Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
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In many cases, requests are made by the respondent army or police <strong>of</strong>ficers to transfer<br />
the cases from the relevant Provincial High Court to the Colombo High Court or to<br />
the Court <strong>of</strong> Appeal for hearing. However, the problem with this transfer process is<br />
that witnesses are compelled to travel all the way from their places <strong>of</strong> residence to the<br />
capital city to attend the case. Where habeas corpus applications are transferred from<br />
the High Courts in the North-East such as Jaffna, Trincomalee or Batticaloa,<br />
travelling becomes especially problematic for petitioners <strong>of</strong> Tamil ethnicity, who are<br />
unable to withstand the rigorous security checks prevalent in the city, quite apart from<br />
the financial constraints involved. 141<br />
Further, the judicial response to the writ remedy <strong>of</strong> habeas corpus has been<br />
inconsistent and unpredictable, as recent studies have shown. 142 A positive trend was<br />
evidenced in the 1980s and early 1990s in holding the authorities responsible where<br />
the victim, upon being arrested and detained by the police or army, thereafter<br />
“disappeared”. 143 Later applications however, (particularly concerning cases from the<br />
North and East), were dismissed, inter alia, for technicalities such as errors in spelling<br />
the name <strong>of</strong> the abductor or the particular army camp which an aggrieved person has<br />
named in his or her petition. The mere denial <strong>of</strong> the allegations <strong>of</strong> the petitioner by the<br />
head <strong>of</strong> the police or the head <strong>of</strong> the army, has resulted in dismissal <strong>of</strong> the<br />
application. 144<br />
The extreme delay and frustration affecting petitioners in habeas corpus applications<br />
was also commented upon by the 1998 All-Island Disappearances <strong>Commission</strong>.<br />
We filed a Habeas Corpus application in the Court <strong>of</strong> Appeal. The Bar<br />
Association’s Human Rights Committee helped us to file the case. The cases<br />
were postponed several times up to 1997. After 1997, we have not heard<br />
141 Pinto-Jayawardena, Kishali ‘The Rule <strong>of</strong> Law in Decline; Study on Prevalence, Determinants and<br />
Causes <strong>of</strong> Torture and other Forms <strong>of</strong> Cruel, Inhuman or Degrading Treatment or Punishment in Sri<br />
Lanka’, The Rehabilitation and Research Centre for Torture Victims (RCT) Denmark, 2009, at p. 131.<br />
142 See De Almeida Guneratne, Jayantha and Pinto-Jayawardena, Kishali in ‘Liberty Rights at Stake;<br />
The Virtual Eclipse <strong>of</strong> the Habeas Corpus Remedy in Sri Lanka’ Law & Society Trust and ARD Inc.<br />
(forthcoming). This study examines more than 880 decisions <strong>of</strong> the Court <strong>of</strong> Appeal and the Supreme<br />
Court from the pre-independence period to the present date and critiques the judicial response in that<br />
regard. A particular aspect <strong>of</strong> the study is its focus on the continuing inefficacy <strong>of</strong> the habeas corpus<br />
remedy in the Provincial High Courts with over 50 pending matters examined for this purpose.<br />
143 ibid. For example, Dhammika Sriyalatha’s Case, CA (HC) 7/88- C.A. Minutes <strong>of</strong> 7 th July, 1988 (the<br />
burden rests on the respondents to justify the arrest and detention <strong>of</strong> the petitioners and the respondents<br />
must show that the regulations which gives them the power to arrest/detain is covered by one <strong>of</strong> the<br />
constitutionally permissible grounds <strong>of</strong> restriction,eg. interests <strong>of</strong> national security or public order);<br />
Violet and others v. O.IC Police Station, Dickwella and Others, [1994] 3 Sri LR 377 (establishing a<br />
presumption <strong>of</strong> liberty for disappearances against the authorities last seen or found to have had the<br />
custody <strong>of</strong> detenus rendering them liable to be cast in exemplary costs) – this legal principle was<br />
followed in several cases thereafter, for example, L.S. Perera v. I G P and Others, HCA/13/91, C.A.<br />
Minutes 15.09.1995; Kasthuri Nandawathie v. Commander <strong>of</strong> Army and Two Others, HCA/103/91,<br />
C.A. Minutes 15.09.1995; G.D. Ranjani v. Commanding Officer, Army Camp Panala and Three<br />
Others, HCA/255/89, C.A. Minutes 13.01.1995. These cases concerned corpus <strong>of</strong> Sinhala ethnicity<br />
‘disappeared’during the JVP’s violent uprising in the South during the UNP administration. Many <strong>of</strong><br />
these judgments were handed down by Justice <strong>of</strong> the Court <strong>of</strong> Appeal (as he then was) Sarath Silva.<br />
The consistent trend <strong>of</strong> the judicial thinking during this period was in abrupt contrast with his later<br />
inconsistencies as Chief Justice.<br />
144 De Almeida Guneratne, Jayantha and Pinto-Jayawardena, Kishali op. cit.<br />
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