By Neville Ladduwahetty Courtesy The Island

October 20, 2017, 10:09 pm

The focus of the entire nation is currently on constitutional reforms. In the midst of it, this government has ratified an international convention by becoming a signatory to the “The International Convention for the Protection of All Persons from Enforced Disappearances”, on December 10, 2015. The Convention that was ratified by the government on May 3, 2016 came into force in respect of Sri Lanka on June 24, 2016. The attempt herein is to address whether the government has the authority to ratify an international convention that violates provisions in Sri Lanka’s Constitution.

The provision in Article 1 section 2 of the Convention read with Article 2 violates provisions in Sri Lanka’s Constitution.

For instance, Article 1 section 2 states:

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any public emergency, may be invoked as a justification for enforced disappearances”.

And, Article 2 states:

“For the purposes of this Convention, “enforced disappearances” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.

WHY the CONVENTION VIOLATES the SRI LANKA CONSTITUTION

According to the Convention, the key provisions of Article 1 section 2 and Article 2 cited above are that “No exceptional circumstances whatsoever …may be invoked as justification for enforced disappearances” and enforced disappearances means any form of deprivation of liberty, its acknowledgment and placing such persons outside the law.. These provisions of the Convention violate Article 15 of Sri Lanka’s Constitution for the reasons cited below.

The sub-title of Article 15 of the Constitution is “Restrictions on fundamental rights”. While Article 15 recognizes the principle that certain rights need to be restricted during exceptional circumstances in the interest of “national security”, the Convention does not provide for any exceptions whatsoever. For instance, during the armed conflict in Sri Lanka, serious restrictions on rights were legitimately imposed in the name of national security. However, such restrictions are not permitted under provisions in the Convention. It is this that makes the Convention to be in violation of the Constitution. Furthermore, since the Convention limits enforced disappearances to “agents of the State or by persons acting with the authorization, support or acquiescence of the State”, Article 15 (8) becomes relevant.

Article 15 (8) states:

The exercise and operation of the fundamental rights declared and recognized in Articles 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interest of the proper discharge of their duties and the maintenance of discipline among them”.

Since the entirety of Articles 13 and 14 are subject to restrictions as prescribed by laws, such as for instance the Prevention of Terrorism Act, the Convention that makes no exceptions whatsoever the circumstances is in violation of the Constitution of Sri Lanka. Under the circumstances, the question that arises is whether the President has had the authority to sign and ratify the Convention on Enforced Disappearances in view of provisions in Article 33 that describe the “Powers and functions of the President”.

POWERS and FUNCTIONS of the PRESIDENT

Article 33 of the Constitution lists the “Powers and functions of the President”. The issue is whether the President has the authority under Article 33 to sign and ratify the Convention on Enforced Disappearances. The answer to the question could be found in the Judgment by Chief Justice Sarath N. Silva relating to the Supreme Court Case on Nallaratnam Singharasa.

Section 3 titled “Dualism in Sri Lanka” of the judgment states:

“It is seen from these Articles [4 (a) to (c) of the Constitution] forming its effective framework that our Constitution is cast in a classic Republican mould where sovereignty includes legislative, executive and judicial powers, exercised by the respective organs of government for and in trust for the People…The organs of government do not have plenary power that transcends the Constitution and the exercise of power is circumscribed by the Constitution and the written law that derive its authority there from…There could be no plenary executive power that pertain to the Crown as in the UK and the executive power of the President is derived from the People as laid down in Article 4 (b)”.

“This limitation on the power of the executive to bind the Republic qua state is contained in Article 33 which lays down the power and functions of the President”.

“The relevant provision being Article 33 (f), reads as follows:

“to do all such acts and things, not being inconsistent with the provisions of the Constitution or written law as by international law, customs or usage he is required or authorized to do”.

“Thus the President as Head of State is empowered to represent Sri Lanka and under customary international law enter into a treaty or accede to a Covenant, the contents of which is (sic) not inconsistent with the Constitution or written law. The limitation imposes the principle of legality being the primary meaning of the Rule of Law, “that everything must be done according to law” (Administrative Law by Wade and Forsyth – 9th Executive Director, (Page 20)”.

Continuing under Section 5 titled “Presidential Power to Enter into a Treaty” the judgment states:

“….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) cited above and ultra vires”.

“Such act of the President would not bind the republic qua state”.

“This conclusion is drawn not merely in reference to the dualist theory referred to above but in reference to the exercise of governmental power and the mutations thereto in the context of Sovereignty as laid down in Article 3, 4 and 33 (f) of the Constitution”.

CONCLUSION

The International Convention for the Protection of All Persons from Enforced Disappearances is in violation of Sri Lanka’s Constitution because the Convention does not recognize any “…exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance”, whereas Article 15 of the Constitution on the other hand recognizes the need for restrictions as may be prescribed by laws such as the Prevention of Terrorism Act, in the interest of national security.

Consequently, the President violated Article 33 (f) when he authorised the signing and ratification of the International Convention on Enforced Disappearances. This is confirmed by the Supreme Court judgment in the Case on Nallaratnam Singharasa cited above. Therefore, clearly, Sri Lanka should withdraw from being a convention state in this and any other convention that violates the Constitution.