The Asian Human Rights Commission yesterday (October 9, 2006) wrote to Ms. Louise Arbour, High Commissioner for Human Rights and Ms. Hanna Roberts, Chairperson, International Executive Committee, Amnesty International with regard to the statement made by the head of Sri Lanka’s delegation to the Second Session of the Human Rights Council, about a suggestion made by the Sri Lankan government to OHCHR and to Amnesty International for the appointment of some eminent persons as observers to a local commission proposed by the Sri Lankan government regarding the monitoring of human rights.
The AHRC raised the issue as to what role any ’eminent persons’ might have as observers in the light of the operation of a recent Supreme Court decision which has clearly stated that the ICCPR and other international instruments signed by Sri Lanka has no internal effect until they are introduced into local law by the required legislation.
The Asian Human Rights Commission further pointed out that any commission functioning within the local law is subjected to the limitations on human rights imposed by the Constitution however much such limitations might offend the international norms and standards. The AHRC further points out that until the matters arising from this Supreme Court judgement is sorted out there is no possibility of the application of international norms and standards in Sri Lanka. There is no way now to avoid facing this issue. The authenticity of interventions on human rights does not lie on the eminence of persons who take part in such mission but on the acceptance of the preeminence of international norms and standards as the basis for the observance of human rights.
When local laws conflict with international norms and standards it is these local laws that need changing and not the reverse. The difference between propaganda stunts to cover up massive human rights violations and genuine human rights monitoring missions is the acceptance of international norms and standards as the measurement of human rights.
We reproduce below the letter sent by the AHRC.
Your Excellency Ms. Arbour, Ms. Roberts
I am writing this on behalf of the Asian Human Rights Commission after reading the following paragraph from the speech of H.E. Sarala Fernando, speaking on behalf of the Delegation of Sri Lanka to the Human Rights Council following the Special Rapporteur, Mr. Philip Alston’s presentation on 19th September 2006.
The relevant portion of the speech is as follows:
The initiative of President Rajapaksa to invite an international independent body of eminent persons to act as observers of investigations into recent allegations is in fact an additional voluntary mechanism to existing cooperation with special procedure mechanisms and as we emphasised morning we have done so out of commitment to the protection of human rights while combating terrorism and the Governments desire to place itself beyond reproach regarding such concerns. A consultation process has already begun with Amnesty International in London and OHCHR with regard to modalities of the proposed international independent group which will function within the domestic legal framework. Should not our objective be to strengthen national systems rather than to supplant them?
H.E. Sarala Fernando in a separate reply has, among other things stated “It was only last week that we delivered a letter to the High Commissioner to make nominations of international human rights experts to this body.”
The purpose of this letter is to draw the attention of the High Commissioner as well as Amnesty International to the implications relating to the suggestions contained in the above mentioned paragraphs in view of the Supreme Court judgment in Nallaratnam Singarasa v Attorney General (SC (Spl) L.A. No. 182/99) delivered on (September 15, 2006). The copy of this case have been sent to you by the Asian Human Rights Commission earlier.
In short the court held that Sri Lanka being a jurisdiction which is dualist, Sri Lanka’s accession to the International Covenant on Civil and Political Rights in 1980 has no internal effect as no local legislation has been passed following the accession. The court also held that the president’s signature to the Optional Protocol in 1997 is unconstitutional and to have any binding effect a law should be passed by an absolute majority in parliament followed by a referendum.
This applies to all UN conventions ratified by Sri Lanka which have not been brought into local law through specific legislation to that effect.
The case clearly stated that the Constitution as it stands is the supreme law and that the provisions of rights available are those that exist in terms of the Constitution. At the very core of the suggestion made by the government for a group of eminent persons to support a local inquiring body/bodies is that such local bodies would have to operate within the limitations of the local law and therefore the application of international norms and standards will be completely out of bounds to such local bodies as well as to the international experts.
Whether the decision in the Singarasa case is right or wrong is not the issue. It is a judgment of the highest court in the country and will remain law until it is overruled by a higher bench or by the passing of a new law within the country. Being a common law country, judicial precedent is a fundamental doctrine of the country.
Any form of collaboration with the possibility of application of international norms and standards will require that the problems raised by this case are settled before hand. Whatever be the eminence of the persons participating the international norms and standards will have no application as long as this decision remains binding.
The problems of Sri Lanka’s Bill of Rights in the Constitution (Chapter 3 Fundamental Rights) is that it is not in conformity with the ICCPR. The Human Rights Committee has already recommended to the government on several occasions after periodic reviews by the Committee to bring the Chapter on Fundamental Rights into conformity with the ICCPR. This has not been complied with. The constitutional provisions have brought in severe limitations of fundamental rights including the possibility of suspending all rights through the declaration of emergency laws. The emergency laws have been operating for most of the time of the existence of this Constitution which came into effect in 1978. In different times emergency laws have suspended even the most basic safeguards such as magisterial inquiries regarding suspicious deaths. Police officers of some rank have been given permission to allow burial of bodies without any reference to a judicial officer. This provision contributed to the disappearances of over 30,000 persons in the south during the period from around 1987 to 1991. Although this provision was lifted later this or any similar provision can be brought into local law through emergency regulations. Thus, operating under the local law means accepting all such limitations.
We would urge you to consider the issue of international norms and standards and the possibility of the application of these in any form of participation within the confines of the application of local law. Unfortunately such as arrangement will not strengthen the local system as suggested by H. E. the Consul General of Sri Lanka. In fact only opening up the system for the operation of international norms and standards will strengthen the local system.
Executive Director on behalf of the AHRC
