Untitled - International Commission of Jurists

The ineffectiveness of the writ remedy in this context is most clearly seen in the
habeas corpus remedy, which conceptually incorporates the recognition of every
person's right to freedom from arbitrary and other unlawful arrest and detention. The
remedy has been historically evidenced in Sri Lanka in respect of applications
challenging powers vested in the Commissioner of Immigration and Emigration in
cases of deportation or in cases of custody battles over minor children. Its use in cases
of enforced disappearances is however, more complex. Statistics furnished to the
1994 Western, Southern and Sabaragamuwa Disappearances Commission showed
the distinct increase in these applications being filed from 1988. 131 The jurisdiction of
the Court of Appeal in writ applications of habeas corpus invoked in terms of Article
141 of the Constitution was primarily sought during the period 1988 – 1990, which
was at the height of the violations. 132 The Court of Appeal was empowered to either
order that the individual concerned be produced in person in court or alternatively, to
order a court of first instance to enquire and submit a report on the alleged detention.
The increased resort to the habeas corpus remedy from the 1980s evidenced the
desperation of family members whose loved ones had been disappeared. 133
These cases constitute a poignant aspect of the efforts of relations to trace
disappeared loved ones, understood by them to have been taken away by the
State security forces. The poignancy lies in the fact of the denial to these
petitioners of the recourse to the ordinary procedures of law enforcement, i.e.
reporting to the area police, the reports being followed by an investigation by
the police, the contemporaneous police record of the incident of disappearance
and statements from witnesses and police reports to courts with the attendant
safeguards for witnesses including the complaints and assistance in evidence
regarding finger prints, blood samples, etc. and Court's assistance in obtaining
such records… In the face of this denial of the right of access to the system of
131 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission,
Sessional Paper No V, 1997, at pp. 98-110. The Register, Court of Appeal furnished the Commission
with a total number of habeas corpus applications registered annually in the years 1988 to May 1996,
and the numbers awaiting disposition by CA as at May 1996. These figures showed a total of 2755
cases with 330 of these cases pending. However, the statistics in these respects often contradict each
other. For example, the government, in the Fourth Periodic Report of Sri Lanka to the United Nations
Human Rights Committee, CCPR/C/LKA/2002/4, 18.10.2002, at para. 47, offers a different statistical
record. The Report states that from 1996 to June 2001, some three hundred and seventy four
applications had been filed. The statistics do not indicate how many of these applications were still
pending at the time of the report, and how many had been adjudicated.
132 Later, the remedy was also available from 1990 before the Provincial High Courts. The High Court
of the Provinces (Special Provisions) Act No. 19 of 1990 gave the High Courts authority to issue orders
in the nature of writs of habeas corpus in respect of persons illegally detained within the province and
to issue orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo
warranto against any person.
133 ‘The capital city was not only an alien place to most of the Petitioners, but was so far away that
many of them could barely afford the bus fare to get to the metropolis.… (this)indicated the sense of
desperation that moved them to brave their way to Colombo.’ - Final report of the 1994 Western,
Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 99. The
remedy was also available from 1990 before the Provincial High Courts. The High Court of the
Provinces (Special Provisions) Act No. 19 of 1990 gave the High Courts authority to issue orders in the
nature of writs of habeas corpus in respect of persons illegally detained within the province and to
issue orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto
against any person.
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