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Geneva determination creates tricky problem for government

Last week’s decision of the UN Human Rights Committee sitting in Geneva on the S.B. Dissanayake case has created a tricky situation for the Sri Lanka government with implications for the extension of GSP+ as well as legal questions on whether a foreign body could be permitted to upset/modify a judgment of the Supreme Court.

``That would be doing violence to our sovereignty,’’ senior legal sources said. He said that the President had the power to grant a free pardon and remove whatever disabilities that applies to Mr. Dissanayake. ``That is another matter altogether.’’

A senior government minister admitted that the determination of the UN Committee would have ``moral force’’ but argued that it was non-binding.

Mr. Nihal Jayawickrama, a legal scholar and law professor who served as Permanent Secretary to the Ministry of Justice during 1970-77 and represented Dissanayaka as counsel in the proceedings in Geneva urged that there is a treaty obligation cast on the government and the determination was binding.

In the Singarayar case, relating to a terrorist matter tried in the High Court which convicted the accused and imposed a sentence, the Court of Appeal affirmed the conviction but reduced the sentence. The Supreme Court upheld the decision of the Court of Appeal.

This matter was then taken to Geneva as a human rights question and the case was taken back to the Supreme Court to obtain the implementation of the Geneva decision.

``The Singarayer judgment was in two parts. In one, the SC held that Sri Lanka’s accession to the International Covenant on Civil and Political Rights was valid and binding on the government. But domestic enabling legislation had to be passed to give effect to obligations that arise.

``But the court held that the First Optional Protocol was ultra vires and incompatible with the Sri Lanka Constitution where judicial power was entrenched and exclusively in national judicature.’’

Falling in line with the Geneva determination (other than by executive action which is the president’s preserve) was described by a senior government lawyer as a ``severe blow to our sovereignty and is not something that should be permitted.’’

President Chandrika Kumaratunga, on the advice of Foreign Minister Lakshman Kadirgamar, signed the accession to the ICCPR at a time when Sri Lanka’s human rights record in the eyes of the world was running at a low ebb.

The determination held that the sentence of two years rigorous imprisonment imposed on Dissanayake ``was disproportionate to any legitimate aim’’ under the relevant articles.

It further concluded that the prohibition of Dissanayake’s right to be elected or vote for seven years after conviction and completion of sentence ``are unreasonable and thus amount to a violation of article 25(b) of the Covenant.’’

It held that in accordance with provisions of the Covenant the State was under an obligation to provide Dissanayake ``with adequate remedy, including compensation and the restoration of his right to vote and to be elected, and to make such changes in the law and practice as are necessary to avoid similar violations in the future.’’

``Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized by the Covenant, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to its Views. The state party is also requested to publish the Committee’s Views,’’ the determination concluded.

Representations on behalf of the State had been made to the Human Rights Committee by the Foreign Ministry and not the Attorney General’s Department, a senior official of the department said.

Some years ago, Ravaya Editor Victor Ivan successfully took a case against the Sri Lankan State to the UN Human Rights Committee in Geneva and compensation, to be agreed between the two parties, was ordered.

Ivan said after the Dissanayake judgment that although some years have elapsed and he has made his claim, ``nothing has been paid up to now.’’

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