Sri Lanka’s Permanent Representative to the United Nations declared in Geneva this week that the draft resolution lodged with the Human Rights Council by the United States, the United Kingdom and three other member states violates Sri Lanka’s Constitution, is highly intrusive and breaches territorial integrity as well as peoples’ sovereignty. Let us look at one specific component of this defence, namely that the resolution violates our constitutional provisions.
Hard progress needs to be evidenced
In making this assertion, the Permanent Representative has not explained exactly how constitutional provisions have been violated. Sri Lanka had voluntarily signed on to the Human Rights Council and had made pledges moreover subsequent to being granted membership of the Council with a view to ensuring conformity of its domestic laws and policies with international standards. Implicit in this undertaking was the promise that it would abide by the procedures and processes of the Council.
Sri Lanka initially signed onto the Council’s mandate in the full belief that it could avoid obligations thereto by using a noxious combination of clever promises in theory and cynical disregard in practice. Yet the time limit on these disingenuous tactics appears to have come close to running out. Complacency on the part of some that resolutions may come and go but no visible impact will be felt is most assuredly a dangerous misconception.
Looking to the pressure points of the LLRC recommendations
The Government has taken strong objection to that part of the resolution before the Council which attempts to vest an investigative mandate, as well as of monitoring and assessment in the Office of the High Commissioner in regard to alleged abuses of human rights and related crimes. But the unpalatable truth is that it is the Government itself which has strengthened its own critics by refusing to show real progress in investigating and prosecuting perpetrators.
A litany of work-in-progress implementation of ‘soft’ recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) will not do any longer. Hard progress needs to be evidenced on the LLRC’s findings regarding extrajudicial killings and enforced disappearances, demilitarization of the North, implementing impartial land dispute resolution mechanisms, strengthening formerly independent civil institutions, devolving power, securing freedom of expression and rule of law reforms. These are precisely the pressure points of the resolution before the Council. Indeed, this administration’s disregarding of those imperative recommendations is what violates the Constitution, if one may be brutally frank.
Bypassing international obligations reaches beyond accountability questions
But we must remind ourselves that disregarding of this country’s international obligations has had a long history encompassing far more than accountability questions. In the strict constitutional structure, Article 27(15) (Directive Principles of State Policy) mandates the State to ‘…endeavor to foster respect for international law and treaty obligations in dealings among nations.” Though these Principles could not be used directly as basing a claim on rights violations, they were specifically mandated to frame and guide legal policy and the making of laws as per Article 27(1) of the Constitution.
Since the late eighties, the Supreme Court of Sri Lanka had used these Principles to expand local jurisprudence through the judicious use of international law. In fact, as one judge of the Supreme Court said, (at a time when the Court commanded rigorous respect), in relation to views of the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights, the State must respect international law and treaty obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which international law recognizes (Weerawansa v AG,  1 SriLR 387,409, see the late MDH Fernando J. in ‘Judicial Development of Human Rights; Some Sri Lankan Decisions’, Sri Lanka Journal of International Law, Volume 16, 2004, Faculty of Law, University of Colombo).
From the legal to the political scrutiny of the UN
Such comfortable precedents served to keep Sri Lanka away from the gaze of international human rights law. These safeguards were however cast aside by the Singarasa decision (S.C. SpL (LA) No. 182/99, SCM15.09.2006, per SN Silva CJ.) which first put the country on a collision course with the United Nations’ jurisprudential branches with the Court declaring that Sri Lanka’s accession to the ICCPR protocol was unconstitutional.
From thereon, the focus shifted from the jurisprudential to the political arms of the United Nations as the country came increasingly under scrutiny for its inability to conform to international law standards. This was not only in relation to the manner in which the last stages of the war in the Wanni was conducted but also in relation to far broader issues of the Rule of Law and credibility of local legal and justice institutions.
Perhaps the Rajapaksa Presidency, in its customary rumbustious style, may see it to, using its numbers in Parliament, repeal this constitutional provision enjoining the State to ‘foster respect for international law and treaty obligations in dealings among nations.’ We may then be clearer on the ruinous course that we are pursuing in the community of nations rather than this dizzying and infinitely confusing perambulations comprising of back-door pleadings and front-door truculence.
Defences of ‘people’s sovereignty’ ringing hollow
At this point of time, frenzied retorts of Government representatives that resolutions submitted against the Government at the Council violate the people’s sovereignty and the Constitution can only ring hollow when the people are ill served by continuing gross human rights abuses, militarization and the highly authoritarian overreach of the Executive Presidency. The LLRC’s recommendations merely reiterated existing constitutional and statutory law regarding the protection of rights. Yet these recommendations have not yet been implemented, including a right to information law (which the Rajapaksa Presidency appears to be afraid of as much as an international commission of inquiry) and a properly drafted victims’ protection law.
If this is people’s sovereignty, of what worth is the very term ‘sovereignty’ itself?