The Sunday Times News - Will SC ruling pose major problems for Lanka?

Friday's decision by a Divisional Bench of the Supreme Court headed by Chief Justice Sarath Nanda Silva, that Sri Lanka's accession to the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) was inconsistent with the Constitution of Sri Lanka, will pose several problems in terms of international obligations.

This is in view of the fact that Sri Lanka will now be called upon to officially consider withdrawing from the Protocol -- an unprecedented action on the part of states which have consented to be bound by it.

The Optional protocol allows individuals to submit communications to the Geneva-based United Nations Human Rights Committee in respect of violation of rights in terms of the ICCPR. The Committee comprises eighteen jurists who are elected based on their eminence in the international human rights field.

Sri Lanka acceded to the ICCPR in 1980 and further acceded to the Optional protocol on October 3, 1997. The latter accession (at a time when Minister Lakshman Kadirgamar was the Minister of Foreign Affairs) was on the basis that Sri Lanka had nothing to fear from allowing the United Nations Human Rights Committee to examine individual communications submitted by aggrieved persons.

In recent times, the Committee has delivered six Communications of Views against Sri Lanka. The latest was a decision delivered in July this year. It stated that the delays that had taken place in the hearing and determination of a torture case had resulted in a violation of Article 2 of the ICCPR. Article 2 mandates any person whose rights and freedoms are violated should have an effective remedy. The Sri Lankan State was put under an obligation to expedite proceedings in the High Court and in the Supreme Court. (Communication No 1250/2004: Sri Lanka, adoption of views, 14th July 2006)

Immediately prior to that, the Committee had communicated its views that a decision of a Supreme Court bench headed by the Chief Justice, which had committed a lay litigant to one year rigorous imprisonment for contempt of court after he had spoken loudly in court and filed numerous applications, amounted to an arbitrary deprivation of liberty. (Communication No 1189/2003: Sri Lanka, adoption of views, 31 March 2005). The Committee found that no reasoned explanation had been provided by the court or the State party as to why such a severe and summary penalty had been warranted in the exercise of the court's power to maintain orderly proceedings.

In another decision delivered in 2004, indictments for criminal defamation served on the editor of the 'Ravaya' which had been left pending for several years was ruled to be in violation of the right to be tried without undue delay as well as having a 'chilling effect' on the right to freedom of expression. (Communication No. 909/2000: Sri Lanka adoption of views, 26th August 2004)

In all cases, the violation of rights entitled the payment of compensation by the State. In the Ravaya case, the determination of the amount of compensation was made by the Human Rights Commission and forwarded thereafter to the Government.

The implementation of this payment as well as other recommendations by the Committee will be effectively prevented by Friday's Supreme Court ruling.

However, unless and until Sri Lanka withdraws from the Protocol, it will remain liable for the violation of ICCPR rights in international law, thus resulting in the Sri Lankan State being placed in an extremely difficult position between the domestic and international legal systems.