Colombo Telegraph

Constitution Sanctions The Enforcement Of Geneva Resolution

By 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.

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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