Introduction

For a long number of years, the fact that Sri Lanka had submitted itself to the reach of the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) was confined to paper.

Invocation of the individual communications remedy, involving a violation of Covenant rights and a corresponding inability of domestic laws and institutions to remedy those grievances, remained sluggish in the early years following 3 January 1998, which was the date on which the First Optional Protocol entered into force for Sri Lanka.

However, in recent years, this has changed. Spurred on by the increasingly dysfunctional nature of domestic institutions meant to protect the Rule of Law in the country, such as the judiciary and the police, individual communications are increasingly being lodged with the United Nations Human Rights Committee (UNHRC) in regard to protection of life and liberty rights as well as free speech.

Increasingly also, we have seeing the UNHRC responding in a manner that holds out some hope for people traumatised as a result of a systemic collapse in a country that once posited itself as a beacon of development in South Asia.

The objective of this analysis is to discuss the context of the interventions being made by the UNHRC and to look at the specific content of the cases in which it has seen fit to declare a violation of Covenant rights. This process has an obviously vital domestic impact.

However, it is also illuminating regionally. Nepal is the only other country in South Asia which has also submitted itself to the First Optional Protocol but whose commitment to Covenant rights have not been substantially challenged in individual communications. Its activists may therefore gain much from the Sri Lankan example. Similarly, these experiences may be of value for other countries in the region whose governments have not been so quick to incur the same obligations but who may be compelled towards these ends by their citizens emboldened by the positive impact of such a commitment.

The Nature of International Obligations and Their Direct Impact on Domestic Legal Policy in Sri Lanka

Article 27(15) of the Directive Principles of State Policy in Sri Lanka's 2nd Republican Constitution of 1978 mandates the State to "..endeavor to foster respect for international law and treaty obligations in dealings among nations." The impact of the Directive Principles on the Sri Lankan State, insofar as domestic adherence to the norms and standards imposed on the country by reasons of treaty ratifications that the State has engaged in, is severe.

We cannot contend that the extent of these duties is confined to the international arena and have no application to the domestic legal context in the absence of specific legal provision in the national laws of the country. Rather, by ratification of the treaties, we have agreed to abide by those norms and standards including a specific duty to bring domestic laws in conformity with those standards.

This obligation is buttressed by judicial incorporation of international human rights standards in a growing body of jurisprudence in Sri Lanka since the late eighties as well as by the Directive Principles of State Policy, which though non- justiciable in Sri Lanka's constitutional context, has a direct impact on legal policy in the country.

Thus, we have Article 27(1), which states that; "The Directive Principles of State Policy herein contained shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society"

The manner in which this country's Supreme Court has responded to the impact of the Directive Principles, (though perhaps not as boldly as India's Supreme Court), is illustrative of the duties imposed by this constitutional article.

While the object of this analysis is not to engage in a comprehensive examination of the judicial response to the Directive Principles, a few examples would suffice. For instance, when called upon to examine the constitutionality of the Provincial Councils Bill and the Thirteenth Amendment to the Constitution Bill1 the Chief Justice Sharvananda pointed out as follows;

"True, the principles of State Policy are not enforceable in a court of law but that shortcoming does not detract from their value as projecting the aims and aspirations of a democratic government. The Directive Principles require to be implemented by legislation. In our view, the two Bills represent steps in the direction of implementing the programme envisaged by the Constitution makers to build a social and democratic society" 2

Again, in Seneviratne Vs U.G.C.3 a judicial observation made this position clear;

"It is a settled principle of construction that when construing a legal document, the whole of the document must be considered. Accordingly, all relevant provisions of the Constitution must be given effect to when a Constitutional provision is under consideration and, when relevant, this must necessarily include the Directive Principles...(and)...the Courts must take due recognition of these and make proper allowance for their operation and function" per Justice Wanasundera

While the Directive Principles of State Policy have their own importance in the constitutional scheme of things, the obligations that Sri Lanka has incurred as a result of ratification of treaties and consequent submission to the international legal regime of human rights, has a separate -- and profound -- justification.

It is as a concession to the concept of national sovereignty (according to which a State binds itself to that degree acceptable to that State, excepting, of course, particular jus cogens principles of international human rights law that binds all nations irrespective of specific agreement) that the device of reservations to treaties have evolved. Thus, if a State, (for particular and deserved reasons), enters into reservations where particular treaty provisions are concerned, those reservations are respected as long as they do not detract from the substantive treaty obligation.

If reservations are not entered upon, then the effect of that treaty is given full force and it is not at all possible to plead non-enactment of domestic laws as an excuse for non-compliance with a treaty provision. What sanctity could be attached to the actions of a State party who maintains that adherence to obligations imposed by treaties to which that State party has voluntarily subjected itself in all its full force, is limited to mere rhetoric in international fora? Such an insistence would be tantamount to self-immolation in the community of nations, which any country even the most powerful - can ill afford.

This rationale has now become extremely relevant for Sri Lanka in the context of the duty to submit periodic reports to the UN Treaty bodies as a result of the ratification of such treaties wherein the reporting process and the Concluding Observations issued by the various monitoring bodies have become more stringent over the years.

It applies with even more substantive force however where the International Covenant on Civil and Political Rights (ICCPR) is concerned, as a result of the State agreeing to become subject to the First Optional Protocol to the ICCPR which allows persons subject to the jurisdiction of the State to bring an individual communication before the United Nations Human Rights Committee (UNHRC) sitting in Geneva, alleging a violation of Covenant rights.

Here, the Sri Lankan State is bound by virtue of its submission, not only to the Covenant itself but also, by virtue of further action in submitting to the Optional Protocol to the Covenant which entered respectively into force on 11 June 1980 and 3 January 1998.

In so doing, the State made a declaration that it;

"recognises the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Democratic Socialist Republic of Sri Lanka, who claim to be victims of a violation of any of the rights set forth in the Covenant which results either from acts, omissions, developments or events occurring after the date on which the Protocol entered into force for the Democratic Socialist Republic of Sri Lanka, or from a decision relating to acts, omissions, developments or events after that date."

The State proceeded on the understanding that the Committee shall not consider any communication from individuals unless it has ascertained that the same matter is not being examined or has not been examined under another procedure of international investigation or settlement. The other condition was that exhaustion of domestic remedies must take place prior to an appeal going before the UNHRC.

In a situation where much of the Covenant rights are not reflected in Sri Lanka??s current constitutional document, such as the right to life for example, it was inevitable that an interesting scenario would emerge whereby the State would be called to account by the UNHRC in respect of its Covenant obligations in specific cases. This discussion would now engage in examination of these particular instances.

Views of the UN Human Rights Committee in Communication (Communication No 950/2000 (Sri Lanka, 31/07/2003) CCPR/C/78/D/950/2000 (Jurisprudence -- The Jegetheeswaran Sarma Case

This decision in which the UNHRC found against the Sri Lankan State in a complaint filed by a father from Trincomalee, whose son disappeared in army custody in 1990, affirms the doctrine of command responsibility in a manner that is of considerable value for domestic rights activism.

The Committee found a violation of the rights to liberty and security and freedom from torture in respect of the son who 'disappeared' in army custody. The State was directed to expedite current criminal proceedings against individuals implicated in the disappearance and to ensure the prompt trial of all persons responsible for the abduction. The State was also put under an obligation to provide the victims with an effective remedy including a thorough and effective investigation into his disappearance and fate, his immediate release if he is still alive, adequate information resulting from its investigation and adequate compensation for the violations suffered by him and his family.

Interestingly, violation of the right to freedom from torture or cruel, inhuman and degrading treatment or punishment was also found in respect of his parents who, the Committee opined, has suffered "anguish and stress" by his disappearance and by the continuing uncertainty concerning his fate and whereabouts. The Committee indicated its wish to receive from the Government, within three months, information about the measures taken to give effect to the Committee's views.

The facts of the case were in common with many cases of this nature during that traumatic period in Sri Lanka. The father, Jegatheeswaran Sarma, had gone to Geneva alleging that his son, Thevaraja Sarma had been arrested and detained in Trincomalee by members of the Army, including one corporal Sarath and others unidentified, in the course of a military search operation and that these acts resulted in the disappearance of his son.

In counter, the State argued that this disappearance was an isolated act initiated solely by a minor officer without the knowledge or complicity of other levels within the military chain of command. This was a position that was not accepted by the Committee in its deliberations.

The victim also argued that that the State party had failed to investigate effectively its responsibility and the individual responsibility of those suspected of the direct commission of the offences. It had given no explanation as to why an investigation was commenced some 10 years after the disappearance was first brought to the attention of the relevant authorities. Moreover, the investigation did not provide information on orders that may have been given to the low ranking officers regarding their role in search operations, nor did it consider the chain of command.

It has not provided information about the systems in place within the military concerning orders, training, reporting procedures or other process to monitor the activity of soldiers which may support or undermine the claim that the superior officers did not order and were not aware of the activities of their subordinates.

It was also alleged that there were striking omissions in the evidence gathered by the State party. Thus, the records of the ongoing military operations in this area in 1990 had not been accessed or produced and no detention records or information relating to the cordon and search operation were adduced. Even though indictment was filed against corporal Sarath, key individuals were not included as witnesses for the prosecution, despite the fact that they had already provided statements to the authorities and could have provided testimony crucial to the case.

In delivering its views, the Committee reasoned unequivocally that, for the purposes of establishing State responsibility, it is irrelevant that the officer to whom a particular disappearance of an individual is attributed, acted outside the law or that superior officers were unaware of his or her actions.

In this context, the definition of enforced disappearances contained in the Rome Stature of the International Criminal Court (Article 7) was also used to good measure. Here, "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

The Committee concluded accordingly that where the violation of Covenant rights is carried out by a soldier or other official who uses his or her position of authority to execute a wrongful act, the violation is imputable to the State, even where the soldier or the other official is acting beyond his authority.

In doing so, the Committee followed previous jurisprudence to this same effect by other regional tribunals, including the Inter-American Court of Human Rights in the Velasquez Rodriguez Case and decisions of the European Court of Human Rights.

Thus, even where an official is acting ultra vires, the State will find itself in a position of responsibility if it provided the means or facilities to accomplish the act. Even more boldly, it was affirmed by the Committee in this instance that even if, and this is not known in this case, the officials acted in direct contravention of the orders given to them, the State may still be responsible.

The views of the Committee, adopted its seventy-eighth session, constitutes a wake up call for those entrusted with the responsibility of prosecutions, in particular the officers of the Attorney General, to ensure that the State is not held liable on failure to hold accountable in law, those officers of the State identified to be responsible for grave human rights violations.

Views of the UN Human Rights Committee in Communication No 916/2000:Sri Lanka 26/07/2002 (CCPR/C/75/D/916/ 2000 (Jurisprudence) - the Jayalath Jayawardene Case

The Communication of Views by the UNHRC, in this instance, related to a complaint made by an opposition parliamentarian at that time, that statements made by the Head of State alleging that he was acting in concert with the LTTE and thereafter given wide publicity by the "government-controlled" radio and television corporations, put his life at great risk and that the State party did not protect his life by refusing to grant him sufficient security despite the fact that he was receiving death threats thereafter. Neither did the State party investigate any of the complaints he made to the police on the issue of the death threats received against him.

The majority view of the UNHRC was that the publication and dissemination of the statements in question made by the Head of State acting under immunity enacted by the State party, (which were not denied by the State party) resulted in a violation of the author's right to security of person under ICCPR, Article 9, paragraph 1. Unanimously, it was also decided that the failure of the State party to investigate threats to the life of the author violated his right to security of person under the same article.

Views of the UN Human Rights Committee in Communication No. 909/2000: Sri Lanka 26/08/2004 (CCPR/C/81/D/909/2000 (Jurisprudence) -- the Victor Ivan Case

In this instance, the UNHRC found that the pending nature of three indictments for criminal defamation served on the editor of the 'Ravaya' in 1996 and 1997 for several years, (including up to the time of the final submissions made by the parties), was in violation of ICCPR, Article 14, paragraph 3 (c), (right to be tried without undue delay). Additionally, the delay left the author in a situation of uncertainty and intimidation, despite his efforts to have the cases terminated, and had a chilling effect, which violated ICCPR, Article 19 (right to freedom of expression), read together with ICCPR, Article 2(3) (right to effective remedy).

An interesting facet of this case was that this violation of right to speedy trial had not been specifically pleaded by the author whose case before the UNHRC was originally based on a different argument; namely that the action of the Attorney General of Sri Lanka, in arbitrarily charging him with criminal defamation during the period 1993 to 1998, failed to properly exercise his discretion under statutory guidelines (which require a proper assessment of the facts as required in law for criminal defamation prosecution), and thereby violated his freedom of expression in terms of ICCPR, Article 19 as well as his right to equality and equal protection of the law in terms of ICCPR, Article 26.

The author also pleaded a violation of Article 2 (3) of the Covenant, based on the refusal of the Supreme Court to grant him leave to proceed with his fundamental rights application against the Attorney General, thereby depriving him of an effective remedy. Before the Supreme Court, the issue was whether the Attorney General acted arbitrarily in filing criminal indictments against the Ravaya editor, violating his fundamental right to equality (Article 12(1), his fundamental right to freedom of speech and expression including publication (Article 141(a)) and the fundamental right to engage in his lawful profession (Article 14(1)(g)).

Here, the Court asserted that a decision of the Attorney General to grant sanction to prosecute or to file an indictment or the refusal to do so could be reviewed, in principle, as for example, where the evidence was plainly insufficient, where there was no investigation, where the decision was based on constitutionally impermissible factors and so on. The decision thereon had to be guided by statutory criteria and could not be arbitrary but must have some distinct public interest and benefit.

However, the judges (M.D.H. Fernando J, Wadugodapitiya J and Bandaranayake J.) took the view that if any faults in investigation had occurred which had resulted in at least one criminal defamation indictment being improperly filed against him, this was due to a lapse on the part of those whose duty it was to investigate and not on the part of the Attorney General.4

But, as was contended at that time, liability is that of the State regardless of whether blame could be laid at the door of the investigating officers or the prosecuting officers. If a prosecution had been launched based on faulty investigation, the primary responsibility remained with the State, as represented in that case by the Attorney General. The fact that the Supreme Court preferred not to proceed so far, accords with the laying down of very high standards of "culpable ignorance or negligence" on the part of the Attorney General in order to justify intervention by court.

The UNHRC however declined to rule on the question as to whether the issuing of the criminal defamation indictments and whether the decision to grant sanction by the Attorney General in those specific instances, amounted to a violation of Covenant rights. This reluctance is understandable having reference to the strict 'margin of appreciation' that the Committee accords national judicial tribunals with regard to the facts of particular cases.

The UNHRC instead restricted itself to a narrower finding of the right to be tried without undue delay. The complaint with regard to undue delay, in fact, arose during the long drawn out proceedings before the UNHRC as this was not a factor that was in issue when the author first appealed to Sri Lanka's Supreme Court and was refused leave to proceed on a different basis altogether. The willingness of the UNHRC to rule on the matter of the right to speedy trial without insisting that the author first raise this issue specifically before the domestic courts and then come before the Committee, needs to be noted.

For future reference, it is useful to note that the argument of the State party that the Ravaya editor's communication was inadmissible because it relates to facts that occurred before the Optional Protocol entered into force for Sri Lanka, (3, January 1998) was dismissed by the Committee on the basis that the consequences of the indictments for the author continued, and indeed, constituted new alleged violations so long as the indictments remained in effect.

In general, the consequences of this Communication as regards the responsibilities visited upon the office of the Attorney General in this country in respect of fair trial and freedom of expression again sounds a warning that cannot be dismissed lightly.

Views of the UN Human Rights Committee in Communication No. 1033/2004: Sri Lanka 26/08/2004 (CCPR/C/81/ D/1033/2001 (Jurisprudence) -- the Singarasa Case

This case concerned the appeal of a detainee in the Boosa prison who had been convicted and sentenced to fifty years imprisonment, solely on the strength of a confession obtained in terms of the Prevention of Terrorism Act No 48 of 1979 (as amended), (PTA) for having conspired by unlawful means to overthrow the lawfully constituted Government of Sri Lanka, and for having attacked four army camps with a view to achieving the said objective.

Sinharasa had been detained on 16 July, 1993 pursuant to an order by the Minister of Defence under section 9(1) of the PTA which provides for detention without charge up to a period of eighteen months (renewable by order every three months), if the Minister of Defence "has reason to believe or suspect that any person is connected with or concerned in any unlawful activity". The detention order was not served on him and he was not informed of the reasons for his detention.

Thereafter, he was kept in detention up to August 1993, where he was first brought before a Magistrate, and then remanded back into police custody. No bail was given in terms of Section 15(2) of the PTA. Neither did the Magistrate review the detention order, in terms of Section 10, which states that a detention order under section 9 of the PTA is final and shall not be called in question before any court.

On 11 December 1993, he was produced before an ASP (who had previously interrogated him in the capacity of a police constable) and asked to sign a statement, which had been translated and typed in Sinhalese by another police officer who also acted as an interpreter during this time. When Sinharasa had refused to sign as he could not understand it, he alleged that the ASP then forcibly put his thumbprint on the typed statement. He did not have legal representation.

The judicial medical report produced at his trial in the high court confirmed that he displayed scars on his back and a serious injury, in the form of a corneal scar on his left eye, which resulted in permanent impairment of vision. The report also stated that "injuries to the lower part of the left back of the chest and eye were caused by a blunt weapon while that to the mid back of the chest was probably due to application of sharp force".

At a voir dire hearing in the High Court, the Court concluded that the confession was admissible, pursuant to section 16(1) of the PTA, which renders admissible any statement made before a police officer not below the rank of an ASP, provided that it is voluntary. The confession was admitted despite the Court noting that there were "injury scars presently visible on the [author's] body" and acknowledging that these were sequels of injuries "inflicted before or after this incident."

Further factors taken against him was that he had failed to complain to anyone at any time about the beatings, including the Magistrate. Sinharasa was convicted and sentenced to fifty years imprisonment in 1995 for under section 23(a) of the State of Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 1989 with the Public Security (Amendment) Act No. 28 of 1988, of having conspired by unlawful means to overthrow the lawfully constituted Government of Sri Lanka, and (read together with the provisions of the PTA) of having attacked four army camps with a view to achieving the said objective.

The conviction was based solely on the alleged confession. His appeal to the Court of Appeal was dismissed though his sentence was reduced. Thereafter, in January 2000, the Supreme Court also refused special leave to appeal. It was from this refusal that Sinharasa appealed to the UNHRC.

His position was that the burden imposed on him under Section 16(2) of the PTA to prove that the confession was extracted under duress and was not voluntary in terms of Section 16(2), was impossible of fulfillment as he had been compelled to sign the confession only in the presence of the police officers concerned by whom he had been tortured.

The primary question was as to whether his rights under Article 14, paragraph 3 (g) of the Covenant had been violated by his being forced to sign a confession and subsequently to prove its voluntary nature. The Committee answered this question in the positive. In so doing, it pointed out that its jurisprudence had laid down the principle that no one shall "be compelled to testify against himself or confess guilt" which must be understood in terms of the absence of any direct or indirect physical or psychological coercion from the investigating authorities on the accused with a view to obtaining a confession of guilt.

It was considered implicit in this principle that the prosecution prove that the confession was made without duress. Interestingly, it was pointed out that even if, as argued by the Sri Lankan State, the threshold of proof regarding the forced nature of a confession is "placed very low" and "a mere possibility of involuntariness" would suffice to sway the court in favour of the accused, it remains that the burden was on the author; this would not suffice. Its reasoning was unequivocal.

"The willingness of the courts at all stages to dismiss the complaints of torture and ill-treatment on the basis of the inconclusiveness of the medical certificate (especially one obtained over a year after the interrogation and ensuing confession) suggests that this threshold was not complied with. Further, insofar as the courts were prepared to infer that the author's allegations lacked credibility by virtue of his failing to complain of ill-treatment before the magistrate, the Committee finds that inference to be manifestly unsustainable in the light of his expected return to police detention."

The UNHRC found a violation of his right under ICCPR Article 14, paragraph 3 (g) (namely that no one shall "be compelled to testify against himself or confess guilt."), read together with ICCPR, Article 2, paragraph 3, and ICCPR Article 7. The State was directed to amend sections of the PTA that are incompatible with the guarantees of fair trial under the Covenant. In addition, the delay between conviction and the final dismissal of the author's appeal by the Supreme Court (29 September 1995 to 28 January 2000) in Case no. 6825/1994 was ruled to have resulted in a violation of the rights contained in ICCPR, Article 14, paragraphs 3(c), and 5, read together, which confers a right to review of a decision at trial without delay.

The State was put under an obligation to provide Sinharasa with an effective and appropriate remedy, including release or retrial and compensation. Importantly, Sri Lanka was also directed to avoid similar violations in the future and to ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant.

Conclusion

During the past three decades, the communication of views by the Committee has gathered considerable authority in international law. Measures taken domestically in regard to implementation of the decisions of the Committee, particularly in the Jegetheeswaran Sarma Case, the Victor Ivan Case and the Sinharasa Case are still at its early stages in this country.

Given that these would be an inevitable focus of the UNHRC when Sri Lanka's State Report is taken up for consideration next time around, it would be interesting to monitor subsequent developments if the State does not wish to risk the consequences of "rogue administration" status that visits those countries that take the Committee's views at nought.

Endnotes

1 [1987] (2) Sri L.R. 312, at page 326
2 see similar positions taken by the Supreme Court in Maithripala Senanayake Vs Mahindasoma and Others S.CC. Appeal No 41/96 Minutes of 14.12.96 at pages 13-14 of the judgement (unreported) and in Saliya Mathew Vs Podinilame and Others S.C. Appeal No 42/96, ibid
3 [1978-79-80] 1 Sri L.R. 182, at page 216
4 Victor Ivan v Sarath N. Silva, (1998, 1SLR, 301).