On December 5, the BBC Sinhala service reported the Attorney General of Sri Lanka as having said last Monday that urging the Supreme Court to alter a ruling is tantamount to undermining the independence of the judiciary. He reportedly said this with regards to the case of Nallaratnam Sinharasa, who has sought the Supreme Court to compel the Sri Lankan government to comply with a decision of the U.N. Human Rights Committee, which has held that his right to fair trial had been violated by the Sri Lankan state and that he should be released or retried.
The Attorney General’s position runs contrary to that of the Solicitor General, who while in Geneva on November 11 stated before the U.N. Committee against Torture that
“The Supreme Court has affirmed the position that the Courts of our country are bound to give expression to international covenants where Sri Lanka is a party, when called upon to interpret any statute. Therefore, in the interpretation of the extradition law, the Courts would necessarily give expression to any international obligation to which Sri Lanka is a party, including the Convention against Torture. I wish to state that Sri Lanka has always been mindfu1 of its obligations and respected secured and advanced human rights to its society.”
While the statement of the Solicitor General is in keeping with Sri Lanka’s obligations under international law, that of the Attorney General amounts to a direct violation of the country’s commitments under the Optional Protocol to the International Covenant on Civil and Political Rights. Paragraph 4 of General Comment 31 of the Human Rights Committee states that
“The obligations of the Covenant in general and article 2 in particular are binding on every State party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at what ever level–national, regional or local–are in a position to engage the responsibility of the State party. The executive branch that usually represents the State party internationally, including before the Committee, may not point to the fact than an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relive the State party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle underlying article 27 of the Vienna Convention on the Law of the Treaties, according to which a State party ‘may not invoke the provisions of its internal law as justification for its failure to perform the treaty’. Although article 2, paragraph 2 allows State parties to give effect to Covenant rights in accordance with domestic constitutional processes, the same principle operates so as to prevent State parties from invoking provisions of the constitutional law or other aspects of domestic law to justify a failure to perform or give effect to obligations under the treaty.”
The Attorney General as the chief legal adviser to the government is under obligation to inform the courts of the treaty obligations of the country. He is surely aware that several treaty bodies have even asked for amendments to the Constitution of Sri Lanka in order to bring it into conformity with the international covenants and conventions to which the country is a party. The independence of the judiciary will have little meaning if such international obligations can be flouted by the courts: otherwise court decisions can be used as an excuse for all manner of violations of basic human rights. Under such circumstances the executive will try get done through courts what if done by the executive itself would be held wrong. The Attorney General now owes an obligation to the people of Sri Lanka to explain what he means.
