2 December, 2020

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Constitution Sanctions The Enforcement Of Geneva Resolution

By Nagananda Kodituwakku

Nagananda Kodituwakku

Nagananda Kodituwakku

G. L. Peiris, a former Justice Minister and many others are campaigning against the Geneva Resolution co-sponsored by Sri Lanka on October 01, 2015, alleging that the Constitution does not recognise any such move, which is absolutely false and misleading.

In the first place, these so-called campaigners should accept the full responsibility for undermining the independence and integrity of the Judiciary, compelling the people to seek redress elsewhere after having lost their trust and confidence in the justice system of Sri Lanka. G. L. Peiris is one of the main architects who were instrumental in enacting the undemocratic 18th Amendment, allowing the then President Mahinda Rajapaksa to have a firm control over the judiciary, in complete violation of the Commonwealth Latimer House Principles that disapprove encroaching of powers of one branch by another. As a result the Rajapaksa regime made the Sri Lanka’s judiciary, a mockery.

Constitution authorises the enforcement of international obligations

The Article 27 (15) of the Constitution, the supreme law of the land, provides that the Government of Sri Lanka shall ‘endeavor to foster respect for international law and treaty agreements’. The Government of Sri Lanka has already been enforcing several treaty obligations despite domestic legislations not being enacted to meet its international obligations.UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein

A classic example of meeting international obligations

For instance, there is no domestic legislation in place to give effect to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which requires all state parties, to regulate wild life ‘specimen’ (any specified animal or plant, whether alive or dead) trade with stringent penal sanctions, which includes forfeiture of such items. Sri Lanka ratified this convention in 1979 but no domestic law has been enacted to give effect to its treaty obligations.

Article VIII of the CITES Convention requires all state parties to take appropriate measures to enforce the provisions of the Convention and to prohibit trade in specimens in violation thereof. These shall include measures to penalize trade in, or possession of, such specimens, or both; and to provide for the confiscation of any such specimen, which also includes illegal trading of ivory.

On May 22nd, 2012 the Sri Lanka Customs detected a stockpile of ivory in the port of Colombo, which was shipped from Kenya en route to Dubai. Despite there was no domestic law to treat this shipment of blood ivory as a contraband, the Government of Sri Lanka honouring its obligations under the CITES Convention confiscated the entire shipment and destroyed it in public on 26th Jan 2016.

UN Resolution (A/HRC/RES/30/1) should proceed

Therefore, there is nothing to prevent Sri Lanka from enforcing the United Nations Resolution (A/HRC/RES/30/1) adopted by the Human Rights Council with the concurrence of the government of Sri Lanka on 01st Oct 2015. This resolution calls for the establishment of a judicial and prosecutorial mechanism with international dimension to try serious crimes alleged to have been committed against humanity.

In this regard the Bar Association of Sri Lanka makes its stand clear in a press statement issued on 28th Nov 2015 as follows.

“… It is unfortunate that the existing judicial and prosecutorial systems have not met the confidence of many concerned. It is undeniable fact that, over a period of time, the independence and credibility of many of these institutions have suffered due to many reasons, resulting in an erosion of confidence in the system as a whole. The BASL notes that if any mechanism is to be established it must be one, which inspires the confidence of all the relevant stakeholders. While there may be a need to obtain a necessary assistance and expertise, including international assistance and expertise, the BASL stresses that the mechanism that must be put in place should be within the framework of the Sri Lanka’s Constitution…”

Therefore, it is nothing but fair for the government to set up a justice system with international mechanism, in keeping with its obligations under the Geneva Resolution, as the people of Sri Lanka have lost their trust and confidence in the prevailing domestic justice mechanism over a period of time.

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Latest comments

  • 4
    1

    Old Royals wants to break 100,000 coconuts today to bring curse to Lankawe or the Wildlife Sanctuary SinhaLE. We are with them when they think to bring curse to SinhaLE( But not to the island Ceylon)

    But,can G.L.P explain if the constitution allows the waste of this much human food in this manner? They are buying the coconuts from the 18 Billion dollars shipped to foreign Countries. Where the war torn area people going to go to money to buy coconuts?

    It looks like the file of GLP is in pretty bad shape before he left UNP.

  • 4
    0

    Many things, immoral, unethical, unlawful and criminal have been done in this country despite our constitutions, laws, agreements , treaties and religious beliefs! The Supreme Court has been a mute spectator and at times the conniver, Why is the constitution a barrier to do what is right and the world thinks is right?

    I understand from what our PM said recently, our membership in the commonwealth permits us to what we have agreed to do.

    Dr.Rajasingham Narendran

  • 3
    1

    A well reasoned argument by Mr.Nagananda citing precedents where the government had taken necessary action to adhere and comply with international laws despite the absence of domestic laws, and that with regard to the UN’s resolution adopted by the Human Rights Council and approved by the SLG, a similar action to be made.

  • 2
    0

    Thank you Nagananda for your frankness based on your conscience. Please continue with your style of ” calling a spade a spade “. Times are right for more real patriots to join you.

    Since Ceylon/SL gained independence from the British educated political leaders were only interested in grabbing the power by fooling the voters using mainly the language and religion. The majority of the Sangha failed to guide the majority of the poor citizens in the correct path so that the country as whole can progress.

    Sadly the political problems have become INHERENT & INTRACTABLE. But I believe it is not UNSOLVABLE provided the majority of the well educated and the majority of the broad minded religious leaders get together and solve them under the current coalition regime.

    Having said the above the media should also play a major role by being more responsible by putting the country’s interests first.

    68 years of lessons learnt must be used in the right way in solving the socio political problems. That will result in economic progress and more unity.

  • 5
    1

    Nagananda.

    The difference between you and G.L.Pieris is that you are intrinsically honest,whilst the Professor is disgustingly dishonest!

  • 2
    1

    The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organisation, and came into force on 24 October 1945. The Statute of the International Court of Justice is an integral part of the Charter. Sri Lanka is a member. No protests then.
    In May 2009 the invitation of Mahinda Rajapaksa, President of Sri Lanka, the Secretary-General of the United Nations, Ban Ki-moon paid a visit to Sri Lanka. During the course of his visit, he held talks with the President, Foreign Minister as well as other senior leaders of Sri Lanka. During his stay, he also consulted other relevant stakeholders, members of international humanitarian agencies and civil society. This was a reflection of the close cooperation between Sri Lanka and the United Nations as well as Sri Lanka’s commitment to work with the United Nations in the future.A serious impediment to the integrity is a corrupt judiciary and Sri Lanka’s recent CJ’s behavior is amply evident of this and have tarnished it’s image and insulted the institution.
    Who has failed ?

  • 3
    1

    Mr. Kodituwakku,

    Thanks again for a good piece. I would like to add something though–
    You are focusing on the judiciary, but my concern is also with the existing culture of the military and police brazenly violating the laws with political patronage; so there will be efforts to cover up alleged crimes and to protect criminals and war criminals, while victims’ rights are ignored. There won’t be any serious witness protection. After all, a change in regime hasn’t changed the military or the law enforcement establishment and its culture. Even if the judiciary were to give the right orders, implementation would be thwarted by entrenched interests.

    That is why victims need a more transparent process that gives them come confidence; an international component will go some way in that direction, even though from their perspective, only a full international investigation would suffice.

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