ROHAN EDRISINHA & ASANGA WELIKALA

There has recently been speculation and media reports about the European Union’s system of tariff preferences known as the ‘GSP Plus’ programme, of which Sri Lanka is presently a beneficiary country. The tariff preferences create massive advantages in particular to our apparel industry, and have implications for the wellbeing and employment for thousands in that important sector of our economy. It is vital, therefore, that Sri Lanka retains this privilege.

The controversy relates to the fact that Sri Lanka’s continued beneficiary status comes up for renewal later in 2008, and whether Sri Lanka continues to qualify for the GSP Plus benefits in terms of the requirements that are set out for this by the European Union. One of the important requirements to qualify is that the beneficiary country is placed under a general obligation to ‘ratify and fully implement’ a set of twenty-seven international conventions. One of the key international human rights conventions listed under the relevant EU law is the International Covenant on Civil and Political Rights (ICCPR).

Sri Lanka acceded to the ICCPR in 1980, and to its First Optional Protocol (which allows individuals to address complaints against violations of rights recognised by the ICCPR directly to the Human Rights Committee in Geneva) in 1997. The latter accession was largely the initiative of former Minister of Foreign Affairs, the late Hon. Lakshman Kadirgamar, PC, MP.

However, the Supreme Court decided in the case of Singarasa v. Attorney General (2006), that while the accession of Sri Lanka to the ICCPR was legal, valid and bound the State at international law, it created no additional rights (as recognised in the ICCPR) for Sri Lankan citizens in the absence of domestic legislation. That is, without our Parliament having enacted the provisions of the ICCPR into Sri Lankan law. The Court presumed that the Sri Lankan Parliament had not so enacted the ICCPR, because those civil and political rights already found expression in the chapter on fundamental rights of the Sri Lankan Constitution (1978).

The Supreme Court also went on to hold that the accession to the First Optional Protocol was invalid and unconstitutional, because in the view of the Court (wrongly, in our view), recognising the jurisdiction of the Human Rights Committee was an unconstitutional alienation of the sovereign judicial power of the people of Sri Lanka.

Given that the requirement under the GSP Plus scheme is ratification and full implementation of the ICCPR, and not the First Optional Protocol, we will only focus on the ICCPR here, although we believe the Supreme Court’s decision has deprived Sri Lankans of an important avenue of human rights protection. We would moreover add that in a recent Supreme Court order (in the case of The Joint Apparel Association Forum and Others v. Sri Lanka Ports Authority and Others (2008)), the Court refused to grant costs to the respondent trade unions on the ground that the unions had made applications to the Freedom of Association Committee of the ILO whilst the fundamental rights action was pending. In the view of the Court, the unions were not entitled to seek redress from an external body while their matter was pending before the Court, even though within Sri Lanka’s obligations under the ILO conventions, the right of access to the treaty-body is recognised.

Whether or not the government agrees with the reasoning of the Supreme Court, it remains bound by the Court’s decision; in which case the question arises as to what steps the government intends to take to comply with the requirement of the GSP Plus scheme that Sri Lanka should not only ‘ratify’ but also ‘fully implement’ the ICCPR (among other international treaties such as the ILO conventions).

Late in 2007, the government passed the International Covenant on Civil and Political Rights Act, No. 56 of 2007 (the ICCPR Act). The title is a complete misnomer that misleadingly gives the impression that its purpose is to enact the ICCPR into domestic law. The ICCPR Act contains only four main substantive rights-conferring provisions in sections 2, 4, 5 and 6: viz., the right to be recognised as a person before the law; entitlements of alleged offenders to legal assistance, interpreter and safeguard against self-incrimination; certain rights of the child; and right of access to State benefits, respectively. Furthermore, these provisions are formulated in terms substantially and significantly different from the corresponding provisions of the ICCPR.

If the argument is that the rights recognised by the chapter on fundamental rights of the Constitution substantially give effect to other rights in the ICCPR, we would also strongly reject that view. We do so for the following reasons.

Firstly, there are a number of ICCPR rights which are not recognised by the Sri Lankan Constitution or law. These include the right to life; freedom from negative discrimination on the basis of national or social origin; freedom from forced or compulsory labour; the security and liberty of persons deprived of liberty; the right to compensation for unlawful arrest or detention; right to require free consent to medical or scientific experimentation; right to leave the country; rights of minorities, including in respect of religion, language and culture; and the right to privacy.

Secondly, the issue of the scope of rights in the manner in which they are drafted in the ICCPR as compared to the Sri Lankan Constitution and law. For example, Article 14 (1) (a) of our Constitution guarantees the right to free speech in the following terms: “Every citizen is entitled to – the freedom of speech and expression including publication.” In the corresponding provision, Article 19 of the ICCPR, this right is framed in much wider and elaborate terms to include the right of persons to hold opinions without interference, to receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of a person’s choice.

Thirdly, the framework for restrictions of fundamental rights. In this regard there are two basic criticisms that can be made with respect to the Sri Lankan Constitution’s provision for permissible restrictions on fundamental rights in Article 15. The first is that the permissibility of restrictions are framed in subjective terms, and do not require a threshold of substantive justification prior to imposition of restrictions by recourse to standards such as ‘necessity in a democratic society’, ‘reasonableness’ and / or ‘proportionality’ that are required by the ICCPR, and indeed many modern constitutions. While it is true that in some instances, our Supreme Court has read requirements similar to these in its fundamental rights case law, we would nonetheless argue that this is not the same thing as having these requirements enshrined in the text of the Constitution itself. The second criticism is that Article 15 of our Constitution speaks merely of ‘restrictions’ and do not make the distinction between classes of restrictions such as ‘derogation’, ‘restriction’ and ‘limitation’ in the way the ICCPR and modern constitutions do. Thus it is not explicit in the text as to what rights may be completely suspended (i.e., derogated from), what rights are absolutely non-derogable under any circumstances, what rights may only be restricted to some extent but not wholly suspended and so on.

More generally, there are several features of our Constitution that fall short of the human rights standards established by the ICCPR. Prominent among these is Article 16 of the Constitution, which validates all written or unwritten laws existing prior to 1978 (i.e., the year in which the present Constitution was enacted) notwithstanding inconsistency with fundamental rights and the Constitution. This illogical provision goes against all norms of modern constitutionalism, which holds that the Constitution is supreme and all other laws inconsistent with the Constitution must be invalid. In this context, it is difficult to claim that the fundamental rights chapter in effect provides the standard of human rights protection required by the ICCPR.

Even with regard to those laws that are enacted after 1978, Article 80 (3) prohibits the judicial review of legislation for constitutionality, bar the very limited provision for pre-enactment review, which is in practice almost entirely ineffectual.

We are mindful that Article 16 has been defended in some quarters as being essential for protecting the integrity of our customary and personal laws (i.e., Kandyan law, Thesawalamai and Muslim law). But we would point out that if this was the need, then Article 16 could easily be drafted more narrowly to capture only these laws within its scope rather than ALL existing law, even if inconsistent with the Constitution.

A further general point to note in respect of the ‘full implementation’ of the ICCPR is that Article 126 of the Constitution vests the sole and exclusive jurisdiction in respect of fundamental rights with the Supreme Court. While at first glance this might seem to be an indication of the seriousness accorded by our Constitution to fundamental rights, international best practice, and indeed our own experience suggests that, there should be provision for at least one appeal from a decision of any court. This will also free the Supreme Court from the burden of trying facts, only take up cases of constitutional significance on appeal, and thereby be able to articulate a more coherent fundamental rights jurisprudence.

We final general point we would make is with regard to the appalling feature of Sri Lankan governance in which laws and even significant parts of the Constitution remain unimplemented. For example, in the case of the Seventeenth Amendment, its non-implementation can only be described as resulting from an intentional violation of the Constitution. In these circumstances, it is difficult to accept the argument that the Sri Lankan Constitution and the law affords citizens a standard of human rights protection even remotely comparable to that envisaged by the ICCPR. Ratification and full and effective implementation are essential.

For all these reasons, we are convinced that effective implementation of the ICCPR requires constitutional amendment, which in the case of the ICCPR would require a two-thirds majority in Parliament, but not a referendum. Given that ‘full implementation’ of the ICCPR is a pivotal requirement of the GSP Plus scheme, upon Sri Lanka’s continuing qualification for which, to a not inconsiderable extent, depends the health of our apparel industry and the livelihoods and jobs of thousands of garment sector employees and their dependents, the primary responsibility for initiating constitutional change lies with the government. It is also incumbent on other parties represented in Parliament, particularly the United National Party, to support the government in such a measure and ensure the required two-thirds majority is obtained.

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