Focus on Rights

Holding the state accountable beyond its shores
Decisions of the UN Human Rights Committee In Regard to Sri Lanka.
Last week, this column examined the overall importance accorded to the communication of views by the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights, which though non-binding in effect domestically, has formidable impact in international law in respect of the countries against whom they are issued.

Once States ratify the Covenant and the Optional Protocol, their citizens can submit individual communications to the Committee regarding acts, omissions, developments or events occurring after the date on which the Protocol entered into force for that State or from a decision relating to acts, omissions, developments or events after that date which are alleged to violate Covenant rights. The complainant should have exhausted all domestic remedies. Neither must the same matter be examined under another procedure of international investigation or settlement.

The two most recent cases involving an adverse finding by the Committee against the Sri Lankan State are individually of substantive importance and will be looked at this week and the next. These are in respect of communications lodged in the first instance by a newspaper editor and in the second instance, by a detainee serving a thirty five year sentence at Boosa Prison, Sri Lanka,

The first (and more familiar) case concerned an appeal by the Editor of the Ravaya newspaper that the Attorney General of Sri Lanka had, by transmitting to the High Court several indictments charging him with criminal defamation during the period 1993 to 1998, failed to properly exercise his discretion under statutory guidelines (which require a proper assessment of the facts as required in law for criminal defamation prosecution), exercising his power arbitrarily and thereby violating his freedom of expression under Article 19 of the Covenant, as well as his right to equality and equal protection of the law under Article 26. The indictments had been issued against him during the periods of two previous Attorneys General of Sri Lanka, Thilak Marapana and Sarath Nanda Silva.

The Ravaya editor also pleaded a violation of Article 2 (3) of the Covenant, based on the refusal of the Supreme Court to grant him leave to proceed with his fundamental rights application against the Attorney General, thereby depriving him of an effective remedy. This third ground has reference to a decision of the Supreme Court, (Victor Ivan v Sarath N. Silva, (1998, 1SLR, 301).

For purposes of accuracy, it is important to note that the general reasoning of the Supreme Court in that application, or for that matter, its ultimate decision, was not disagreed from by the UN Committee which grounded its Communication that Covenant rights had been violated, on a much narrower basis.

Before the Supreme Court, the issue was whether the Attorney General acted arbitrarily in filing criminal indictments against the Ravaya editor, violating his fundamental right to equality (Article 12(1), his fundamental right to freedom of speech and expression including publication (Article 141(a)) and the fundamental right to engage in his lawful profession (Article 14(1) (g)).

Here, the Court asserted that a decision of the Attorney General to grant sanction to prosecute or to file an indictment or the refusal to do so could be reviewed, in principle, as for example, where the evidence was plainly insufficient, where there was no investigation, where the decision was based on constitutionally impermissible factors and so on. The decision thereon had to be guided by statutory criteria and could not be arbitrary but must have some distinct public interest and benefit.

However, the judges (M.D.H. Fernando J, Wadugodapitiya J and Bandaranayake J.) took the view that if any faults in investigation had occurred which had resulted in at least one criminal defamation indictment being improperly filed against him, this was due to a lapse on the part of those whose duty it was to investigate and not on the part of the Attorney General.

But, as was contended at that time, liability is that of the State regardless of whether blame could be laid at the door of the investigating officers or the prosecuting officers. If a prosecution had been launched based on faulty investigation, the primary responsibility remained with the State, as represented in that case by the Attorney General.

The fact that the Supreme Court preferred not to proceed so far, accords with the laying down of very high standards of "culpable ignorance or negligence" on the part of the Attorney General in order to justify intervention by court.

As far as jurisprudential argument goes, it is disappointing that, in considering this decision, the UN Committee has preferred not to get involved in the 'thicket of facts" involving the issuing of the criminal defamation indictments and as to whether the decision to grant sanction by the Attorney General amounted to a violation of Covenant rights. This is understandable however having reference to the strict 'margin of appreciation' that the Committee accords national judicial tribunals with regard to the facts of particular cases.

The Committee has instead, restricted itself to its view that the pendency of three indictments for criminal defamation served on the Ravaya editor in 1996 and 1997 for several years (even up to the time of the final submissions made by the parties) were in violation of Article 14, paragraph 3 (c), of the Covenant, (right to be tried without undue delay). Additionally, the delay left him in a situation of uncertainty and intimidation, despite his efforts to have the cases terminated, and thus had a chilling effect, which violated Article 19 of the Covenant, (right to freedom of expression), read together with article 2(3) (right to effective remedy).

Further, it is useful for future reference to note that the argument that the Ravaya editor's communication was inadmissible because it relates to facts that occurred before the Optional Protocol entered into force for Sri Lanka, (3, January 1998) was dismissed by the Committee on the basis that the consequences of the indictments for the author continued, and indeed, constituted new alleged violations so long as the indictments remained in effect.

In general, the consequences of this Communication as regards the responsibilities visited upon the office of the Attorney General in this country in respect of fair trial and freedom of expression sounds a warning that cannot be dismissed lightly. During the past three decades, the communication of views by the Committee has gathered considerable authority in international law and very few states risk the consequences of 'rogue administration' status that visits those countries that take the Committee's views at nought.

As stated in this column previously, the Committee's positive findings of violations of Covenant rights by the Sri Lankan State, are increasing. Appropriately, the jurisprudence developing therein has become of considerable interest to South Asia, given that this country is the first on the sub-continent whose commitment to the Covenant is being questioned through individual cases.

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