Focus on Rights

Holding the state accountable beyond its shores
Decisions of the UN Human Rights Committee In Regard to Sri Lanka.
The recent communication of views by the Geneva based United Nations Human Rights Committee, finding violation of Covenant rights in both the Victor Ivan case and the Singharasa case, has implications that are profound for this country.

While both concern fundamental issues regarding protection of the right to expression and publication as well as the right to fair trial, the second brings into focus several crucial concerns regarding Sri Lanka's Prevention of Terrorism Act which remains in its un-amended and problematic form, in our statute books even though practically in abeyance for the time being.

Sri Lanka is now increasingly being taken before the Committee in a number of cases that specifically challenge decisions of the country's Supreme Court, resulting in positive findings of violations of Covenant rights.

On previous occasions, this column examined two such instances, (Communication No. 916/2000), concerning the failure by the Peoples Alliance Government to investigate death threats to the life of parliamentarian Jayalath Jayawardene, following allegations by President Chandrika Kumaratunge that he was involved with the LTTE and most vitally, the Jegatheeswaran Sarma case (CCPR/C/78/D/950/2000), where the Committee found against the Sri Lankan State in a complaint filed by a father from Trincomalee, whose son disappeared in army custody in 1990.

This week and the next, these most recent communication of views by the Committee will be examined in detail, given the importance of the issues involved. First however, it appears necessary to look at the practical impact of such views by the Committee upon the domestic legal regime. In the sub-continent, only Sri Lanka and Nepal permit their citizens to individually appeal to the Committee, (though all South Asian nations are bound to periodically submit general reports to the Committee on measures taken to implement the Covenant).

But, what of the critics who maintain that all this is irrelevant in the context of Sri Lanka's national sovereignty? There are very simple but salient answers to this question. One great achievement of the modern age has been the evolving of international law norms that bind all countries, (excepting rogue administrations), to the obeying of basic human rights standards. It is no excuse to this rule of obedience to say that the domestic laws permit flouting of such standards.

The horrendous example of the atrocities that the Nazi laws and courts - though perfectly legal in the sense of that word - permitted, is sufficient for acceptance of that fundamental truth. In the years since then, we have formulated an international legal regime that compels countries, notwithstanding national sovereignty, to abide by its norms.

This is how indeed, for example, the Supreme Court of a country, can be held accountable to another tribunal beyond its shores without explicit provision for such appeal in the domestic legal regime. There are very salient examples in this regard. Take Britain, for instance. Prior to 2000, British citizens could appeal to the Strasbourg based European Court, (and, at that time, the European Commission), on any allegation that their rights under the European Covenant on Human Rights, had been violated by an adverse finding by a British court even though no specific British law conferred such right of appeal. British judges were not bound by the Covenant, which, itself, was not directly enforceable in the British courts.

Nevertheless, the impact of the views of the European Court during this period was considerable, as evidenced in, for example, its virtual 'overruling' of the decision of the House of Lords in the Thalidomide case to stop the Sunday Times from publishing a newspaper article that discussed the responsibility of a drugs company for the deformities caused by the thalidomide drug. Subsequently, of course, we have the Human Rights Act, which came into force in October 2000 and made it unlawful for any public authority, including courts and persons, (exercising functions of a public nature), to act incompatibly with the Convention rights. However, the point of this argument is that, even prior to this, decisions of the Strasbourg institutions were accorded general acceptance and indeed, overriding importance, in British law.

Sri Lanka is in a stage very similar to Britain in those early years. Like the United Kingdom, the Sri Lankan State has signed the International Covenant on Civil and Political Rights, thereby accepting the competence of its Geneva based Human Rights Committee to accept petitions from individuals alleging a violation of the Covenant rights, for which they have obtained no relief from Sri Lanka's Supreme Court.

For a long number of years however, the eighteen member expert group which constitute the Committee, abstained from expressing their views in individual communications as forcefully as the Strasbourg institutions. In recent times, this has changed in a most welcome manner, both in the General Comments (issued periodically on particular articles of the Covenant), as well as in the views of the Committee in individual petitions. This country may well turn out to be a test case in South Asia in that regard.

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