The lamentable state of confusion regarding the state of Sri Lanka's accession to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), reflects the general confusion of our times. Last week's ruling by the Geneva based United Nations Human Rights Committee under the Protocol that the deprivation of civic rights pursuant to the contempt order handed down by Sri Lanka's Supreme Court on politician SB Dissanayake, violated rights guaranteed in the Covenant, was the ninth such Communication of Views against Sri Lanka. Previous eight Communications delivered against Sri Lanka in varying contexts of infringement of Covenant rights have not been implemented in any way whatsoever.
And this is not the first time that contempt of court has been the subject of acrimony either. In 2005, the Committee determined that the arbitrary sentencing of a lay litigant to one year rigorous imprisonment by the Supreme Court for speaking loudly and filing various motions, also violated Covenant rights. The jurists cautioned that contempt powers should be used in a reasoned manner and called for an enactment of a Contempt of Court Act.. This was, by itself, no unusual request. The Bar Association of Sri Lanka, the Editors Guild and civil society bodies had submitted draft laws to the Government. A Select Committee of Parliament was appointed but lapsed after the hasty dissolution of Parliament by Kumaranatunge at that time. These efforts have remained in abeyance since then.
Need for reasoned state policy
It is unfortunate that what will follow as a result of this most recent order will, most likely, be determined by political factors and not by reasoned state policy in respect of our international treaty obligations. Some advocates persist in putting forward the argument that implementing recommendations contained in these Communications of Views somehow infringes a quaint notion of 'national sovereignty.' However, their persuasions ring very hollow at particular points. First and foremost, the Committee is not a foreign 'court of appeal.' Its rulings are not enforceable in Sri Lanka. What it does posses however is extreme moral authority by virtue of the fact that signatory countries have specifically recognized the Committee's competence to determine whether specific violations of the Covenant have been caused by actions of the executive, legislature or the judiciary in that particular country. So to argue, for example, that the judiciary has occasioned such a violation and consequently to plead that a relevant recommendation handed down by the Committee cannot be implemented, is not a valid defence in international law
Countries who, for reasons to do with their domestic legal structures, cannot or do not wish to abide by the rulings of the Committee, simply do not accede to the Protocol as is the case with India for one. Sri Lanka differed in this respect many years back when then Minister of Foreign Affairs Lakshman Kadirgamar reasoned in eminently sound logic that the country had nothing to fear from such rulings which would only amount to recommendations in regard to the improvement of the country's domestic regime of rights and regarding which Sri Lanka had an opinion whether to enforce or not.
Further, the UN Rights Committee's recommendations span the world in respect of countries as diverse as Austria, Netherlands, Argentina and Zambia. Respecting such Views would consequently demonstrate Sri Lanka's maturity, her liberal democratic traditions once held in high esteem in South Asia and her rightful place among the community of nations.
Flippant disregard of Communication of Views
Yet, if Lakshman Kadirgamar, (undoubtedly one of the most perceptive lawyers of his time), was alive today, he would have been utterly taken aback at the chaotic state in which his wisely reasoned efforts have been left in. Far from demonstrating Sri Lanka's commitment to rights, the Government's flippant disregard of the Committee's Views has invited censure to an unprecedented extent. Further, the Supreme Court's declaration in the Singarasa Case that Sri Lanka's very accession to the Protocol was unconstitutional as it resulted in 'judicial power' being conferred domestically on the Committee, should have logically resulted in Sri Lanka withdrawing from the Protocol. Instead, the Government enacted a so-called "ICCPR Act' in Parliament in late 2007 which had nothing at all to do with rulings of the Committee but instead incorporated some 'soft' ICCPR rights into our law while ignoring core rights such as the right to life. In any event, it must be said at this point that if a domestic law is sought to give to such Views, it needs to be approved by the people at a Referendum, given the reasoning in the Sinharasa Case.
Remedying an incongruous state of affairs
The resultant tangle is, of course, not easy to unravel. Yet, the best measure of damage control now will be to respect and implement rulings of the Committee as far as possible. By this, it is not to say that this commitment should be limited only to restoring SB Dissanayake's civic rights due to patently political reasons. Rather, the Views handed down on each occasion should be treated on their merits as enhancing rights of citizens and national laws should be brought reasonably into conformity. Regardless of whatever may be asserted about the domestic enforceability of such Views, our non-implementation will continue to infringe our international treaty obligations and reflect badly on the Sri Lankan State.
This sadly incongruous state of affairs should be remedied even at this late point in time. |
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