8 August, 2022

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ICCPR – Viewed Through The Experiences Of Hejaaz Hizbulla & Palakrishnan Rathikaran

By S Ratnajeevan H. Hoole

Prof S. Ratnajeevan H. Hoole

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.

MP Kapila Athukorala

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.

Karthikai Poo

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!

Conclusion

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.

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Latest comments

  • 8
    8

    Sadly these problems and also riots, terrorism, etc. will continue in Sri Lanka.

    Only solution is one island, 3 mono ethnic nations.

    Sri Lanka’s three tribes have proven beyond all doubt that they cannot coexist politically. Why waste anymore lives? Create 3 mono ethnic nations within the island and relocate people.

    • 3
      0

      Two native nationalities that have a long history, evolved on the island, have owned and ruled the land they occupy, and a South Indian Dravidian Thamizh origin converted immigrant tribe now trying to call itself a nation and ethnicity-based on religion. Unlike the other two ancient nations, this immigrant South Indian origin converted Dravidian tribe, that largely arrived on the island, during the early British rule and spread themselves across the island in the lands of the two ancient nations, deserve to live in peace dignity prosperity and the freedom to practice their religion but have no right to a nation, as they have no ancient ties to the island, history, owning lang or ruling. Now trying to claim land and a nation on the ethnically cleansed lands of one of the ancient nations. As they think they can get away with it.

  • 12
    0

    “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.”
    Aw, come on! India does not have any dignity and self-respect.
    Where the Indo-Lanka Accord and the 13th Amendment are concerned, India is behaving like a Cuckold!

  • 7
    2

    You can thank JR for the PTA . No government since has thought it fit to remove it from our laws

    • 13
      0

      DS,
      .
      Mahinda Rajapkashes had the option to do so with 2/3 majority in the parliament, but he never wanted to go for it. I think his govt from 2010-2015 and and current one, could do lot more if they have brains. Unfortunatley, people in this country, I mean the majority have no clue about the democractic rights of human beings…. so the discussion based on these crucial topics woudl always end up in vain.

    • 17
      1

      deepthi silva

      “You can thank JR for the PTA . “

      How did Siri Mao and her merry men manage to commit so many atrocities between 1970 and 1977 without the PTA?

      The PTA didn’t help to prevent state sponsored terrorism against people.

  • 17
    1

    These are politically and racially motivated arrests. No democracy can arrest people, and allow them to languish in jail without giving them legal representation, and their day in court. They should also be allowed to see their lawyers and members of their family, that is the basic human right that they are entitled to, under any democratic law, or international human rights laws. The Rajapaksa regime has turned out to be a bunch of racist scoundrels, who use the minority to score points with their radical Buddhist supporters, to appease them, and make sure they get their votes.

    The minority who vote for these corrupt and ruthless people, should re-think their support, and realize that those who boast that they do not need the “thambiyah’s” vote, are declaring openly that their policies will be racist, as well as their actions. Is that too hard to understand? These weasels do not change, once their racist tendencies are shown, they will always be racists. We are a multi religious nation, and we need leaders who will include ALL people in their policies, and not discriminate the minority as these despicable regime have done, every time they are in power.

    If these two men have broken our laws, then let them explain why they did so in our courts. To treat them this way is inhumane, shows hatred, and against basic human rights and laws.

    • 7
      1

      For a very long time I have been concerned about the direction in which Sri Lanka has been headed.
      I used to write on CT under a different psudoname as far back as 2015 till 2019 end. I then stopped as Gota won the presidential election and I was totally disappointed about the future of our beloved nation. I stopped writing due to hopelessness.
      Lately due to pressure from a friend of mine to reconsider participation in CT decided to resurface under the present Pseudonym.
      Let me tell you a bit of background about myself, I think then you all may understand my approach to issues.
      I am an engineer, my perspective is to find out the underlying reasons why something is the way it is and try to fix the issue from the tootom. I am not emotional or sentimental in my practice. What I see is the problem and the cause of the problem and the proffered solution.
      I keep religion, race, language, cast, creed etc aside and try to find practical solutions.
      Identifying problems in the society is very hard, as most issues are issues that are connected to the human psyche or human mind.
      To make matters worst, the way a human is brought up has far-reaching consequences.

    • 1
      0

      This comment was removed by a moderator because it didn’t abide by our Comment policy.

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  • 14
    0

    Thanks Dr. Hoole for bringing out these issues to the attention of the world. It is outrageous that Hejaz Hizbullah, P. Rathikaran, and many others are held under flimsy charges under PTA.

    Many children of the ruling Rajapaksas live in the West and enjoy the rights accorded to all. The Rajapaksas should face unrelenting opprobrium internationally, including targeted sanctions. Funds transferred by the regime out of the country, including to their children in the West, may be traced and any illegality and corruption identified. Since the laws of SL are incapable of providing justice, it is time for the international community to ratchet up pressure on the regime in other ways. This has to be done on a concerted way globally. But no sanctions against the country as a whole; doing so will backfire and give a new lease of life to the regime at a time it is fast losing support even within its traditional base.

  • 6
    2

    Leegamali, the PTA is not the constitution. You don’t need a 2/3 to remove it, a simple majority could do it. Chandrika , Ranil could have removed the PTA.

    Native Vedda, yes you don’t need a PTA to commit atrocities. The LTTE killed many thousands, including Tamil leaders.The JVP of old , did the same, including left leaders, Vijay etc.

    There is a lot of domestic violence, cruelty to animals, corruption, hypocrisy, lies, family politics, clan and race bias, religion based violence-without the PTA !

    We are a abusive and corrupt country.

    However the point remains ,no government wanted the PTA removed

    • 2
      0

      DS,
      Thank you.
      .
      Just imagine, if any of the former govts did not remove PTA for some reasons, but in today s context, where no civil war is within the country, why cant they do the due ? Instead of resolving long held oustanding issues, but to attack the previous govts ? would not do anyone anything.
      .
      As I see it, media and drug mafia paved the way ” a bunch thieves, proved thieves” becoming the leaders, so the consequences are glass clear. On one hand, good riddance to bad rubbish.

      The current govt is powerful enough to resolve any big issues if leadership is genuine. Gota has become to the level of ” Ambalangoda -Rukada- Caricature”.
      :
      The situation fo the state is much similar to that of SOMALIA as of today. What more talks after an idiot whose experience and educational qualifications are far lower to that of a pion is now appointed as the minister of finance…..
      https://www.youtube.com/watch?v=Gv_nIaRGXak

      Entire nation should come to street and protest again MEDAMULAN rascals. No doubt, people will not stay calm and queit any further, another insurgency similar to that of 89 is inevitable.

    • 2
      2

      Because Sinhalese are at least 75% of the population. Whether they understand the implications of PTA or not, the moment you try to remove the PTA, you are branded as a ‘kotiya’, so no one wants to do it!!

    • 2
      0

      deepthi silva

      “The LTTE killed many thousands, including Tamil leaders.The JVP of old , did the same, including left leaders, Vijay etc.”

      True.
      However the Sri Lankan state and its institutions such as the police force and security forces are in perpetual existence. Both and the state have been involved in human rights violations and war crimes since independence, irrespective of the existence of PTA. By the way LTTE and JVP were the creation of the undemocratic, unaccountable, racist, …. state.

      Imagine a day when state functionaries, security forces, political masters, saffron clad…, do not violate laws of the land, behave within the law, and moral obligation, ….. However just being Sinhala/Buddhist the country avail them impunity.

      Stop being Sinhala/Buddhist and live a life of a Sinhalese, Tamil, Muslims, Buddhist, Hindu, Christian, Agnostic, Atheist, ……. and please inform Asgiriya Mussolini didn’t run trains on time.

    • 2
      0

      deepthi silva

      “However the point remains ,no government wanted the PTA removed”

      Who elects the government?
      Who was responsible for Nation building?
      Who control and protect all state institutions?

      Who gave a destructive voice to noisy minority, Wimal, Udhaya, Dinesh, Saffron Brigade, Armed forces, Media, ……. who thrive under the cover of smart patriotism.

      What have you done to educate the deluded people/voters?

      Remember the government is elected by the people.

  • 1
    0

    All massacres are on record.

    https://en.wikipedia.org/wiki/List_of_massacres_in_Sri_Lanka

    The world cares, but leaves well alone.

  • 1
    0

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  • 2
    2

    I saw this article last night,but I didn’t have the time to read it through. I thank you sincerely, Professor Hoole, for being so consistent in ferreting out all these abuses. Thank you also for displaying human gratitude in standing by your lawyer, Mr Hejaaz Hizbulla. He’s probably in trouble because he appeared for you in the case filed by you, and won (well, I’m not sure that it was your petition that finally prevailed, or that of one of the others). I note that Mr Hizbula’s ordeal will continue four weeks from now owing to the Draconian PTA legislation.
    .
    It is also good to know that there are bodies like the “Centre for Justice and Change” which appears free for helpless individuals like Palakrishnan Rathikaran, a labourer who understands less than us what offence he committed in having the picture of a flower in his mobile phone. It’s good to know that he’s free on bail, but that means that it’s not permanently over.
    .
    Continuing

  • 2
    2

    Continuing
    .
    I have written so much in uninspired and pedestrian prose only to show that I have read, and understand. Even understand why the photograph of the evil looking Kapila Athukorala is there. Seven comments on display; thanks for six of them. GATAM, your moronic comment is valueless. There is no sign of your having even read the article. I’m far from the action; all that I can do is marvel at the persistence of Professor Hoole on behalf of all citizens. I agree that the only solution consists of two parts; get rid of PTA, and get rid of this horrible government. Hoole did right in so conducting the election that the foolish will of the people prevailed. It must be granted that the these fellows were legally (not legitimately!) elected to “power”. All voters art to blame; people like me for not working hard enough to prevent it. I personally cast my votes sensibly, for the NPP, but that was insufficient.

    Thank you, Professor Hoole.
    .
    Panini Edirisinhe of Bandarawela (NIC 48 3111 444 V)

  • 0
    0

    Let me focus on the concluding paragraphs. Author says that our laws give unfettered control to the rulers over our lives especially the minorities. One need not be a minority to get trampled from the powers that may be and the author increases the racial slant in his argument more in saying that Sinhalese have mismanaged the economy. Don’t forget Prof. the current economic imbroglio is the cumulative effect of actions of all governments after independence and in some of such governments, minorities did have a very good say in the day-to-day affairs. So! The responsibility is not limited to one ethnicity alone. Prof! When you were appointed as the Vice Chancellor of the Jaffna University (UOJ), who stopped you from assuming the duties with threats to your life to such an extent you had to leave the country? UOJ was denied your excellent input and is the ethnicity that you quote responsible for that? Alas! Prof! The subject matter of the article is very important, you have done a lot of research, but you added excreta into the milk by giving it an ethnically loaded slant. The reality is that the poor are the worst hit.

    • 0
      1

      Good Sense,
      .
      You are one of the few who understands and grants that the poor are the worst hit.
      .
      As for Jeevan’s “ethnic slant”. I don’t think it reprehensibly present in this comment. It is sometimes!
      .
      Isn’t it inevitable that what we feel most keenly is what has affected us the most? What we must remember is that the battles that he fought as a Member of the Elections Commission, were on behalf of us all. We must also be grateful that even though he realised the evil represented by the Rajapaksas, he performed his duty by the State in the conduct of the elections with objectivity.
      .
      The Rajapaksas have not been able to accuse him of surreptitiously undermining their campaign, or their cause. Although he realised that there was a problem relating to Gota’s citizenship, he was (rightly) prevailed upon by the other to desist from becoming prosecutor himself. Have you seen the article in which, after the election of Gota, he described the process, please ask me to provide the link.

  • 0
    0

    When the Judge says “Hands are tied’ when dealing with PTA, the judge is taking the side of the government and against citizens.

  • 2
    2

    Prof S. Ratnajeevan H. Hoole
    Re: Conclusion
    Give me one good example of Sri Lankan laws that have unfretted control over MINORITY LIVES”.
    Sri Lankan law is equal to all citizens irrespective of race or religion. Yet, the Tamils and the Muslims have the habit of demanding exemptions from law and order based on their ethnicity.
    If there are any laws that ‘especially control minority lives’, they are the ‘Thesawalamai Law‘, ‘Muslim Marriage Law’ and the ‘Kandyan Malavari Law’. First, seek freedom from your own oppressive laws.
    .
    You say, “the Sinhalese have mismanaged the state so badly………”
    Well, the blame should go to non-Sinhalese rulers, too.
    The reason for the collapse of Sri Lanka is the wrong choice of rulers (since 1948) who were non-Buddhists (Christians, 1 Jain, 1 Secular) and non-Sinhalese (Bandaranaike, Ratwatte, Jayewardene and Rajapaksa).
    The last Sinhalese Buddhist king was King Sri Wira Parakkama Narendra Sinha (1707 -1739 AD) who ruled from Kundasale, and the only Sinhalese President who practiced Buddhism was the late President D. B. Wijetunga.
    The Sinhalese Buddhists are inherently generous, hospitable, sensitive, benevolent, forbearing and tolerant people. They only have to become ‘critical and creative thinkers’ when choosing their rulers and legislators.

  • 1
    1

    Privy Council declared that Citizenship act of 1948 and Sinhala only act of 1956 are discriminatory against Tamils, which were passed violating section 29 of the constitution, and referred the matter to Sri Lanka supreme court to take action. Despite this government got Supreme court to distort the truth and delivered verdict justifying the laws.
    Due to this, in 1972, Sri Lanka got rid of section 29 and abolished Privy Council.
    Secondly even if the laws appear to be fair to all, in the implementation of the laws there is racial discrimination. If not for this how do you explain, when innocent Tamils are languishing in jail for number of years, Sinhala criminals are allowed to go free.
    Take example from Singapore, where laws are equal both in enactment and implementation.
    In UK though there is discrimination in the community, courts are very fair.
    I reiterate that judicial sector in Sri Lanka consisting of police, bar and bench are institutionally racist.

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