“We will not enjoy security without development, we will not enjoy development without security, and we will not enjoy either without respect for human rights” ~ UN Secretary-General Kofi Annan.
The Flawed ICCPR – A Summary
To instil in us that respect for human rights, the International Covenant on Civil and Political Rights was drafted in 1966 by the UN General assembly and came into force ten years later when 35 countries adopted it. The domestic version enacted in Sri Lanka was flawed. According to B. K. M. Jayasekera and A. A. Edirisinghe, both of the Kotelawala Defence University, in their 2016 article say as adapted below:
Sri Lanka acceded to ICCPR in 1980 and its First Optional Protocol in 1997, the latter due to an initiative of former Minister of Foreign Affairs, Lakshman Kadiragamar. Mr. J.R Jayewardene Executive President during accession to ICCPR (1980 –) did not hold a bona fide intention to protect the Civil and Political Rights of the citizens in Sri Lanka; rather his intention was to pretend before the domestic and international community that he is committed towards the protection of such rights. As a result, he did not take steps to implement the rights contained in ICCPR in the domestic context of Sri Lanka through an enabling statute.
Consequent to the widespread communal violence in 1983 where thousands of Tamil people in the south of Sri Lanka were attacked by Sinhala gangs, the sixth amendment to the Constitution was introduced. However, that amendment also did not implement ICCPR. The amendment was only focused on public and national security. It constitutes a clear infringement of Sri Lanka’s obligations under the ICCPR and violates the government’s duty to protect the right of any person to express his or her political views and engage in political debate as recognized in ICCPR.
The 1990 government, under President Ranasinghe Premadasa, published proposed amendments to the fundamental rights chapter of the Constitution. They, however, were not put before Parliament and did not become law. The People’s Alliance government, under Prime Minister Chandrika Bandaranaike Kumaratunga was also indolent. In Joseph Perera v. Attorney-General, Chief Justice Sharvananda warned “Laws that trench on the area of speech and expression must be narrowly and precisely drawn to deal with precise ends. Overbreadth in the area has a peculiar evil, the evil of creating chilling effects which deter the exercise of that freedom. The threat of sanctions may deter its exercise almost as patently as the application of sanctions. The State may regulate in that area only with narrow specificity.
In this time period arose the case Nallarathnam Singarasa v. Attorney General. The Petitioner was indicted in the High Court under the Emergency Regulations and the Prevention of Terrorism Act. He was not satisfied with the High Court Judgement and appealed to Court of Appeal and Supreme Court of Sri Lanka respectively. Dissatisfied with both decisions he then went to the Human Rights Committee in Geneva which was established under the ICCPR and obtained a decision against the decision given by the Supreme Court of Sri Lanka. Then for implementing the Human Rights Committee decision, Singarasa filed a case in the Supreme Court of Sri Lanka. To deliver the judgement, the Supreme Court had to implement international law in the domestic context of Sri Lanka. The Court emphasized that without an enabling statute, court cannot implement any law including international law. According to the Supreme Court Decision even though Sri Lanka had acceded, the court cannot use the treaty provisions in the absence of an enabling statute and as a result of the Judgement the petitioner could not implement the Human Rights Committee decision.
This decision shows that even in a case of blatant attack on the widely accepted human rights Sri Lankan judiciary is not in a position to implement the provisions of ICCPR.
In 2005, Sri Lanka in order to gain GSP Plus benefits stated that it had ratified and effectively implemented all 16 Human and Labour Rights Conventions. The annual report of Sri Lanka regarding the GSP Plus benefits stated that the government gave an undertaking to maintain the enforcement of the conventions. As a response to this, in 2007, the ICCPR Act was brought which guaranteed the promotion and protection of human rights. However according to the Act some of the non-derogable rights might be restricted by law for specific purposes. These purposes include national security, racial and religious harmony and the national economy.
And that is the problem. Despite the many positive features of ICCPR, its Sri Lankan version is flawed with no intention from the state to implement it except for getting GSP concessions. The law seems so messy that judges tend to pass the buck. I will point to 2 recent cases.
Mr. Hejaaz Hizbullah
Mr. Hizbullah is my lawyer from my 2018 case where I challenged the dismissal of Parliament in a shameless coup by then President Maithripala Sirisena who appointed Mr. Mahinda Rajapaksa in place of Mr. Ranil Wickremesinghe as Prime Minister. I believe Hizbullah’s being charged under the PTA is part of our government’s terribly anti-Muslim warpath to put us minorities in our place. I feel guilty that his appearing for me and removing the illegally installed government might be linked to his being targeted. Knowing Hejaaz and the government, and the stooging nature of our Police and the Attorney General’s Department, I stand by my faith in Hejaaz’s firm commitment to the rule of law and to civilisation.
Here is what the Netherlands-based Lawyers for Lawyers says about his ordeal:
Mr. Hizbullah was arrested by the CID on 14 April 2020 and placed under a detention order by the President of Sri Lanka, purportedly under Sri Lanka’s Prevention of Terrorism Act (PTA). No reasons for the arrest were provided to Mr. Hizbullah or his family at the time of the arrest.
The detention order says that Mr. Hizbullah is being investigated for allegedly ‘aiding and abetting’ the Easter Sunday bombers and for engaging in activities deemed ‘detrimental to the religious harmony among communities.’ The PTA permits the Sri Lankan government to detain a suspect without any charges for 18 months.
Mr. Hizbullah’s detention order was renewed on 14 October 2020. The listing of his case before a Magistrate on 28 October 2020 was postponed to February, reportedly due to the COVID-19 crisis. The remand order was issued during the court hearing on 18 February 2021.
On 3 March 2021, Mr. Hizbullah was officially charged with “inciting communal disharmony under” under the PTA, for “advocating national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” under the ICCPR Act and for conspiracy and abetment charges under the Penal Code.
On 19 November 2021, the bail hearing of Hejaaz Hizbullah took place at the Puttalam High Court. During that, the judge stated that the High Court does not have the jurisdiction to grant bail under the PTA, and additionally pointed towards an inconsistency between the PTA and the constitution, which should be dealt with on a higher level and the legislative branch of government.
The Puttalam judge puts the situation in a nutshell. The PTA is flawed and inconsistent with the constitution. What more can be expected from a law framed for the sole purpose of getting the GSP. If judges have their hands tied by the law, who can deliver justice to us?
Mr. Hizbullah has been refused permission to see his family or counsel since April 2021. Mr Hizbullah’s trial is scheduled for 28 January 2022.
Mr. Palakrishnan Rathikaran
Mr. Rathikaran’s is a case with marked similarities to Mr. Hizbullah’s. Rathikaran is a lad of 27 from Sampoor, Muthur, Trincomalee and is presently in Trincomalee Remand Prison. Being a labourer, he lacked resources and just a week ago got an order from Trincomalee District Court for his release on bail, thanks to the pro bono work of Counsel Mohan Nagarajah and K.S. Ratnavel through the Centre for Justice and Change based in Trincomalee.
Rathikaran is the sole bread-winner for his ailing parents, two sisters, and brother. After a year’s work in Matara, he joined Port City construction in Trincomalee. On 27.11.2020 seven persons came by two three wheelers in civil dress to his residence in Sampoor around 3.00 pm claiming that they are from the Terrorist Investigation Division. They demanded and got his mobile phone. They checked it and told him that there were some pictures of Karthikai Poo (November Flower) and a poem on his Facebook account that he had “Liked”. They took him to Sampoor Police Station, and he has been remanded in Trincomalee Prison since 01 December, 2020. In the “B” report filed by the Police it was alleged that he was involved in illegal activities as evidenced by some posts shared by him through Facebook containing the Karthikai Poo pictures and by songs on his mobile phone. The Karthikai Poo had been designated as the Tamileelam National Flower during the Great Heroes Remembrance Week in November 2003.
The offence with which he was charged under the ICCPR (Section 3) is
Section 3 (1) – No person shall propagate war or advocate national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.
Section 3 (2) – Every person who- (a) attempts to commit (b) aids or abets in the commission of; or (c) threatens to commit, an offence referred to in subsection (1), shall be guilty of an offence under this Act.
How does the picture of the November Flower propagate war or advocate national, racial, or religious hatred? The police and the Attorney General are crazy – as crazy as saying political support of the Rajapaksas promotes advocacy of war and promotion of hatred. Neither Prabhakaran nor Gotabaya Rajapaksa is a good model for peace and goodwill. We Tamils are so bereft of heroes that Pastor Errol Joseph, who heads the Trinco Pastors’ Fellowship proudly, circulates his photo with Trinco District SLPP MP Kapila Athukorala, whose close associates allegedly land-grab from the poor and are in court as advocacy groups try to take back these lands allegedly grabbed through subterfuge. Given Joseph’s and Rathikaran’s ages and social standing, Rathikaran’s choice of hero is not as faulty. With the kind of SLPP Sinhalese leaders in power, we increasingly see the sane SJV Chelvanayakam-R. Sampanthan paradigm being dethroned and Tamil people voting for the likes of Douglas Devananda and Angajan Ramanathan with brushes with the law. Rathikaran’s choice of hero is part of this trend and there is no criminality, only foolishness and lack of choice in it for Tamil youth.
From flawed laws flow difficulties for the courts. On 14 November, 2021, Trinco High Court Judge M. Elancheleyan granted bail after over a year’s incarceration of Rathikaran on the ICCPR Charge. He passed on for consideration of bail on the PTA Charge to the Magistrate’s court in Muthur on grounds of jurisdiction. The Muthur Magistrate subsequently released Rathikaran on bail regarding the PTA Charge on 16 Dec. 2021 at 6:00 pm. Alleluya!
Our Sri Lankan laws are designed to give our rulers unfettered control over our lives, especially minority’s lives. Our police cannot always be trusted to implement laws except, in my experience, to give vent to their communal passions, to demonstrate their power, and to make money through bribes.
The Sinhalese have mismanaged the state so badly that minorities need to be freed of their control. As part of that mismanagement, there is now an economic crisis. Although all Sri Lankans will be hurt as the crisis worsens, I question whether this is the time to rescue the government through loans, financial aid, and the restoration of trade concessions. The present crisis seems a God-sent opportunity to free the peoples of Sri Lanka from our oppressive government.
Police and central government control over minority lives must be ended by implementing the 13th amendment – provincial councils with police and land powers. The 13th Amendment is a solemn agreement between India and Sri Lanka and must be redeemed by India, if India has any dignity and self-respect.