The Judiciary: Gains & Concerns

By Rajan Hoole –January 23, 2016

Dr. Rajan Hoole

Present Realities and Precarious Options – VI

A senior Tamil administrative officer served in Trincomalee when dozens of Tamil detainees broke jail from Batticaloa in September 1983. The officer was detained under the PTA in December 1983, suspected of aiding the escapees. He languished 45 months on an order from the Defence Ministry without a single charge being framed and released just after the Indo-Lanka Accord. Nor was he ever produced before a magistrate. A habeas corpusapplication was then problematic and a fundamental rights appeal unthinkable.

In the Ananda Sunil habeas corpus case of 1983 (see Sect.19.5) the victim’s wife and witnesses had to retreat under Police intimidation. In the Paul Nallanayagam case of 1985 (see Sect.20.9), the Police foiled the fundamental rights appeal simply by filing a fictitious affidavit. There was no question of the Police being charged or punished for perjury and contempt of court.

Ex-Chief Justice

Torture in police custody remains routine. Yet, the Supreme Court now regularly grants fundamental rights appeals from detainees who have the means to pursue them. Correspondingly, witnesses are less reluctant to testify. However, when the Supreme Court started asserting its independence under the PA, it made the Government unjustifiably paranoid.

The Athulathmudali Commission found that Cooray, a strongman in the Premadasa regime, had played a leading role in the former minister’s murder. The Supreme Court, for the lack of admissible evidence, set aside the findings on Cooray (see Sect.19.6). Cooray walked away from Court a media celebrity. It was a setback for the Government and yet a triumph of the legal process.

President Kumaratunge appointed Sarath N. Silva Chief Justice (CJ) in mid-September 1999. After serving on her SPC examining the Vijaya Kumaratunge murder, he was made Attorney General. He was appointed CJ over Justice Mark Fernando, the senior-most judge. As CJ, he became chairman of the Judicial Service Commission (JSC). As then second in the hierarchy, Mark Fernando should normally have been on the JSC. But the President appointed instead the retired judge Ramanathan, who chaired the Vijaya Kumaratunga Commission.

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