By Jayantha de Almeida Guneratne, Kishali Pinto-Jayawardena and Gehan Gunatilleke –

When multiethnic and multi-religious societies are confronted with challenges that test the limits of coexistence, governments may be tempted to resort to populism or political expediency. Sri Lanka’s relatively short post-independence history is unfortunately riddled with examples of such compromises. Minorities have been victimised throughout this country’s history. They have had nowhere to turn, except perhaps towards the only institution that is tasked with checking power: the judiciary. Sri Lanka’s judiciary has been called upon time and again to vindicate minority rights in the face of overwhelming oppression by the other organs of government. This study has essentially sought to examine the judiciary’s record in rising to and meeting this enormous challenge.

At the heart of the post-independence mandate of the judiciary to protect the rights of all communities was Section 29 of the Soulbury Constitution. As detailed in the introduction of this study, the fundamental thinking behind the protection of minority rights flowed from this constitutional provision. However, the contents of this provision were consistently undermined throughout the survival of that Constitution, and in 1972, were omitted altogether from the new Republican Constitution. The gradual undermining of Section 29, culminating in its ultimate omission, in many ways reflected the slow deterioration of minority rights in Sri Lanka.

The first Part of this study examined in detail the judiciary’s response to issues of language rights, employment rights, land rights and other basic liberties including the freedom of religion. In each case, the specific treatment of minorities was juxtaposed with the general jurisprudence on the issue. In each case, barring a few exceptions, the judiciary’s treatment of minorities was fundamentally different to the general dispensation on the issue. The unmistakably divergent treatment meted out to litigants from minority communities, in the very least, raises serious doubts over the objectivity and impartiality of the courts. As a common trend, the judiciary appeared to have been unable to produce consistent jurisprudence across ethnic and religious lines on matters of language, employment, land and religious freedom. The cases analysed in this Part bear witness to this trend.

This trend brings us to the question of whether the courts too were partially to blame for the build up of minority frustrations in Sri Lanka. The meticulously documented history of the ethnic conflict in this country confirms that discrimination in terms of language, employment, land and religious freedom was perhaps the root cause of the crisis. The political space afforded to minority communities seeking equality and justice steadily diminished during the post-independence and republican eras. Thus one of the only democratic outlets for frustration was perhaps litigation before the courts. The judiciary’s failure to consistently uphold the values of equality and justice no doubt exacerbated these frustrations. The rise of Tamil militancy in Sri Lanka, therefore, cannot be divorced from institutional failure, including that of the judiciary, to address genuine grievances. This study in the very least alludes to, if not proves, some level of institutional culpability on the part of the judiciary with regard to the slow burning crisis that eventually snowballed into ethnic conflict.

The second Part of this study deals with the judiciary’s role in protecting minority rights in the context of public security. The significance of the disparity in judicial treatment is perhaps evidenced more strongly in the case of public security jurisprudence. This Part of the study examined in detail twenty-four landmark cases involving public security and evaluated the judiciary’s response to the individual rights at stake. A quantitative analysis of the cases reveals a dispiriting transformation of the judiciary over the three distinct eras examined in this Part. Each identifiable era was analysed in terms of a quadrant consisting of the court’s decision in favour or against the detainee or accused (vertical axis) and the perceived political threat involved (horizontal axis).

At one end of the spectrum lie convictions by the courts, despite strong claims of rights violations or procedural impropriety. These convictions demonstrate the judiciary’s active role in the suppression of individual rights in light of public security considerations. Cases such as Amirthalingam, Tissainayagam and Sivalingam fall squarely within this category.

Next, dismissals of rights applications, i.e. either fundamental rights applications or habeas corpus applications, demonstrate the judiciary’s reluctance to intervene to protect individual rights in light of public security considerations. In such cases, the judiciary’s role is less direct. It is the judiciary’s reluctance to check the executive that permits the rights violation to continue or to be left unaddressed. Cases such as De Saram, Navasivayam and Nimalaruban fall into this category. Next, the granting of relief, demonstrates the judiciary’s willingness to acknowledge the injustice caused to the individual. Such cases involve the judiciary intervening to check executive action and to order the release of the individual, often alongside the payment of some compensation. Cases such as Padmanathan, Ratawesi Peramuna and Weerawansa fall into this category.

At the other end of the spectrum lie extraordinary cases of judicial activism in favour of individual rights. These rare cases set important precedents for the future, where the individual’s rights were upheld despite the public security considerations at stake. Joseph Perera and Machchavallavan are perhaps the only cases that fall into this category.

We illustrate the actual threat the individual may have posed to the state from the perspective of the executive. There is some level of political speculation involved in locating cases within this spectrum. For instance, in Tissainayagam’s case, the official reason for his conviction was that, by falsely accusing a predominantly Sinhalese Army of killing civilians, he incited retaliatory acts of violence by Sinhalese readers against Tamils, as he himself was a Tamil writer. As absurd as the contention was, the real reason for Tissainayagam’s conviction was perhaps the peripheral threat he posed to the state by writing on the war, and perhaps the unsubstantiated belief that he was funded by the LTTE.

At one end of the spectrum lie cases where it was revealed to the court that the individual was of no threat to the state whatsoever. Such revelation came from the executive’s own decision-making, such as a decision to release the individual. The cases of Padmanathan and Gnanamuttu fall into this category.

Next, the executive may perceive a peripheral threat from the individual. Such threat is often linked to certain transactions the individual might have had with other individuals or groups committed to overthrowing the government. Hidaramani’s peripheral link to the JVP, or, as mentioned above, Tissainayagam’s unsubstantiated transactions with the LTTE, justify locating these cases within this category.

Next, the executive may perceive a more direct threat from the individual owing to a belief (either proved or unproved) that the individual belonged to a group that was in some way committed to overthrowing the government or effecting a regime change. In this respect, the Jaffna University Students’ case remains a ‘hard’ case, as it could be argued that the perceived threat to the state was peripheral since these students were merely involved in peaceful protests against unwarranted violence perpetrated against students in Jaffna. However, from the perspective of the executive, the students’ alleged links to Diaspora elements that supported the LTTE perhaps placed the students at a higher threat level than ‘peripheral’ or ‘transactional’. Since the spectrum essentially speculates on the threat level from the perspective of the executive, it is perhaps more appropriate to place the case in the category of ‘membership’, i.e. the individual being a member of a group or movement aiming to overthrow the government or effect a regime change.

At the end of the spectrum lie cases where the perceived threat level is at its highest. Such cases invariably involve individuals who are leaders of the initiative to overthrow the government, effect a regime change, or simply establish a separate state. Thus cases such as De Saram and Amirthalingam clearly fall into this category.The ambitions to overthrow the government need not be through violent means. Hence the Ratawesi Peramuna case and certainly the White Flagcase fall into this category—given the fact that Sarath Fonseka posed a significant threat to the government and perhaps came closest to effecting a regime change in the post-war era.

In the era in which the public security doctrine witnessed its inception and germination, i.e. 1947 to 1979, the judiciary’s approach was largely contingent on the political contentiousness of the case. The judiciary appeared to be largely conservative in matters concerning public security. Yet it did not appear to be racially biased at the time. However, the most contentious case of the era, the Amirthalingam Trial-at-Bar involved a political minority and saw a regressive judgment being delivered by the Supreme Court whereby it rejected the legitimate claim of the accused that he had been deprived of procedural propriety.

The next era, i.e. 1979 to 2009, was marked by the enactment of the PTA and witnessed the rise of counterterrorism as an overarching rhetoric in dealing with political dissent. The era saw a mix of progressive, conservative and regressive judgments involving public security. However, disturbingly, many cases involving Tamil individuals suspected of ‘terrorism’ ended in decisions against the individuals. The progressive judgments of the courts invariably involved petitioners from the majority community or petitioners who no longer posed any perceivable threat to the state. This trend significantly depreciated the credibility of the judiciary as an objective institution and set the stage for a new dispensation of rights.

The final era examined in Part Two of the study, i.e. the post-war era, witnessed a complete transformation in the rights dispensation in Sri Lanka. A judiciary, previously seen as cautious, then deferential, was now largely irrelevant. The judiciary in the post-war era was unwilling to vindicate rights in the face of public security regardless of the ethnicity of the individual concerned. The transformation of the judiciary to a political institution was completed at the end of the war, and a new populist rights dispensation—where the Executive President granted rights in his discretion—emerged to replace the role of the judiciary.

The significance of the overall analysis is perhaps the total absence of positive outcomes in cases involving Tamil individuals who posed any level of threat (even peripheral) to the state, barring the extraordinary ceasefire era case of Machchavallavan. Subject to the aforementioned limitations of this study, this observation reflects the lack of willingness on the part of the judiciary over a period of more than sixty-years to uphold the rights of minorities when public security was at stake.

A realpolitik analysis of the judiciary’s transformation might produce a compelling explanation. The Supreme Court, for instance, may have been guided by the political space afforded to it by the government of the day. In an era where its independence was preserved and independent decision-making was expected of it, the judiciary was willing to check the executive to some extent. Yet, progressive pronouncements were only deemed appropriate when the threat involved was relatively insignificant. Hence cases were judged on an individual basis during the pre-1979 era. However, with the introduction of ‘counterterrorism’ as a distinct and powerful rhetorical tool to suppress dissenting voices, the judiciary struggled to maintain its decision-making space. The country was at war, and the Supreme Court could not afford to be seen as sympathetic towards the ‘enemy’. Hence a race-conscious judiciary emerged, where the courts accepted without question the routine classification of Tamil litigants as ‘terrorists’. The courts were accordingly unwilling to return judgements that protected individual rights in the context of counterterrorism. The rhetoric was so compelling, not a single judge was willing to challenge it. A semblance of independence was cautiously retained due to several progressive judgements, particularly by Mark Fernando J. These judgements proved to be critical points of departure during the period. Yet they did not challenge the counterterrorism rhetoric that had governed the rights dispensation of the time. Members of the Tamil community accused of being ‘terrorists’ seldom benefitted from these progressive judgments. Even when Tamil litigants did receive some measure of relief, it was invariably after they were deemed innocuous and released from state custody.

The Rajapaksa regime succeeded in annihilating the LTTE, which almost irreversibly validated the public security doctrine. The triumph of the regime over ‘terrorism’ appeared to have settled—perhaps permanently—the tension between public security and individual rights in favour of public security. The courts, once again responding to political realities of the day, were simply not prepared to challenge this resolution of the tension. The judiciary instead meekly accepted the PTA Regulations, which perpetuated a de facto state of emergency. It ultimately accepted a space where it could never challenge the executive’s supreme authority over matters of public security.

*The text above is from the Conclusion section of the book