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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 It repealed thirteen acts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 Sri Lanka - Judiciary
, ch. 4).
Data as of October 1988
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