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Sunday, March 3, 2024

What earthly reason is there to fault me? – Sarath N Silva former CJ

I write in reference to the article bearing ‘Ex-CJ should be aware of agreements signed’ published in The Daily Mirror of August 31st, by Minister S. B. Dissanayake, to an interview given by me and published as an “opinion” in your newspaper of 22-08-2011.

The response alleges that I am ignorant of,

“…….three agreements signed by the Government of Sri Lanka with the U. N. Human Rights body. One agreement empowered citizens of Sri Lanka to seek redress if they find that they do not obtain justice in Sri Lanka. The second empowered the U N Body to re examine a specific case and the final agreement bound Sri Lanka to abide by the decisions of the body”.

It alleges further that “the then CJ obviated all three agreements by making a ruling that a decision of the Supreme Court of Sri Lanka, a Sovereign State, cannot be challenged by a citizen in any other body and that Sri Lanka does not have to abide by decisions of such bodies despite being a signatory State to such agreements.”

It appears that the Honourable Minister has been totally misinformed of the correct legal position. The Government of Sri Lanka has not signed any agreement with “the U. N. Human Rights body” as claimed by him.

There are three principal instruments of the United Nations that relate to Human Rights. They are;

(i) The Universal Declaration of Human Rights of 10th August 1948

(ii) The International Covenant on Civil and Political Rights (ICCPR) which entered into force in 1976 and acceded to by Sri Lanka in 1980

(iii) The International Covenant on Economic Social and Cultural Rights which also entered into force and acceded to by Sri Lanka as aforesaid.

Several of the Rights contained in the Universal Declaration and the ICCPR have been incorporated in our Constitution as Fundamental Rights. The Honourable Minister could peruse the many judgments I have written as Chief Justice in a period of nearly 10 years giving full effect to these Rights.

There was a complaint particularly by the European Union that although in terms of Article 2 (2) of the ICCPR, the Government has undertaken to give effect to the rights in the Covenant, laws have not been enacted within the country for this purpose. Therefore the Parliament enacted certain laws including the ICCPR Act No. 56 of 2007.

Thereafter the President sought an opinion from the Supreme Court whether Sri Lanka has taken measures necessary to give effect to the rights recognized in the ICCPR. I presided over the bench of 5 Judges that went into the matter and submitted a positive opinion in this regard. This opinion was submitted to the EU and the GSP + facility was extended in 2008. Thus, I have in no way obviated these 3 principal instruments of the U.N.

It may be that the Minister is endeavouring to advert to the Optional Protocol to the ICCPR. Sri Lanka did not accede to this Protocol in 1980 at the time it acceded to the ICCPR. But the Government of President Kumaratunga purported to accede to it without reference to Parliament. No law was enacted by Parliament to give effect to the Protocol. A person by the name of Singarayar was convicted by the High Court in respect of an offence connected with the LTTE and sentenced to 20 years Imprisonment.

The conviction and sentence were affirmed in the Court of Appeal and Supreme Court – by a bench presided by Hon. Mark Fernando J. He then made a communication to the Human Rights Committee that his rights under the Covenant have been violated by his judicial order. The Committee upheld this position and expressed the view that he should be discharged and paid compensation. Thereafter, an application was made to the Supreme Court that the previous order be vacated and Singarayar be found not guilty on the basis of the views expressed by the Human Rights Committee.

This matter was considered by a bench of 5 judges presided by me. It was held that in terms of Article 118 of the Constitution, the Supreme Court – “shall be the highest and final superior court in the Republic” and that the consistent jurisprudence has been that the Court will not revisit an order that has been made.

Further, that in terms of Article 4(c) being an entrenched provision of the Constitution, judicial power of the People of Sri Lanka shall be exercised by Parliament through Courts, tribunals and institutions established by the Constitution or by law. That the Human Rights Committee has not been established by Parliament as an institution vested with judicial power. It was also held that the President had exceeded the power vested by Article 33 (f) of the Constitution in purporting to accede to the Optional Protocol which was inconsistent with the Constitution.

In 2010, the EU laid down as a condition for the extension of the GSP+ facility that Sri Lanka should enact necessary laws to give effect to the Optional Protocol. The Government of which the Minister is a member firmly refused to abide by this condition leading to the denial of the GSP+ facility. In the circumstances, what earthly reason is there to fault me? I have only upheld the Constitution which I am duty bound to do.

The Minster has also stated that; “According to the Constitution, Members of Parliament cannot change their political party affliations, but Mr. Silva as CJ invalidated that by a ruling”. The Minister has been once again totally misinformed of the law. There is no provision in the Constitution that an M.P. cannot change his “political party affiliation”. It appears that the Minister is adverting to Article 99 (13) (a) of the Constitution which provides that when an M.P. ceases to be a member of a political party on whose nomination paper his name appeared at the time of election by reason of being expelled, his seat shall become vacant after one month.

In terms of the proviso to that Sub-Article the affected M.P. can challenge the validity of the expulsion in the Supreme Court and the seat will become vacant only if the Supreme Court holds that the expulsion is valid. There are many judgments of the Supreme Court as to the standard on which the validity of an expulsion should be tested. The leading case is the one relating to the expulsion of Dr. Sarath Amunugama and others from the UNP in the year 2000.

Although, I had been appointed Chief Justice a few months before, I was away from the Country when this case came up. It was heard by a bench presided by Justice Amarasinghe who was the acting Chief Justice. It was laid down that for there to be a valid expulsion it should be preceded by a fair inquiry in full compliance with the principles of natural justice. This was followed by a judgment entered by the present Chief Justice in regard to the expulsion of Mr. Bogollagama and so on. A case came up before me much later at the end of 2006 with regard to the expulsion of Mr. Keheliya Rambukwella.

I followed the law which had been well settled by that time. In addition the provisions of the UNP Constitution (which is yet causing problems) in terms of which Mr. Rambukwella was purportedly expelled did not apply to him. Is the Honourable Minister alleging that my judgment in the Rambukewella case is wrong?

The Minister has cast serous aspersions on my credibility and unfairly attributed motives to me. He has stated that my comments are addressed to primarily three audiences. “Firstly to the international community who are raising questions about Sri Lanka’s Human Rights conduct.

Secondly to “parts of the Tamil Diaspora and finally to the voters of Jaffna”. A careful perusal of my opinion as published by your esteemed newspaper would reveal that it has been expressed objectively on an analysis of historic facts related to current events. I have expressed an opinion in respect of certain broadcasts of Channel 4 as follows;

“Channel 4 has made war crimes allegations against the President and his brother Defence Secretary Gotabaya Rajapaksa. It is not correct for some TV channels in England to say that a President of a country and the Defence Secretary should be charged”

Is the Minister alleging that this opinion is wrong? In what manner, if any, is it addressed to the three audiences referred to by the Minister? In the circumstances I don’t think a further analysis of the Minister’s response is warranted. The response which tends to cast serious imputations as to my credibility and reputation is factually and legally incorrect.


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