SRI LANKA: Will international treaties protect human rights in Sri Lanka

written by Kishali Pinto-Jayawardena Sri Lanka's ratifications of United Nations human rights conventions signal a certain willingness to adhere to the UN treaties and to be guided by international law. But the record of actual compliance with the international treaties tells a different story. The !"! #ienna $onvention on the Law of Treaties says individual states must comply in good faith with the treaties they have ratified% and that a state may not invoke the provisions of its internal law to &ustify failure to uphold international agreements. 'n other words% individual states are bound to comply with the treaties they have ratified% and it is a well(established principle of international law that states have a duty to bring internal law into conformity with obligations under international law. The International Court of Justice has also established that it is 'the fundamental principle of international law that international law prevails over domestic law' Sri Lan a has si!nalled its willin!ness to uphold international human ri!hts law by ratifyin! human ri!hts conventions and by submittin! periodic reports to the "nited #ations Committee $!ainst Torture %C$T& and the "nited #ations 'uman (i!hts Committee %"#'(C&) *ut both Committees have e+pressed serious concern over continued alle!ations of widespread torture and enforced disappearances) Sri Lan a has reco!nised the competence of the "nited #ations 'uman (i!hts Committee to consider individual communications lod!ed by Sri Lan ans alle!in! violations of the ICCP( as a result of state action) ,rom -.../ the "#'(C has declared that the communications of several individuals had been violated/ but none of the Committee's views have been implemented to date) The Special (apporteur on Torture and the Special (apporteur on 0+tra1udicial/ Summary or $rbitrary 0+ecutions have both visited Sri Lan a since 2334) *oth concluded that torture is widely practiced in Sri Lan a) Their reports e+pressed concern re!ardin! the lon! duration of investi!ations in torture cases and alle!ations of threats made a!ainst torture victims) Their recommendations also remain lar!ely unaddressed) The Constitution of Sri Lan a prohibits torture and cruel/ inhuman or de!radin! treatment or punishment *ecause Sri Lan a has a dualist le!al system/ an $ct of Parliament is re5uired to domestically implement international instruments that the State ratifies6accedes to) Ta e/ for e+ample/ the Convention Against Torture and Other Inhuman and Degrading Punishment Act of -..7 %the C$T $ct&/ which was enacted to !ive specific effect to the

"#C$T) The C$T $ct falls short of satisfyin! Sri Lan a's international obli!ations because its definition of torture differs from the definition in the "#C$T8 the $ct does not establish universal 1urisdiction for acts of torture/ and ma es no reference to the principle of non refoulement. The $ct further departs from the "#C$T by not directly providin! that superior officers be held liable for acts of torture committed by their subordinates) There are similar lacunae in other statutes such as the Penal Code and the 'ICCP( $ct) A Problematic Judgement by the Domestic Court -- Nallaratnam ingarasa v. Attorney !eneral and Others" .C. #$ %$A& No. '()*++" C,' .-+.)--.. This /udgment 0as delivered conse1uent to a #etition being filed in the Court invo2ing its #o0ers of revision and*or revie0 concerning an earlier /udgement of the Court regarding ingarasa3s conviction of having unla0fully cons#ired to overthro0 the !overnment. The conviction 0as made solely on the strength of a confession obtained under emergency la0" the voluntary nature of 0hich he 0as legally re1uired to #rove. After a##eals in the domestic arena %u# to the u#reme Court& resulted only in a reduced sentence" ingarasa filed an Individual Communication before the 4nited Nations 5uman 6ights Committee #leading" a violation of his rights under ICCP6 article '7%'%g&" in that it 0as im#ossible for him to #rove that his confession 0as e8tracted under duress as he had been com#elled to sign the confession in the #resence of the very #olice officers by 0hom he had been tortured earlier. The Committee found a violation of his rights under ICCP6 article '7%9&%g& as 0ell as ICCP6" article '7" #aragra#hs 9%c&" and : %;ide" Nallaratnam ingarasa v. ri $an2a" CCP6* C*('*D*'-99*)--'" ado#tion of vie0s" )'--<-)--7&. The tate 0as directed to #rovide ingarasa 0ith an effective and a##ro#riate remedy" including release or retrial and com#ensation" and 0as also cautioned to avoid similar violations in the future and to bring its domestic la0 in conformity 0ith the ICCP6. =et" as the said vie0s 0ere not being im#lemented even after t0o years had la#sed" a revision a##lication 0as filed before ri $an2a3s u#reme Court urging that the Court reconsider its earlier order. The vie0s of the Committee 0ere cited in this instance as #ersuasive authority. $part from such particular statutes/ the state is !enerally obli!ed to follow international standards) $rticle 29%-4& of Sri Lan a's Constitution specifically re5uires the State to 'endeavour to foster respect for international law and treaty obli!ations in dealin!s amon! nations: but as the e+ample of the C$T $ct shows/ these constitutional directives are disre!arded) So what are the practical results when states refuse to comply with international obli!ations derivin! from international treaties; In 2339 a <ivisional *ench of Sri Lan a's Supreme Court presided over by Chief Justice Sarath #) Silva ruled in the Sin!arasa Case/ that the act of accession to the first ICCP( Protocol by the President was an unconstitutional e+ercise of le!islative power as well as an unconstitutional conferment of 1udicial power on the "#'( Committee) This 1ud!ement rendered the views of the Committee to be of no force or

effect within Sri Lan a) This is a contentious rulin!) The President of Sri Lan a had acceded to both the ICCP( and the ,irst ICCP( Protocol by virtue of $rticle ==%f& of the Constitution/ which allows the President to 'do all such acts and thin!s/ not bein! inconsistent with the provisions of the Constitution or written law as by international law/ custom or usa!e he is re5uired or authorised to do8 'owever/ this was the very constitutional provision that the Court employed throu!h a process of convoluted lo!ic to determine that the accession to the ,irst ICCP( Protocol was unconstitutional) The conclusion that 1udicial power has been conferred upon the "#'(C throu!h the accession to the ,irst ICCP( Protocol was interlin ed with the reasonin! that this act of accession was 'an act of le!islative power: which %as the Court ruled& ou!ht to have been e+ercised by Parliament and not solely by the President) The 1udicial reasonin! behind the Sin!arasa Case was fundamentally flawed because the "#'(C had never claimed 1udicial power within a domestic le!al system) This is made very clear in its >eneral Comment #o ==/ where the Committee reiterates that the function of the Committee in considerin! individual communications is not that of a 1udicial body/ thou!h it was conceded that the views e+hibit some important characteristics of a 1udicial decision) Instead/ the Committee's authority has always been based on the principle that the ri!hts in the ICCP( should be !iven effect to as part of the international human ri!hts re!ime/ and that the Committee is the appropriate mechanism in terms of the ICCP(/ which is vested with that authority) The Sin!arasa decision hi!hli!hts the difficulties of sustainin! '1udicial power' on a 1urisprudential basis so as to determine that the very act of e+ecutive accession to the ,irst ICCP( Protocol was unconstitutional) ?et this remains the law in Sri Lan a) The opinions of the "#'(C have been deemed to be of no force or value whatsoever) So while in theory the country has not denounced or withdrawn from the international treaty re!ime/ these obli!ations are practically rendered of no conse5uence where the domestic implementation of ri!hts is concerned) Can states both ratify and re/ect treaties at the same time> The constitutional articles found to be violated by the President3s accession to the first ICCP6 Protocol 0ere res#ectively Article 9 read 0ith Article 7 %c& read 0ith Article <: and Article 9 read 0ith Article 7 %c& and Article '-: %'& of the Constitution. The Petitioner3s a##lication 0as found to be misconceived and 0ithout legal basis. As the Court declared that accession to the Protocol violated Article 9 %read 0ith Article 7 of ri $an2a3s Constitution&" any la0 #assed see2ing ot give domestic effect to the vie0s of the 4nited Nations 5uman 6ights Committee 0ould therefore have to be a##roved by a t0o thirds ma/ority in Parliament" as 0ell as by the #eo#le at a referendum as mandated by Article (9 %a& of the Constitution. So can states both ratify and re1ect the international treaty re!ime at one and the same time; This trend appears to !o fundamentally a!ainst the norm of the international le!al order) ?et this is the parado+ical reality that Sri Lan an lawyers have to !rapple

with) The attention of the international le!al community is most imperatively needed in that re!ard) (This article may be found in ADVANCING TOGETHER VO !"E # I$$!E # DECE"%ER #&'( )))*le+isne+is*com*au,ruIeofla)-