Earlier the Asian Human Rights Commission (AHRC) circulated the complete text of this judgement (please see AS-217-2006). Among the many completely baseless legal positions on which this judgement is premised there are some outstanding issues. The AHRC intends to explore a comprehensive critique on this judgement soon. In the meantime we would like to mention some of the more obvious issues. These relate to some basic fallacies on which the Supreme Court judgement stands:
- That the sovereignty of the country as enshrined in the Constitution is compromised by Sri Lanka’s accession to the Covenant on Civil and Political Rights in 1980 followed by it being a signatory to the Optional Protocol in 1997;
- that when the president of Sri Lanka, as the head of state, signed the Optional Protocol she did so merely as the head of the executive; and,
- that Sri Lanka has violated Article 2 of the ICCPR and on that basis the obligations to the Convention by the Sri Lankan state can be abolished.
On the issue of sovereignty:
In Sri Lanka the people are sovereign. The simple issue is as to whether the people’s sovereignty is enhanced by their entitlement to a greater degree of freedom and human rights or by having a lesser degree of freedom and human rights. The ICCPR is a universally accepted standard of human rights and gives wider scope for rights than anything contained in the Sri Lankan Constitution. By the accession to the ICCPR the scope of rights available to the people of Sri Lanka has been enhanced; about this there is no dispute. The Supreme Court judgement, in essence, states that if the Constitution has provided for a certain degree of rights further expansion of such rights by the state violates . This is an absurd proposition.
The expansion of rights gained by the people of Sri Lanka was further enhanced by the state becoming a party to the Optional Protocol thus giving the sovereign people of Sri Lanka, the right to complain to an international body when their rights are violated even by any agency of the state. Is the sovereignty of people lessened when they can complain about violations of human rights by anyone including a state agency? Alternatively, if the people’s rights are violated and their right to complain is restricted (and thereby a right to a remedy is limited) is that an enhancement of sovereignty? If the state agency that violates rights happens to be a court should not a sovereign people have the right to complain and find a remedy against such a court? By stating that people are sovereign the Constitution has provided an infinite space for the expansion of the rights and freedoms of the people, even against their state and all its branches. In this way Sri Lanka’s Constitution has brought in the principles that were developed in the world’s great revolutions, in all of which the adoption of a comprehensive bill of rights on the basis of was an integral part. Today the ICCPR is considered the most universally accepted bill of rights. Thus, the Supreme Court’s proposition that accession to these international treatises violates is a basic fallacy. In fact the contrary proposition that the ICCPR enhances people’s sovereignty is both legally and politically more profound and valid.
The signature of a head of state
The second basic fallacy on which the Supreme Court judgement is based is that when the president of the country signed the Optional Protocol of the ICCPR in 1997 the president did so only as the head of the executive.
When a head of the state signs a treaty he or she does so on behalf of the entire state, meaning the legislature, the executive and the judiciary. This failure to recognise the legislature and the judiciary also as a part of the state is the basic fallacy on which the entire judgement of the Supreme Court is based. The judiciary is a component of the state. Judicial independence in the context of the separation of powers is not about three components with three different heads of state functioning separately. The separation of powers relates to the functioning of the state and is not about who is the head of the state.
The head of the executive or a chief justice as the head of the judiciary is a functionary within the apparatus of the state. As opposed to this the president acting on behalf of the state acts for the whole of the state meaning the legislature, the executive and the judiciary. Internal challenges to the power of the executive, including that of the president acting on behalf of the executive, is regulated by the constitutional principles of the separation of powers. Unfortunately when it comes to the internal matters of the country the Supreme Court of Sri Lanka has gone by the rule that under Article 31 (1) acts or omissions of the president done personally or officially cannot be challenged by the court. Even the incumbent president’s open violation of the Constitution of Sri Lanka by his failure to comply with the 17th Amendment to the Constitution was upheld as legal both by the Court of Appeal and the Supreme Court.
On the issue of the Optional Protocol the president has acted as the head of the state. The Supreme Court has tried to treat this as an act of the head of the executive only, thereby claiming a right, as a separate branch of the government to challenge the executive action. While the president is the chief of the executive, the Chief Justice is the chief of the judiciary. However, that is not an equation to the head of the state. Sri Lanka does not have two or three heads of states, one for the executive, one for the legislature and one for the judiciary. The whole misconception on this issue is what has led the judiciary to remove the obligations created by the head of the state by being a party to the said treatises. When the head of the state acts on behalf of the state and expands the scope of human rights by becoming a party to international treatises this is a political act that brings about a new order in terms of the human rights of the entire people. What this implies is that the Supreme Court of Sri Lanka led by the Chief Justice has entered into an area that does not belong to it; the area of politics. Under the pretext of a legal judgement the Supreme Court has tried to act on matters that belong only to a legitimate head of state.
A relevant example on this matter is when the Bush administration attempted to ‘unsign’ the International Criminal Court Treaty signed by the former president, Bill Clinton on his last day of office. This move was rejected by the United Nations when the then chief of the treaty section for the United Nations, Palitha Kohona, said “it was unheard of for a nation that signed a treaty to withdraw that signature”. A Supreme Court trying to undo treaty obligations entered into by the state with the United Nations is also unheard of. However, this is not the first time that the incumbent Chief Justice, Sarath N. Silva has done things unheard of in the entire jurisprudence of the world like for example sentencing a man to one year of rigorous imprisonment for allegedly raising his voice in court as he did in the case of Tony Fernando.
On the issue of Article 2 of the ICCPR (creating confusion on monist and dualist theories)
The Supreme Court judgement throughout distorts the meaning of Article 2 of the ICCPR. Article 2 of the ICCPR obligates the governments who become party to this Covenant to take adequate measures to implement the rights by legislative, judicial, administrative and other measures. Simply put, this means that new laws must be brought in to enhance the rights guaranteed by the Covenant. New judicial remedies must be provided and the judicial interpretation of rights itself must be enriched by the legal incorporation of the ICCPR. It also means that the government must provide adequate funds and undertake other measures to implement the provisions of the ICCPR. The Supreme Court in its judgment put forward a strange logic that since such measures envisaged by Article 2 have not been taken adequately by the state, the state entering into such treatises is in itself invalid. This simply does not stand up to any logic. If the Supreme Court intervened as a branch of the state to take whatever steps might be within its power to improve such laws, judicial remedies and interpretation and made further attempts to obligate the executive to invest funds, and other measures to ensure the rights guaranteed by the ICCPR, that would have been the logical process to be expected. This is exactly what the Indian Supreme Court has done. The distinction between monism and dualism is about following the obligations taken internationally by adequate measures as mentioned above by all branches of the state. The way monist and dualist argument is used in this judgement does not make any sense at all.
The AHRC in earlier statements has pointed out that the Chief Justice, Sarath N. Silva is trying to transform the Supreme Court of Sri Lanka into a political institution. Such a move is against the Constitution of Sri Lanka as well as the principles of constitutionalism in general. Further the attempt to limit the rights of the people by removing the implication of being a state party to human rights treatises is an attack on .
