The Supreme Court delivers judgement in connection with the review application filed by Nallaratnam Singarasa, dismissing it on the grounds that it was misconceived and without legal basis. The Court held that the Presidential act of accession to the Optional Protocol to the International Covenant Covenant on Civil and Political Rights (ICCPR), which enabled the Human Rights Committee to receive and consider individual communications from any individual subject to Sri Lanka’s jurisdiction, was held to amount to an unconstitutional exercise of legislative power as well as an equally unconstitutional conferment of judicial power on the Committee.

Source
Nallaratnam Singarasa v Attorney-General, Supreme Court of the Democratic Socialist Republic of Sri Lanka, 15 September 2006, S.C.Spl (LA) No. 182/99.

Extracts from the judgement
“The High Court convicted the Petitioner on the basis of his confession after a full voir dire inquiry as to its voluntariness. If the confession is adequate to base a conviction, a retrial (as contemplated by the Committee) would be a superfluous re-enactment of the same process. The Petitioner has been convicted with [sic] having conspired with others to overthrow the lawfully elected Government of Sri Lanka and for that purpose attacked several army camps. The offences are directly linked to the Sovereignty of the People of Sri Lanka, and the Committee at Geneva, not linked with the Sovereignty of the People, has purported to set aside the orders made in all three levels of Courts that exercise the judicial power of the People of Sri Lanka. …

“The resulting position is that the Petitioner cannot seek to “vindicate and enforce” his rights through the Human Rights Committee at Geneva, which is not reposed with judicial power under our Constitution. A fortiori it is submitted that this Court being “the highest and final Superior Court of record in the Republic” in terms of Article 18 of the Constitution cannot set aside or vary its order as pleaded by the Petitioner on the basis of the findings of the Human Rights Committee in Geneva which is not reposed with any judicial power under or in terms of the Constitution. …

“[Where] the President enters into a treaty or accedes to a Covenant the content of which is “inconsistent with the provisions of the Constitution or written law’ it would be a transgression of the limitation in Article 33 (f) [of the Constitution] and ultra vires. Such act of the President would not bind the Republic qua state. … [Recognition of the role of the ICCPR Committee to receive and consider communications] is a purported conferment of a judicial power on the Human Rights Committee in Geneva. …

“Therefore the accession to the Optional Protocol in 1997 by the then President and Declaration made under Article 1 is inconsistent with the provisions of the Constitution specified above and is in excess of the power of the President as contained in Article 33 (f) of the Constitution. The accession and declaration does not bind the Republic qua state and had no legal effect within the Republic. …

“In these circumstances the petitioner cannot plead a legitimate expectation to have the findings of the Human Rights Committee enforced or given effect to by an order of this Court.” Sarath N Silva, Chief Justice.

Quotations

“In a regrettable ruling handed down on 15 September 2006 the Sri Lankan Supreme Court has struck a blow against those human rights victims in Sri Lanka expecting to obtain redress through the UN Human Rights Committee (HRC) for breaches of the International Covenant on Civil and Political Rights (ICCPR). The Supreme Court held that the Sri Lankan state’s accession to the Optional Protocol to the ICCPR – which allows individuals to complain directly to the HRC having exhausted domestic remedies – was unconstitutional. This is despite the fact that the complaints mechanism under the Optional Protocol to the ICCPR has been in force in Sri Lanka for nearly a decade, and that by ratifying the ICCPR the State has undertaken to ensure respect for those rights protected by it.” Sri Lankan Ruling undermines UN Complaints Mechanism, Interights.

“The judgement renders Sri Lanka’s accession to the Protocol under the ICCPR of no force and effect within the domestic context. Needless to say, the State’s obligations in international law will continue in force unless and until it denounces the Optional Protocol. Denouncing of the ICCPR Protocol by the State will carry with it serious consequences in the international law sphere, particularly in the context of the recent intensification of the conflict in the North East. Then again, the country’s election to membership of the UN Human Rights Council imposes a particular obligation which will itself be in issue if the Government continues to be ambiguous in respect of the domestic implementation of its international law commitments. Undoubtedly this judgement will now make the Government acutely uncomfortable when it sends its representatives before international committees to plead Sri Lanka’s conformity with treaty commitments.” Kishali Pinto Jayawardena, Law & Society Trust, Volume 17 September & October Joint Issue – 227 & 228.

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