In a recent decision, Sri Lanka’s Court of Appeal refused interim relief in a case challenging recent appointments made by President Rajapakse contravening the Constitution. The court also refuted any challenge to presidential immunity.
Among other things, the court held that since the president is not a respondent of the case, the court cannot hear the case. According to the court, the principle of natural justice requires that the party against whose actions the case is being presumed should have an opportunity to answer the allegations.
This decision has created a catch 22 situation regarding the president’s powers and his absolute immunity. While article 35 of Sri Lanka’s constitution prohibits any actions being filed in any court against the executive president with regard to any act “done or omitted to be done by him either in his official or private capacity”, legal principles do not allow courts to hear cases against the president without him being a party.
The implications of such a situation are grave. However unconstitutional and illegal the president’s acts may be, and whatever international obligations they may violate, there is no way to pursue the matter before a Sri Lankan court. The Asian Human Rights Commission (AHRC) is of the view that the petitioner to the court of appeal, Dr A C Visvalingam, President of Citizens’ Movement for Good Governance, supported by Susil Sirivardana, President of Avadhi Lanka, has now exhausted local remedies and should therefore take the matter before the UN Human Rights Committee.
In dismissing the case the judge noted, “Admittedly, the law sometimes forces an unjust decision. Therefore the injustice, if any, caused to the people as alleged by the petitioner, cannot be cured by this Court as it is for the Legislature to make the necessary amendments to the Constitution.” Such injustice also falls within the jurisdiction of the Human Rights Committee. Under article 2 of the International Covenant on Civil and Political Rights (ICCPR),
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.Article 35 (1) of the Sri Lankan constitution is in violation of the ICCPR. As a signatory to the ICCPR as well as its Optional Protocol, Sri Lanka is under obligation to bring all its laws, including its Constitution, into conformity with the provisions of the ICCPR. Any Sri Lankan citizen is entitled to take any violations of the ICCPR to the Human Rights Committee if he cannot find redress to that violation through domestic judicial process.
The matter of presidential immunity as found in article 35 (1) places the president in the same category as absolute monarchs and rulers who are not subjected to the rule of law. This is abhorrent to modern civilisation and incompatible with the rule of law and protection of human rights. To implement the rights guaranteed by the ICCPR is a primary obligation of the state, and it is the head of the state who must take responsibility for carrying out this obligation. The head of state cannot be exempt from the obligations undertaken by the state. Sri Lanka’s obligations under the ICCPR and the constitutional immunity given to the president are therefore contradictory. This matter should be resolved through the Human Rights Committee.
Sri Lanka is also a member of the newly created UN Human Rights Council, whose operation is based on the various international law and human rights covenants. A key function during the early stages of the Council’s formation is the review of its members. Article 35 (1) of Sri Lanka’s constitution should therefore become important grounds for review, together with other human rights issues. The local as well as international human rights lobby should pay serious attention to this issue.
The AHRC has also previously underlined the obligations of the UN High Commissioner for Human Rights, Mrs Louise Arbour, on this important matter (see AHRC OL-016-2006). The AHRC hopes that her office and her advisors in Sri Lanka will stand firm on the side of the Sri Lankan people on this matter. Together with international bodies, civil society in Sri Lanka must persistently draw attention and protest to this issue. Only then can supremacy of the people be asserted against the absolute power claims of the executive president.
For further details on this issue please see http://www.ahrchk.net/slmourning.htm
