Terrorism poses a significant challenge to the promotion and protection of human rights. Many countries have faced problems, and many others continue to face problems, when trying to strike that balance which helps them fight terrorism effectively whilst also protecting the human rights of its citizens. Countries such as the US, the UK, come to mind. Their anti-terror laws, and the passage that led to the drafting of such laws, show very clearly the problems they have faced in this regard. Sri Lanka has not been an exception, even though the threat that Sri Lanka has faced from terrorism, domestically, is much greater than that faced by many other countries.
Yet, Sri Lanka, today, has reached a unique stage. The LTTE has been comprehensively defeated, its top leadership decimated. It lacks the capacity to initiate any serious armed terror campaign within the country. Even the faintest attempt made at resuscitating such a terror campaign would be clamped down with daring force. Within the context of this secure environment, there emerges the need to re-think about our international obligations concerning the protection of human rights. Not only to re-think, but also to fulfill such obligations.
In this regard, there is an issue that needs to be resolved. It concerns the question relating to the current status of Sri Lanka’s accession to the First Optional Protocol (OP) to the International Covenant on Civil and Political Rights (ICCPR). Sri Lanka acceded to the OP in 1997 (having acceded to the ICCPR in 1980). It was in fact one of the most significant accomplishments of the late Foreign Minister Lakshman Kadirgamar. The decision to accede to the OP was therefore taken over a decade prior to the defeat of the LTTE. Minister Kadirgamar was genuinely proud of this achievement. He made reference to this fact in his speeches. One such speech was delivered on 15 March, 2005. It was the speech he delivered at the 61st Session of the UN Commission on Human Rights, in Geneva. He said that the
‘…accession to the Optional Protocol to the ICCPR in October 1997 at a time when the country was confronted with an extraordinary security situation arising out of terrorism, further demonstrated Sri Lanka’s commitment to openness and accountability in the promotion and protection of human rights even under difficult circumstances’.
What is this Optional Protocol (OP)?
It is a simple international instrument, it consists of 14 provisions. The OP was adopted in order to facilitate the greater achievement of the purposes of the ICCPR and the implementation of its provisions. The OP enables individuals, who claim to be victims of human rights violations, send communications to the Human Rights Committee in Geneva (not to be confused with the UN Human Rights Council in Geneva). It should be remembered that this Committee is set up under the ICCPR. It is a body of ‘independent experts’. It is not a body of judges.
The HR Committee has the competence ‘to receive and consider’ such communications (as per Article 1 of the OP). Only those ‘who have exhausted all available domestic remedies’ may submit a written communication to the Committee (Article 2). However, it should also be noted that the application of the domestic remedies should not be ‘unreasonably prolonged’ (Article 5(2)(b). The State concerned can also ‘submit written explanations or statements clarifying’ the matter in question (Article 4(2)).
Committee’s ‘views’
What can this HR Committee do? It is stated clearly: the ‘Committee shall forward its views to the State Party concerned and to the individual’ (Article 5(4)). Note the word ‘views’. This shows us many things.
Firstly, it shows that the HR Committee has no judicial power to issue binding ‘decisions’ on States which need to be implemented or adhered to. There is no power to ‘overrule’ decisions of domestic courts. The Committee is neither a Privy Council, nor an international court. The views of the Committee are only of persuasive authority. Secondly, it also shows quite remarkably one of the fundamental problems relating to international human rights law: that of implementation, enforcement and sanction. Generally, international human rights law has little teeth, and has little biting effect. Much depends on the internal enforcement mechanisms and procedures, and how a State carries out its international treaty obligations domestically.
The Problem and the SC’s approach
This being the case, Sri Lanka acceded to the OP in 1997. It thereby became a State Party to the OP. However, there is doubt as regards the exact status today – due to the decision of the Supreme Court (SC) in the famous Singarasa case, delivered in 2006. It is not necessary to go into detail here. Only the key issues pertaining to the problem concerning the OP will be highlighted.
The problem arose when one Nallaratnam Singarasa petitioned the SC requesting it to review and re-examine his conviction, in light of the views expressed to that effect by the HR Committee in Geneva. As a preliminary point, it should be noted here that the SC, in taking up the petition for consideration, seemed to have believed that Singarasa’s petition sought to ‘set aside’ the earlier decisions of the Sri Lankan courts of law, including a decision of the SC (in 2000). The SC thereafter proceeded to hold why such a setting-aside was not possible – a point which was not raised by Sinharasa. As has been pointed out by Mr. RKW Goonesekara, Senior Counsel, who appeared for Singarasa, the intention of Singarasa was never to ask the SC to set-aside the conviction in light of the HR Committee’s views (see Mr. Goonesekara’s ‘The Singarasa Case – A Brief Comment’, Sunday Times, 22 Oct. 2006).
So, this is how the SC approached the matter. The SC took into consideration the Declaration made by Sri Lanka at the time it acceded to the OP in 1997. In this Declaration, the Government of Sri Lanka, inter alia, recognized the competence of the HR Committee to receive and consider communications from individuals (which was, in other words, a simple reiteration of the position as laid out in Article 1 of the OP). Significantly, the SC did not examine/analyse/interpret a single provision expressly contained in the OP, in particular the most crucial provision: viz. Article 5(4), as noted above. Rather, it considered only the Declaration.
Giving ‘judicial power’ to the HR Committee
The SC identified three components of legal significance in the Declaration, the most crucial one being: the recognition by the Government of the competence of the Committee to receive and consider communications (this was the third component). Now, the SC proceeded to state that this was a ‘purported conferment of a judicial power’ on the Human Rights Committee at Geneva ‘to vindicate a Public Law right of an individual within the Republic in respect of acts that take place within the Republic’.
What is most troubling, and distressing, is the conclusion which is to the effect that Sri Lanka’s recognition of the competence of the HR Committee to ‘receive and consider communications’ from individuals amounts to the conferment of ‘judicial powers’ on the Committee. To conclude that the State was handing over ‘judicial powers’ is an extremely serious matter. It is even an alarming proposition to make. A number of questions arise. Could the competence to simply ‘receive and consider’ communications amount to a conferment of judicial powers? Could Minister Kadirgamar, or even the Cabinet, have decided to confer such judicial powers on a body of independent experts? Yet, why was Article 5(4) spared scrutiny? Why didn’t the SC think fit to interpret the word ‘views’? If the SC had interpreted the word, could ‘views’ amount to something as serious as a judicial decision? These questions remain unanswered.
Thereafter, the SC proceeded to hold that Sri Lanka’s accession to the OP was inconsistent with the provisions of the Constitution (especially Articles 3, 4(c), 105(1), that the accession was in excess of the power of the then President as contained in Article 33(f) of the Constitution, and that the accession does not bind the Republic quo state and has no legal effect within the Republic. It was the unanimous decision of a five-judge bench. The judgment was delivered by the then Chief Justice Sarath N. Silva. The rest of the judges respectfully endorsed it. Each one said ‘I agree’. One was Justice Nihal Jayasinghe, who is currently Sri Lanka’s High Commissioner in London. Another was Justice N.K. Udalagama, who headed the Presidential Commission of Inquiry – the functioning of which came to an abrupt end, recently.
Addressing the problem
The Singarasa case was decided in 2006. It is 2009 now. One wonders whether a clear answer could be given to the question: what is Sri Lanka’s status concerning its accession to the OP? Any government could have faced problems in grappling with this issue. The present Government needs to give much attention to this issue now. Not only because the next EU Ambassador might start shouting ‘OP’ one of these days. Also because doubts concerning a country’s accession to an international treaty carry serious implications.
It is serious, when one considers the fundamentals of treaty law. ‘Accession’ is one of the means by which a State becomes a Party to an international treaty. In other words, it is a means by which a State gives its consent to be bound by the treaty. By acceding to a treaty, a State becomes a ‘Party’ to the treaty, and the treaty comes into force for that State Party. If, after having acceded to a treaty, a domestic court of that State Party is to hold that the treaty is not binding upon the State Party, then, something needs to done. What does this mean to an individual? It means that s/he is uncertain as to whether s/he can approach the HR Committee, as per the provisions of the OP. The individual is in doubt. Lawyers too would be in doubt. A State’s inability to carry out or fulfill international treaty obligations arising from the fact of being a State Party to an international agreement amounts to a breach of such obligations in international law.
What options can the government think of to address this problem? One thing that could be done is to denounce the OP by a written notification addressed to the UN Secretary General, as per Article 12(1) of the OP. This would however pose problems, politically. Yet, it is clearly the State’s discretion whether or not to denounce an international treaty.
One may also raise the idea of the possibility of enacting domestic legislation. But what form of legislation could it take? Should it state that the ‘views’ of the HR Committee in Geneva are mere views only and would not have any binding effect? If then, such a course of action would be somewhat absurd, immature; because it would be a reiteration of the obvious, as it has always been the understanding of the government, since 1997, that this was the case. It would be absurd also because the OP is not a treaty that requires the enactment of implementing legislation in order to have effect within the State. Minister Lakshman Kadirgamar didn’t think so, either. And Minister Lakshman Kadirgamar was a statesman ‘steeped in international law’.
What else can the Government do? Is revisiting the Supreme Court an option? The President could, under Article 129 of the Constitution, get the SC’s opinion on the matter. Because the question relates to a matter that is of importance to the public, and because the problem has essentially to do with what seems to be a rather dubious interpretation of the provisions of the OP. Well, the provisions were not interpreted. The SC would get the chance now, if consulted.
But what about the SC’s Opinion delivered in 2008?
President Rajapaksa did pose a question to the Supreme Court, in 2008. But this was not concerning the OP problem. It was on a different issue, arising however, from the same Singarasa case of 2006. The question posed in 2008 was this: whether the rights contained in the ICCPR are given adequate recognition within the domestic legal framework (i.e. through the provisions of the Constitution, the provisions of the ICCPR Act No. 56 of 2007, and other laws), and whether they were justiciable. The SC answered, this time around, in the affirmative and correctly so (even though the SC had in effect said ‘no’ on the issue, in the 2006 Singarasa case).
So, the question about Sri Lanka’s accession to the OP was not posed to the SC. The SC, therefore, did not get the chance to address the matter.
Conclusion
I refer once again to the words of that great statesman, Minister Kadirgamar; that the accession to the OP ‘at a time when the country was confronted with an extraordinary security situation arising out of terrorism’ demonstrated the country’s commitment to ‘openness and accountability in the promotion and protection of human rights even under difficult circumstances’. Finding a solution to the OP problem, today, is another way in which the government could demonstrate its commitment to openness and accountability in protecting and promoting human rights. It would not only signify the resolution of a nagging problem. It would also be a most fitting tribute to the memory of Minister Kadirgamar.