This paper was initially published in the Law and Society Trust Review, Sep. — Oct. 2010
Basil Fernando*
“LIBERTY RIGHTS AT STAKE: THE VIRTUAL ECLIPSE OF THE HABEAS CORPUS REMEDY IN RESPECT OF ENFORCED DISAPPEARANCES IN SRI LANKA” is a study of 880 judgments of various courts of Sri Lanka on habeas corpus applications from pre-independence times up to the present period by Kishali Pinto-Jayawardena and Jayantha de Almeida Guneratne. The effort examines an impressive number of judgments on habeas corpus during this period.1 This preview of this forthcoming publication is based on their findings.
Their basic conclusion is that, by and large, the Sri Lankan legal system has demonstrated significant failings in giving effect to habeas corpus as a judicial remedy. The decisions of the courts are markedly different from the way that habeas corpus was dealt with in the pre-independence period, as evidenced, for example, by the famous Bracegirdle case2, which demonstrated the will of the Supreme Court at the time to defend the freedom of the individual as against the arbitrary actions of the state. It also demonstrated the Court’s power to stand up against the state to protect the freedom of the individual.
This Study concludes that in recent decades the approach of the courts has changed substantially. In almost all cases studied, with a few exceptions, courts have dismissed cases rather casually and shown little sympathy for the applicants3. Habeas corpus as a judicial remedy for the protection of the freedom of the individual has failed in Sri Lanka, and as the title of the Study suggests, this important writ may disappear altogether from the country. This failure is not due only to factors such as scandalous and shocking delays but also due to much more important changes of attitudes on the part of lawyers and judges (effectively the legal community) towards the remedy itself.
The failure of the remedy of habeas corpus in Sri Lanka as evidenced by this Study needs to be examined against the background of the political changes that have come about in the country since the 1978 Constitution in particular. Most persons on whose behalf these cases have been filed in this period fall within the category of ‘disappeared’ persons. The most important judgments come from the Court of Appeal from 1994 to 2002. Out of a total of 844 cases for this period there were 368 applications for 1994; 127 applications for 1995; 142 applications for 1996; 137 applications in 1997; 31 applications in 1998; 6 applications in 1999; 11 applications in 2000; 7 applications in 2001, and 15 applications in 2002.4
The study of habeas corpus in Sri Lanka cannot be delinked from a political understanding of the forced disappearances that took place during this time, and the approach of the state in dealing with certain issues of perceived security in which the use of forced disappearances was an approved practice for curbing insurgency. On the one hand, mass disappearances were a result of a political approach to national security during which the use of forced disappearances was an approved practice. On the other hand, the courts, which are also a branch of the state, were called upon to examine this phenomenon from a legal and judicial perspective. The Study finds that in the application of legal principles, the courts have tended to favour the state over the liberty of the citizen when determining many of these cases. This seeming legal problem, if seen within the political atmosphere in which the disappearances were carried, out seems less of a surprise, as the courts would have had to go against this approved policy of causing disappearances if they were to protect the rights of the individual as against the interests of the state.
In a classical sense the remedy of habeas corpus is meant to protect the individual against the abuse of authority by the state. If there is a failure in this regard it is a failure of the very concept of the protection of the individual. However, the assumption that the courts could have protected the rights of the individual in a situation where there was an approved policy of the state relating to causing forced disappearances is to expect the courts to be at loggerheads with the state on a very important issue of policy at a time that it is impossible for them to be in this position.
Here we see a fundamental contradiction. On the one hand if Sri Lanka is a liberal democracy and if its Constitution is based on the principle of the rule of law, then it is the obligation of the courts to uphold the rights of the individual even against an approved policy of the state to the contrary. Within a liberal democracy where the law and the policy contradict one another, it is the duty of the courts to uphold the law as against policy. But this is possible only if we assume that the 1978 Constitution gives precedence to democratic norms and that Sri Lankan democracy is based on the rule of law. However, is this assumption itself correct? This is the issue that we should first examine as regards the 1978 Constitution.
1. Article 35 and its Impact on the Constitutional Structure
For almost 32 years, there has not been a discussion of the impact of Article 35 of the Constitution of Sri Lanka on constitutional law and constitutionalism as a whole. Much of the discussion has been confined to the issue of the immunity from prosecution granted to the president without consideration of the actual impact of this immunity.
Article 35 reads as follows:
“35. (1) While any person holds office as President, no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.”
The Executive President is Head of the State, the Head of the Executive, Head of the Government, and is Commander-in-Chief of the armed forces. Under the earlier Constitutions, though the President was head of state, the prime minister was head of the cabinet. The prime minster was answerable to court. Under the 1978 Constitution, the head of the executive, who is also the head of the government, is not answerable to court. All decisions relating to national security are those of the head of the executive. All policy decisions relating to national security are also those of the head of the executive. Under Article 35, the executive president as head of the executive is not answerable to the courts.
The executive president of Sri Lanka is not subjected to any controls by cabinet or any other constitutional body. In fact, the executive president controls the ministers and all public authorities. The entire aim of the 1978 Constitution was to place the president in charge of everything. He has the right to appoint the ministers and to control the ministries themselves. In view of this, the public institutions that are run by the ministries are under his direct control. When Article 35 made the president unanswerable to the courts of Sri Lanka, it placed all decisions on the governance of the country attributable to him outside the control of the judiciary.
Within a rule of law-based system, a nation functions through its public institutions and the manner in which they are subjected to control constitutes the discipline that controls the lives of the people. The laws that govern these institutions, the laws that are developed and the commands that are given by those who are responsible to these authorities are important aspects of the system by which people of the country are governed. Undoubtedly, the internal running of the country and the institutions must have an independent life of its own based on a legal process that is not subjected to the control of those in political power. The running of this internal structure of public institutions needs the supervision of the public to ensure that basic notions of protection of peoples’ liberties and freedoms are superior, while governance is carried out from day to day.
The protection of the freedoms of individuals and the functioning of public institutions are therefore deeply linked. The public institutions, if they are managed for the achievement of various goals of the government, such as development, national security and the like, should at all times protect the freedoms of individuals. Therefore there are two factors to consider in the management of public institutions. On the one hand there are the objectives of the government, which tries to achieve various targets at a particular time. This may be a particular development target in relation to various public institutions such as the speedy recovery of taxes, or projects such as roads or markets or housing projects. Or it may be national security objectives such as ensuring that political sabotage or insurgent activities are not interfering with or obstructing the smooth functioning of the institutions to achieve their normal objectives.
On the other hand and at the same time, constitutional institutions must protect the liberties and the freedoms of individuals, who have certain entitlements and expectations. The public institutions at all times should respect these entitlements, even in a conflict over the performance of a public institution working towards any development or security objective.
If there is a conflict between the freedoms of the individual by way of denial of entitlements then it is the function of the courts to intervene and to deal with this problem in order to safeguard the freedom of the individual. The executive pursues various objectives, such as national security. It is the judiciary that protects the freedoms of individuals so that the objectives of the state will not crush the entitlements of the people.
Yet by placing the executive president of Sri Lanka, (who is the controller of public life under the 1978 Constitution), outside the jurisdiction of the courts, what was in fact achieved was the removal of the judicial function to protect individual liberties. The idea was that the president, as the driver of national objectives through various development and security projects, like anti-terrorism activities, is not under the control of the judiciary. Therefore, the protection of the individual, as opposed to the pursuit of objectives of the government, was removed through Article 35. What can be construed from this Article is that if an attack on the freedom and liberties of an individual can be attributed to the decisions of the executive president, such actions are outside the jurisdiction of courts. In such instances, the courts are functionless.
The 1978 Constitution itself removed the basis for the protection of the freedom of the individual from the jurisdiction of the courts. It is the character of this fundamental attack on the idea of constitutionalism under liberal democratic government, in which the protection of the individual is a primary objective of the constitution, which has been lost sight of amid public debates relating to the 1978 Constitution.
Article 35 was a profound deviation from the notion of constitutionalism as understood within the liberal democratic discourse. In the liberal democratic discourse, protection of the liberties of the individual is a primary objective. Whatever other objectives the executive may aim to achieve in a particular context and at a particular time, it cannot infringe on the liberties of the individual in the manner made possible under this section of the 1978 Constitution.
Consequently, the role of the Sri Lankan courts on constitutional matters, including those relating to the protection of individuals, became marginal. The courts no longer had the position they enjoyed under the 1948 and 1972 Constitutions. The role of the executive president was enlarged and the role of the courts reduced. Many Sri Lankans still imagine a situation in which the courts enjoy similar powers, authority and prestige as in the past. However the actual situation has changed substantially. In an earlier publication entitled The Phantom Limb: Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka5, I have explained this situation. The protective power of the judiciary over the freedoms and the rights of the individual has diminished, while the power of executive to encroach on their rights has increased enormously through the constitutional invention of the executive president.
Article 126 of the 1978 Constitution was a new creation:
“126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.”
This jurisdiction does not extend to executive and administrative actions attributable to the executive president as the head of the executive, since Article 35 covers such actions.
The addition of judicial remedies such as the fundamental rights jurisdiction under Article 126 was no substitute for the removal of liberties by Article 35. The fundamental rights jurisdiction does not extend to the executive president. Its jurisdiction is limited to certain rights that are called fundamental and therefore it is binding on certain acts of the administration, which may affect those rights. However, this jurisdiction does not extend to the acts of the executive president, who is the total controller of the entire apparatus of the government without any kind of limitations to his power and without checks and balances.
2. If the Bracegirdle case6 were heard under the 1978 Constitution?
M.A.L. Bracegirdle was a young Australian planter in Sri Lanka who became an activist in a leftist party, the Lanka Samasamaja Party, because he supported workers’ struggles. The colonial government issued an order of deportation on him in 1937, which required that he leave the country in 48 hours. He resisted and went into hiding. A writ of habeas corpus was filed before the Supreme Court and the Court quashed the governor’s order. It established habeas corpus as prestigious remedy for the protection of the individual against the state.
If the Bracegirdle case were heard before a court under the 1978 Constitution, the state would raise an objection under Article 35. As the executive president now occupies the place that the governor once took, it would be argued that the courts have no power to hear the case. The courts would uphold the objection as it has upheld similar objections when they have been raised.
The Bracegirdle judgment was based on the principles of the Magna Carta. As stated by Abraham CJ,
“There can be no doubt that in British territory there is the fundamental principle of law enshrined in Magna Carta that no person can be deprived of his liberty except by judicial process. The following passage from The Government of the British Empire by Professor Berriedale Keith, is illuminating and instructive. In Chapter VII of Part I., he discusses ‘The Rule of Law and the Rights of the Subject’ p. 234. He says: –
‘Throughout the Empire the system of Government is distinguished by the predominance of the rule of law. The most obvious side of this conception is afforded by the principles that no man can be made to suffer in person or property save through the action of the ordinary courts after a public trial by established legal rules, and that there is a definite body of well known legal principles, excluding arbitrary executive action. The value of the principles was made obvious enough during the war when vast powers were necessarily conferred on the executive by statute, under which rights of individual liberty were severely curtailed both in the United Kingdom and in the overseas territories. Persons both British and alien were deprived legally but more or less arbitrarily of liberty on grounds of suspicion of enemy connections or inclinations, and the movements of aliens were severely-restricted and supervised; the courts of the Empire recognized the validity of such powers under war conditions, but it is clear that a complete change would be effected in the security of personal rights if executive officers in time of peace were permitted the discretion they exercised during the war, and which in foreign countries they often exercise even in time of peace.'” 7
What is disturbed by Article 35 is the basic principle underpinning habeas corpus that is contained in the Magna Carta itself, which is the rule of law that
“no man can be made to suffer in person or property save through the action of the ordinary courts after a public trial by established legal rules, and that there is a definite body of well known legal principles, excluding arbitrary executive action.”
By the operation of Article 35, the executive president became empowered to arbitrarily remove rights of subjects and deprived them also of recourse to court. Under a rule of law system, deprivation of personal and property rights can be done only through courts, which are obliged to adhere to due process. Under the 1978 Constitution however, this very principle has been rejected. There are things that the executive president can do which also include the deprivation of life and liberty of subjects without any legal process and the judiciary can be deprived of the right to intervene on such matters by excluding its jurisdiction via Article 35. The 1978 Constitution thus violates the basic principles underpinning habeas corpus in the Magna Carta.
The design of the executive presidential system is such that government objectives, for example, those for the achievement of various development projects or national security, could infringe on the liberties of the individual by the removal of the possibilities of judicial intervention into these areas. The very notion of the centrality of the liberties of the individual as a primary aspect of the national life and a primary aspect of constitutionalism was removed from the Constitution of Sri Lanka in 1978.
3. Structural Contradictions in the Constitution
The judicial failure to protect the remedy of habeas corpus in Sri Lanka is the result of the structural contradictions in the 1978 Constitution, which removed the idea of the freedom of the individual as a fundamental aspect of the constitution while claiming to do the opposite.
The protection of rights has been confined to a minor area with enormous limitations and the judiciary can operate only within that limited area for the protection of rights. Therefore, within the 1978 Constitution, the judiciary has only a marginal role in the protection of individual liberties. The executive president is at liberty to pursue whatever objectives and policies he thinks fit without the burden of having to be concerned with the freedoms of the individual, which would otherwise be protected by the judiciary. The judiciary is granted the power to interfere in only a marginal way.
It is these structural contradictions in the 1978 Constitution that have not been brought into constitutional discourse in any meaningful way and since the Constitution was passed this discourse has in fact been greatly diminished. This is despite the fact that in recent times the structural contradictions whereby fundamental rights are ostensibly protected but judicial intervention is denied in many important matters affecting personal and property rights, have been glaringly obvious.
Witness the whole issue of displaced persons in the North and East, who were placed outside the jurisdiction of courts after the end of the military intervention in May 2009; the government’s refusal to investigate alleged forced disappearances, extra-judicial killings, torture and alleged crimes against humanity and war crimes; forced evacuations of persons from properties without any legal process in many parts of the country; the manifest failure to investigate crimes in many parts of the country accompanied by a program to kill rather than prosecute alleged offenders; and, failure to implement constitutional provisions as demonstrated by way of the non-operation of the 13th and 17th Amendments to the Constitution.
The Liberty Rights at Stake Study looks at hundreds of habeas corpus applications which fall into this same category. Enforced disappearances were approved and pursued as policy for perceived security reasons at various points of time in this country’s history . Forced disappearances constitute the worst form of deprivation of the liberties of individuals without any intervention of courts and without any reference to legal process. International law considers causing of such disappearances as a most heinous crime and a crime against humanity. However, such acts were/are not against the “legal order” established under the 1978 Constitution, which excludes the jurisdiction of courts on such matters by way of the operation of Article 35.
The following observation of one of the authors of this Study is relevant in this regard:
“(a) If Article 35 is read in conjunction with Article 44 (2) and (3)- there could arise a situation where, if he/she chooses to do so, the President will be in charge of all subjects and functions thus the jurisdiction vested under Article 126 (re. fundamental rights) in the Supreme Court being set at zero.
(b) Despite the judicial boast by the Supreme Court in cases such as W. K. C. Perera v. Prof. Edirisinghe (1995 (1) SLR) and Heather Mundy v. CEA & Others (S.C./ 58/03, S.C. Minutes of 20 January 2004.)– that, by enhancing fundamental rights in the Constitution the Scope of Writs under Article 140 vesting jurisdiction in the Court of Appeal has been expanded (See also: Atapattu v. Peoples Bank ( (1997(1) SLR) (SC) and Moosajee v. Arthur & Others* (2004(1) ALR 1) (SC), this judicial expansion would also be rendered nugatory by reason of the immunity clause.
(c) Additionally, the “Public Trust” doctrine which has been a driving force in these decisions (see also: Dr. Kunandandan v. University of Jaffna (2005(1) ALR 16 (CA)) would also lose its judicially expressed constitutional significance. (NB; Although, the Waters Edge Case (SC) handed down by S.N. de Silva, C.J. against President Kumaranatunge put her conduct (on Head of State/Cabinet / Govt.) on issue after she had relinquished office, in the meantime, the former president herself escaped unscathed personally.” 8
4. The Executive President’s role as the Policymaker
Under the 1978 Constitution, the executive president, as the head of the state as well as the head of the political ruling party, is also the chief policy maker. All matters of public security are policies that are developed by the president himself. Perceived insurgencies and all other matters of national security are under the purview of the executive president. The whole period from 1978 was marked by the extensive use of emergency and national security regulations together with legal and constitutional amendments to suit the policies that the head of state insists are necessary for the nation. This vast body of regulations by way of emergency or national security laws has imposed heavy limitations on the power of the judiciary to deal with matters concerning freedoms of the individual. A large body of rules depriving the judiciary of the power to interfere in matters of arrest and detention, and also even to enable the creation of various extraordinary places of detention and to put entire areas of the country outside the jurisdiction of the courts was built up through government policy decisions.
A vast number of forced disappearances took place during the time since the 1978 Constitution was passed into law, within the spaces created by the national security laws that follow from the executive president’s role as policymaker. These laws removed the courts’ supervisory role.
Thus, the abductions of persons by various secret agencies with no regard for the law and normal regulations; the interrogation of these persons in detention centres with no records as required by the law; the conduct of these interrogations without any kind of supervision which gave room for torture as well as cruel and inhuman treatment; and, finally the killing and disposal of the person all happened within a policy framework that the executive president approved, and were enabled by security laws and regulations which were also designed and approved by the executive president. The courts of Sri Lanka had no jurisdiction to challenge any of these policies, whatever may be the consequences for individual liberties. Thus even completely immoral decisions that could shock the conscience of any civilised nation were made by the executive president of Sri Lanka without the possibility of these being reviewed or scrutinised by the courts. This situation continues today. This is the basis for the incapacity of the courts to deal with various illegalities that result from arrest and detention and other actions that are supposed to be addressed by habeas corpus applications.
A further observation is also pertinent;
“The situation has been further aggravated by giving a clean slate to the Defence Secretary-
(a) To justify continuing emergency;
(b) Approved by a Parliamentary majority which the Govt. enjoys;
(c) Where, disappearances are alleged, mere affidavit by the said Secretary (viz: his ipse dixit is accepted by the courts (CA as well as the SC) that the arrest, detention (is lawful) and where a disappearance or involuntary removal (is denied) without or further ado. Thus in the context of the writ of habeas corpus, the same is rendered meaningless, whereas, if Article 3 read with Article 140 and Article 141 read with article 126(3) (as interpreted officially) in the context of article 140) is to be extended, the courts must assert their power of judicial review (in the light of Article 3 read with article 4(c) & (d) in conjunction with the aforesaid articles in pursuing an objective approach in requiring (rather than a subjective attitude); the Defense Secretary must be enjoined to place material in relation to an arrest/detention an alleged disappearance/involuntary removal” 9;
5. The Limitations on Law-making Processes and the Role of the Executive President
Prior to the 1978 Constitution, the 1972 Constitution had already removed the powers of judicial review from the ordinary courts of Sri Lanka. It established a new Constitutional Court to deal with matters relating to the Constitution. The 1978 Constitution removed the Constitutional Court and removed the limits of judicial review created by the 1972 Constitution. Under the 1978 Constitution, a bill to be passed by the parliament had to be submitted to the Supreme Court, which in turn had to look into the constitutionality of the bill within a short period.
Other than this it gave no scope for the Supreme Court to look into the legality or otherwise of a bill. Under Article 122(1), the 1978 Constitution put further limits on the power of the Supreme Court to look into a constitutional bill where the president submits a letter to the court asking for the review to be done within one to three days, if the president considers the bill important enough to be introduced through an emergency process.
When J. R. Jayawardene needed to remove the civil rights of his chief rival, Sirimao Bandaranaike, and there were certain limits due to the law relating to this in Sri Lanka, he referred to this section to introduce a bill in parliament for the amendment of the Constitution, known as the 3rd Amendment, on an emergency basis. The same procedure was later followed in 2010 when the 18th Amendment was introduced to the parliament. Thus the passing of laws to amend the Constitution itself was brought under the ambit of emergency procedure, giving the Supreme Court no more than three days to conduct judicial review. Thus, the law making process was changed to deny possibilities of consultation on legal change with the people as well as so as to limit the powers of the courts to review the possible implications of new laws.
The fundamental notion of the rule of law is that laws are made with the consent of the people. The consent of the people is given by way of public discussions within which the public express their considered views on whatever law is to be passed. This consent of law making is at the heart of the notion of the sovereignty of the people. The people cannot be sovereign when they cannot give consent to the laws by which they will be bound in the future. Thus, more than any other aspect of law making in a democracy, it is the consent of the people that makes or destroys democracy. The 1978 Constitution took away this process of lawmaking, and with it, Sri Lankan democracy and the rule of law.
6. Some Comparative Discussions
As against Sri Lanka, contemporary Cambodia and Burma are countries where the courts have no effective judicial power at all. These countries arrived at this situation through different historical factors, which are instructive for the purposes of comparison with countries where the courts have a marginal role.
From 1975 to 1979, Cambodian society went through one of the worst tragedies that humanity faced in modern times, when the Khmer Rouge was in power. The entirety of the urban Cambodian population was ordered to vacate the cities and move to the countryside. In the years and months that followed the Khmer Rouge pursued a ruthless collectivisation programme according to socialist ideas. The use of money was abolished, as were private kitchens. Children were separated from their parents and brought up by others. This experiment killed at least two million Cambodians out of a population of seven million.
Those who were pursued most ruthlessly were the educated classes as well as those who had any connection with the military. Although the arrival of the Vietnamese by the end of 1979 brought this catastrophe to an end, by that time the entire population was impoverished and in the coming ten years or so a large number of people lived in refugee camps along the Thai-Cambodian border. Many who belonged to the more educated sections that had survived also fled to other countries. Doctors, lawyers, judges and all types of professionals were lost to the country.
This process also destroyed what system of justice that had existed in the country. The previous system was a short-lived one introduced by the French. The Vietnamese who took control of Cambodia assisted in the reorganisation of Cambodian society through their experts, who planned all aspects of Cambodian life at that time. They organized courts according to a socialist model which was introduced to Vietnam from the communist bloc.10 Under their system, the interests of the government and those of the public were presumed to be in alignment. In these circumstances, the concept of the judiciary as a defender of rights against the intrusiveness of other parts of the state apparatus was an absurdity. As the architect of Soviet justice, Andrei Vyshinsky, put it,
“Under socialism the interests of the state and those of the vast majority of citizens are not, as they are in exploiter countries, mutually contradictory… Safeguarding the interests of the socialist state, the court thereby safeguards also the interests of citizens for whom the might of the state is the primary conditions essential for their individual well-being. Safeguarding the interests of separate citizens, the court thereby safeguards also the interests of the socialist state wherein the development of the material and cultural level of the life of the citizens is the state’s most important task.” 11
The system that was established was aimed at ensuring some form of stability for the state, and within this system the idea of the protection of the individual from the state was a totally alien concept. The interests of the individual were protected, it was presumed, when those of the state were protected. Thus, the system of courts that was introduced by the Vietnamese from around 1980 to 1993 was a system that was meant to carry out administrative functions on behalf of the state, and the very concept of the protection of the individual against the state was missing.
In May 1993 an election was held under the UN Transitional Authority for Cambodia, which created a new government. A new Constitution was adopted based on liberal democratic principles. However, the basic infrastructure of the administration remained the same and remains so even up to now. Some training was given to judges and some new laws introduced. However, almost all human rights organisations in Cambodia have observed and have mentioned in their reports that the ground reality did not change at all. Basically the Cambodian court system as it exists today cannot protect individual freedoms against the state. In fact, it is an instrumentality through which the political regime enforces its will against its opponents as seen by the prosecution of the opposition political leaders through various cases filed in these courts.12 Thus the system as it stands in Cambodia today is unable to realise the protection of the individual against the executive in any manner.
The story of the Burmese system of courts and justice as it exists today began with the coup that brought General Ne Win into power in 1962. Prior to this, the superior courts that emerged at the time of independence in 1948 struggled hard to establish liberal democratic principles, including through the writ jurisdiction of the Supreme Court, established under the 1947 Constitution, and the appellate criminal jurisdiction of the High Court, under section 491 of the Criminal Procedure Code. The situation is described in a recent article by a researcher of the Burmese criminal justice system:
“In the two years immediately after independence… the courts interpreted their role liberally. Justice E Maung in the definitive 1948 G. N. Banerji ruling described the authority of the Supreme Court in issuing habeas corpus writs to be ‘whole and unimpaired in extent but shorn of antiquated technicalities in procedure’ (pp. 203–04). In 1950 as chief justice he stressed in the Tinsa Maw Naing case that, ‘The personal liberty of a citizen, guaranteed to him by the Constitution, is not lightly to be interfered with and the conditions and circumstances under which the legislature allows such interference must be clearly satisfied and present’ (p. 37). He and other senior judges ruled to release many detainees on various grounds, including that orders for arrest had been improperly prepared or implemented, that indefinitely detaining someone was illegal, and that police or prison officers were without grounds to justify arrest, be it of an alleged insurgent sympathizer or notorious criminal.” 13
After the coup, the new regime did not remove the established laws but restructured the judicial system according to ostensibly socialist principles based on the same notions as were used in Cambodia, but according to a conservative rather than a radical agenda, so that the earlier protections for individual rights were no longer operative in the courts. Ne Win’s chief jurist, Dr. Maung Maung, provided ideological justifications for the defeat of judicial independence and the supremacy of the executive powers.
The superior judiciary’s writ jurisdiction fell into disuse, and was completely removed from the 1974 Constitution that established a one-party authoritarian state under military control.14 While the courts maintained a façade of socialist legality on the one hand and continue to apply many of the same laws as before the coup, the structural rearrangement of the political and legal systems by the regime eliminated the possibility of protecting individual rights against intrusion by the state.
Although the military regime that took over from its predecessor in 1988 demolished the one-party system and made changes to the courts that were purported to bring them back into line with what existed at the time of Ne Win’s takeover, in fact the system that exists today is functionally a continuation of what existed in Ne Win’s time, since its purpose is to incarcerate political opponents or perceived opponents of military rule and maintain social order through the threat of sanctions against persons who do not enjoy the privileges and protections of executive authority. Internally there is no capacity for the courts to protect the individual against the state, since the courts are no more than bureaucratic arms of the state and judges are also legally mere public servants under the same authorities as departmental officers. Nor will this situation change with the creation of another façade in the form of a semi-elected parliament in the near future.
7. Non-existence of Judicial Power vis a vis the Marginalization of Judicial Power
In systems like those operative in Cambodia and Burma today, the memory of a functioning justice system in the liberal democratic tradition does not exist. Law is not equated with the protection of individual rights but with transgression of any kind from any order by anyone representing authority, irrespective of the contents of that order or its degree of rationality. They are aware that any such transgression can lead to punishment, with or without judicial sanction. State authorities have full power to decide on punishment as they wish, and although there are superficially rules, procedures and structures for deciding punishment, how all these things operate in essence is completely arbitrary.
There is no serious attempt to prevent arbitrariness, and in fact the systems in these countries are dependent on it, as people are forced to adjust their habitual behaviour to respond to official whims on short notice. Why somebody in authority does something one way today and a different way tomorrow is not questioned. It is just the usual form of behaviour. Thus there is not even a conceptual basis for making a distinction between what is arbitrary and what is not. The whole notion of constancy through legality has departed from the way that the state operates.
In contrast to systems where judicial power is non-existent, the system in Sri Lanka today is one where judicial power is marginal, in that people still have memories of times when courts had greater influence than in the present. This memory often creates expectations that the system can still operate in certain ways that are in fact beyond it. People with such memories may get confused when courts act arbitrarily. The idea of law still exists, yet it is not operative to the extent or in the manner as it was in the past. Students may be educated to believe that laws are present and working. External references to law and legal habits based on various practices that had validity in former times may be repeated. This also often confuses participants in the system, who may be unable to comprehend whether law still really exists or not.
In countries where courts have no judicial power, the executive authorities have no fear of the courts at all. They consider courts as part of the same unitary system to which they belong. They are aware that they are highly unlikely to have to face contest in courts from the citizens asserting their rights, and certainly not as equals. In contrast, in courts with marginal power persons representing state authorities do fear the prospect of contests from citizens in courts, since they cannot be completely sure of the outcome of such contests.
Likewise, where courts only have administrative functions, the authorities are more secure and do not need great use of force to control persons, except in very exceptional situations, since they can rely upon the judiciary to carry out their bidding against individuals who threaten the established order. On the other hand, where courts have even marginal power, authorities are less secure, since they cannot be certain of compliance.
This causes those authorities to resort to more extra-legal actions than might be the case as in the other situation, since they feel the need to take care of things themselves than rely upon judges to cover up crimes on their behalf. In such cases, forced disappearances in particular are more likely to occur, as the state officers are obliged to commit crimes rather than resort to judicial measures to remove threats to their authority, and then must also take a certain number of steps to cover up such crimes.
On the other hand, where courts have no effective power, the use of the judiciary for bargaining and negotiating is likely to be greater than in places where their authority is marginal. Bribery becomes the customary way of dealing with accusations in courts, other than in high-profile cases that have political qualities. Citizens, either directly or through intermediaries such as lawyers, engage in such bargains routinely and without thought to any alternative. There are no genuine legal impediments to such bargains, and on the contrary, such bargains are essential for success. In contrast, in countries where courts still have marginal power, bargaining takes place less and with less certainty of outcome. However, people do realize that space for bargaining is wide and there will be more and experiment in that direction as the courts’ power wanes. Consequently, political influence extends to the courts through indirect methods, rather than through direct control of the courts as in the first category of cases.
8. Implications of the Study on Habeas Corpus in Sri Lanka
Should the courts take on the role of an external controller of police? This is a related issue to the discussion on habeas corpus. The judicial view at the time of the Bracegirdle case was that when the question of the liberty of the individual was at stake, the courts were under an obligation to intervene. Thus, on the powers of courts to control the police and military as an external controller of the police, the powers of the courts had no limit when the issue of the liberty of the individual is raised before the courts. Even the existence of a situation of war did not take away that power of the court. Once Sri Lanka became a republic, instead of being a colony, there was no reason to reduce that power of the court to intervene to protect the liberty of the individual.
In fact, the very essence of being a Republic is the sovereignty of the people. The liberty of the individual should have taken a greater significance in this context. In fact, the very idea of independence implies greater protection of freedom of the individual. However, the 1978 Constitution while retaining the formula of sovereignty of the people reduced the protection of liberty of the individual. This is the basic contradiction existing in the Constitution. Under the Constitution, executive power of the state is exercised by the president: the executive president is not under the control of courts, meaning that even when he/she violates the liberties of the individuals, the courts have no power to intervene to protect the individuals.
On matters of security, the president is in control, in jure as well as de facto. Actions done for security reasons by police and military are executive actions for which president bears responsibility. If the courts are to question such actions even for the protection of the individual, the courts there by are questioning the actions done under the authority of the president. However, the Constitution does not allow the courts jurisdictions over the president and president is thus protected in an absolute sense.
The simple conclusion that one arrives at is that the Sri Lankan president has the power to take away the liberties of individuals without any limit, and the King of England had no such power under the Empire. The powers that courts had and in fact exercised in a colony, as shown by the Bracegirdle case and many other cases from many of the colonies of British empire, is not now available to courts under the 1978 Constitution of the Republic of Sri Lanka. 15
The courts’ reluctance to intervene in cases cited in the relevant Study under consideration has made it possible for the courts not to enter into a conflict with the executive president. However, this raises questions about the possibilities in relying on courts to protect the liberty of the individual, so long as this Constitution exists. That again raises even more fundamental questions about the very reasons for the existence of the Sri Lankan courts. If the raison d’ entre for the existence of the courts is not the protection of the individual, what is the nature of the courts and their functions under the 1978 Constitution? I have previously raised this issue in the publication entitled The Phantom Limb: Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka.
Thus, the claim that the 1978 Constitution has continuity with the constitutional tradition of Sri Lanka prior to the 1978 Constitution is a basic fallacy. Equally, the second notion that the Sri Lankan Constitution is based on the sovereignty of the people, is itself a fallacy since, there can be no peoples’ sovereignty, where the protection of rights is not possible. It is the liberty of the individual that is at the core of peoples’ sovereignty as against sovereignty of the monarch under the monarchy. It is the recognition of the individual through protection of individual liberties from all threats including the threats from the monarch itself that constitutes democracy.
The test is the unlimited capacity of courts to protect the liberties of the individual. No such protection exists in Sri Lanka. The dismal fate that has befallen the legal remedy of habeas
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Footnotes:
* Sri Lankan attorney-at-law, Director, Asian Human Rights Commission, Hong Kong and former senior United Nations official, Cambodia.
1 The cases for the Study were not selected from various sources but taken from a book that was bound and maintained at Sri Lanka’s Court of Appeal, constituing therefore the official record for all intents and purposes.
2 In re Mark Antony Lyster Bracegirdle (1937) 39 NLR 193.
3 According to conversations had by this writer with the two authors during 2010; ‘The analysis combines an academic and in-depth analysis, arriving at particular conclusions which show that, in the generality of cases, the courts’ response has been marked by a lack of judicial sympathy for the petitioner.’ The court dismisses applications of petitioners across the board for various reasons—and all the reasons are looked at in the Study—ranging from failing to name a respondent correctly in the petition, failure to put a surname of the respondent in the petition etc.
4 From 1987 to 1991, the South of Sri Lanka underwent extreme political violence. According to the reports from a number of presidential commissions of inquiry, the total number of involuntary disappearances during this period was around 30,000 persons. From 1978 up to May 2009, there was military action in the north and east, where there was a continuous insurgency. Arrests, detentions and other forms of repression were commonplace throughout that time. From 1994 to 2002 the orders in habeas corpus cases were primarily concerning Sinhalese caught up in the southern insurrection, but there were a fair number also from the ongoing conflict in the north-east as well. From that point onwards, probably from about 1998 onwards, the majority of the cases were from the North and East.
5 By Basil Fernando and Morten Koch Andersen, published in 2009 jointly by the Asian Human Rights Commission, Hong Kong and the Rehabilitation and Research Centre for Torture Victims, Denmark.
6 Supra note 2.
7 From the judgment of the Supreme Court, reproduced in The Bracegirdle Affair: An episode in the history of the Lanka Samasamaja Party, edited by Wesley S. Muthiah and Sydney Wanasinghe, Young Socialist Publication, 1998.
8 As contained in a personal note to this writer from Dr. Jayantha de Almeida Guneratne, December 2010.
9 Ibid,
10 For an overview of the transplantation of Soviet law into Vietnam, see Borrowing Court Systems: The experience of Socialist Vietnam, by Penelope Nicholson, Leiden; Boston: Martinus Nijhoff Publishers, c2007.
11 Andrei Y. Vyshinsky, The Law of the Soviet State, translated by Hugh W. Babb, Westport, Cn.: Greenwood Press, 1948, pages 497–98.
12 The views of successive UN Special Representatives on human rights in Cambodia that support this statement are available on the website of the Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/countries/AsiaRegion/Pages/KHIndex.aspx.
13 Citation from, “The incongruous return of habeas corpus to Myanmar”, by Nick Cheesman, in Ruling Myanmar: from Cyclone Nargis to national elections, Singapore: ISEAS, 2010.
14 For a discussion see “Ne Win, Maung Maung and how to drive a legal system crazy in two short decades”, Article 2, vol. 7, no. 3, September 2008, available online at http://www.article2.org/mainfile.php/0703/
15 Supra, footnote 5.
