The Sunday Times Focus in right

It may be recalled that the invocation of the individual communication remedy by Sri Lankans had been only evident in recent years. The Committee which constitutes eighteen jurists, had delivered six Views against the Sri Lankan State. And there is no doubt that these views were in respect of issues that many consider to be fundamental to the good and proper working of Sri Lanka's legal system.

In an article first published in the Sri Lanka Journal of International Law, Volume 16, 2004, Faculty of Law, University of Colombo, former Justice of Sri Lanka's Supreme Court, Mark Fernando explained succinctly as to why decisions of the United Nations Human Rights Committee are binding on Sri Lanka.

Examining the Committee's views in Victor Ivan v Sri Lanka (Communication No 909/2000, Decision dated 27th July 2004), he observed that these Views "give new life and vigour to human rights in Sri Lanka and indeed, opens up a new dimension to human rights with many implications for future development."

The Committee had ruled that a number of defamation indictments kept pending against the applicant had 'chilled' his freedom of expression, and violated his Covenant right to be tried without undue delay. The recognition of a right not expressly stated in the Sri Lankan Constitution was looked upon at that time, as a positive step, indicating the better safeguarding of basic rights of citizens.

But we are concerned with the wider view as to whether international covenants, such as the ICCPR, impose legal obligations on Sri Lanka. Justice Fernando responded in the positive, reflecting earlier judicial reasoning.

For example, in Weeranansa v AG (2000 1 SriLR 387,409), the question was posed thus by him; "Should this Court have regard to the provisions of the Covenant [i.e. the ICCPR]? I think it must. Article 27(15) [of the Sri Lankan Constitution] requires the State to "endeavour to foster respect for international law and treaty obligations in dealings among nations". That implies that the State must likewise respect international law and treaty obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which international law recognizes."

In other words, such covenants must be regarded as "law", binding on Sri Lanka and any violation will amount to a denial of the protection of the law - "if it is by executive action, the fundamental rights jurisdiction of the SC can be invoked, and if it is by judicial action, the ordinary jurisdiction of any relevant court may be invoked."

These are, of course, views that are diametrically opposite to the reasoning of a Divisional Bench of the Supreme Court expressed this Friday. The Court took the view that the Committee rulings are contrary to Sri Lanka's Constitution. It further opined that Sri Lanka's accession to the Optional Protocol to the ICCPR in fact, amounted to a purported conferment of 'judicial power' on the Committee and violated Articles 3 and 4 of Sri Lanka's Constitution which "reposed sovereignty in the people."

The question centres, around international obligations and domestic implementation of such obligations. Any person with ordinary commonsense would query as to why a State would agree to bind itself in international law to particular commitments while airily disregarding those same commitments within that country itself. But this is exactly what Sri Lanka had been doing in the past under the convenient logic of the dualist theory of international law which is to the effect that municipal treaties entered into by the executive have to be implemented by domestic legislation.

However, Friday's judgement goes even further than the reminder that we are a dualist system, which in any event, any student of basic international law is well aware of. Thus, the decision is to the effect that the very accession to the Protocol is invalid, has no basis in law and is unconstitutional. In the process, it raises a number of questions that need to be dealt with exhaustively in a different forum rather than a newspaper column.

Briefly however, these questions may be framed as follows. In what manner is the accession contrary to the Constitution in a context where the Constitution itself gives the right to the executive to enter into treaties binding in international law? Again, where the Constitution has mandated respect for "international law and treaty obligations in dealings among nations", in what manner are we to respect such laws and norms? Citation of international human rights standards by Sri Lankan courts, (in regard to which only some have been mentioned here), have been evident in the area of economic social and cultural rights as well as in civil and political rights. Are we then embarking on a contrary course to these norms, often referred to as the sum total of the law binding the community of nations? Are we now called upon to withdraw from the Protocol? This would be a drastic step that would lead to dire consequences particularly in view of Sri Lanka's present renewal of the conflict in the North and East.

For example, in both the Victor Ivan case and in its most recent decision delivered in July 2006, (Lalith Rajapakse v Sri Lanka Communication No 1250/2004; 14/07/2006)), undue delay in the hearing and concluding of legal proceedings was said to be in violation of Covenant rights. In a context where laws delays are of tremendous importance in the domestic context and moreover where the domestic jurisprudence has not addressed that question sufficiently critically enough, these views were of extreme importance.

Similarly, the other Communications also address crucial issues. In Fernando v Sri Lanka (Communication No 1189/2003: 31/032005), the Committee called upon Sri Lanka to enact a Contempt of Court Act similar to laws in many other countries. In other cases, issues in regard to the arbitrary working of the terrorism laws and the phenomenon of disappearances have been put in issue.

The Sri Lankan State is required to justify itself before the UN Committee not only in respect of individual communications but also when the Committee sits when examining the country's periodic reports. On these occasions, as I have personally observed, many questions are directed by Committee members to the high level Government delegations in respect of the manner in which its Views in respect of individual communications have been adhered to. Future satisfaction in that regard will pose a daunting task.

In addition, Sri Lanka's recent membership to the UN Human Rights Council also imposes on the State, great obligations in respect of its conformity to international norms. Non-conformity may well result in the membership being forfeit and again, the consequences of withdrawal from the Protocol will be undoubtedly catastrophic. These are the horns of the unenviable dilemma that the State is now placed in.