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The Court of Appeal when sending the case to the Magistrate Court does not notify parties of a possible date when this case will be inquired into thereby leaving the MC to notify parties all over again. In some cases, although the Court of Appeal has identified the location of the respondents more fully than is described in the petition (which very often only contains an address of the temporary camps). This is not notified to the MC and the MC has to take steps to find the Respondents all over again. If the petitioner dies during the pending of the inquiry, there are no provisions under which the MC can act of its own volition and the case has to be referred to the CA and sent back to the MC. Further, both the Chief Magistrate and the Registrar of the High Court gave evidence as to the volume of work already handled by the MC and the difficulty in accommodating the large influx of cases of the High Court that were sent to the Chief Magistrate in one go. When the cases are returned to the Court of Appeal by the Magistrate's Court, there is usually a delay of several months before the Court hears the arguments based on the findings of the Magistrate. In fact, in several cases, although reports have been sent to the Court of Appeal in 1995, no final decision of the Court of Appeal is available as yet. Thus, in cases where a magisterial inquiry has been ordered and findings made by the Court of First Instance against the respondents, there is a time lag of approximately 7 years from the date of disappearance to an order from the Court of Appeal regarding this disappearance. In this period, petitioners have died or left the country seeking employment or have lost interest in the case; The respondents have also died and several have left the service before the completion of the action against them thereby rendering impossible any disciplinary action that can be taken against them in cases where there are findings against them. 139 These problems, although though pointed out at least since the 1990s, persist. Currently, even though this remedy is now being resorted to primarily before the Provincial High Courts, the problems of delays that plagued the Court of Appeal processes are reflected in the Provincial High Court processes as well. The delays are most particularly seen in ‘sensitive cases’ emanating from the conflict in the North-East. For example, in one habeas corpus application filed in the High Court of Jaffna in 2003, the matter has been continuously postponed following its referral to the Magistrates’ Court for preliminary inquiry. The relevant journal entries indicate that in most instances, postponements have been at the instance of the state counsel appearing for the respondent army officers. 140 Other general reasons for postponements include the inability of witnesses to be present; absence of a competent interpreter; and unspecified ‘personal grounds’ of counsel appearing in the applications. In addition, the tense security situation continually prevalent in these areas has also resulted in the postponements of hearings. 139 ibid. 140 HCA No. 08/2004, Minutes of the Magistrate’s Court of Chavakatcheri, 12.02.2007. 49
In many cases, requests are made by the respondent army or police officers to transfer the cases from the relevant Provincial High Court to the Colombo High Court or to the Court of Appeal for hearing. However, the problem with this transfer process is that witnesses are compelled to travel all the way from their places of residence to the capital city to attend the case. Where habeas corpus applications are transferred from the High Courts in the North-East such as Jaffna, Trincomalee or Batticaloa, travelling becomes especially problematic for petitioners of Tamil ethnicity, who are unable to withstand the rigorous security checks prevalent in the city, quite apart from the financial constraints involved. 141 Further, the judicial response to the writ remedy of habeas corpus has been inconsistent and unpredictable, as recent studies have shown. 142 A positive trend was evidenced in the 1980s and early 1990s in holding the authorities responsible where the victim, upon being arrested and detained by the police or army, thereafter “disappeared”. 143 Later applications however, (particularly concerning cases from the North and East), were dismissed, inter alia, for technicalities such as errors in spelling the name of the abductor or the particular army camp which an aggrieved person has named in his or her petition. The mere denial of the allegations of the petitioner by the head of the police or the head of the army, has resulted in dismissal of the application. 144 The extreme delay and frustration affecting petitioners in habeas corpus applications was also commented upon by the 1998 All-Island Disappearances Commission. We filed a Habeas Corpus application in the Court of Appeal. The Bar Association’s Human Rights Committee helped us to file the case. The cases were postponed several times up to 1997. After 1997, we have not heard 141 Pinto-Jayawardena, Kishali ‘The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, at p. 131. 142 See De Almeida Guneratne, Jayantha and Pinto-Jayawardena, Kishali in ‘Liberty Rights at Stake; The Virtual Eclipse of the Habeas Corpus Remedy in Sri Lanka’ Law & Society Trust and ARD Inc. (forthcoming). This study examines more than 880 decisions of the Court of Appeal and the Supreme Court from the pre-independence period to the present date and critiques the judicial response in that regard. A particular aspect of the study is its focus on the continuing inefficacy of the habeas corpus remedy in the Provincial High Courts with over 50 pending matters examined for this purpose. 143 ibid. For example, Dhammika Sriyalatha’s Case, CA (HC) 7/88- C.A. Minutes of 7 th July, 1988 (the burden rests on the respondents to justify the arrest and detention of the petitioners and the respondents must show that the regulations which gives them the power to arrest/detain is covered by one of the constitutionally permissible grounds of restriction,eg. interests of national security or public order); Violet and others v. O.IC Police Station, Dickwella and Others, [1994] 3 Sri LR 377 (establishing a presumption of liberty for disappearances against the authorities last seen or found to have had the custody of detenus rendering them liable to be cast in exemplary costs) – this legal principle was followed in several cases thereafter, for example, L.S. Perera v. I G P and Others, HCA/13/91, C.A. Minutes 15.09.1995; Kasthuri Nandawathie v. Commander of Army and Two Others, HCA/103/91, C.A. Minutes 15.09.1995; G.D. Ranjani v. Commanding Officer, Army Camp Panala and Three Others, HCA/255/89, C.A. Minutes 13.01.1995. These cases concerned corpus of Sinhala ethnicity ‘disappeared’during the JVP’s violent uprising in the South during the UNP administration. Many of these judgments were handed down by Justice of the Court of Appeal (as he then was) Sarath Silva. The consistent trend of the judicial thinking during this period was in abrupt contrast with his later inconsistencies as Chief Justice. 144 De Almeida Guneratne, Jayantha and Pinto-Jayawardena, Kishali op. cit. 50
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
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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
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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 48 and 49: The ineffectiveness of the writ rem
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
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Page 66 and 67: Chapter Three - Commissions of Inqu
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Page 70 and 71: property of Sinhalese persons domic
Page 72 and 73: appear before the Commission was al
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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
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Page 88 and 89: 3.1.3. Reflections on the Procedure
Page 90 and 91: However, the weak process of re-ref
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Page 94 and 95: (g) The relief if any that should b
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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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