By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Sri Lanka’s ratifications of United Nations human rights conventions signal a certain willingness to adhere to the UN treaties and to be guided by international law. But the record of actual compliance with the international treaties tells a different story. The 1969 Vienna Convention on the Law of Treaties says individual states must comply in good faith with the treaties they have ratified, and that a state may not invoke the provisions of its internal law to justify failure to uphold international agreements. In other words, individual states are bound to comply with the treaties they have ratified, and it is a well-established principle of international law that states have a duty to bring internal law into conformity with obligations under international law.

The International Court of Justice has also established that it is ‘the fundamental principle of international law that international law prevails over domestic law’

Sri Lanka has signalled its willingness to uphold international human rights law by ratifying human rights conventions and by submitting periodic reports to the United Nations Committee Against Torture (CAT) and the United Nations Human Rights Committee (UNHRC). But both Committees have expressed serious concern over continued allegations of widespread torture and enforced disappearances. Sri Lanka has recognised the competence of the United Nations Human Rights Committee to consider individual communications lodged by Sri Lankans alleging violations of the ICCPR as a result of state action. From 1999, the UNHRC has declared that the communications of several individuals had been violated, but none of the Committee’s views have been implemented to date.

The Special Rapporteur on Torture and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions have both visited Sri Lanka since 2005. Both concluded that torture is widely practiced in Sri Lanka. Their reports expressed concern regarding the long duration of investigations in torture cases and allegations of threats made against torture victims. Their recommendations also remain largely unaddressed.

The Constitution of Sri Lanka prohibits torture and cruel, inhuman or degrading treatment or punishment Because Sri Lanka has a dualist legal system, an Act of Parliament is required to domestically implement international instruments that the State ratifies/accedes to.

Take, for example, the Convention Against Torture and Other Inhuman and Degrading Punishment Act of 1994 (the CAT Act), which was enacted to give specific effect to the UNCAT. The CAT Act falls short of satisfying Sri Lanka’s international obligations because its definition of torture differs from the definition in the UNCAT: the Act does not establish universal jurisdiction for acts of torture, and makes no reference to the principle of non refoulement. The Act further departs from the UNCAT by not directly providing that superior officers be held liable for acts of torture committed by their subordinates. There are similar lacunae in other statutes such as the Penal Code and the ‘ICCPR Act.

A Problematic Judgement by the Domestic Court — Nallaratnam Singarasa v. Attorney General and Others, S.C. SpL (LA) No. 182/99, SCM1S.09.2006. This judgment was delivered consequent to a petition being filed in the Court invoking its powers of revision and/or review concerning an earlier judgement of the Court regarding Singarasa’s conviction of having unlawfully conspired to overthrow the Government. The conviction was made solely on the strength of a confession obtained under emergency law, the voluntary nature of which he was legally required to prove. After appeals in the domestic arena (up to the Supreme Court) resulted only in a reduced sentence, Singarasa filed an Individual Communication before the United Nations Human Rights Committee pleading, a violation of his rights under ICCPR article 14(1(g), in that it was impossible for him to prove that his confession was extracted under duress as he had been compelled to sign the confession in the presence of the very police officers by whom he had been tortured earlier. The Committee found a violation of his rights under ICCPR article 14(3)(g) as well as ICCPR, article 14, paragraphs 3(c), and 5 (Vide, Nallaratnam Singarasa v. Sri Lanka, CCPR/ C/81/D/1033/2001, adoption of views, 21-07-2004). The State was directed to provide Singarasa with an effective and appropriate remedy, including release or retrial and compensation, and was also cautioned to avoid similar violations in the future and to bring its domestic law in conformity with the ICCPR. Yet, as the said views were not being implemented even after two years had lapsed, a revision application was filed before Sri Lanka’s Supreme Court urging that the Court reconsider its earlier order. The views of the Committee were cited in this instance as persuasive authority.

Apart from such particular statutes, the state is generally obliged to follow international standards. Article 27(15) of Sri Lanka’s Constitution specifically requires the State to ‘endeavour to foster respect for international law and treaty obligations in dealings among nations; but as the example of the CAT Act shows, these constitutional directives are disregarded.

So what are the practical results when states refuse to comply with international obligations deriving from international treaties?

In 2007 a Divisional Bench of Sri Lanka’s Supreme Court presided over by Chief Justice Sarath N. Silva ruled in the Singarasa Case, that the act of accession to the first ICCPR Protocol by the President was an unconstitutional exercise of legislative power as well as an unconstitutional conferment of judicial power on the UNHR Committee. This judgement rendered the views of the Committee to be of no force or effect within Sri Lanka.

This is a contentious ruling. The President of Sri Lanka had acceded to both the ICCPR and the First ICCPR Protocol by virtue of Article 33(f) of the Constitution, which allows the President to ‘do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorised to do: However, this was the very constitutional provision that the Court employed through a process of convoluted logic to determine that the accession to the First ICCPR Protocol was unconstitutional. The conclusion that judicial power has been conferred upon the UNHRC through the accession to the First ICCPR Protocol was interlinked with the reasoning that this act of accession was ‘an act of legislative power; which (as the Court ruled) ought to have been exercised by Parliament and not solely by the President.

The judicial reasoning behind the Singarasa Case was fundamentally flawed because the UNHRC had never claimed judicial power within a domestic legal system. This is made very clear in its General Comment No 33, where the Committee reiterates that the function of the Committee in considering individual communications is not that of a judicial body, though it was conceded that the views exhibit some important characteristics of a judicial decision. Instead, the Committee’s authority has always been based on the principle that the rights in the ICCPR should be given effect to as part of the international human rights regime, and that the Committee is the appropriate mechanism in terms of the ICCPR, which is vested with that authority.

The Singarasa decision highlights the difficulties of sustaining ‘judicial power’ on a jurisprudential basis so as to determine that the very act of executive accession to the First ICCPR Protocol was unconstitutional. Yet this remains the law in Sri Lanka. The opinions of the UNHRC have been deemed to be of no force or value whatsoever. So while in theory the country has not denounced or withdrawn from the international treaty regime, these obligations are practically rendered of no consequence where the domestic implementation of rights is concerned.

Can states both ratify and reject treaties at the same time?

The constitutional articles found to be violated by the President’s accession to the first ICCPR Protocol were respectively Article 3 read with Article 4 (c) read with Article 75 and Article 3 read with Article 4 (c) and Article 105 (1) of the Constitution. The Petitioner’s application was found to be misconceived and without legal basis. As the Court declared that accession to the Protocol violated Article 3 (read with Article 4 of Sri Lanka’s Constitution), any law passed seeking ot give domestic effect to the views of the United Nations Human Rights Committee would therefore have to be approved by a two thirds majority in Parliament, as well as by the people at a referendum as mandated by Article 83 (a) of the Constitution.

So can states both ratify and reject the international treaty regime at one and the same time? This trend appears to go fundamentally against the norm of the international legal order. Yet this is the paradoxical reality that Sri Lankan lawyers have to grapple with. The attention of the international legal community is most imperatively needed in that regard.

*This article may be found in ADVANCING TOGETHER VOLUME 2 ISSUE 2 DECEMBER 2013 www.lexisnexis.com.au/ruIeoflaw