Bar Association of Sri Lanka (BASL) attempt to undermine the Supreme Court and Parliament
Posted on September 13th, 2016

By C. A. Chandraprema Courtesy The Island

It has been reported in the press that the Bar Association of Sri Lanka (BASL) will be filing papers in the Supreme Court, seeking a revision of the apex court’s judgment in the landmark 2006 case Nallaratnam Singarasa v. The Attorney General, popularly known as the Singarasa case. The Secretary of the Bar Association Amal Randeniya confirmed this when contacted by this writer. The BASL’s proposed action will have far reaching implications for Sri Lanka and the public should be made aware of what exactly the Bar Association intends to do. The importance of the Singarasa case is that it was a landmark judgment which defined the limits of executive power.

Singarasa was convicted by the High Court on five charges that he, between 1 May 1990 and 31 December 1991 together with LTTE leaders like Sornam and Pottu Amman, conspired to overthrow the lawfully elected government and attacked Army camps in Jaffna Fort, Palaly and Kankesanthurai. The charges against him had been brought under the Emergency Regulations and the Prevention of Terrorism Act. He was sentenced to 50 years RI. Singarasa appealed against his conviction to the Court of Appeal, which dismissed his case on 6 July 1999, but they reduced his sentence to 35 years RI. Singarasa then sought special leave to appeal from the judgment of the Court of Appeal and a Bench of the Supreme Court comprising of Justices Mark Fernando, Wadugodapitiya, and Wijetunga refused special leave to appeal on 28 January 2000.

On 19 June 2001 Singarasa petitioned the Human Rights Committee in Geneva. The Human Rights Committee should not be confused with the Human Rights Council which is a body made up of states representatives. The Human Rights Committee on the other hand is an international tribunal set up under the provisions of the International Covenant on Civil and Political Rights (ICCPR) to hear petitions from citizens of member states about the violations of rights guaranteed under the ICCPR. Sri Lanka had acceded to the International Covenant on Civil and Political Rights on 11 June 1980 and to the Optional Protocol of the ICCPR on 3 October 1997. It is under the provisions of the Optional Protocol that states recognize the competence of the Human Rights Committee in Geneva to receive petitions from individuals in member states.

Since Sri Lanka had acceded to the Optional Protocol of the ICCPR, Nallaratnam Singarasa appealed to the Human Rights Committee in Geneva claiming that Article 14(1) of the ICCPR which guarantees the right of persons facing criminal charges to ‘a fair and public hearing by a competent, independent and impartial tribunal’ had been infringed by the Sri Lankan state in his case because he had been convicted on the sole basis of his alleged confession, which had not been made voluntarily. Singarasa argued that reliance on his confession, in a situation in which (under the PTA) the burden was on him to prove that the confession was not made voluntarily, rather than on the prosecution to prove that it was made voluntarily, amounts to a violation of his rights under Article 14(3)(g) of the ICCPR which guaranteed the rights of the accused ‘not to be compelled to testify against himself or to confess guilt’.

On 30 July 2004 the Human Rights Committee in Geneva held in favour of the petitioner and recommended that the Sri Lankan state should provide Singarasa with ‘an effective and appropriate remedy, including release or retrial and compensation’. Armed with this ruling, Singarasa’s lawyers filed an application in the Supreme Court on 16 August 2005 for revision of the SC judgment of 28 January 2000 which refused Singarasa leave to appeal, and to set aside the conviction and sentence imposed on him. This case was heard before a five-member bench with Chief Justice Sarath N Silva and Justices Nihal Jayasinghe, N.K. Udalagama, N.E. Dissanayake and Gamini Amaratuga. In its judgment, the SC made the following observations.

1. Our constitution is based on the dualist theory where there are two separate and independent legal systems, one national and the other international.

2. In our constitution, there is a functional separation in the exercise of power by the three organs of government, the executive, legislature and the judiciary.

3. International treaties entered into by the President and the Government of Sri Lanka which are consistent with the Constitution and written law would bind the Republic but still has to be legislated for by the Sri Lankan parliament to have internal effect.

4. The limitation on the power of the executive to bind the Republic is contained in Article 33(f) which states that the president has the power ‘to do all such acts and things which are not inconsistent with the provisions of the Constitution or written law’.

5. If 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) cited above and ultra vires. Such act of the President would not bind the state.

6. Thus, the President is empowered to represent Sri Lanka and enter into a treaty or accede to a Covenant, the contents of which are not inconsistent with the Constitution or written law.

7. Judicial power forms part of the sovereignty of the people and could be exercised in terms of Article 4 (c) of the Constitution only by courts, tribunals or institutions established or recognized by the constitution or by law.

8. The Petitioner cannot seek to ‘vindicate and enforce’ his rights through the Human Rights Committee in Geneva, which is not reposed with judicial power under our constitution.

9. The President is not the repository of the legislative power of the people which in terms of Article 4(a) is exercised by Parliament and by the people at a referendum.

10. The Supreme Court quoting Article 2(2) of the ICCPR observed that the Covenant itself is based on the premise that legislative measures would be taken by each state party to give effect to the rights recognized in the covenant. Under Article 2(2) of the ICCPR each state party undertakes to take the necessary steps to adopt ‘such laws as may be necessary’ to give effect to the rights recognized in the Covenant.

11. No legislative measures were taken to give effect to the Optional Protocol of the ICCPR and therefore it does not have internal effect in Sri Lanka.

12. A recognition of the power of the Human Rights Committee to receive and consider petitions from Sri Lanka is an exercise of legislative power which comes within the realm of Parliament and the people at a referendum.

13. According to Article 76(1) of the Constitution, Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative power.

14. Under Article of the constitution,76(2) the only instance in which Parliament could even by law empower the President to exercise legislative power is restricted to the making of regulations under the law relating to public security.

15. Therefore the accession to the Optional Protocol of the ICCPR in 1997 by the then President is in excess of the power of the President as contained in Article 33(f) of the Constitution and does not bind the state.

The foregoing would show that what the Supreme Court said in the Singarasa case was very simple. There are certain limits on the power of the executive arm of the state headed by the President. The executive arm can enter into treaties and international conventions that are not inconsistent with the constitution of Sri Lanka. If the executive arm enters into treaties or accedes to conventions that are inconsistent with the constitution, such acts are ultra vires. Even when the international treaties and conventions entered into by the executive arm are consistent with the constitution, they still have to be legislated into law so as to have effect in Sri Lanka. Article 2(2) of the ICCPR itself expects all member states to pass laws to give effect to the convention within those states. However Sri Lanka had not passed laws to give effect to the Optional Protocol of the ICCPR which allows for petitions to be addressed from Sri Lanka to the Human Rights Committee in Geneva which means that rulings of the Human Rights Committee have no legal effect in Sri Lanka.

If the necessary legislation had been passed, the Supreme Court would of course have given effect to the law. Now by petitioning the Supreme Court to have the judgment in the Singarasa case overturned, the Bar Association of Sri Lanka is in effect asking the Supreme Court to submit itself to the Human Rights Committee in Geneva without parliament having passed laws to give effect to the Optional Protocol of the ICCPR. This will have a direct impact on the judicial structure in this country and the authority of the Supreme Court as the highest court in the land. Any attempt to get the Supreme Court to accept the ruling of the Human Rights Committee in Geneva without the necessary legislation being passed by Parliament smacks of an attempt to get the Supreme Court to circumvent the legislative power of the parliament and the people.

Any attempt on the part of the BASL to move the Supreme Court to accept the ruling of the Human Rights Committee in Geneva will undermine the legislative authority of parliament and also the authority of the Supreme Court as the highest court in the land. In recent times, the Supreme Court has upheld the authority of parliament as in the VAT case where the SC held that parliament has to pass legislation to enable VAT to be increased and that taxes could not be imposed or increased simply through executive fiat. Then when it came to the Coal tender case, the Supreme Court once again very clearly pointed out the limits of executive power. That is one of the factors that made Noble Resources International Pte Limited v Minister of Power and Renewable Energy et al, a landmark case in its own right. (See: http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=151110 )

Nallaratnam Singarasa v The Attorney General was an earlier case which dealt with similar issues. The question that arises here is, instead of asking the government to pass the necessary laws to give legal effect to the Optional Protocol of the ICCPR why is the BASL trying to get the Supreme Court circumvent the legislative power of parliament while at the same time undermining its own authority by overturning the judgment given in the Singarasa case? This is not merely an appeal to the Supreme Court in a criminal case. Singarasa initiated this particular case in the Supreme Court on 16 August 2005 and asked for a revision of the earlier decision of the court regarding his case entirely on the basis of the findings of the Human Rights Committee in Geneva and it is not possible to overturn the judgment in Nallaratnam Singarasa v the Attorney General delivered on 15 September 2006 without very serious and far reaching constitutional implications.

The issue here is not about Singarasa as an individual. If anybody feels that he has been denied a fair trial because he was charged under the provisions of the PTA, they can always ask the President to give the person concerned a pardon. Given the kind of former LTTE functionaries who have been released, it would make no difference if Singarasa himself was given a full pardon and let out of jail. The reason why the President has been given sweeping powers to pardon just about anybody regardless of the crimes he may have committed is to be able to fine tune the relationship between the criminal justice system and wider society. However, we don’t hear anybody talking about Singarasa as an individual. Everybody seems to be interested only in the constitutional implications of the Singarasa case. That is precisely what worries us as well.

One Response to “Bar Association of Sri Lanka (BASL) attempt to undermine the Supreme Court and Parliament”

  1. NAK Says:

    Doesn’t the OMP contains provisions to consider confessions as evidence?

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