Degenerative duplicity and a government's response

By Kishali Pinto Jayawardene

(November 16, Colombo, Sri Lanka Guardian) There are those of us who are all too shudderingly familiar with the two tongued approach of 'abuses at home and cover-up abroad' faithfully followed by Governments of Sri Lanka (whether UNP, UNF, SLFP, PA or UPFA) in international fora regarding the rights of the country's citizens. However, even measured against this abysmal standard, last week's so called formal Governmental response to the critical European Commission's October 19 Report on the preconditions that need to be satisfied for GSP Plus to be renewed, indicated a new level of degenerative duplicity.

Actual demonstrated commitment

Let me be quite clear on this point. The crux of this critique is not to dismiss out of hand, the contention that powerful pro-LTTE lobbies in Western capitals exert considerable influence with politicians in those countries. However, whatever influence may be so exerted, such pressure cannot have any impact if a government is actually able to demonstrate that it has minimum level of commitment to international norms as well as (for that matter) domestic norms regarding the protection of rights. Note, we are talking of 'minimal levels' here with the consequent inference that even those 'minimal levels' are yet not satisfied. Note also that we are talking of commitments according to our domestic Constitution and laws that are disregarded. In its response, the Government is bitter about its perception that this is a 'tit-for tat' reaction to its resolve to militarily finish the LTTE and mentions, though not by name, other countries which ( though having serious human rights violations on its record) have been granted the GSP Plus privilege.

Initial granting of GSP Plus

This same reasoning however is immediately faulty when applied to Sri Lanka itself. Let us not forget the fact that the GSP Plus privilege was, in fact, granted to Sri Lanka in 2005 when much of these same deficiencies plagued our domestic systems. Could we at that time even, be said to have had praiseworthy compliance with international conventions which we had ratified including the two main treaties, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT)?
Yet when we look at what happened since 2005 and the flagrant thumbing of our noses to the international community including the Sinharasa decision of Sri Lanka's Supreme Court dismissing the Optional Protocol to the ICCPR which probably may have been the first time that a Supreme Court across the world had used the concept of judicial power to defeat the obligations of an international treaty.

This decision is well known to have been motivated by former Chief Justice Sarath Silva's extreme hubris being affronted when called to account by the Geneva based United Nations Human Rights Committee for arbitrary judicial behaviour, including the sentencing of a lay litigant to contempt of court for one year due to his talking loudly in court. So we said that we do not respect the Optional Protocol despite remaining a party to it. Worse, we then went and passed into law, a so-called "ICCPR Act' which even a year one law student, on reading, would have concluded was just a farce with a grandiose title. No amount of 'judicial opinions' declaring that all was well with Sri Lanka's compliance with international treaty obligations would suffice to correct the damage that had been caused.

Negation of constitutional norms

Further, the deliberate negation of the 17th Amendment, in fact, undercut all the pledges that Sri Lanka had, in fact, made to the European Commission when applying for the GSP Plus benefit in the first place. So the issue is not having serious human rights violations on its record pure and simple. The issue is also extreme arrogance, ranging from unleashing vitriolic anti-Western propagandists (by a government which has amusingly many of its key figures having one leg here and another leg in some Western capital) to calling key United Nations diplomats 'terrorists' and finally, in an exercise of absolute self defeatism, refusing to respond to the European Commission's (EC) investigation as to the extent to which the Sri Lankan systems have implemented the key international conventions. Last week's response by the Government to the EC's Final Report is yet another exercise in this same futility. While a detailed analysis of this response should be undertaken elsewhere due to limited column space, the discrepancies are immediately glaring.

The Government's response

For example, the Government's response to the Tissainayagan's case and the question of a pardon is a blatant misrepresentation of the law in that it is stated that until the appeal process is exhausted, the President cannot exercise the prerogative of executive clemency. Yet the legal and constitutional position is actually quite different. As pointed out in this column previously, executive pardon may be exercised at the lower stage of a High Court and indeed, even the Magistrate's Court convictions as was in fact, evidenced in at least two occasions in the past, one of which concerned a pardon issued by none other than President Mahinda Rajapakse himself to Minister Arumugam Thondaman when convicted of contempt by a lower court.

This similar duplicity pervades the government response. For example, it is maintained that the judicial incorporation of the right to life by a three member bench of Sri Lanka's Supreme Court in three cases is sufficient and that there is no need to enact this right, either into our constitutional provisions or safeguard it in the criminal law by enacting an offence of prohibition of enforced disappearances. However, this reasoning is also faulty.

Spurious justifications

As pointed out by this columnist elsewhere, absenting several important ICCPR rights on the spurious justification that these are already part of the constitutional framework cannot be justified. Decisions incorporating the right to life are not attended by any guarantee of absolute certainty in Sri Lanka's legal system, in the first instance, as these rulings were handed down by Benches constituting of three judges and as such, are liable to be departed from by later Benches constituting of more conservative judges and may even be rejected at some point in time as an unwarranted expansion of the law. Thus, it may be argued that the implied right to life is not unequivocally part of Sri Lanka's constitutionally guaranteed rights framework until it is so affirmed by a Full Bench of the Court.

Even then, the inclusion of these articles in specific statutory form is highly desirable. It was precisely on this same reasoning that the CAT Act was enacted, despite the prior existence of a specific constitutional provision, namely Article 11, prohibiting torture and other forms of cruel, inhuman or degrading treatment or punishment. If therefore the same reasoning on which it is sought to justify the non-inclusion of the right to life in the ICCPR Act is applied to the CAT Act, then there would be little reason for the enactment of the latter Act as well, given (as aforesaid) the pre-existing constitutional right enshrined in Article 11.
These are issues that should be addressed at least now honestly and with sincerity.

-Sri Lanka Guardian