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University Teachers for Human Rights (Jaffna)

Sri Lanka

UTHR(J)

Special Report No. 29

Appendix III

The Role of the Supreme Court – a Timeline

18th July 2005: Chief Justice Sarath Silva arm twisted Attorney General Kamalasabeson not to proceed with a case filed in the District Court Trincomalee to remove an illegal Buddha statue erected with the connivance of the security forces (see Special Report No.25). It was hard for a Tamil AG to withstand alone in court a hate campaign by extremists who had political backing extending to the CJ.

22nd August 2005: Chief Justice made himself the chairman of a five member bench picked by him to hear a petition by JHU General Secretary Omalpe Sobitha Thero which held that President Kumaratunge’s term ended at the end of 2005 instead of a year later in 2006 as many leading legal experts argued. Criticism of the CJ’s action was also based on the ethical premise that he should not hear a petition relating to actions that he had been party to – namely twice swearing in Kumaratunge as president on 22nd December 1999 and 11th November 2000. On 26th August the CJ declared her term to end soon in 2005.

5th 13th September 2005: Mahinda Rajapakse as expected became the SLFP’s presidential candidate, who reached agreements with the JVP and JHU to move from President Kumaratunge’s commitment to a federal settlement to the ethnic problem and to keep Sri Lanka a unitary state.

21st May 2006: Secret Kool Party Pact with the EPDP and TMVP (Karuna group) to de-merge the North-East with their help and to place Devananda and Karuna in charge of the interim administrations of the North and East respectively for five years.

June 2006: Karuna begins conscription by abduction, including of children, in the East with government complicity to keep his side of the bargain.

14th July 2006: JVP filed petitions to the Supreme Court to de-merge the North-East. Earlier the Government had already restricted relief to the newly displaced population that had fled to the LTTE-controlled Mutur East, leading to the LTTE closing the Mavil Aru Anicut, serving as a pretext for the Government to militarily overrun LTTE-controlled areas in the East with the aid of Karuna forces, leaving well over 100 000 displaced by shelling. This was begun with vociferous lobbying by the JHU and JVP disregarding the SLMM’s and local attempts, such as by the Venerable Seruvila Saranakitti to settle the matter with the LTTE in the best interests of the people he represented.

15th September 2006: The Chief Justice delivering a judgment on an appeal by a petitioner citing a Human Rights Committee ruling in his favour, ruled without it being argued in court that the International Covenant of Civil and Political Rights (ICCPR) which the Government of Sri Lanka had acceded to in June 1980 ‘does not have internal effect and the rights under the Covenant are not rights under the law of Sri Lanka. Its effect was a derogation of protection stipulated by international law, at a time of rising violations.

16th October 2006: North-East Merger: The Chief Justice acceded to the petition by the PNM (JVP) (originating in the Kool Party Pact) declaring the North-East Merger invalid. The merger came out of a treaty involving India and Sri Lanka in 1987 envisaging a settlement to the ethnic conflict. Prudence demanded that a court cannot rule ex parte on a sensitive political issue such as India failing to disarm the LTTE as one of the conditions the merger required. India was not represented in court to talk about the Sri Lankan government’s betrayal in arming the LTTE to attack the Indian Army. By contrast, when the JVP and JHU challenged the validity of the CFA, Justice S. Sriskandarajah of the Court of Appeal ruled on 3rd March 2007 that from the preamble of the CFA it is clear that this document is a policy document on a political issue. It is axiomatic that the contents of a policy document cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations

September 2006 August 2007: Transmission of Sensitive Cases: The Judicial Service Commission headed by the Chief Justice transmitted the following major cases away from magistrates who showed a determination to bring out the truth.

5th September 2006: The ACF Case involving the massacre of 17 aid workers was transmitted to the Anuradhapura Magistrate from the Mutur Magistrate M. Ganesharajah just as he was about to deliver the inquest verdict. The JSC’s order was communicated to him by phone the previous day, 4th, as he was preparing to deliver the inquest verdicts the following day.

22nd August 2006: The Disappearance of Fr. Jim Brown and Wenceslas Case was transmitted from Acting Kayts Magistrate Mrs. Srinithy Nandasekaran as soon as she heard about the disappearance two days earlier, took up the case and ordered the Police to retrieve the log book from the Allaipiddy checkpoint manned by the Navy who were denying that the victims passed through. The JSC ordered the transmission the same night. The log book has since not seen the light of day. Nandasekaran who was based in Jaffna was acting for the Kayts Magistrate on 30th April 2006 when after a bomb blast in which no one was killed, the Navy went into a house and attacked a 74-year-old man who was forced to bleed to death as his wife and daughter were not allowed to go out. The two women offered to identify the culprits. Nandasekaran wanted all the men at the Allaipiddy naval camp to be produced for an identification parade. This was never held and the two women were forced to flee.

May/June 2007: The Allaipiddy Massacre Case was transmitted from the Kayts Magistrate Jeyaraman Trotsky, while he was still in Kayts. The incident took place on 13th May 2006 and the Navy were the main suspects. On 19th May 2006, Trotsky had ordered an identification parade after a grandmother said that she would identify the naval personnel who killed five members of her family including two grandchildren. The identification parade was never held. Trotsky was transferred out of Kayts soon after on 4th August 2007 he ordered the Police to produce the Allaipiddy naval commander in court over the disappearance of a CTB employee and a postal worker on 7th June.  


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