New laws to comply with Human Rights Conventions?

by Jayantha Sri Nissanka

Ramifications arising from the rejection of Nallaratnam Singarasa's Supreme Court petition on September 15 based on the recommendation of the United Nations Human Rights Committee has created a quandary over machanisms with which to abide by human rights conventions to which we are signatory.

A five-bench judge of the Supreme Court headed by Chief Justice Sarath N. Silva ruled that Sri Lankan Government's accession to the optional protocol of the International Covenant on Civil and Political Rights was invalid and inconsistent with the Constitution of Sri Lanka.

Accordingly, neither the United Nations conventions signed by Sri Lanka nor the directives of monitoring bodies are binding on the country.

The question also arises whether all the International treaties ratified by Sri Lanka so far are nullified. Therefore, all trade agreements such as Indo-Lanka Free Trade Agreement, SAFTA, SAPTA, Pakistan- Sri Lanka Trade Agreement, Sri Lanka- Iran Trade Agreement, Trade and Investment Framework Agreement (TIFA) of Sri Lanka- USA, Bangkok Agreement, International Labour Organisation treaties are invalid because they have not been put before a referendum and passed in Parliament.

Ethiopia, Burma and Sudan have been blacklisted by the world community for not respecting the international human rights norms and practices. There are fears whether the Supreme Court decision would add Sri Lanka too to the above list, unless the Government takes immediate action to rectify it. According to the judgement, Sri Lanka follows the dualist theory like Britain that recognised the distinction between international and municipal law.

Therefore, all the international treaties signed by the President or the Government of Sri Lanka had to be incorporated into the domestic law.

The judgement says that conferment of a right on an individual to address a communication to the Human Rights Committee amounted to a conferment of a public law right which was a purported exercise of legislative power and therefore was within the realm of Parliament and the people at a referendum.

Therefore, recognition of the power of the Human Rights Committee to receive and consider such a communication was a purported conferment of judicial power on the Human Rights Committee in Geneva.

These two features violated Article 3 and 4 of the Sri Lankan Constitution which reposed sovereignty in the people, the judgement said. Accordingly, if the provisions of the Constitution were adhered to, the then President could not have acceded to the Optional Protocol in 1997 and made the declaration.

But according to the Vienna Convention, if a country has signed an international treaty, that country is bound to incorporate those laws in the domestic legal system and implement it. Our Constitution too emphasised to respect the international laws.

Directive Principles of State Policy in the Chapter VI, Article 27 (15) of the Constitution recognised "The state shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order and shall endeavour to foster respect for international law and treaty obligation in dealing among nations".

Many wonder whether this judgement prevents people to go before the UN Human Rights Committee for redress if someone is unhappy about local remedies for violation of rights. The UN Human Right Committee does not deliver any order on any country but only make their recommendations.

Already, the committee has given recommendations on the appeals of Tony Fernando, Victor Ivan, Dr. Jayalath Jayawardane, Lalith Rajapakse against Sri Lanka's Supreme Court decisions. Few more petitions are pending.

However, India is an example for Sri Lanka to learn how they have respected and adopted international laws to their legal system. For example, once the Indian Supreme Court held responsible the State of Rajastan and other authorities for not giving enough protection for a NGO employee Vishaka.

She was raped by a gang in a village in Rajastan when she was on her way to educate people in that village on family planning. The Indian Supreme Court used the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) as India was a signatory to it to bring justice to the victim.