Untitled - International Commission of Jurists

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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. 47
administration of justice, the fact that so many petitioners sought the assistance of courts via its habeas corpus jurisdiction bears witness to their faith, that if they could only access the Judge of the land, they would have their attention, which would in turn get them the required attention from all official quarters. 134 A number of general patterns are evident in these habeas corpus cases. In almost onethird of the applications analysed by the Commission, the petition had been dismissed or suspended for want of appearance of the petitioners. In the majority of cases, the respondents themselves had not attended courts throughout the inquiry but had been legally represented by counsel. The court had, in turn, accepted the applications made on their behalf that they were unable to be physically present due to service demands, thereby avoiding the risk of positive identification by the petitioner. 135 The indigence of the petitioners in these applications was demonstrated by the fact that in the majority of the cases, they had been represented by legal aid organisations. In several instances, the petitioners had themselves “disappeared” or their lawyer had been killed and the case had been abandoned through fear for the safety of the remaining members of the family. The problem of the financial cost is also an important factor. In some cases, the Commission observed that the petitioners were unable to even gather sufficient money for the bus fare to attend the court hearings. 136 The Attorney General had, meanwhile, consistently appeared on behalf of the Army Commander and the Inspector General of Police, as the respondents in these applications. However, the Commission observed that the Attorney General had apparently abstained from appearing in instances where there was likelihood of a charge of an offence under the Penal Code to be tried later. In those cases, private counsel had been retained by the respondents. 137 Undue delay at every stage of the process is a further notable factor affecting habeas corpus writs. It was found in most of the cases that the application had been filed long after the date of the “disappearance” of the person, with the delay amounting to over one year in some instances. Once the matter had been taken to court, there was again excessive delay at all stages of the inquiry. In the first instance, the respondents often delay in filing their objections. These applications have been rarely been filed within three months of the filing of the petition and, in some cases, have taken as long as one year. Thereafter, once the case is ordered referred to Magistrate Court (MC) for a preliminary inquiry, as per the ordinary procedure, the inquiry itself has taken at least two years to complete. The reasons for the delay in the MC proceedings were explained in detail by a former Chief Magistrate and are here reproduced verbatim given their importance in indicating why the habeas corpus remedy in Sri Lanka has lost its effectiveness. 138 134 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 99. 135 ibid, evidence of a former Chief Magistrate as given to the Commission. 136 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No V, 1997, at p. 104. 137 ibid, at p. 99 – evidence of a former Chief Magistrate as given to the Commission. 138 ibid. 48
Page 2 and 3: In exploring what constitutes a ver
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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
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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
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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 46 and 47: however, linked the habeas corpus a
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
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The Batalanda Commission recommende
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3.3.3. The Bindunuwewa Commission D
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ecommendation to this effect by the
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As of 31 December 2000, according t
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much affected by the awareness that
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Chapter Four - Evaluating Sri Lanka
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pattern of harms, to recommend meas
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justified and spelled out in the ma
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against any particular soldier or s
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analysis, these pillars of the judi
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competence. Their findings must be
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Regardless of the amendment however
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It was recorded by at least some of
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6.4. Affording alleged perpetrators
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Chapter Five - Sri Lanka’s Crimin
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to the attention of the Court in an
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2.1. First Information Reports In a
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arrests. In consequence, most of th
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Lengthy delays in filing indictment
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officers who were prepared not only
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prosecutor’s office would be to i
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y the byzantine and unfair burdens
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[…] while those in authority hold
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5.2. Language Issues at Trial Stage
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enforced disappearance; (ii) Exerci
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as to why specific reform of the cr
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6.3. Absence of a Specific Crime of
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camp. Scrutiny of the evidence in t
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any direct or indirect physical or
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have been adjourned by the relevant
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fact, acknowledged. 563 The accused
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The Human Rights Committee affirmed
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Thavaneethan v. Dissanayake [2003]
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Dias v. Abeywardene [1966] 68 NLR 4
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Vadivel Sathasivam and Parathesi Sa
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Criminal Courts Commission, Session
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Keenan, Alan, ‘Making Sense of Bi
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Principles on the Effective Prevent
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United Nations Human Rights Committ
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Pinto-Jayawardena, Kishali, ‘Furt
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Untitled - International Commission of Jurists

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