The Optional Protocol to the ICCPR as a means to address degenerating law & institutions in Sri Lanka

Basil Fernando, Executive Director, Asian Legal Resource Centre, Hong Kong

In ancient times, when Sinhala kings and monks perceived that the local practice of Buddhism was degenerating they sought to reinvigorate it with input from Buddhist centres abroad. Perhaps a parallel may be drawn between the needs of Sri Lanka’s religious institutions in the past and those of its legal institutions today. It is an undisputed fact that the country’s legal institutions are in a state of disarray and debasement. Under the circumstances, seeking help from outside to revive and strengthen them is not shameful.

One place from which outside assistance may already be obtained is the United Nations Human Rights Committee. This has been possible since Sri Lanka became a state party to the first Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) in 1998.

The ICCPR & its first Optional Protocol
By ratifying the Covenant itself in 1980 Sri Lanka agreed to bring the principles it embodies into the domestic code of basic civil and political rights. The state committed itself to affording its citizens an objective body of standards upon which to establish their rights. This means that when citizens have difficulty realising their rights they can refer to the norms laid out in the Covenant and make demands for the necessary institutional or other changes. In this way the Covenant provides a set of benchmarks against which the growth or degeneration of domestic law and practices may be measured. Sri Lanka is also obliged to report periodically to the UN Human Rights Committee on its progress towards compliance with the Covenant.

The first Optional Protocol follows logically from article 2 of the Covenant, which obliges state parties to put in place measures that will give effect to the rights it guarantees and afford remedies where they are violated. To ensure this, article 2 stipulates that persons who believe their rights have been violated should be able to lay claims before competent judicial, administrative and legal authorities, and that where remedies are granted they should be enforced.

By becoming a state party to the first Optional Protocol, Sri Lanka has given its citizens the opportunity to appeal directly to the UN Human Rights Committee where their rights under the Covenant are violated and when they have taken all possible steps to obtain a remedy through domestic law and institutions. The Committee assesses grievances in accordance with the standards laid out in the Covenant, giving citizens the chance to test whether these are well-founded and whether their rights could be better safeguarded.

Significance of the first Optional Protocol for Sri Lanka
In becoming a party to the first Optional Protocol, Sri Lanka also opened a new avenue through which it may be possible to address the prevailing chaos in the country’s faltering legal institutions. Constitutional remedies for rights violations in Sri Lanka are extremely limited and hard to obtain. The legislative process is slow and defective; unable to take the necessary steps to strengthen constitutional law and its agents. Hardly any laws have been developed in recent years to revitalize institutions dealing with the rule of law in the country. The only important provision of recent times was the 17th Amendment to the Constitution, which was passed during parliamentary upheaval. However, even this amendment has not been worked out in the detail needed to realise its potential.

The average victim of a rights violation in Sri Lanka is now in an extremely weak position. Under the pretext of emergency and anti-terrorism laws, security forces have in recent decades been given virtually unlimited powers to arrest, detain, torture, kill and disappear persons of their choice. Paramilitary units have been formed outside of the established agencies and have been used to commit extremely cruel and violent acts by proxy. In some parts of the country the state is still without any practical role; people in those areas are entirely without safeguards of their rights. Meanwhile, extrajudicial killings of recognised criminals are openly advocated and there is diminishing overall control of the police. All faith is lost in the courts due to the extraordinary delays in hearing cases and popular perception that they have little power to carry out their decisions.

The situation in Sri Lanka is not merely far removed from the promise of the ICCPR, it is in contradiction to the ICCPR. Widespread torture, extrajudicial killings, disappearances and the manifest lack of effective remedies through courts stand in stark contrast to the state’s obligations under the Covenant.

One government after another has been questioned about this contradiction, and each has had various excuses. One often repeated excuse is that the violent conflicts in the country over recent decades have affected its ability to realise human rights. In international gatherings the country has sought sympathy and understanding by implying that under the circumstances it could not have done any better.

Another often heard excuse, particularly from certain government agencies, is that there are not enough resources to go around. The judiciary has claimed that its limited budget impairs its ability to give proper training to practitioners. There is also a complaint that there are not enough court houses. The Attorney General’s department, which also functions as the main prosecuting agency, has similarly claimed that it does not have the money to hire enough lawyers with which to deal with its workload. For their part, the police claim that they have not been given money with which to establish a modern forensic facility; it was once revealed that even fingerprinting is not being done to a minimum standard. The police also complain that they lack funds for training, vehicles and communications. Due to poor training, they apologise unofficially, torture continues to be used routinely in criminal investigations. Institutions created through the 17th Amendment to the constitution to exercise a corrective function on justice institutions also complain about inadequate resources.

In short, the administration of justice in Sri Lanka today is a tragicomedy. The problems faced are vast; the manner of dealing with them is ridiculous. As a result, the situation gets worse each day. Reading newspaper editorials, one finds only desperation and subdued resentment expressed by way of exhortations to leaders for change. Everywhere in the country there is a hidden cry for the loss of justice. This cry is accompanied by a hidden anger over deep injustice and the lack of remedies for victims. Unrecognised and unaddressed, this anger is liable to explode with shattering effects in all areas of Sri Lanka’s social and political life.

The Sri Lankan judiciary and international law
Sri Lanka’s higher judiciary has generally taken a very conservative view of the country’s obligations under international laws such as the ICCPR. While other countries have assimilated such covenants into domestic law, the Sri Lankan judiciary has shown little enthusiasm for the same. The body of domestic case law, particularly on the interpretation of fundamental rights, has not expanded to include the riches of the international jurisprudence that has developed rapidly during the last 60 years.

At one time it was thought that Sri Lanka had all the legal luminaries it needed to be capable of developing strong domestic jurisprudence. However, no such belief exists anymore. Even within the legal community there are deep expressions of anger at the dismal state of the profession. Not a single voice can now be heard praising the country’s great legal traditions, while a huge chorus sings a requiem to justice. The resistance that once existed to “external interference” in the development of law is all but gone. It is time to admit a new role for international agencies in the development of new and enlightened jurisprudence in Sri Lanka.

Pioneers of a new era in human rights
The status of people in Sri Lanka will be equal to others elsewhere in the world only if their rights are respected to the highest degree. Unfortunately, Sri Lanka has a poor record in this regard, as does all South Asia. Despite being called a ‘religious’ continent, most occupants of the region have historically been treated as of very little importance. People have over the centuries learnt to respect the state and its rulers, rather than vice versa. Domestic jurisprudence has not broken this mentality.

So it is that those Sri Lankans who have taken complaints of rights violations by the state to the UN Human Rights Committee under the first Optional Protocol of the ICCPR should be regarded as pioneers of a new era for the application of more developed human rights norms in their country.

Each of these persons has challenged some very important aspects of prevailing jurisprudence and legal practice in Sri Lanka. One questioned the manner in which the contempt of court law is applied and obtained an historic order for the development of new law and human rights principles in the country (the Tony Fernando Case). Another proved to the Committee that inordinate delays in hearing his court case amounted to a violation of the ICCPR (the Lalilth Rajapakse Case). A father complained of the disappearance of his son and succeeded in getting an order for the state to provide him with an effective remedy, including a thorough and effective investigation, and the son’s immediate release if he was still alive (the Sarma Case). Yet another applicant challenged the prevailing jurisprudence on the use of confessions in cases coming under anti-terrorist legislation, and the Committee held that a trial conducted in a Sri Lankan court was not a fair trial under the Covenant (the Nallaratnam Singarasa Case). One litigant successfully claimed that he was being prosecuted by the state without any cause but to violate his rights, including freedom of expression (the Victor Ivan Case). And a member of parliament convinced the Committee that his life had been put at risk, in violation of the Covenant, by a speech of the president (the Jayalath Jayawardena Case).

Every one of these cases has profound implications for criminal justice and human rights in Sri Lanka. In some instances the UN Human Rights Committee found that the violations of rights guaranteed by the ICCPR arose from orders made by Sri Lankan courts, including the Supreme Court itself. One judgment challenges the role of the Attorney General in conducting prosecutions. Another takes issue with the delays undermining the work of the country’s courts. The executive president’s own powers have also been challenged regarding the public statement she made against a member of parliament.

Prospects to revitalise constitutionalism in Sri Lanka
All these cases open doors for further questions about Sri Lanka’s human rights obligations with reference to the existing structures for administration of justice and governance. And these further questions are desperately needed. Since the 1978 Constitution was promulgated, debate on matters of national importance has been diminished to the point that it is now all but non-existent. In fact this is a direct consequence of the 1978 Constitution, the very purpose of which was to displace liberal democracy while retaining its terminology on the separation of power. It was tailor-made to legitimise the arbitrary misuse of power by a single person. Ironically, the 1978 Constitution itself spelled the death of constitutionalism in the country.

To revitalize debate on constitutionalism and reconstruct the foundations of liberal democracy requires broad discussion of democracy and human rights. Some try to confine this discussion to narrow points about whether or not Sri Lanka should be a unitary or federal state. Under the present constitution such talk is meaningless. Another amendment pushed through for political convenience will amount to more constitutional mockery. It is not possible to turn a constitution that was written to defeat liberal democracy into one that will make sense in terms of liberal democracy.

The decisions of the UN Human Rights Committee can serve as guiding lights for a new generation of Sri Lankan lawyers and others concerned with application of the law in the country. The legal education they get is an artifact, consisting of mindless references to certain legislation and case law. It follows that the country’s laws and legal practices are primitive by comparison to those of other jurisdictions, and its legal intellects are completely unprepared to deal with the extremely complex and sophisticated problems facing the country now and in the future. If young minds are opened to modern ways of interpreting and developing law they may be in a position to develop the more dynamic and hopeful jurisprudence that the country needs. Careful attention to the decisions of the UN Human Rights Committee in cases from Sri Lanka will contribute much towards this end.