Sri Lanka joined the US initiated resolution against Sri Lanka in the UNHRC as a co-sponsor – an act which amounts to accepting the resolution in toto. Usually, nations express reservations about or opposition to individual paragraphs in such resolutions. In 2014, the Indians opposed operative paragraph 10 of the resolution against Sri Lanka. This year however, when Sri Lanka took the highly questionable decision to become a co-sponsor of this resolution, they did not register reservations about or opposition to any paragraph but accepted the whole resolution. The Sunday Island spoke to former Chief Justice Sarath N. Silva about the legal ramifications of the undertakings entered into by the Sri Lankan government in the UNHRC.
Q. The executive arm of the state (the foreign ministry in this instance) in its wisdom decided to accept in toto the US sponsored resolution against Sri Lanka in the UNHRC. Then Nimal Siripala de Silva an important member of that very same executive made a public statement to the effect that this resolution has been passed without studying the Sri Lankan legal system and that the ordinary law as well as the constitution will have to be amended to implement it – a process that will take much time and effort. He even hinted that a referendum may be called for to amend some sections of the constitution. So the executive arm of the state appears to have gone overseas and committed a major blunder. This appears to be reminiscent of the 2006 case of Nallaratnam Singarasa v Attorney General where the executive arm of the state had signed Optional Protocol I of the International Covenant on Civil and Political Rights (ICCPR) making it possible for individuals from Sri Lanka to approach the Human Rights Committee in Geneva. Singarasa obtained from the Human Rights Committee a ruling calling upon Sri Lanka to not only to rescind his conviction but to pay him compensation. When his lawyers approached the Supreme Court with this HRC ruling, you threw it out on the grounds that the law of Sri Lanka did not recognize the authority of the Human Rights Committee even though the executive arm of the state may have signed Optional protocol I of the ICCPR. We now seem to be saddled with a very similar situation?
A. This is a very serious issue that you raised. Our constitution recognizes the separation of powers between the legislative, executive and judicial arms of the state. Law making is the function of the parliament. Implementation of those laws and the day to day running of the government is the responsibility of the executive arm. The judicial arm ensures on the one hand that the legislature does not pass laws which are unconstitutional and also that the executive does not exceed the powers vested in it by law. The executive arm has to act within the four corners of the law that has been laid down. This is where the whole concept of ultra vires and the rule of law come in. Now, in this instance, they have gone and agreed to certain things which are prima facie not provided for in our constitution and the law.
Q. Was the earlier such instance of signing Optional Protocol I of the ICCPR in 1998 legal at all?
A. No, it was totally illegal. When Sri Lanka signed the ICCPR in 1980, the then government deliberately refrained from signing Optional Protocol I which enables individuals to appeal to the Human Rights Committee. In 1998 when Optional Protocol I of the ICCPR was signed, I was the Attorney General but I was not consulted at all. There was a group headed by Mr Raja Goonasekera called the Human Rights Action Group which advised the then President Chandrika Kumaratunga to sign Optional Protocol I of the ICCPR. What happened in the Singarasa case was that an appeal was made to the HR committee. The HR Committee gave a ruling without consulting our courts or even examining our records. There are two legal systems, the monist system and the dualist system. In the countries that follow the monist system, international law becomes national law straightaway. But in a dualist system as in Sri Lanka, if international law is to be enforceable locally, it has to be incorporated in local legislation. Article 33(f) of the constitution which lays down the powers of the president says that the president is authorized “to do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorized to do.” What this means is that anything that the President is required to do by international law cannot be inconsistent with the constitution. Any obligation that the foreign ministry has entered into with the UNHRC can be implemented only after amending the law.
Q. The law will have to be amended to be brought into line with an agreement which was not valid in law when it was entered into?
A. There will of course be the question whether it is proper to do so. Parliament will in such an instance, be acting on what is dictated to it through the UNHRC resolution. That in itself is wrong.
Q. Haven’t we ever had the practice of consulting the Attorney General before entering into any multilateral or bilateral undertakings with foreign countries or organizations that may have legal implications?
A. Generally there is. All international loan agreements and international contracts are vetted by the AG’s Dept before being signed. We ensure that there is a clause to say that that the agreement will be in keeping with the laws of Sri Lanka. Now if this UNHRC resolution had been opposed by Sri Lanka, but had been passed by the UNHRC despite our opposition, the government can decide to either implement it or to ignore it. But now with Sri Lanka becoming a sponsor of the resolution, it has become a state commitment. The government has taken on itself a burden which is illegal. The minister of foreign affairs has taken the oath to work within the constitution first as a parliamentarian and then as a minister but he has violated that oath.
Q. Your stand on the landmark Nallaratnam Singarasa case was a refreshing change to the servility shown by virtually all governments in relation to the UN and other such international bodies. There is a tendency to uncritically accept any diktat laid down by such bodies. I have noticed that countries like Singapore and Malaysia fearlessly express their own views and take stands in keeping with their national interests in responding to demands made by international bodies like the UN.
A. The Singarasa case in fact was taken up by the EU and the then foreign minister asked me whether I was prepared to explain the position I took to a special representative of the EU and that if I didn’t, the EU would suspend GSP+. This was in 2008. So I agreed to meet the EU representative. I explained the basis on which I had arrived at my conclusion in the Singarasa case and she was convinced. So GSP+ was not withdrawn that year.
Q. In your opinion, should Optional Protocol I of the ICCPR ever be implemented in Sri Lanka even though it has been signed?
A. Optional Protocol I empowers individuals to approach the Human Rights Committee in Geneva. This subordinates the local judiciary to foreign supervision. We had the Privy Council earlier which of course has passed down some good judgments. The Privy Council at least understood our judicial standards. But appeals to the Privy Council was stopped in 1971. Other countries do not understand our judicial standards and procedures. So I think we should never have subscribed to Optional Protocol I of the ICCPR. If the Human Rights Committee had been empowered to hear cases from Sri Lankan individuals, someone could have gone before it against the war and said that the crackdown by the Sri Lankan state violates their right to self determination. I don’t agree with the criticisms that are being made of the Sri Lankan courts. There are delays and lapses, but by and large they have fared well. People can go to the courts with some confidence. If people want to submit our courts to foreign supervision because of the shortcomings of the courts, then by the same token we should submit our government to the supervision of some foreign government.
Q. The first Operative Paragraph of the UNHRC resolution calls for the implementation of the report of the Office of the Human Rights Commissioner (OHCHR) on Sri Lanka. We have joined this resolution as a co-sponsor and we have not put out a separate critique about that report either. So we are now bound hand and foot?
A. The report of the OHCHR on Sri Lanka is based on an investigation that has not been carried out in this country. But we have accepted it as the starting point. The correct thing to have done would have been to reject this OHCHR report altogether and said that if there are allegations, Sri Lanka will establish a mechanism to investigate such allegations. Then you start with a clean slate. But now this OHCHR report has become the starting point and that is a very dangerous thing. In any criminal proceeding, there is a preliminary hearing after which it proceeds to the trial stage. Now this report will have to be taken as the preliminary stage. Under our law any investigation has to take place under the Criminal Procedure Code. The OHCHR investigation has not been carried out under the provisions of the CPC. This too gives rise to a mismatch between the commitments undertaken in Geneva and the local law. Sri Lankan courts can’t take into account any investigation done outside the Criminal Procedure Code.
Q. Operative Paragraph 6 of the UNHRC resolution ‘affirms’ the importance of the participation in a Sri Lankan judicial mechanism of Commonwealth and other foreign judges, defence lawyers, prosecutors and investigators; This seems to call for a parallel legal system with judges, special courts, investigators and prosecutors. Even the Attorney General’s department has to be bypassed. What is the legality of this?
A. This calls for the bypassing of all established mechanisms. This will give rise to a huge problem. Under Article 12 of the constitution the law should apply equally to everybody. For any criminal offence, there has to be a uniform procedure. You can’t single out our soldiers and those who directed the war and say that they are subject to a different procedure. According to Article 12 you can’t have two parallel legal systems. Article 12 of our constitution accords with the Universal Declaration of Human Rights which places emphasis on equality before the law. If there is a case involving torture it has to go before our high court. You can’t say that in order to fulfil our international obligations, these have to be referred to a separate court. Torture is an offence under our law. You can’t say that torture related offences committed by the Sri Lanka army should be taken before a special court while a torture related offence committed by a policeman or a non-military person is taken before the high court. If a person has been shot and killed, that is murder. A person who has committed murder will have to go before the normal courts. A soldier accused of murder cannot be referred to another court while others who commit the same offence are referred to the ordinary courts system. That will be a totally irrational classification. Besides, a soldier exercises power under law. People have forgotten is that this was a war that was waged lawfully to safeguard the territorial integrity, and the people and property of Sri Lanka.
Q. We have heard some people trying to justify a special court to try alleged war crimes by likening it to the Criminal Justice Commission set up after the 1971 insurgency to try the insurgents.
A. I too was in charge of the prosecutions in the Criminal Justice Commission at one point. The CJC was formed to try persons who had waged war against the government. At that time we did not have Article 12 of the constitution which guarantees equality under the law. But we took certain precautions to ensure the basic rights of those who stood accused before it. We were guided by the judgment of the Privy Council in Liyanage v The Queen. The highest safeguard was that the CJC was comprised of five sitting judges of the Supreme Court and the chief justice was the presiding judge. In any case the Criminal Justice Commission was set up to try about 19,000 people who had waged war against the state. The mechanism that is being contemplated now is to try people who have waged war for and on behalf of the State. If anybody is trying to equate persons who have waged war against the State with those who fought to protect the State that person should have his head examined. In any case the UNP government led by J.R.Jayewardene said that the setting up of the CJC was wrong and unacceptable and they abolished the law under which it was set up. Under the ICCPR, any person convicted of a criminal offense is entitled to a right of appeal. Section 14(5) of the ICCPR says that anyone convicted of a crime will have a right to appeal against his sentence or conviction to a higher tribunal. The UNHRC resolution appears to envisage only one body. When the Criminal Justice Commission was set up in 1971, there was no right of appeal to a higher court. So JR’s action in abolishing the CJC cannot be faulted.
Q. There is also an attempt to justify the inclusion of foreign judges in the proposed judicial mechanism on the claim that when Mrs Bandaranaike established a Commission of Inquiry into the S.W.R.D.Bandaranaike assassination, she appointed an Egyptian judge to the commission.
A. That was a only a Commission of Inquiry appointed under the Commissions of Inquiry Act to look into the conspiracy behind the assassination. But the Bandaranaike assassination trial proper took place under the normal judiciary.
Q. Operative paragraph 4 of the UNHRC resolution ‘welcomes’ the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations; and further welcomes the willingness of the Government to give each such mechanism the freedom to obtain financial and material assistance from international partners. That appears to go directly counter to the determination you gave with regard to the P-TOMS arrangement about a decade ago.
A. This is a matter involving public finance. Under Article 148 of the constitution, parliament has full control over public finance. None of these envisaged bodies will be able to obtain money directly from foreign sources. Anything that comes in has to go to the consolidated fund and parliament will vote funds out of that. You can’t subvert the power of parliament over finance. The determination in the P-TOMS matter was given on that basis. If parliament is to abdicate the exclusive powers they have over finance, there will have to be a referendum.
Q. Operative Paragraph 8 ‘encourages’ the Government of Sri Lanka to introduce effective security sector reforms to ensure that no scope exists for retention in the security forces of anyone ‘credibly implicated’ through ‘a fair administrative process’ in serious crimes involving human rights abuses or violations of international humanitarian law. In his address to the UNHRC on 30 September, this was the matter on which the UN Human Rights Commissioner placed the most emphasis – the removal of military personnel suspected of HR violations through an administrative process even if there isn’t enough evidence to charge them in a court of law.
A. Our armed forces and police function under the Army, Navy and Air Force Acts and the Police Ordinance. There are various procedures to deal with wrongdoings under those Acts including courts martial. The UNHRC resolution seeks to establish procedures over and above the established arrangements. So in effect the government has undertaken to amend the Army, Navy and Air Force Acts as well. This must be the first time that a sovereign nation is submitting its forces to the scrutiny of an international body. If there is going to be vetting process or whatever, it has to come within the three Acts mentioned earlier. The commander in chief of the three forces is the president. If some evidence of wrongdoing by a member of the military is brought to his notice, I’m sure he will set up a court martial. The courts martial process will be subject to judicial review by the Court of Appeal and the Supreme Court. If any wrongdoing has been committed, it has to be looked into but whatever happens has to be within the framework of the existing law. Human rights are a shield to protect individuals from unlawful actions of the state. It can never be used as a sword to attack your enemies. But human rights conventions are now used as a sword to attack one’s enemies through prosecutions and removal from office and so on.