Columns

In the wake of the turbulence caused by the September report of the Office of the United Nations High Commissioner on Human Rights (OHCHR) on Sri Lanka, it is uproariously funny to see Rajapaksa propagandists exerting all their strength to lambast the filing of individual petitions by Sri Lankans before the Geneva based United Nations Human Rights Committee (the Committee).

Views of the Committee entirely optional
Indeed, the more outrageously inclined among them have gone so far as to equate this to the right of appeal to the Privy Council, which Sri Lanka abandoned decades ago when shaking off her colonial fetters. Nothing could be further than the truth. These inventive propagandists claim that resort to such a process involves the ceding of sovereign judicial power. This is far from the actual case. First, the Committee is a juristic body to which citizens of any State which has signed the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) can send petitions. In response, it merely hands down Communication of Views,opining on the adherence of that State to international law. It is entirely up to the country concerned to act according to the Views or not.The Committee’s authority is limited to the international arena, as its members have asserted in more than one General Comment.

Let alone technical niceties of the process, anyone acquainted with basic principles of the English language should surely understand the difference between a binding judicial order and recommendatory ‘Views.’ To urge otherwise is perverse in the best sense of the term.

In the interests of expanding rights
The Committee ranked among its number at one time, respected Sri Lankan jurist the late JAL Cooray. This body of experts is different to the United Nations Human Rights Council which is made up of nations and therefore governed by international realpolitik. In contrast, the Committee engages in considered deliberations and communicates Views aimed at improving the domestic status of rights rather than subordinate people to international dictates.

In so doing, it looks at testimonies of alleged victims, testimonies of witnesses called by both parties, medical reports, psychiatric reports, legal judgments, legislative, executive and administrative rules and regulations, statements from the state party concerned and so on.

Second, Sri Lanka and other so-called ‘vulnerable’ smaller countries are not the only States to which the Committee sends its ‘Views.’ Netherlands, Canada, Finland, France, Italy and Norway count among a whole host of countries which have changed their national laws following the Committee’s Views in the interests of improving their legal regimes. Others however have rejected, which is again perfectly permissible.

Acting with admirable foresight
In Sri Lanka, the Supreme Court had in its heyday of activism through excellently reasoned judgments of MDH Fernando, ARB Amerasinghe JJ for example in the early to mid 1990′s,cited with approval the reasoning of the Committee. Taking this a step further, the country acceded to the First Optional Protocol in 1997 allowing individuals to directly petition the Committee. Then Foreign Minister, the late Lakshman Kadirgamar took the view with remarkable foresight that the winds of international pressure could be best met if national reform takes place and that Sri Lanka had nothing to fear in that regard.

In actual fact, not many petitions were filed before the Committee during the years immediately following the Protocol accession. However with ugly political controversy enveloping the Supreme Court from the late 1990′s onwards, petitions began increasingly to be sent to the Committee.

Among these petitioners were Singarasa, a (Tamil) detainee who challenged his confession under the Prevention of Terrorism Act (PTA) as well as a (Sinhalese) editor repeatedly served with criminal defamation indictments and a (Sinhalese) teacher of English from Moratuwa sentenced to one year imprisonment for repeatedly petitioning and speaking loudly before the Sarath Silva Court. In impeccable style, the Committee recommended legal reforms, including enactment of a Contempt of Court Act and revision of the PTA.

Provoking international scrutiny
None of these Views were implemented. This, by itself, would not have provoked international scrutiny. However, a 2006 judgment of a Divisional Bench of the Supreme Court (Sarath Silva CJ, with Nihal Jayasinghe, Udalagama, Dissanayake and Amaratunga JJ) in the now infamous Singarasa Case brought Sri Lanka’s conformity to international law to the centerfold. One part of the judgment merely restated the accepted legal principle that Sri Lanka’s dualist legal system decreed that international treaties had to be enacted domestically in order to have internal effect.

However, the Court also went on to declare that the accession to the First ICCPR Protocol was an unconstitutional conferment of judicial power on the Committee. The Attorney General had argued this position with more than ordinary zeal. Article 3, read with Article 4 of the Constitution was ruled to have been violated.

But quite basically, the members of the Committee did not exercise judicial power within any country that had acceded to the Protocol. Its Views were purely recommendatory. When the Singarasa judgment was delivered, it should have been the subject of intense discussion in academic and popular circles. But adeafening silence was observed, apart from a few exceptions. As a wag cracked at the time, probably this would have been due to the dire fear of Colombo’s talking heads to be cited for contempt.

Pointing to evident truths
In its September report, the OHCHR has sought to have the Singarasa Case reviewed. That, of course, remains to be seen. Perhaps the prescient warning of the late Justice MDH Fernando that state sovereignty should not be used as a weapon to deny the enhancement of rights (Special Double Issue, Law & Society Trust Review, January/February 2009) may be pertinent now. Nonetheless the propagandist claim made that the Committee’s consideration of petitions is similar to appeals filed earlier before the Privy Council is preposterous. It must be dismissed with force.

If Sri Lanka had maintained customary respect for international procedures, then we would not have had to face a UN mandated report and the possibility of a ‘hybrid court’ in all but name staring us in the face.
That much should be clear to all but the most simple-minded.