By Sugeeswara Senadhira Courtesy Ceylon Today

A petition has been filed in Supreme Court, seeking issuance of a directive to the Government, to take measures to withdraw from the UNHRC Resolution it co-sponsored in September 2015, titled ‘Promoting Reconciliation, Accountability and Human Rights in Sri Lanka.’ The petitioner claimed that his fundamental rights were violated due to the Government co-sponsoring the Resolution. The respondents included former Foreign Minister, Mangala Samaraweera and Foreign Secretary, Ravinatha Aryasinha.

The Petitioner, Truth Seekers Movement (Sathya Gaveshakayo) Convener, Attorney-at-Law Premnath C. Dolawatta, states his fundamental rights, protected by Article 12(1), 12(2), 13(1) of the Constitution are continuously being violated or caused to be violated by the Government co-sponsoring this Resolution.
The Resolution was moved in September 2015 and the petition to challenge it has been moved four years later.

However, there is a precedent. In 1988, after the Provincial Councils were set up under the 13th Amendment to the Constitution, President J.R. Jayewardene issued a proclamation to temporarily amalgamate the Northern and Eastern Provinces. This was challenged in Supreme Court 17 years later, by the JVP.

A five-Judge bench, headed by then Chief Justice, Sarath N. Silva, ruled the temporary merger of the Northern Province with the Eastern Province is “unconstitutional, illegal and invalid.” The ruling was delivered on 16 October 2005. The three JVP petitioners, being residents of the Trincomalee and Digamadulla Districts, within the Eastern Province, the alleged infringement of their fundamental rights to the equal protection of the law, guaranteed by Article 12(1) of the Constitution. The Supreme Court delivered a unanimous verdict to allow the applications and grant to the petitioners the relief prayed for in the respective petitions.

The executive action impugned as denying to the petitioners equal protection of the law relates to the proclamation declaring that the provisions of Section 37(1) of the Provincial Councils Act No. 42 of 1987 shall apply to the Northern and Eastern Provinces, which resulted in these two provinces forming one administrative unit, a process commonly described as the merger of the two provinces. The case for the petitioners, articulated by H.L. de Silva, is that the proclamation (P2) resulting in the merger is “fatally flawed” due to the non-observance of the mandatory conditions as contained in the Constitution.

Political destiny of people

The petitioners said there was a strong likelihood of crucial decisions affecting the political destiny of the people of the Eastern Province being taken, on the basis of an unconstitutional order to merge the two provinces in September 1988.

Although, it was stated that a referendum will be held to decide on permanent merger or de-merger of the two provinces. But the referendum was never held. The then President, on 12 July 1990, made an Emergency Regulation, under Section 5 of the Public Security Ordinance, which stated the notice published by the Commissioner of Elections fixing the date and time of nominations “shall be deemed for all purposes to be of no effect.” The electoral process stopped there, and has remained ever since. As it were frozen, up to date. There has been no election for either the North East Provincial Council or separately for the Northern Provincial Council or the Eastern Provincial Council. Whereas, in respect of the councils for the other seven provinces in the country, elections have been held on the due dates in 1988, 1993, 1998 and 2004, the petitioners pointed out.

After a lengthy hearing, the Supreme Court ruled the merger of North and East was a violation of the Constitution, and ordered a de-merger.
The Petition calling for a declaration that co-sponsoring Geneva Resolution null and void, points out that by cosponsoring the resolution, the 1st and/or 2nd respondents and other delegates representing the Government of Sri Lanka at the UNHRC have given an undertaking and/or forwarded proposals to engage in several activities that are inconsistent with the Constitution.

The most serious among these undertakings relates to the establishment of a judicial mechanism with powers to investigate human rights violations and abuses and violation of international humanitarian law. The petitioner states, adding that as long as this remains in force, the petitioner and every citizen of Sri Lanka would be subject to the jurisdiction of a foreign judicial mechanism.

Sri Lankan Constitution

The Sri Lankan Constitution declares it a “free, sovereign, independent and democratic” republic, and the UNHRC Resolution infringes on the sovereignty of the people, especially subjecting the people and the country to foreign sovereignties and jurisdictions which would be amounting to unlawful alienation of sovereignty, which amounts to violation of Article 3 of the Constitution.
The petitioner states personnel who served in the armed forces and State officials who served in the State machinery and engaged in activities in State security would continuously be subjected to foreign jurisdiction.

Last year, President Maithripala Sirisena too publicly stated that he did not recognise the UNHRC Resolution. He said that this resolution, which was co-sponsored by Sri Lanka for a second time, had been worked out without his knowledge and that of the Foreign Ministry. Yet, a joint UNF-SLFP delegation sent by President Sirisena that was in Geneva did not oppose it and the resolution was carried unanimously.

President Sirisena said he had not given his consent for co-sponsoring either the 2015 Resolution (30/1) or the one passed the following year. The latest resolution, moved by a core group including the United Kingdom, Canada, North Macedonia and Montenegro, was co-sponsored by Sri Lanka without his approval, he said. It pledged to implement remaining provisions of Resolution 30/1, including the setting up of Hybrid Courts to try alleged war crimes by troops and LTTE terrorists.

Mano Tittawala

The President told a public meeting that it was Mano Tittawala, Secretary General of the Secretariat for Coordinating Reconciliation Mechanisms (SCRM), and Advisor to the Finance Ministry, who had written to Sri Lanka’s Permanent Representative at the UN in Geneva to co-sponsor the second resolution. It had been on the grounds that Prime Minister Ranil Wickremesinghe had agreed to it. President Sirisena bitterly criticised those responsible for the co-sponsorship, saying it was done behind his back. “I would wish we can withdraw from it. Discussions are now on over this matter,” President Sirisena told the Media.

The move would be a dramatic shift in Sri Lanka’s official position since 20 September 2015. The pros and cons of the withdrawal, a Foreign Ministry source said, were now being studied, in consultation with President Sirisena.
Meanwhile, the Supreme Court petition was filed seeking withdrawal from co-sponsorship of the UNHRC Resolution.