by Sriyan de Silva

 Concerns have been expressed about the possibility that in consequence of the Government’s ratification of the Convention on Enforced Disappearances, Sri Lanka would appear to have submitted to the jurisdiction of the International Criminal Court, and is therefore legally bound by the Convention. Therefore it is vitally necessary to examine and be clear about the point at which Sri Lanka is legally bound by International Conventions it has ratified.

My article first seeks to explain why Sri Lanka is yet not legally bound by the Convention on Disappearances. In essence, mere ratification of a Convention does not by itself create legal obligations for Sri Lanka to observe its provisions. This is of paramount importance because those who wish to give legal rights to other countries to have Sri Lankan nationals extradited in the circumstances envisaged by the Bill, may well resort to surreptitious means to have it passed in Parliament in accordance with the new strategies adopted by the Government as exposed by the media and several writers. If this fails, they may well try to fundamentally change our system of law into one where ratification of Conventions would result in their automatic incorporation into our law, thus by-passing Parliament.

My second objective is to suggest, in the last few paragraphs, the need to develop a certain doctrine or principle to enable a law which has been enacted under a procedure which is inconsistent with the democratic legislative process, to be disputed before the Supreme Court even after the law has been passed. The extent of misinformation in order to mislead the public in respect of proposed laws has been highlighted by several writers, and may well be a prelude to a strategy to further speed up the debasement of our legislative processes in the future through surreptitious means. The misinformation campaign continues even in regard to the proposed constitutional changes.

The Bill on the subject of Disappearances which was to be presented to Parliament is deeply flawed as explained by several writers. Crucially, Neville Ladduwahetty has earlier clearly and succinctly explained why the Bill is contrary to the provisions of our Constitution, and highlighted those provisions which even contradict each other. The Bill is an attempt to pass a law which in particular respects is even contrary to the Constitution and therefore would be unenforceable in those respects. The fact that the President stymied the debate on the Bill in Parliament does not necessarily mean the end of the matter. Attempts have been made to mislead the public by claiming that the extradition clause in the Bill on Disappearances is not a problem since it is the same as in our statute on torture, when in fact the latter is confined to extradition of non-nationals, while the Bill on Disappearance refers to extradition of Sri Lankan nationals to foreign countries. Obviously there must be a whole body of Sri Lankans who have been identified whose extradition to foreign countries has been already planned if the Bill is passed.

This article will deal among other things, with the point at which a Convention or Multilateral Treaty [Conventions are Treaties] becomes a part of the national law of a State that ratifies it.  For this purpose it is necessary to first be clear on what is meant by signing” and ratifying” a Convention. These two words mean the same thing unless a Convention specifically makes a distinction between them.

Signing or ratifying a Convention/Multilateral Treaty does not automatically make its provisions part and parcel of our national legal system [known in International Law as municipal law”], so as to create rights and obligations for the State. To explain why this is so, it is necessary to distinguish between two concepts in International Law – the Monist and Dualist systems of law. These concepts have been the subject of considerable discussion and debate for over seventy years among eminent international jurists. Whether Sri Lanka has submitted to international laws in the form of Conventions by only ratifying them, depends on whether Sri Lanka operates the Monist or Dualist system. The very fact that the Government finds it necessary to get Parliament to ‘transform’ international Conventions into our law, is an admission that such transformation into our legal system is necessary through our own legislative process to make such a Convention  binding on us, and therefore Sri Lanka operates under a Dualist, and not a Monist, system of law.

Those advocating the Monist Theory have claimed that both national and international law are based on one principle, which has been variously described as ‘right’ or social solidarity or that agreements must be implemented [pacta sunt servanda]. The large majority supports the Dualist theory. While the State may have consented to a Convention by ratifying it, the Dualist theory requires that to be bound by such Convention, a State should have, by whatever means it promulgates laws, incorporated the International Law into its own legal system. There is, of course, nothing to prevent a State providing in its own Constitution for automatic incorporation into its laws by mere ratification. That would make it a Monist system. The Dualist Theory is implicitly based on the supremacy of the State. It claims that International and Municipal [national] laws exist as separate systems, and cannot over-rule each other. Liability under International Law, where there is provision for enforcement, can arise when a State which has violated the International Law [such as a Convention] has, in accordance with the doctrine of transformation”, incorporated such law into its own legal system. The position has never been different where Sri Lanka is concerned. It is a matter of prime importance that no so-called developed country has submitted to the Monist theory. The overall conclusion is that Sri Lanka, operating under the Dualist system, can incur legal obligations under international Conventions ONLY if their provisions have been incorporated into our legal system through the proper procedures.

I will therefore rest my case, for the benefit of any Monists who may be lurking somewhere, on the following words of W. Friedmann the eminent former Professor of International Law and Director of International Research at Columbia University, in his classic book Legal Theory [5^th ed., p. 580]:

The weakness of the ‘monist’ theory is that it stipulates the model of a sovereign equipped with the power both of command and punitive sanctions, as the only type of legal order. But once we admit that there are different types of legal systems, with different degrees of authority and sanctioning power, we can accept international law as a weaker, but nevertheless real legal order, distinct in this and many other respects from the characteristics of a municipal legal system.”

The conduct of officials of UN Agencies such as of the UNHRC for example, which includes sponsoring palpably false reports and threatening small/defenceless countries to please certain powerful countries, whilst turning a blind eye to their abuses, stands in stark contrast to that of a major UN specialized agency, the International Labour Organization [the ILO, founded in 1919]. Its impeccable Constitution ensures its governance through its tripartite structure of governments, employers’ and workers’ organizations, all of which are represented on its Governing Body and participate in its decision-making processes. This makes it impossible for a few powerful governments to control its agenda. It has passed 189 Conventions – more than any other body. ILO Conventions become a part of national law not on ratification by States, but by incorporation of their provisions in their national laws. Unlike individuals in some UN agencies, ILO officials treat members with the utmost respect and in a civilized manner – a culture alien to many of these human rights specialists.

What if a Sri Lankan Government finds a way to incorporate foreign laws into our law through a process inconsistent with the law making procedure, even unconstitutional, and by-passing the Supreme Court? In such an event, it would require the development of a doctrine of nullity [as the law has in other areas] applicable to such law. Our Constitution debars a challenge of a law passed by Parliament and has received the Speaker’s assent.  We need to develop a principle that if a law is passed by means which are surreptitious, a process which denies adequate scrutiny to prevent opposition, uses language in the Bill/Law which signifies different meanings in the three languages – such laws should not be covered by the constitutional bar to challenging it in the Supreme Court after it has received the Speaker’s assent. Prior to December 1968 Courts in England took the view that a statutory provision that a Minister’s decision on a particular matter shall not be called in question in any court or otherwise, ousted the jurisdiction of the courts to examine and rule on such decision.  However, in what came to be a famous decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [1968 2 AC 147] the Court held that the principle of the exclusion of the Court’s jurisdiction to challenge a Minister’s decision in the earlier mentioned circumstances, did not apply where the MInister acted without jurisdiction [i.e. outside his jurisdiction]. A similar doctrine could be developed to the effect that the Constitutional bar to a challenge of a law after it is enacted would not apply where such enactment was improperly obtained through means earlier referred to.

The government has resorted to a strategy of introducing amendments at the last moment into Bills which are unrelated to the subject matter of the Bill. In essence, the government  introduced a Bill to increase female representation in the PCs, but subsequently added at the committee stage, provisions contained in the proposed 20^th Amendment which had failed to find acceptance by the Supreme Court. These additions were unrelated to the subject matter of the Bill. What should have been done at that stage is for the Bill to have been returned as being inconsistent with proper legislative procedure. The standard work on the subject, Erskine May’s Parliamentary Practice [17^th ed.] refers to types of Bills returned by the Speaker in the House of Commons. Significantly it includes a Bill which has gone beyond its title” [page 248]. The chief characteristics of the Speaker’s Office are authority and impartiality [May, page 247]. He further states: Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist….. to ensure the impartiality of the Speaker…..” We thus need to develop a doctrine of nullity or an equivalent in the context of what is happening in the country, or else remove the constitutional bar to challenging a law after it has been enacted and the Speaker’s assent obtained.

Legislative powers are too important for the well-being of people in a country to allow laws improperly enacted to be protected from challenge due to a failure to dispute them prior to the Speaker’s assent. Legislation pushed through by curtailing the right to proper examination of its provisions or through other practices which amount to deception and/or a lack of transparency and/or a fraudulent procedure, is surely not valid law and is therefore a nullity. If a law is enacted through such means before it can be challenged in Court authorizing the Government to seize the assets of any citizen, or even order his/her imprisonment without due process, such would not be a law that would enjoy our Constitutional protection because it must surely be deemed a nullity. These extreme examples raise questions such as: what is a law, what procedures must be followed for a law to acquire that status, etc. If the Bill on Disappearances had been passed by Parliament before being challenged in Court, it would not qualify as a valid law due to its conflict with the Constitution, and therefore should be regarded as a nullity. If it is not a nullity and therefore it cannot be contested in the Supreme Court after the Speaker’s assent, then the implication is that a government can change most of the Constitution by slipping unconstitutional provisions into other Bills. Even a fully fledged dictatorship could be established through the means presently being resorted to. If they are not contested before the Speaker’s assent, such would become law. We would then reach the situation that even non-laws become laws.

All this calls for an appropriate legal fraternity willing to challenge the actions of the Government. It also requires a degree of jurisprudential thinking. Crucially, we also require an independent Supreme Court which we do have notwithstanding politically motivated criticisms, willing to uphold such a doctrine. The law is not static. We need to accept that legal development is required not only in the sphere of human rights. Just as much as human rights are said to be an integral part of a democratic system, so also should the right to be subject to laws which are passed in a manner which does not debase or destroy the very fundamental legislative system which is an integral part of a democratic system.

13 October 2017.