By Jayampathy Wickramaratne
Upon becoming a party to a treaty, a State undertakes binding obligations in international law. A State has to submit initial and periodic reports to the relevant treaty body on measures adopted. The country thus becomes open to international scrutiny.
Sri Lanka is a dualist country and treaties do not automatically become the law of land unlike in monist countries such as the Netherlands, Russia and East Timor.
Domestic legislation needs to be enacted. But even a dualist country is answerable for its actions and inaction in the international plane, although non-compliance with a treaty may not be raised in a domestic court.
But even in dualist countries, the present trend is for judges to utilize human rights treaties despite the absence of implementing legislation and to entrench international treaty obligations into domestic law. In Sri Lanka, the Supreme Court invoked the UDHR’s Article 17(2) which guarantees that “no one shall be arbitrarily deprived of his property” to hold that the owner of a vehicle used for an offence under the Forest Ordinance must be given a hearing on whether he was aware of the offence, before confiscating the vehicle.
Melissa Waters calls this trend “creeping monism.” The Sri Lankan Supreme Court has gone even further. In the Eppawala Phosphate Case, a case involving the exploitation of natural resources, Justice Amerasinghe relied on the U.N.’s Stockholm Declaration and Rio De Janeiro Declaration which are not even treaties.
Under the Universal Periodic Review (UPR), a mechanism of UN Human Rights Council, established by the UN General Assembly and in operation since 2008, the human rights record of all States is reviewed every four years. It assesses to what extent the State respects human rights obligations in the UN Charter, UDHR, human rights treaties to which the State is party, voluntary pledges and commitments and applicable international humanitarian law. The final report contains a summary of the interactive dialogue, responses by the State, recommendations by other States and voluntary commitments by the State.
Double standards of powerful nations
There are several factors that have clouded the issue of international human rights. Double standards and inconsistent behavior of powerful States are prominent amongst them. The West has a long history of being human rights violators themselves, not only as colonial masters but also in the post-colonial world. Western countries have been propping up dictators all over the world. While calling for regime change in Libya, the United States defended the repressive regime in Bahrain which would not have survived without US support.
Earlier this year, the United States was the only country that voted with Israel on the Palestinian issue at the Human Rights Council. The West is not alone. The Assad regime in Syria is kept in power by Russia and China. The military dictatorship in Myanmar would have collapsed if not for support from China. Political and economic considerations are paramount when countries take positions. Then there are “deals” between States. Double standards by powerful States are used by repressive regimes to cover up their own misdeeds.
The composition of the UN Security Council is heavily weighted in favour of the powerful States with permanent members having a veto power. There is today an urgent need to “democratize” the UN. Deals are worked out there as well. Delayed action by the UN in Rwanda contributed to genocide in no small way. President Clinton later confessed that the failure to try to stop Rwanda’s tragedies was one of the greatest regrets of his presidency.
Strengthening domestic mechanisms will obviate international scrutiny
The faults of the powerful States and the UN system apart, sovereignty is not a defence for breaches of gross violations of fundamental human rights. Rather than pitting sovereignty against human rights, States must exercise their sovereignty to foster human rights.
Credible domestic mechanisms would obviate the need for international scrutiny. Regional human rights mechanisms would also be of immense value. South Asia is one of the few regions that does not have such a regional mechanism. Even in South-East Asia, there is movement, albeit slow, towards such a mechanism.
While on the subject of domestic human rights mechanisms, it is necessary that we make a reappraisal of our own mechanisms. Our Constitution does not provide for post-enactment judicial review of legislation, an essential tool to prevent infringement of constitutional provisions by legislative action. The effect of most legislative provisions are felt only when they are being enforced.
There have been many instances of obviously unconstitutional provisions going unchallenged. Provisions relating to urgent Bills have been abused by successive administrations. An urgent Bill is referred directly to the Supreme Court by the President even without publishing it in the Gazette. Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.
An amendment proposed at the committee stage in Parliament does not come under judicial scrutiny at all. Such amendments only require the certificate of the Attorney General, in practice by an officer of the Attorney-General’s Department present in Parliament.
An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of “prospective over-ruling”, limiting the retrospective effect of a declaration of invalidity in appropriate cases. Section 172 of the South African Constitution expressly permits such limitation.
Another serious problem is that the President has total immunity. Heads of States of most countries do enjoy immunity from criminal or civil proceedings. But in a country where the President is the Head of State and the Head of Executive and of the Government, there is no reason why executive acts of the President should be so immune.
It may be noted that even in the United States of America the President enjoys no immunity from suit. I am strongly of the view that the immunity of the President from suit should not apply to executive acts. All executive acts of the President should be reviewable by courts. I am of course of the view that the executive presidency should be abolished.
Issues facing developing countries
Developing countries like Sri Lanka have a number of features such as a weak democracy, centralized State power, a weak judiciary sometimes coming under executive pressure as well, near-absence of pressure groups, infringements of constitutional guarantees and, very importantly, the absence of a “rights-consciousness”, all of which constrain the operation of fundamental rights. In some countries, there is authoritarian rule behind a façade of democracy. Rights would be sustained only if rooted in an enabling political culture.
The mere declaration of fundamental rights in a Constitution and becoming a party to treaties does not ensure their enforcement and guarantee respect to them. The external environment should be conducive to the protection and advancement of rights. A democratic tradition and a dynamic political environment are essential.
This exactly is the problem of developing countries. We do not have a healthy democratic tradition. There is a marked trend towards authoritarianism. This is seen by the number of virtual one-party states, dictatorships and authoritarian regimes. This is a fundamental problem in developing countries.
These problems are compounded by factors such as ethnic and religious violence, terrorism and political assassinations. The State’s response has been the use of emergency powers and in some cases, State terrorism. Long periods of a state of emergency are seen.
This gives rise to a situation where restriction of rights by the State is the rule and enforcement of rights against the State becomes the exception. The result of all this is a near absence of a “rights consciousness” in developing countries. It is essential that such a rights consciousness be a part of the value system.
While the concept of human rights has indeed an ancient history, modern human rights originated in the West and are therefore seen by some as ‘theirs” and not “ours.” But human rights are those rights without there can be no human dignity and as such belong to the entirety of humanity.
Double standards of powerful nations, both Western and otherwise, are but the unfortunate reality of international politics. While exposing and denouncing such hypocrisy, we in the developing world need to protect and foster human rights in our own interest.
Many conveniently forget that our Constitution, in its Preamble, assures “to all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of the succeeding generations of the People of Sri Lanka and of all the People of the World.” Article 3, recognizes fundamental rights as one manner of the exercise of the sovereignty of the People. Article 3 is an entrenched provision and cannot be amended unless approved by the People at a referendum.
 JAL Cooray Constitutional and Administrative Law of Sri Lanka (Hansa Colombo 1973) 502.
 SN Dhyani Law Morality and Justice: Indian Developments (Metropolitan New Delhi 1984) 87.
 Kalinga Edict 7, quoted in Dhyani, above.
 JAL Cooray Constitutional and Administrative Law of Sri Lanka (Hansa Colombo 1973) 503.
 GW Paton A Text-book of Jurisprudence (ELBS London 1964) 104.
 Treaty of Versailles, 112 British Foreign Service Papers 13; Treaty between Principal, Allied and Associated Powers and Poland, ibid 232; Treaty with Czechoslovakia, ibid 520; Treaty of Nevilly with Bulgaria, Nouvan Recuvil General, Vol. 12, 323; Treaty with Romania, League of Nations Treaty Series, Vol. 5, 336; Treaty with Greece, ibid 224; Conservation of Upper Silesia between Germany and Poland, Reichzzesetzblatt (1922) Vol. 2, 238.
 VG Ramachandran Fundamental Rights and Constitutional Remedies (Eastern Book Company Lucknow 1985) Vol. I, 110.
  1 Sri LR 199.
 64Sharvananda CJ in Joseph Perera v Attorney-General  1 Sri LR 199, 229. See also New York Times v United States, 403 US 713 (1971); Organization for a Better Austin v Kiefe, 402 US 415 (1971).
 Advisory Opinion, Nationality Decrees Issued in Tunis and Morocco, Series B, Nº 4, p. 24.
 Manawadu v. Attorney General,1987] 2 Sri LR 30.
  Columbia Law Review 630.
 Bulankulama v Secretary, Ministry of Industrial Development  3 Sri LR 243.
 Golaknath v State of Punjab, AIR 1967 SC 1643; Baburam v C.C. Jacob  3 SCC 3.
(Text of Deshamanya Professor Nandadasa Kodagoda Memorial Oration (15th)delivered at Sri Lanka Foundation Institute auditorium on Thursday August 2nd 2012)