Eschewing the dangerous satirical 'ICCPR' act

By Kishali Pinto Jayawardena

There is no doubt that the Act 'to give effect to certain articles in the International Covenant on Civil and Political Rights' (ICCPR) that was passed by Sri Lanka's Parliament this week, is a dangerously satirical imitation of what such a law should actually be. Its long title states disingenuously that it is meant to give effect to human rights 'which have not been given recognition through legislative measures.' Yet what the Act really does is to reproduce just four rights out of the more than twenty two substantive rights contained in the ICCPR and these too, in an unacceptably diluted manner. Indeed, this ridiculous law puts the Covenant itself to shame by being so bold as to borrow its title.

In many ways, the Act is the fittingly dispirited culmination of a train of events that commenced in August 2005 with the filing of a review application in the Supreme Court on 15th August 2005 in respect of a detainee Nallaratnam Singarasa whose conviction (solely on a confession) had been previously upheld by the Court. Singarasa then filed an individual communication to the United Nations Human Rights Committee, which was determined in his favour by the Committee opining that the conviction violated Article 14, paragraph 3 (g) of the Covenant (no one shall "be compelled to testify against himself or confess guilt").

Singarasa's communication was one of several that had been filed in recent years before the Committee by individuals who had found no redress for rights violations within the country. The communications were filed in terms of the First Optional Protocol to the ICCPR (the Protocol) which was acceded to on 3 October 1997 by then Foreign Affairs Minister the late Lakshman Kadirgamar, in an expansively generous, (though perhaps overly optimistic), acknowledgement that Sri Lanka had nothing to fear from such scrutiny.

Such acts of accession are, of course, quite difficult to reconcile with the needlessly belligerent assertion by a senior state law officer recently that the country accedes to international treaties because they are 'bullied' into so doing. It may suffice to observe that it would be difficult to find a person less capable of being 'bullied' in any way whatsoever than the late Foreign Affairs Minister, possessed as he was of a brilliantly combative mind and who defended the country well in critical fora without resort to superficialities.

But this is to digress. Returning to the issue at hand, the Protocol established the competence of the Committee to receive and examine individual complaints. The examination by the Committee thereof was naturally limited to the question as to whether any right in the Covenant had been violated and the determination of the Committee was also limited to the sphere of international law. There was no question that the Committee had any judicial power within Sri Lanka's domestic legal regime. Neither was any such power claimed at any point either in relation to this country or several other countries in respect of which Communications of Views were delivered as has been made clear by the Committee itself in its General Comments.

However, in each of these communications, the decision of the Supreme Court was part of the factual sequence of events pleaded before the Committee, due to the generally applied pre condition that domestic remedies must be exhausted before coming before the Committee. In one or two instances such as the Tony Fernando case which concerned a lay litigant who spoke loudly in court being summarily sentenced to one year rigorous imprisonment for contempt of court by the Supreme Court, the Communication concerned an adverse ruling regarding the actions of the Court itself as judged against protection of liberties in the ICCPR and consequently led to considerable judicial displeasure.

In this context, Sinharasa's review petition was an unfortunate catalyst that brought an openly simmering sense of judicial affront to the boil. The review petition filed in August 2005 referred to the findings of the Committee in the context of the first ground urged but put forward two further grounds, the second notably being that the facts and the law had been erroneously applied by the Court, resulting consequently in a grave miscarriage of justice.

On 15 September 2006, a judgment delivered by the Court presided over by Chief Justice Sarath Nanda Silva pronounced that, (apart from the commonly known truth that the provisions of the ICCPR have no effect within Sri Lanka unless enacted into domestic law), the very Presidential act of accession to the Protocol amounted to an exercise of legislative power as well as a conferment of judicial power on the Committee and was therefore unconstitutional. It is as a direct result of this judgment which has been subjected to extensive critical scrutiny, (more by international legal experts rather than those domiciled domestically), that this so-called 'ICCPR' Act was drafted, seemingly to bring in the provisions of the ICCPR into domestic law and reportedly in order to satisfy conditions prescribed by the European Union.

The Act refers to four substantive rights, in brief being the right of every person to recognition as a person before the law, a number of procedural entitlements to an accused already existing in criminal procedure, a puzzlingly sandwiched provision in regard to the rights of a child and a no less puzzling afterthought regarding the right of access of every citizen to take part in the conduct of public affairs, either directly or through any representatives and to have access to benefits provided by the State. It also contains the prohibition of propagation of war, religious hatred and so on. The remedy is to the High Court against executive or administrative action and should be invoked within three months of the alleged infringement either by the person whose rights have been or are to be infringed or by a person on his behalf.

Meanwhile, in its Determination communicated to the Speaker this week upon the Bill being referred as an 'urgent bill', the Court limited the term 'public affairs' in clause 6(a) of the Bill to ensure that there would be no interference with statutory functionaries, stipulated a right of appeal from the High Court and stated further, that the jurisdiction of the High Court should be limited to 'residual rights' that are not within the limits of the constitutional rights chapter.

What is unacceptable is that the draft was put together without even the façade of 'public consultation' that is normally advanced as a convenient fig leaf to hide the limited nature of such purported consultations. In this case, even this façade was not evidenced; the intention to surreptitiously enact a farcical law as embodying the ICCPR was clear and simple.

The drafters of this Act, in embarking on an exercise as crafty as it is cunning, conveniently left out a number of core ICCPR rights on the spurious justification that these are already part of the constitutional framework. Among these is the right to life which has however only been impliedly recognised by one or two liberal judges, notably Justices Mark Fernando and Shiranee A. Bandaranayake, who have inferred a positive right from the negative, as contained in the constitutional right not to be punished with death or imprisonment except by court order (Article 13(4). However, this is not to say that the right to life is unequivocally part of our constitutionally guaranteed rights until it is so affirmed by a Full Bench of the Court. This same reasoning applied to the impliedly recognised right to vote. Even then, its inclusion in specific statutory form is highly desirable.

The provisions of the 'ICCPR Act" should have exemplified the genuineness of the Government to redress existing lacunae in our rights framework. The right not to be 'disappeared', (subsumed in the right to life in terms of Article 6(1) of the ICCPR) is foremost in this regard. Such a right would have been of immeasurable value in current times of conflict. This may indeed, have been the very reason as to why this right was omitted, given the difficulties that this would have posed if the jurisdiction of the High Court was invoked en masse.

In this and other respects, the 'ICCPR Act" is a lamentably 'half baked' law and will certainly not add any significant protections to the existing domestic legal regime. Rather, it will confuse the system of legal protection still further and diminish the domestic value of the ICCPR itself as the overarching standard by which the 'rights value' of internal laws are measured.