The Sunday Times Focus on right

Yet now, the clarion call is for the State to close in its boundaries and prevent what is now commonly termed as "international interventions" whether by a judicial committee such as the United Nations Human Rights Committee sitting in Geneva or by, at the minimum, a fact finding mission. In the process, it is the ordinary Tamils, Muslims and the Sinhalese who lose out.

The recent appointment of a one-man commission to inquire into the spate of killings, disappearances and abductions in Colombo and other areas is, like many of the other current happenings in Sri Lanka, an absurdity in the most simplistic sense.

There is good reason for this denunciation. For instance, the one man Commissioner, former judicial officer Mahanama Tillekeratne is also a Commissioner attached to the National Human Rights Commission (NHRC). So we have the paradox of one Commission (one man) being appointed on the top of another Commission (many members) whose duty is also to inquire into reports of human rights violations including these very killings, abductions and disappearances.

In fact, the relevant Section 14 of Act, No 21 of 1996 states specifically that the Commission may "by its own motion" or on a complaint, investigate an allegation of the infringement or imminent infringement of a fundamental right of a person or a group of persons. This is therefore distinguishable, for example, from the Bribery and Corruption Commission Act in respect of which it has been the practice to act, according to the terms of that Act, only if a complaint is lodged with that Commission.

In that respect, the NHRC has wider authority to act and as said, it may do so of its own initiative. Indeed, the present Commission, eager no doubt to dispel the pall of disapproval that has hung over its functioning from the inception due to the nature of the appointment of its members, none of whom had particularly distinguished themselves in the field of human rights had been issuing statements on their commitment to pursue the forces responsible for rights violations. Whether these statements are translated into any measure of reality remains to be seen.

In one case for example, namely the killings of the seventeen aid workers in Mutur, a specific complaint has been lodged with the Commission so its progress will be monitored. This is the same case which had been transferred recently from the Magistrate of Mutur sitting in Trincomalee on the phone call of the Secretary to the Justice Ministry (purportedly on the instructions of the Judicial Services Commission though there was no official intimation to that effect) to the Magistrate's Court of Anuradhapura. Last week, the matter was quietly transferred back to the Magistrate's Court of Kantale which is a forum certainly more conducive to the witnesses being able to testify at the hearing.

But to return to the issue which this column commenced with, if the argument is that the NHRC could not be tasked with the mandate of inquiring into the killings and so on because the body, as presently constituted, lacked constitutional validity, then the argument moves to a different plane. Mr Tillekeratne's appointment to the NHRC was the last of the direct Presidential appointments to this unfortunate commission. In general, all these appointments were subjected to severe criticism in the public forum as being unconstitutional in that they were made without the approval of the Constitutional Council as mandated by the equally unfortunate 17th Amendment to the Constitution. Cases to that effect are pending in court though a similar case was recently judically disallowed on the application of immunity for acts of the President. Even if this is taken as a possible ground as to why a one man Commission was appointed consisting of an already existing Human Rights Commissioner, it only reinforces the contention that the NHRC is anyway, useless to all intents and purposes. The end result is that the process becomes devoid of legitimacy from the outset itself.

But then, did we expect anything from a Commission of this nature after all? The wider call is for an international human rights monitoring mission. This must be differentiated from the Norwegian led Sri Lanka Monitoring Mission as was pointed out specifically in a previous column. The lack of public acceptance for the SLMM must inform the setting up of a mission with a very different character and which must comprise individuals with high and unimpeachable repute in the international human rights field.

Where the domestic processes of justice have become so corrupted, are we then to stand aside and say that for the sake of an old and outdated notion such as "sovereignty of the state" we should sacrifice lives of innocents? As has already been pointed out earlier, sovereignty of the people is only enhanced by the expansion of rights secured to them. State sovereignty and people's sovereignty are two distinct notions that must never be confused with each other. Indeed, the denial of such rights comes only at the instance of the State, including the executive, the legislature and the judiciary in striving to protect itself from criticism. Such efforts will only prove to be immensely detrimental to securing a more democratic future for Sri Lanka.

And now to turn to another allied point of discussion, namely the recent judgment of Sri Lanka's Supreme Court whereby a Divisional Bench had ruled that accession by President Chandrika Kumaratunge to the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) was unconstitutional.

Scrutiny of the judgement reveals that Chief Justice Sarath Silva who headed this Divisional Bench (consisting also Justices Nihal Jayasinghe, Udalagama, Dissanayake and Amaratunge) had used Article 33(f) of the Constitution which allows the President to " do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, custom or usage he is required or authorised to do" to underpin the Court's view that accession to the Protocol was unconstitutional as it was in excess of that power.

This was on the basis, of course, that the act of accession amounted to a conferment of judicial power on the Human Rights Committee sitting in Geneva. Of special interest is the concluding paragraph in the judgement which is to the effect that accession to the Protocol has resulted in the Sri Lankan government being compelled to resort to "pleas of helplessness" in Geneva due to being unable to act according to the Views of the Committee.

Now let us take another instance where this same "plea of helplessness" has been advanced by the Government concerning the sentencing of a lay litigant to one year rigorous imprisonment for contempt of court for talking loudly in court and filing numerous applications. In that instance, the Bench was headed by Chief Justice Sarath Silva and comprised also Justices Eduussuriya and Yapa.
Considering an individual communication submitted by Fernando, a violation of Article 9(1) (prohibiting the arbitrary deprivation of liberty) was found by the Committee on the basis that "no reasoned explanation had been provided by the court or the State party as to why such a severe and summary penalty was warranted in the exercise of the court's power to maintain orderly proceedings."

Importantly, it was affirmed that "that an act constituting a violation of Article 9(1) is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole." Sri Lanka (the State party) was required to provide payment of compensation for the violation and to ensure that similar violations would not take place in the future. The State was also requested to enact a Contempt of Court Act.

The response of the Government was disingenuous to say the least. It stated that it had not envisaged that the competence of the Human Rights Committee would extend to a consideration, review or comment of any judgment given by a competent Court in Sri Lanka. Given that an individual could file an individual communication before the UNHRC only after exhaustion of domestic remedies (involving in most cases, a decision by that country's highest court), the position taken by the Government in their explanation was amazing.

The one conclusion that we can come to is that, at the time of acceding to the Protocol, it was not thought that decisions of domestic judicial forums would be put in issue by the UNHRC with such devastating effect. Or alternately, that if it was so, that the State would respond with maturity and attempt to set what is wrong, to right. Undoubtedly, this was a gross miscalculation on the part of Minister of Foreign Affairs and noted lawyer, Lakshman Kadirgamar, (who spearheaded the accession to the Protocol on precisely that latter view), as is apparent now. And the consequences of such actions will be evident only too soon, to our misfortune.