Colombo, Constitutional Reform, International Relations, Politics and Governance

Revisiting former Chief Justice Sarath N. Silva’s views on the ICCPR

The arrest of General Sarath Fonseka marked the beginning of an unfortunate episode in Sri Lanka’s contemporary political history (or should it be ‘political drama’). However much flawed the individual may be (just like many others engaged in domestic politics in Sri Lanka), and however much I opposed his candidature, such flaws are not reasons that justify in any manner the way in which Fonseka is being treated at present. That the law is above everyone is being reminded over and over again; but the law, quite strangely, seems to rise up in a somewhat selective manner, which is deeply disturbing; very simply, if it is about corruption, let the law deal with all those who are tainted with charges of corruption, not just Fonseka. In any case, it is impossible to envisage a day when he would be released in the near future, or even if released, be allowed to engage openly, and freely, in political activity; unless, of course, he decides to switch allegiance, tender an apology, join President Rajapaksa, join his team. Today, it seems that this is the easiest, the safest, the most convenient way of remaining untroubled, untouched by the law enforcement agencies – for politicians, on the political stage.

It is in such a context that Mr. Sarath N. Silva, PC, one of Sri Lanka’s most controversial former Chief Justices (and a budding politician) provided the most compelling legal argument against the arrest of General Sarath Fonseka, in an article titled ‘Arrest and Detention of Gen. Fonseka: A Legal Perspective’ published in The Sunday Island. It refers to, inter alia, aspects of international law, international human rights law, and more specifically, that valuable piece of international legislation, the International Covenant on Civil and Political Rights (ICCPR). This, the ICCPR, is the main topic of the present piece.

Mr. Silva argued that in arresting General Fonseka, the Government violated Article 9 of the ICCPR concerning the right to liberty and security.

Furthermore, the learned former Chief Justice stated:

“Our Constitution of 1978 has substantially incorporated the content of Article 9 of the Universal Declaration and the ICCPR and guaranteed by Article 13 the freedom from arbitrary arrest and detention. It is pertinent to note here that Sri Lanka having acceded to the ICCPR in 1980 is obliged in terms of Article 40 to report on the measures taken to give effect to the rights recognized in the Covenant. Since there were complaints of non compliance, the ICCPR Act No. 56 of 2007 was enacted by Parliament to give effect to certain Articles of the ICCPR. Thereafter, an opinion was sought by the President from the Supreme Court as to compliance by Sri Lanka and the positive opinion given by the bench of 5 Judges presided by me was submitted to the European Union to avert a suspension of the GSP+ facility in 2008.”

This point about the ICCPR was also stressed at a press conference, and the former Chief Justice so eloquently reminded the members of the press gathered all around him, not only the year in which the ICCPR was adopted by the UN, but also the year in which it entered into force.

As stated above, the intention of this piece is not to counter the arguments raised by the former CJ, concerning the alleged illegality of General Fonseka’s arrest. What it hopes to do, however, is to flag a few issues, raise a few questions, which former CJ Silva might be able to answer during the next press conference, or in his next article; a few issues and questions which have been raised already, which are not entirely new; certainly not new, or unknown, to the former CJ in particular.

As noted above, while much was said and said eloquently about natural law, human rights and the ICCPR in general, there are also many things which were not said, unfortunately. Let me start with the above paragraph written by Mr. Silva, in which it is said that: “Sri Lanka having acceded to the ICCPR in 1980 is obliged in terms of Article 40 to report on the measures taken to give effect to the rights recognized in the Covenant. Since there were complaints of non compliance, the ICCPR Act No. 56 of 2007 was enacted by Parliament to give effect to certain Articles of the ICCPR.”

What the learned former CJ Silva does not tell us here is as to why, really, this complaint of ‘non-compliance’ came about. What he does not tell us is that it was not only the accusation of ‘non-compliance’ that was leveled against Sri Lanka, but also the accusation of ‘non-recognition’ of the rights contained in the ICCPR under our own domestic law. At the very root of these accusations, leveled mostly by the EU in relation to the GSP Plus issue, there was, there is, the issue of whether Sri Lanka’s laws and regulations adequately recognize the ICCPR rights.

Now why did, and why does, the EU raise this question? It was mainly, and simply, because the then Chief Justice Sarath N. Silva, in 2006, in the Singarasa case, had held, in unambiguous terms, that the rights under the ICCPR were not rights under Sri Lankan law. He, the former CJ, who talks about Natural Law today, in 2010, believed more in the notion of ‘dualism’, in 2006; that international law and domestic law were two separate branches, two distinct things; and that if they were to meet, implementing legislation was necessary. This meant, in other words, that as long as a government was unable to enact implementing legislation which transformed the ICCPR rights into rights under Sri Lankan law, a citizen of Sri Lanka could not in any meaningful way argue in a domestic court that the rights recognized under the ICCPR have been violated. What the then CJ firmly stated was this: that even though the accession to the ICCPR binds the Republic quo State, since no legislative or other measures have been taken to give recognition to the ICCPR rights, “the Covenant [ICCPR] does not have internal effect and the rights under the Covenant are not rights under the law of Sri Lanka.”

This, it should also be mentioned, was certainly not the kind of attitude that other eminent members of the judiciary, such as late Justice Mark Fernando in particular, held (the above issues were raised in an article titled ‘Monist, dualist or something in between: where are we after the Singarasa case and the ICCPR Act of 2007?’).

So this is one issue that the former CJ does not point out. Fortunately for him, he got the opportunity in 2008, when President Rajapaksa asked for an opinion on the matter, to correct this apparent flaw in judicial reasoning in the Singarasa case. And what a wonderful opportunity that was; for else, how could former CJ Silva have said all these things about the ICCPR and the Constitution today!

Secondly, there is another matter which former CJ Silva is reluctant to refer to. That is about the Optional Protocol to the ICCPR, which Sri Lanka acceded to in 1997, under the direction of Sri Lanka’s most eminent Foreign Minister, Mr. Lakshman Kadirgamar, during the time of President Chandrika Kumaratunga’s leadership. What he is reluctant to remind his audience is that he also held, in that Singarasa case in 2006, that Sri Lanka’s accession to the Optional Protocol was in excess of the powers conferred on the President and that the accession has no legal effect. Why was this? It was because he thought that Sri Lanka, by acceding to the Optional Protocol – which enables the Human Rights Committee (HRC) to forward its ‘views’ to a State Party concerned about allegations of human rights violations made by a citizen of a State Party – amounted to a conferment of ‘judicial powers’! It was bizarre to imagine that the HRC, a body of independent experts sitting in Geneva, could issue binding judicial decisions and could overrule the decisions of the Supreme Court of the State! This is never the case, for the ‘views’ of the HRC are only of persuasive authority.

What is also interesting to note here is that the former CJ did not interpret a single provision of the Optional Protocol, especially Article 5(4) of the Optional Protocol (but rather relied on Sri Lanka’s Declaration) – fearing perhaps that had he referred to, and analyzed, Article 5(4) (which states that the HRC shall communicate its ‘views’ to the concerned person and the State), even an undergraduate would have noted the absurdity of considering the words ‘views’ to mean something akin to ‘judicial powers’.

This judgment has been quite baffling, given especially the fact that former CJ Silva is a very learned person. A number of questions arise: why did he rush to strike down Sri Lanka’s accession to the Optional Protocol? Is it because he feared that some person would send communications to the HRC about any of the decisions he would have delivered later, between 2006 and 2009? Was he also implying that Mr. Kadirgamar had got his international law hopelessly wrong? And how would the former CJ Silva suggest a way out of this impasse, this conundrum? Should Sri Lanka pass an Act of Parliament which states that the views of the Optional Protocol are only ‘views’ and they do not bind the State? Is it not somewhat absurd, given the fact that it is exactly what the provisions of the Optional Protocol state so clearly? (see ‘On Sri Lanka’s accession to the ICCPR Optional Protocol’).

Why, then, is the Optional Protocol important, today? One reason why it is so, to former CJ Silva at least, is due to the case of General Fonseka. Former CJ Silva would have realized by now, that if by any chance General Fonseka, having exhausted all available domestic judicial options is still unable to obtain an adequate remedy, the only available option that he would have been left with is a referral to the HRC in Geneva – under the provisions of the Optional Protocol. This does not in turn mean that receiving a favourable opinion, the favourable ‘views’ of the HRC, would result in the immediate release of Fonseka. But it would certainly have a lot of persuasive authority, and would bring greater pressure on the Government. Certainly, far more pressure than a handwritten note leaked to Channel 4 would.

But that option, today, seems to be blocked largely due to the judgment delivered by former CJ Silva, who is a firm supporter, and political ally, of General Fonseka. More importantly, it could also be seen how much the Government has benefited by this judgment – because the prevailing uncertainty about whether or not Sri Lanka is a Party to the Optional Protocol (since Sri Lanka has also not renounced the Protocol as per its provisions) shuts down the possibility which would have been otherwise open to citizens of Sri Lanka, to approach the HRC.

Given the current political context that he is placed in, it would be useful if the former CJ clarifies some of the above issues. He could sound more convincing, more passionate about international human rights law and the ICCPR, if clear and precise answers are given, at least, to the following two fundamental questions: a) why did he (and does he still?) so wrongly think that the Optional Protocol was so powerful and Sri Lanka’s accession has no legal effect, and b) how did the ICCPR rights not recognized, in his view, under Sri Lanka’s domestic law in 2006 transform, all of a sudden, into rights which were recognized and even justiciable under domestic law, by 2008?

(The writer is currently pursuing MPhil-research studies at the University of Hong Kong)