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.

Related events
11 September 1980
3 January 1998
23 August 2004

Source
Singarasa v. Sri Lanka, UN Doc. CCPR/C/91/D/1033/2001 (23 August 2004); Law & Society Trust, Volume 17 September and October Joint Issue – 227 & 228.

Extracts from the Committee’s Views
1.1 The author of the communication is Mr. Nallaratnam Singarasa, a Sri Lankan national, and a member of the Tamil community. He is currently serving a 35 year sentence at Boosa Prison, Sri Lanka. He claims to be a victim of violations of articles 14, paragraphs 1, 2, 3 (c), (f), (g), and 5, and 7, 26, and 2, paragraphs 1, and 3, of the International Covenant on Civil and Political Rights. …

Facts as submitted by the author

2.1 On 16 July 1993, at about 5am, the author was arrested by Sri Lankan security forces while sleeping at his home. 150 Tamil men were also arrested in a “round up” of his village. None of them were informed of the reasons for their arrest. They were all taken to the Komathurai Army Camp and accused of supporting the Liberation Tigers of Tamil Eelam (known as ‘the LTTE’). During his detention at the camp, the author’s hands were tied together, he was kept hanging from a mango tree and was allegedly assaulted by members of the security forces. …

2.2 He was detained pursuant to the Prevention of Terrorism Act No. 48 of 1979.

2.3 [Between July and September 1993 he was interrogated, held incommunicado, and denied legal representation and medical assistance. For two days he claims to have been tortured] which included being pushed into a water tank and held under water and then blindfolded and laid face down and assaulted. …

2.5 [During his interrogation, since] the author could not speak Sinhalese, the Police Constable interpreted between Tamil and Sinhalese. The author was then requested to sign a statement which had been translated and typed in Sinhalese by the PC. The author refused to sign as he could not understand it. He alleges that the ASP then forcibly put his thumbprint on the typed statement. The prosecution later produced this statement as evidence of the author’s alleged confession. …

2.9 On 12 January 1995, in an application to the High Court, defence counsel submitted that there were visible marks of assault on the author’s body, and moved for a medical report to be obtained. On the Court’s order, a Judicial Medical Officer then examined him. According to the author, the medical report stated that the author 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. It 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”.

2.10 On 2 June 1995, the author’s alleged confession was the subject of a voir dire hearing by the High Court, at which the ASP, PC and author gave evidence, and the medical report was considered. The High 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 not found to be irrelevant under section 24 of the Evidence Ordinance. Section 16(2) of the PTA put the burden of proof that any such statement is irrelevant on the accused. (4) The Court did not find the confession irrelevant, despite defence counsel’s motion to exclude it on the grounds that it was extracted from the author under threat. …

2.11 According to the author, the High Court gave no reasons for rejecting the medical report despite noting itself 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.” In holding that the confession was voluntary, the High Court relied upon the author’s failure to complain to anyone at any time about the beatings.

2.12 On 29 September 1995, the High Court convicted the author on all five counts, and on 4 October 1995, sentenced him to 50 years imprisonment. The conviction was based solely on the alleged confession.

The State party’s submissions on admissibility and merits

4.8 On the claim of torture, the State party submits that the trial court and the Court of Appeal made clear and unequivocal findings that these allegations were inconsistent with the medical report adduced in evidence, and that the author had failed to make such allegations to the Magistrate or to the police, prior to the trial.

4.9 On the issue of a violation of article 14, paragraph 5, it notes that the author was afforded every opportunity to have his conviction and sentence reviewed by a tribunal according to law, and that he merely seeks to question the findings of fact made by the domestic courts before the Committee.

Issues and proceedings before the Committee

7.2 [A]s clearly appears from the court proceedings, the confession took place in the sole presence of the two investigating officers – the Assistant Superintendent of Police and the Police Constable; the latter typed the statement and provided interpretation between Tamil and Sinhalese. The Committee concludes that the author was denied a fair trial in accordance with article 14, paragraph 1, of the Covenant by solely relying on a confession obtained in such circumstances. …

7.4 On the claim of a violation of the author’s rights under article 14, paragraph 3 (g), in that he was
forced to sign a confession and subsequently had to assume the burden of proof that it was extracted under duress and was not voluntary, the Committee must consider the principles underlying the right protected in this provision…The Committee considers that it is implicit in this principle that the prosecution prove that the confession was made without duress….[T]he Committee also notes that the burden of proving whether the confession was voluntary was on the accused… Even if, as argued by the State party, the threshold of proof 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. The Committee notes in this respect that 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 its Magistrate, the Committee finds that inference to be manifestly unsustainable in the light of his expected return to police detention. Nor did this treatment of the complaint by its courts satisfactorily discharge the State party’s obligation to investigate effectively complaints of violations of article 7. …

7.6 In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective and appropriate remedy, including release or retrial and compensation. The State party is under an obligation to avoid similar violations in the future and should ensure that the impugned sections of the PTA are made compatible with the provisions of the Covenant.

Related events
11 September 1980
3 January 1998
15 September 2006