<strong>of</strong> the enforced disappearance <strong>of</strong> persons. 130<br />
Although the decision was undoubtedly important in the context <strong>of</strong> judicial<br />
developments pertaining to accountability for enforced disappearances, it applied only<br />
to a selection <strong>of</strong> police <strong>of</strong>ficers who had actually been indicted in connection with<br />
alleged crimes <strong>of</strong> enforced disappearances. Large numbers <strong>of</strong> police <strong>of</strong>ficers who had<br />
managed to escape the reach <strong>of</strong> the law remained unaffected; many <strong>of</strong> them serve in<br />
senior positions in the police force currently.<br />
125 Soratha Bandaranayake v. Sri Lanka, CCPR/C/93/D/1376/2005, adoption <strong>of</strong> views, 24.07.2008.<br />
126 S.C. SpL (LA) No. 182/99, SCM 15.09.2006, per Chief Justice Sarath N. Silva who summarily<br />
brushed aside the views <strong>of</strong> the Committee in Nallaratnam Sinharasa v. Sri Lanka, (Communication<br />
No. 1033/2001, CCPR/C/81/D/1033/2001, adoption <strong>of</strong> views, 21.07.2004) which called upon Sri<br />
Lanka to amend Section 16(2) <strong>of</strong> the Prevention <strong>of</strong> Terrorism Act in order that the burden is not passed<br />
upon an accused to prove that his/her confession was involuntary.<br />
127 Human Rights Committee Views issued in response to individual communications under the<br />
Optional Protocol are <strong>of</strong> normative and institutional significance as advisory opinons to States parties<br />
to the ICCPR and Protocol, but are not legally binding (which is the precise reason that the word<br />
“Views” is used in the Convenant).<br />
128 In the Matter <strong>of</strong> a Reference under Article 129(1) <strong>of</strong> the Constitution, SC Ref No 01/2008, hearing<br />
on 17.03.2008.<br />
129 Article 27(15) <strong>of</strong> the Directive Principles <strong>of</strong> State Policy (instructions binding on legislature and<br />
executive) in Chapter VI <strong>of</strong> Sri Lanka's 1978 Constitution mandates the State to "[…] endeavor to<br />
foster respect for international law and treaty obligations in dealings among nations."<br />
130 Pathirana v. DIG (Personnel & Training) and others, C.A. Writ Application No. 1123/2002, C.A.<br />
Minutes 09.10.2006, per judgment <strong>of</strong> Justice S. Sriskandarajah. The court order was on the basis that<br />
the circular was ultra vires the Establishments Code which stipulated that where legal proceedings are<br />
taken against a public <strong>of</strong>ficer for a criminal <strong>of</strong>fence or bribery or corruption the relevant <strong>of</strong>ficer should<br />
be forthwith interdicted by the appropriate authority.<br />
46