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by Alfred T. Denning
(May 05, Colombo, Sri Lanka Guardian) The recent Supreme Court Opinion on the International Covenant on Civil and Political Rights (ICCPR) seems to have been welcomed by remarkable silence. Why I say ‘remarkable silence’ is because the ‘Opinion’ was preceded by much excitement. Mr. Rohan Edrisinha wrote about it. I too wrote about it. Then, the President referred the matter to the Supreme Court. The Supreme Court thereafter opined. Rohan’s analysis of the matter was roundly rejected. My analysis was accepted.
But no, this is not about crowing ‘I told you so’, but an opportunity to consider the way in which the legal issues intermingled with the politics and policy preferences of a number of actors.
ICCPR and the Supreme Court Opinion
In an article published on the 17th of February, Rohan Edrisinha of the Centre for Policy Alternatives (CPA) raised the academic argument that the rights recognised in the ICCPR were not duly recognised in Sri Lanka. He said, in particular, that the ICCPR Act No. 56 of 2007 fell far short as a piece of enabling legislation required to recognise those rights. He said that the Constitutional provisions too did not recognise the ICCPR rights adequately (see his article "GSP Plus Privileges: The Need for Constitutional Reform", The Sunday Leader). The fundamental issue which had to be dealt with was simple. It was about the way in which rights contained in an international covenant were recognisable within the domestic legal system.
Explaining this in some detail, on the 5th of March, I wrote that the rights contained in the ICCPR are adequately recognised in Sri Lanka, and that full implementation of an International Covenant in international law does not necessarily mean the enactment of a comprehensive enabling Act (see my article titled: GSP Plus Privileges: Practically Assessing a Political Matter, The Island). I spelt out the reasons.
The President, pursuant to Article 129 of the Constitution, referred the matter to the Supreme Court. The President wanted the opinion of the Court on two questions. Firstly, it was on whether the ICCPR rights can be recognised in Sri Lanka. Secondly, it was on whether, if so, those rights are justiciable. The Supreme Court, after considering the issue at a public hearing on 17th March, opined in the affirmative. The Court held that the rights contained in the ICCPR are adequately recognised by domestic legislation, the Constitution and decisions of the Superior Courts, and that the rights recognised in the Covenant are ‘justiciable through the medium of the legal and constitutional process prevailing in Sri Lanka’. The CPA and Rohan, were the 1st and 2nd intervenient petitioners.
The Supreme Court: showing judicial activism?
I do not wish to analyse the Opinion. I accept the Opinion, and consider it to contain a very positive message - not only about the fundamental rights provisions in the Constitution, not only about other legislative provisions, but also a very positive message concerning judicial interpretation and activism. The Opinion of the Court affirms the view that the Supreme Court has, and can, interpret the fundamental rights provisions of the Constitution in a way in which the ICCPR Rights which are not expressly provided for in the Constitution and other legislation are recognisable.
It is in a sense very interesting to note that this is what Rohan Edrisinha has been advocating for quite sometime – i.e. the need for a new approach in constitutional interpretation. Rohan very lucidly explains this in article he wrote in 1997, citing that ‘A Constitution … is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power ... It must therefore be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these conditions in mind.’(Hunter et al v The Southam Inc 1984 11 DLR 641 at 649 per Dickson J). Rohan very correctly points out in the article that ‘applying the rule that the intention of the legislature is of paramount importance, in the sphere of constitutional interpretation, will be singularly inappropriate.’(see article titled ‘Constitutional Interpretation: The Need for a New Approach’, 1997 Moot Point Legal Review, Vol. 1, pp.1-7).
The recent Opinion then is a welcome approach to constitutional interpretation. An opinion contrary to the one given would have meant a number of things. Firstly, it would have meant that the Courts are bent on a very rigid interpretation of the notion of ‘dualism’ in international law. It would also have meant that the Court cannot guarantee, in the absence of comprehensive legislation (especially in the sphere of human rights) the recognition of the most fundamental civil and political rights contained in the ICCPR.
Where was that activism in 2006?
However, the Court’s Opinion unearths, to a certain extent, the Sinharasa case which was decided by the same Court in September 2006. The famous words of the Supreme Court still reverberate. As regards the ICCPR (and not on the Optional Protocol, which I will not discuss here), the Court held that the ICCPR is based on the premise of legislative or other measures being taken by each State Party in accordance with its constitutional processes, to give effect to the rights recognised in the ICCPR, as per Article 2 of the Covenant. The Court went on to state that: "But no legislative or other measures were taken to give effect to the rights recognised in the Convention as envisaged in Article 2. Hence the Covenant does not have internal effect and the rights under the Covenant are not rights under the law of Sri Lanka"
Then, the 2008 Opinion reflects a remarkable transformation in the attitude of the Court towards the recognition of the ICCPR rights in Sri Lanka. While the 2006 judgment was based on a very strict and narrow interpretation of the notion of ‘dualism’ in international law, the recent Opinion brings out the more acceptable and practical form of ‘dualism’, which ought to have been spelt out in 2006.
It needs to be remembered here that much of international law, as stressed by the present President of the International Court of Justice Judge Rosalyn Higgins, does not constitute an arcane and obscure body of rules. International law is a process. International law does not always have clear cut answers or ‘correct rules’ which simply wait to be impartially applied. There are no clear answers in every situation. There is only a process by which optimal answers can be arrived at. Policy considerations play an integral part of that decision making process which is called international law. It is now accepted that many rules of international law apply within a flexible band which lawyers and judges exploit; this has much to do with the legal culture and training also, that domestic lawyers and judges receive concerning international law (see generally Rosalyn Higgins, Problems and Process: International Law and How We Use It, 1994). In this context, it is well to bear in mind that ‘dualism’ is not a rule which says that there needs to be an enabling Act to give effect to obligations arising under an international convention. There are ways in which obligations arising under an international convention can be recognised internally, and especially in the field of human rights, without enacting a comprehensive piece of legislation, even in a dualist State (however, this is not the case always).
This is what the Court is implying now; this is why there is silence now. This was exactly what the court rejected in 2006; that was exactly why there was criticism then.
GSP Plus: Politics and Policy
Much of the politics of the ICCPR had/has to do with the GSP Plus Privileges issue. I believe there was a lot of pressure brought to bear on the Government with regard to the ICCPR.
The UNP seemed to have agreed on much (or all) of what Rohan Edrisinha wrote concerning the ICCPR. This is evident from the contents of the letter that the UNP had written to the EU, echoing the sentiments of Rohan Edrisinha – i.e. that the ICCPR Act falls short of what is expected to recognise ICCPR rights, that there needs to be a Constitutional Amendment in this regard, etc. Questions have been raised in certain quarters about CPA’s role in all this. This is a legitimate concern. The way in which the ICCPR/GSP Plus issues unfolded - the timing of Rohan’s article, the letters to the EU by the UNP, and the visit of the EU Troika delegation in March – reflects something more than a mere coincidence, don’t you think?
But let’s give the benefit of the doubt to CPA and Rohan. The rationale underlying the reason for writing was something like this: One, Sinharasa case in 2006 stated that ICCPR rights are not rights under Sri Lankan law and that there needs to be enabling legislation – Two, therefore an enabling comprehensive Act of Parliament is needed – Three, the ICCPR Act of 2007 covers only four substantive rights in the Covenant – Four, therefore the Act is not comprehensive enough.
What of the GSP Plus Privileges now? It is only the forlorn who would have believed that a favourable opinion of the Supreme Court would clinch GSP Plus Privileges for Sri Lanka. Similarly, it is extremely naïve to have imagined that a favourable opinion will reflect very favourably on the human rights record of the Government. The mere recognition of ICCPR rights within the territory of Sri Lanka is futile if such rights are violated. As mentioned above, the Supreme Court has not praised anybody. What it has correctly done is to affirm that there is a vibrant Constitutional mechanism to deal with fundamental rights, that legislative measures already in place and the decisions of Superior Courts, adequately recognise the rights of the ICCPR.
I have written in favour of the present Government with regard to its human rights record in my previous articles. I strongly believe that the Government faces serious problems in the human rights front, mainly due to the LTTE. Because of the LTTE, I fail to see how one can say that there is a ‘culture of impunity’ that is attributable to the Government. But this does not mean that all is hunky-dory. Constant, unstinting improvement of the human rights situation should be a priority. One cannot always blame it on the LTTE. Also, improving the capacity and capability of local institutions should be ensured.
This then brings me to pen a word on the ‘international community’. It should first stop worrying about a UN presence in Sri Lanka, and assist the local institutions with the adequate resources, technical assistance and wherewithal necessary for the effective functioning of such institutions. Even the idea of an international or ‘UN’ presence in Sri Lanka to monitor human rights is fraught with signs of dismal failure. The efforts of some members of the EU, in particular, to throttle Sri Lanka by resorting to whatever mechanism available, is becoming increasingly apparent. The thought of white guys with tainted hands sitting in human rights judgment is simply repulsive. More so, when the idea is mooted by those very States which happily permitted millions to die in two world wars and many more to be displaced, not to mention the barbaric extermination of fellow human beings and the fire bombing of large cities. But let’s not brag about history.
On the political front, an international presence will face unimaginable consequences. From a logical perspective, the mooting of such a presence is flawed. The basic first step is firstly to improve local institutions, and if signs of failure persist, then consider whether something more is needed. This has been the constant message of the Government. Even Ms. Kishali Pinto Jayawardena, a respected human rights advocate and activist, drives home the point effectively when she wrote "What we need right now perhaps, is less attention paid to the idea of a United Nations monitoring mechanism in Sri Lanka in which there is little or no public faith and more attention devoted to rebuilding the courage and energy of Sri Lankans themselves to correct their abysmally weak national institutions…" (see The Republic of Conscience, The Sunday Times, March 16 2008). This is because the human rights problems in Sri Lanka are our problems. Let us deal with them first. Therefore, help us deal with them more effectively. As Kishali says, "our problems must remain ours to solve".
So the responsibility is now on those with the capability to assist developing States like ours.
Conclusion
So, one can see how politics and policy have much to do with legal issues nowadays. The legal issues which were voiced on the Covenant on Civil and Political Rights seem to have been resolved – in a legal, civil and political manner. Whether GSP Plus privileges would be granted to Sri Lanka is another matter.
I maintain that the Privileges will be granted, ultimately. I would add this however: the Government will be grinded and throttled more before that. I am open to be proven wrong on the issue of granting GSP Plus Privileges of course, but I doubt whether anyone can challenge me on the issue of grinding and throttling!
- Sri Lanka Guardian
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