Neville Ladduwahetty, in Island, 3 March 2020, where the title runs “Fundamental Rights, Human Rights and other rights”
At the 43rd Session of the Human Rights Council, held in Geneva, Sri Lanka’s Minister of Foreign Relations Dinesh Gunawardena, on 26th February, 2020, placed on record a clear, firm and unambiguous statement that Sri Lanka was withdrawing from co-sponsorship of UNHRC Resolution 40/1 and its precedent 30/1, on grounds that “Constitutionally, the resolution seeks to grant upon Sri Lanka obligations that cannot be carried out within the constitutional framework and it infringes the sovereignty of the people of Sri Lanka and violates the basic structure of the constitution”.
In that context, the Government decided only to withdrew from the co-sponsorship of the Resolution, instead of withdrawing from the Resolution per se because it had no other option. If the Government did not withdraw from co-sponsorship, it would have become party to a Resolution that violates its own Constitution. No responsible government could do so consciously. In that background, the comments made by spokespersons of some foreign States, and local critics, regarding the measures adopted by Sri Lanka, should be dismissed because they seem to trivialize the critical role of a Constitution being fundamental to the governance of any State.
Article 46 of the Vienna Convention on the Law of Treaties 1969 states: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Thus, since a Constitution is the most basic of a State’s “internal law of fundamental importance”, a State has the grounds to invalidate its commitments whether to the UNHRC or any other. Although this depends on whether a Resolution of the UN Human Rights Council reaches the status of a Treaty or not, no sovereign State should be expected to fulfill any commitment undertaken in violation of its Constitution since it forms the law of “fundamental importance” of its Peoples.
Former Minister Mangala Samaraweera is reported to have admitted that “the final text of the resolution was largely negotiated over the telephone with the President … the Prime Minister … and the Ambassador of the US and the High Commissioner of the UK” (The Island, February 29, 2020). One cannot expect the latter two participants involved in the “negotiations” to finalize the draft to be aware of the impact of their deliberations on Sri Lanka’s Constitution or whether any of its provisions were “deliverable”. On the other hand, the others who participated in finalizing the draft had done so regardless of its impact on the Constitution, without any heed to the oath they had taken to “uphold and defend the Constitution”. What fate awaits them for their treachery only time will tell.
The Constitution And Fundamental Rights
Sri Lanka’s Constitution is based on Fundamental Rights as in Chapter III. The Rights that are fundamental to the life of the citizens of a country are considered as fundamental rights. On the other hand, human rights imply the rights accorded to all the human beings, irrespective of nationality, race, caste, creed, gender, etc.
The main difference between fundamental rights and human rights is that the fundamental rights are specific to a particular country, whereas human rights are expected to have universal acceptance. Therefore, each sovereign State is concerned with what is specific to them, while the UN and its agencies, such as the Human Rights Council, are concerned, with universal rights. Under this framework, how the specific and the universal rights are reconciled could become an issue for any country.
Chapter III of Sri Lanka’s Constitution has seventeen (17) Articles. These provisions collectively are rights every citizen is entitled to enjoy from the State of Sri Lanka. For instance, Article 13 (6) recognizes “general principles of law recognized by the community of nations”. This provision entitles Sri Lanka to justify measures it adopted during the armed conflict in keeping with the provisions applicable to non-international armed conflict codified in Additional Protocol II of 1977. Furthermore, several clauses of Article Fifteen (15) recognize that certain fundamental rights are restricted in the interest of national security during an emergency. Similar restrictions are recognized in Article 4 of the International Covenant on Civil and Political Rights during threats to “life of the nation”.
While Article 15, cited above, demonstrates congruence between specific fundamental rights and universal human rights, there are instances where they differ. For instance, the right to life is not specified as a fundamental right in Chapter III of Sri Lanka’s Constitution. On the other hand, Part III of the Covenant cited states: “Every human being has the inherent right to life”. Such contradictions need to be reconciled. It is desirable for Sri Lanka to incorporate the “right to life” into its body of fundamental rights. However, the legal and constitutional constraints involved could make such incorporation undeliverable. Thus, incorporation of the universal into the specific becomes a country specific issue that depends on its political dispensations, however desirable it could be
UNHRC Resolution 30/1 refers to “allegations of violations and abuses of human rights and violations of international humanitarian law”. In this regard it is important to note that while International Humanitarian Law (IHL) applicable to non-international international armed conflict is codified in Additional Protocol II of 1977, International Human Rights Laws (IHRL) are not codified into a single document but are provided for in several UN instruments. Furthermore, to what degree these provisions resonate with the fundamental rights provided for in the Constitution is a function for the Human Rights Commission of Sri Lanka.
Sri Lanka set up a Human Rights Commission by an Act of Parliament in 1996 (ACT, NO. 21 of 1996). According to paragraph 10 of this Act its functions shall be:
a. “Inquire into and investigate complaints regarding procedures, with a view to ensuring compliance with the provisions of the Constitution relating to fundamental rights and to promoting respect for and observance of fundamental rights.”
d. “to make recommendations to the Government regarding measures to be taken to ensure that national laws and administrative procedures are in accordance with international human rights norms and standards”
Therefore, however inappropriate it may be to name the body “Human Rights Commission” and promote observance of “fundamental Rights”, it is the function of the Human Rights Commission of Sri Lanka (HRCSL) to ensure that the universal provisions relating to human rights are incorporated into the specifics of fundamental rights without violating the Constitution.
In the background of UNHRC Resolutions on accountability, the Human Rights Commission of Sri Lanka is in a position to make a significant contribution to address accountability by making a clear and unambiguous statement as to what specific human rights are applicable during a non-international armed conflict as had occurred in Sri Lanka, and at what point in time and under what circumstances the full scope of human rights is restored. If the position taken is that human rights do NOT cease even during an armed conflict, the Commission would be violating the Constitution and provisions of the UN Covenant on Civil and Political Rights which recognize the principle of derogation during threats to the security of a State. On the other hand, if it takes the view that derogation of human rights cease upon the conclusion of hostilities, the Commission would be ignoring the opinion of the International Tribunal for former Yugoslavia appointed by the Security Council that states that such derogation of human rights continues until a stable peace is reached. Therefore, as guardians of human rights in Sri Lanka, the Government should call upon its Human Rights Commission to make a clear and unambiguous statement on this issue because it would have an impact on how the issues of accountability are addressed.
Other rights are non-intervention in the internal affairs of Member States by UN and their agencies or by other Member States, and the right of self-determination.
Chapter I Article 2 (7) of the Charter of the United Nations states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…”.
The comments made by the Commissioner of the UN Human Rights Council are a direct assault on this “right”, judging from comments such as: “The fundamental problem remains that Sri Lanka has still not addressed impunity for past violations, nor undertaken the security sector reforms needed to address their drivers and enablers. Systemic barriers that continue to exist within the criminal justice system remain an impediment to real justice…”. Continuing, the Commission had the audacity to “also express concern that Sri Lanka’s independent institutions, strengthened under the 19th Constitutional Amendment, had come under attack under the current administration. She added that she was troubled by the recent trend towards moving civilian functions under the Ministry of Defence or retired military officers, and renewed reports of surveillance and harassment of human rights defenders, journalists and victims” (The Island, February 28, 2020).
The fact that the UN System does not have an inbuilt mechanism to warn when any of its agencies exceed their mandates and act as if they are a law unto themselves, is a systemic failure. This has given license to act without due restraint and talk down to Member States without realizing that there is no gold standard set to measure what type of determinations are made by Member States to warrant intervention by the UNHRC. Consequently, the UN and its agencies, such as the UNHRC, have become agencies “…of political bias” to be exploited by powerful States to suit their own ends.
These attitudes have infected the local Human Rights Commission. For instance, it has taken upon itself the task of vetting security personnel for UN Peacekeeping Operations notwithstanding that such tasks are beyond their mandate by their own admission. Such excesses are possible because there is no mechanism to comment on their conduct in view of their status as an “independent commission”.
Sri Lanka’s Minister of Foreign Relations, Dinesh Gunawardena stated clearly, and unambiguously, at the 43rd Session of the Human Rights Council in Geneva that the reason for withdrawing from the co-sponsorship of UBHRC Resolutions 40/1 and 30/1 was that certain provisions cast obligations on Sri Lanka that could not be “carried out within its constitutional framework” and furthermore that some are undeliverable. In such a context what needs to be appreciated is that Sri Lanka had no option but to withdraw, because if it did NOT, the Government would be party to a Resolution that violates the Constitution.
In response, the Commissioner Michelle Bachelet “expressed concern” about a host of issues such as security sector reforms; the criminal justice system being an impediment to real justice; about independent commissions set up under the 19th Amendment coming under attack; moving civilian functions under Ministry of Defence or retired military officers, to mention a few, not realizing the she was intervening in the internal affairs of a sovereign State in violation of the provision in Chapter I Article 2 (7) of the UN Charter which states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…”.
Another instance of the Human Rights Council continuing to act in violation of its mandate is to ignore the recommendation of the Panel of Experts appointed by the UN Secretary General and the report on of the Office of the Human Rights Council on Sri Lanka stating that the armed conflict in Sri Lanka was a non-international armed conflict and the applicable law is International Humanitarian Law (IHL). Thus, since accountability has to be addressed within the context of IHL laws, the Human Rights Council is acting beyond its legitimate jurisdiction by engaging itself in issues relating to International Humanitarian Law.
It is evident from the foregoing that Human Rights Commissions whether international or local appear to make their recommendations on the premise that all human conduct come under the rubric of human rights. They fail to recognize that the range of human rights is so vast that a common yardstick does not exist with which to measure the conduct of a State at any given time because the political and security environment of a State is always in a state of flux. Therefore, Human Rights Commissions should conduct a self-audit on how best to fulfill their mandates bearing in mind that their mandate is not limitless; a distinct limit being not to intervene in internal affairs of sovereign States. Above all, there has to be a balance between human rights, fundamental rights and other rights.