(The state’s failure to implement the views and recommendations of the Human Rights Committee on individual complaints, and the failure to implement the Human Rights Committee’s and the CAT Committee’s recommendations after periodic reviews. The resulting situation of the bewildering absence of protection to the citizens and the total absence of effective mechanisms to investigate, monitor or prosecute gross human rights abuses)
The Sri Lankan government has consistently failed to respect or to take any measures to implement the view expressed by the Human Rights Committee although Sri Lanka became a signatory to the Optional Protocol in 1997. Since then there have been many communications filed by Sri Lankan’s before the Committee and the Committee has expressed its views and made recommendations in six cases.
1. In chronological order of the final views expressed by the Committee these six cases are as follows:
July 22, 2002, Communication 916/2000 in the communication submitted by Mr. Jayalath Jayawardena, a member of parliament, the author complained that a statement made by the president of Sri Lanka on the state owned media put his life at risk and further that the failure of the state to investigate and take appropriate action on the threats also placed him at risk. The Human Rights Committee held that the author’s rights under article 9, para 1 of the Covenant had been violated and recommended the government to provide an appropriate remedy.
July 16, 2003, Communication No. 950/2000 in the communication submitted by Mr. S. Jegatheeswara Sarma. This case related to the disappearance of the author’s son regarding which the Committee held that article 7 and 9 regarding the author’s son and article 7 regarding the author and his wife were violated and stated that the state party is obligated for a thorough and effective investigation into the disappearance, providing adequate information to the author and for adequate compensation.
July 21, 2004, Communication No. 1033/2001 in the communication submitted by Mr. Nallaratnam Singarasa, which was the case of the sentencing of the author for 35 years of imprisonment without fair trial solely on the basis of a confession from the author without any collaboration, taken in a language that the author did not understand and without addressing that claim that the confession was taken under torture. The Human Rights Committee held that the facts disclosed violations of article 14 (1), para 1, 2, 3, (c) and 14, para (g) read together with article 2, para 3, and 7 of the Covenant. The Committee recommended release or retrial of the prisoner and compensation and to amend the Prevention of Terrorism Act to make it compatible with the provisions of the Covenant.
July 27, 2004, Communication 909/2000 in the communication submitted by Mr. Victor Ivan, who is a well known journalist, the allegation was that certain indictments filed by the then Attorney General (now the Chief Justice), violated the rights of the author and that some judgments of the Supreme Court amount to violations of the rights of the author in the failure to provide equality before law, equal protection of the law and the right to freedom of expression. The Human Rights Committee held on the basis of the facts before it that a violation of article 14 para 3 (c), and article 19 read with article 2 (3) of the ICCPR had taken place. The Committee recommended that an effective remedy including appropriate compensation should be paid to the author and the state party should prevent future occurrences of this nature.
March 31, 2005, Communication 1189/2003 in the communication submitted by Mr. Tony Fernando, the author alleged that he had been sentenced for one year’s rigorous imprisonment without appeal for allegedly talking loudly in court and thereafter he was also severely tortured while in prison custody. The Human Rights Committee held that the author’s rights under article 9 para 1 had been violated and left the issue of torture to be determined by the courts in Sri Lanka. The Committee recommended that the author be provided with an adequate remedy, including compensation and to make such legislative changes as are necessary to avoid similar violations in the future.
July 26, 2006 Communication 1250/2004 in the communication submitted by Mr. Sundara Arachige Lalith Rajapakse, the author alleged that he was subjected to torture, further subjected to unlawful and arbitrary detention and violation of the liberty and security of persons by constant threats to his life and the lack of adequate remedy within his country. The Human Rights Committee held that the author’s rights under article 2, para 3 in connection with article 7, article 9, para 1, 2 and 3 and article 9, para 1 had been violated. The Committee recommended that the state party take effective measures to ensure that: (a) the High Court and Supreme Court proceedings are expeditiously completed; (b) the author is protected from threats and/or intimidation with respect to the proceedings; and (c) the author is granted effective reparation. The state party is under an obligation to ensure that similar violations do not occur in the future.
2a. The government of Sri Lanka has paid no respect for any of these views of the Committee and has not done anything to implement the recommendations. The authors of these communications have constantly written to and even made press statements requesting the government to implement the Committee’s recommendations but the state party has failed to heed these requests. In two of these communications, that is Mr. Nallaratnam Singarasa, Communication No. 1033/2001 and Mr. Sundara Arachige Lalith Rajapakse Communication 1250/2004 the state party wrote to the Human Rights Committee stating that it is unable to implement the recommendations of the committee on these two communications on the basis that the views of the Human Rights Committee affect the decisions made by Sri Lankan courts. The view of the state party was that the views of the Committee regarding violations of the ICCPR by the courts cannot be binding.
2.b. The situation of the state party’s disregard of the Human Rights Committee’s views reached an even more critical level due to a case which came up before the Supreme Court of Sri Lanka, Nallaratnam Singarasa vs. The Hon. Attorney General (S.C. Spl(LA) No. 182/99). An application was filed on behalf of Nallaratnam Singarasa by way of review and/or revision of the earlier judgment of the court affirming the prison sentence against him on the basis of error in law. Lawyers on behalf of the prisoner requested the court to use the Human Rights Committee’s view as a persuasive authority and to revise the earlier judgment on that ground and several other grounds. A five bench judgment led by the Supreme Court without going into the issues of law raised instead decided that the accession of Sri Lanka to the ICCPR in 1980 has no internal implications for Sri Lanka and that the signing of the Optional Protocol in 1997 by the president is ultra vires and unconstitutional. This judgment of the Supreme Court virtually sealed off the possibility of implementation of any of the recommendations of the Human Rights Committee in the future in Sri Lanka.
3.a. During this case the Attorney General, who is the chief legal advisor for Sri Lanka, made submissions on behalf of the state to the effect that the views of the Human Rights Committee and its recommendations regarding this case should be rejected. Thus, the views of the court and the views of the state party are the same on this matter.
3.b. Over several decades the Supreme Court of Sri Lanka has been brought under severe pressure by the ruling regime and the court itself has become severely politicised. The present decision which speaks of international obligations under the Optional Protocol as an infringement of the sovereignty of the country reflects a political view of the state to depart from international obligations.
4. Besides the above, Sri Lanka as the state party has also disregarded recommendations of the Human Rights Committee in the periodic reviews as well as the recommendations of the CAT Committee and other sub-committees. The Human Rights Committee on December 1, 2003 made the following recommendations: To bring the Constitution into conformity with the ICCPR and also to recognise the right to life, judicial review, removing the limit of one month for the filing of fundamental rights applications and to remove all laws incompatible with the ICCPR; to bring Chapter three of the Constitution (the fundamental rights provisions) in conformity with articles 4 and 15 of the ICCPR; to address the issue of torture by improving provisions to ensure prompt investigations and effective prosecution of perpetrators and to provide victim protection and eliminate the climate of fear that plagues the investigation and prosecution and to increase the capacity of the Human Rights Commission of Sri Lanka for the investigation and prosecution of torture; regarding disappearances Sri Lanka was asked to implement articles 6, 7, 9 and 10 of the ICCPR and to implement the recommendations of the Working Group on Forced and Involuntary Disappearances; to eliminate corporal punishment from schools; to ensure legislation to bring the Prevention of Torture Act (PTA) to be compatible with the ICCPR; combat the trafficking of children for exploitative employment and sexual exploitation; to reduce the overcrowding of prison institutions and grant sufficient resources for the monitoring of prison conditions; to strengthen the independence of the judiciary by providing judicial rather than parliamentary supervision and discipline of judicial conduct; to protect media pluralism and to avoid the state monopolization of the media; take steps to prevent harassment of the media personnel and journalist and investigate their complaints properly; have legislative review and reform of all discriminatory laws; bring local legislation against domestic violence and marital rape; publish the Committee’s recommendations and submit a report within a year on some of these recommendations.
None of these recommendations have been implemented by the state party.
5. Sri Lanka as the state party has also failed to implement any of the recommendations made by the CAT Committee on November 23, 2005 (CAT/C LKA /CO/1/CRP.2). The Committee recommended to strengthen the Human Rights Commission of Sri Lanka, to appoint under the Constitution the National Police Commission and also to establish a public complaints procedure as required by the Constitution, that effective measures to ensure the fundamental safeguards for persons detained by the police are respected including the right to habeas corpus, the right to inform a relative, access to a lawyer or a doctor of their own choice and the provision of information about their rights; bring domestic legislation to implement the principle of non-refoulment in terms of article 3 of the convention; ensure that acts of torture become subject to jurisdiction in Sri Lanka even regarding non Sri Lankan citizens who have committed torture outside Sri Lanka but are present in the territory of Sri Lanka; allow independent human rights monitors including HRCSL full access to places of detention including police barracks without prior notice and set up a national system of review on the basis of such monitors; cause prompt and impartial and exhaustive investigations into all allegations of violations of torture, ill treatment and disappearances committed by law enforcement officers, particularly by the police; prosecute offenders without impunity; ensure that procedures are in place to monitor the behaviour of law enforcement officials and promptly and impartially all allegations of torture and ill treatment including sexual violence with a view to prosecuting those responsible; take necessary measures to ensure that justice is not delayed; take effective steps to ensure that all persons reporting acts of torture or ill treatment are protected from intimidation and reprisals in making such reports; provide programmes for witness and victim protection; establish a reparation programme including treatment of trauma and other forms of rehabilitation; take necessary action in a comprehensive manner and to the extent possible in the circumstances to prevent abduction and military recruitment of children by the LTTE.
None of these recommendations have been implemented by the state party.
6. The failure of state party to respect its international obligations and also the failure to implement the Human Rights Committees views and recommendations of UN human rights bodies has placed the citizens in an extremely helpless situation. It is commonly admitted even by the state authorities that the rule of law situation is at its lowest ebb at the moment. Extreme forms of torture including death in police, military and prison conditions are a frequent feature in all parts of the country. In the north and east there are massive acts of violence done by the agencies of the state, the LTTE and other militant groups which the UN High Commissioner for Human Rights and the UN Rapporteur against Disappearances have described as gross abuses of human rights. What is worse is that there are no effective authorities to ensure that people have access to institutions to make complaints and/or to have them investigated. As for the monitoring of human rights there is a near total absence of it. Due to the failure to appoint the Constitutional Council the commissioners who lead several leading monitoring bodies cannot be appointed in conformity with the Constitution. As such there is almost complete impunity due to the lack of investigations and this situation encourages further violations of human rights.
7. The UN High Commissioner for Human Rights, the Rapporteur for extrajudicial killings, Amnesty International, Human Rights Watch, the International Commission of Jurists and the Asian Human Rights Commission and several human rights watchdogs have called for a UN mission for the monitoring of human rights.
