The Sunday Times Focus on right

A welter of misapprehensions and misconstructions has followed the recent divisional bench ruling that Sri Lanka's accession to the Optional Protocol to the International Covenant on Civil and Political Rights was unconstitutional and illegal. Hence, a few clarifications may be opportune.

The filing of the petition on behalf of Sinharasa was in the nature of a revision application rather than an application, (that would have been even more wonderously ill timed), with the aim of securing the 'domestic implementation" of the Views of the Geneva based United Nations Human Rights Committee.

Sinharasa, a detainee in the Boosa prison, had been convicted on five counts of having unlawfully conspired to overthrow the Government and with that objective in mind, having attacked four army camps. In the High Court, the conviction was solely on the strength of a confession obtained under the Prevention of Terrorism Act No 48 of 1979 (as amended), (PTA) and emergency regulations. After appeals in the domestic arena (up to the Supreme Court) resulted only in reduced sentence Sinharasa filed an individual communication before the Committee invoking the right given to him consequent to Sri Lanka's accession to the Optional Protocol.

Incidentally, in laypersons' language, the term 'accession' in this context means simply 'assenting to be bound by.' States who participate in the negotiations to the signing of a treaty may signify further consent to be bound by the act of ratification. Those states who wish to later become parties to a treaty may do so by acceding to it. The legal effect of both accession and ratification is the same.

Sinharasa's primary plea before the UN Committee that it was impossible for him to satisfy the burden imposed on him under Section 16(2) of the PTA to prove that the confession was extracted under duress and was not voluntary as he had been compelled to sign the confession in the presence of the very police officers by whom he had been tortured earlier. Consequently, he took the position that his rights under Article 14, paragraph 3 (g) of the Covenant (no one shall "be compelled to testify against himself or confess guilt") were violated.

In accepting this position, the Committee referred to the hoary principle that no one shall "be compelled to testify against himself or confess guilt." This was recalled as to be understood in terms of the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt. The burden should accordingly be on the prosecution to prove that the confession was made without duress.

In addition, the delay between conviction and the final dismissal of the author's appeal by the Supreme Court (29 September 1995 to 28 January 2000) in Case no. 6825/1994 were found to result in a violation of the rights contained in ICCPR, Article 14, paragraphs 3(c), and 5, read together, which confers a right to review of a decision at trial without delay.

The State was directed to provide Sinharasa with an effective and appropriate remedy, including release or retrial and compensation. Sri Lanka was also cautioned to avoid similar violations in the future and to ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant.

Many years later when it became evident that the Committee's Views would not be implemented, a revision application was filed in the Supreme Court. Importantly, the submissions made in that regard before the judges referred to a later judicial view departing from the authority of the Sinharasa case on the law in a similar case where there had been no independent evidence to corroborate an alleged confession.

Former judgements of the Court had cited international standards of rights protection to enable the enhancement of existing rights in our Constitution. Thus, the Constitution was looked upon, as has been famously said, as "a living document." The interpretation and enhancement of modern international human rights was held to be only right and proper as it would result in a rich body of jurisprudence conferring further rights upon the individual who is sovereign in terms of the Constitution itself. Such expansionist thinking that had been applauded by some in the past but decried by others as permitting the inclusion of 'international thinking" to an unacceptable degree.

The recent judgment of the Divisional Bench of the Court could justifiably be referred to as a drawing in of such thinking. The five judge bench headed by the Chief Justice affirmed that Sri Lanka's accession to the Covenant itself was not 'per se inconsistent with the provisions of the Constitution or the written law of Sri Lanka.' The State was bound in international law. However, the rights contained therein were ruled not to have 'internal effect'.

The Court opined more radically that the Presidential act of accession to the Protocol (which enabled the Committee to receive and consider individual communications from any individual subject to Sri Lanka's jurisdiction), amounted to an unconstitutional exercise of legislative power as well as an equally unconstitutional conferment of judicial power on the Committee.

Briefly, the effect of this judgement is two fold. First, it reiterates the old view that accessions to international treaties per se binds Sri Lanka as a Republic only in the international arena. Unless and until domestic legislation is enacted to give effect to such treaty obligations, they would have no internal impact. We have one ready made example (among others) of such domestic enactments in the Convention against Torture Act, No. 22 of 1994.

Secondly, the judgement renders of no force and effect within the domestic context, not only Sri Lanka's accession to the Protocol under the ICCPR but also similar such accessions to other treaties. These include most notably, accession to the Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It will also have the effect of stopping short in its tracks, ongoing campaigns to strengthen State resolve to accede to the Protocol to the Convention Against Torture which again permits the Committee Against Torture to receive individual communications.

As pointed out in this column previously, a judgement of this nature from a divisional bench of the highest court in the land has far reaching consequences in the context of the State's obligations in international law. In addition, it will now render the Government acutely uncomfortable when it sends its representatives before international committees to plead Sri Lanka's conformity with treaty commitments. While a possible denouncing of the ICCPR Protocol by the State is within the bounds of possibility, this will carry with it serious consequences in the international law sphere.

From another equally sobering perspective, there is striking paucity of comment in regard to the reasoning and findings of the Court by the public, civic society organisations (excepting a few), those belonging to the legal and judicial services and most importantly legal academics. The deliverance of such a judgement has direct effect on all areas of the law and not only international human rights law. In any other country, such a decision would have immediately excited constructive and analytical comment and observations.

However, the continuing absence of any substantial debate on these issues is further solid evidence of the abandoning of any claim that we live in a society which has vigorously democratic thought and movement. Veritably and conclusively, this is Sri Lankan society in its most sorry state of (collective as well as individual) dysfunction and apathy.