Sri Lanka-Criminal Justice and the Effects of Insurgency

Following the insurrection of 1971, the judicial system was flooded with thousands of young insurgents who had played varying roles in the attempt to overthrow the government. The established legal channels--holdovers from the colonial era--were clearly insufficient to deal with the crisis. At the same time, the government realized that any significant delay in the trial and settlement of cases would only serve to increase the alienation that had led to the rebellion. As a temporary measure, the parliament passed the Criminal Justice Commissions Act of 1972, providing for the establishment of special commissions outside the normal judicial structure and empowered to conduct cases free from the usual stringent rules of procedure.

The judicial crisis of the early 1970s also served to promote long-term reforms that had been under consideration for more than twenty years. In 1973 the parliament passed the Administration of Justice Law, a bill to reorganize the entire judicial system. Heralded as a major break with inherited British colonial traditions, the new law was intended to simplify the court structure and speed the legal process. It repealed thirteen acts and ordinances, including the Courts Ordinance and the Criminal Procedure Code of 1898, replacing them with five chapters covering the judicature, criminal, testamentary, and appeals procedures and the destruction of court records. The seven levels of the British court structure were replaced with four levels, including a Supreme Court that held only appellate jurisdiction. The high courts, district courts, and magistrate's courts were assigned jurisdiction respectively over the island's sixteen judicial zones and their respective forty districts and eighty divisions.

After Bandaranaike's defeat in the 1977 elections, the new United National Party government moved quickly to revise the workings of the criminal justice system. Of the five chapters of the Administration of Justice Law, two (on criminal procedure and appeals) were replaced by the Code of Criminal Procedure Act of 1979, and a third (on the judiciary) was substantially amended by the 1978 Constitution. These radical changes, coming on the heels of the previous reforms, were motivated by a variety of concerns. First, there were political considerations. Jayewardene's electoral success had been based in part on a popular reaction against the extraordinary legal and judicial powers assumed by the Bandaranaike government; the previous six years had been marked by an unbroken state of emergency, the creation of the highly powerful Criminal Justice Commissions, and a growing constriction of the freedom of the press. In his first year in office, Jayewardene declared an end to emergency rule, repealed the Criminal Justice Commissions Act, and engineered a new constitution with explicit safeguards of fundamental rights. These rights, set forth in Article 13, included free speech, the right to a fair trial, and freedom from arbitrary arrest and detention. Although many of these rights had appeared in the previous constitution, the new document put them under the jurisdiction of the courts for the first time.

A second motive for the changes stemmed from the sudden expansion of the Tamil insurgency in the late 1970s. Faced with a growing number of terrorist activities in the north, the Jayewardene government moved to streamline the judicial system and establish clearer lines of jurisdiction between the various levels of courts. Primary jurisdiction over criminal cases, previously the concurrent right of three levels of the judiciary, was now confined to two levels, the high court and the magistrate's courts, with their respective domains clearly demarcated in the new criminal procedure code.

The liberalizations of the Jayewardene government soon fell prey to the nation's deteriorating security situation. Hampered by the civil liberties embedded in the new laws and codes, the police and armed forces were unable to deal with an insurgent movement that involved a growing portion of the Tamil civilian population. Legal sanctions against terrorism began with the Prevention of Terrorism Act of 1979, followed by further antiterrorist provisions in 1982 and full-scale emergency regulations in 1983. With the consent of Parliament, these regulations were renewed on a monthly basis. By early 1988, the existing criminal justice system was a composite of permanent and provisional legislation. In contrast with the relatively stable Penal Code, the judicial structure and the procedures for criminal cases reflected the complex and sometimes contradictory interweavings of the Administration of Justice Law, the Constitution, the Code of Criminal Procedure, and the emergency and antiterrorist provisions enacted to cope with the Tamil insurgency (see Judiciary , ch. 4).

Data as of October 1988