A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Tuesday, July 25, 2017
The bill on enforced disappearances
By Neville Ladduwahetty-July 24, 2017, 8:22 pm
The
Bill states that it seeks "to give effect to the International
Convention for the Protection of All Persons from Enforced
Disappearances." The Convention that was ratified by Sri Lanka on May 3,
2016 came into force on June 24, 2016. The Bill neither specifies the
context in which it is intended to operate nor defines "Enforced
Disappearances". Under these circumstances both context and definition
have to follow what is stated in the International Convention.
THE CONTEXT: As stated in Article 1 Clause 2 of the Convention:
"No 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
disappearances".
THE DEFINITION: As stated in Article 2 of the Convention:
"For the purposes of this Convention, "enforced disappearance" 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 a 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".
It follows, therefore, that under no circumstances, not even during an
emergency which threatens the life of the nation such as happened during
the Armed Conflict in Sri Lanka, could Enforced Disappearances as
defined be justified. According to the definition, "enforced
disappearance" means "depriving a person’s liberty" and refusing to
disclose his/her whereabouts etc. etc"…with the authorization, support
or acquiescence of the State". Thisprovision violates the Constitution
of Sri Lanka relating to "personal liberty" statedin Articles 13(1) and
13(2) during an emergency.
It should be noted that Article 15 (7)subtitled "Restrictions on
Fundamental Rights",states that Articles 13(1), 13(2) "shall be subject
to such RESTRICTIONS (emphasis added) as may be prescribed by law in the
interests of national security, public order and the protection of
public health or morality…". Therefore, the provision in Article 13(2)
that a "…person held in custody, detained or otherwise deprived of
personal liberty…"could be subjected to restriction during an emergency
that threatens the life of a nation is recognized in the Constitution of
Sri Lanka. The Bill on the other hand does NOT recognize any
restrictions during an emergency. Thus the provisions in the Bill
violate the Constitution.
Notwithstanding such contradictions Article 13(6) states:
"No person shall be held guilty of an offence on account of any act or
omission which did not, at the time of such act or omission, constitute
such an offence and no penalty shall be imposed for any offence more
severe than the penalty in force at the time such offence was
committed".
"Nothing in this Article shall prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by the community of nations". Thus, a provision in the
Constitution could become subordinate to a provision accepted by the
"community of nations".
The Convention was adopted by the UN on December 20, 2006 and was opened
for signature on February 6, 2007. As of July 23, 2017, ONLY 57 nations
have signed and ratified the Convention. While several countries have
only signed, but NOT ratified the Convention, others such as the U.S.;
U.K.; Australia; Canada; China; Russia and Pakistan and other countries
have not signed. Therefore, since it is reasonable to conclude that the
Convention is NOT recognized as law by the "community of nations", its
provisions should not be retroactive. Thus, Article 13 (2) does not
apply to offences prior to 2007 and Article 13(6) is not applicable to
provisions in the Bill,because the Bill is subordinate to the
Constitution.
A fact that is clearly evident is that while underemergency situations
that"threaten the life of a nation", as happened during and after the
Armed Conflict in Sri Lanka,the Constitution recognizes the principle
that certain Fundamental Rights could be derogated for the survival of
the nation, the Bill does not. Thus, the Bill is in violation of the
Constitution.
Consequently, the options are that either the Bill is revised to
accommodate existing provisions in the Constitution or for the
Constitution to be amended to accommodate provisions in the Bill. If it
is to be the latter route since some of the amendments relate to
fundamental rights included as part of the sovereignty of the People per
Article 3, any amendments to provisions in the Constitution relating to
Fundamental Rights will need a two-thirds majority in Parliament and
approval by people at a referendum.
THE ISSUE of EXTRADITION
Article 8 of the Bill states:
"Where a request is made to the Government of Sri Lanka, by or on behalf
of the Government of a Convention State for the extradition of any
person accused or convicted of an offence under sections 3 or 4, the
Minister shall, on behalf of the Government of Sri Lanka, forthwith
notify the government of the requesting State of the measures which the
government of Sri Lanka has taken, for the prosecution or the
extradition of that person for that offence".
According to this provision, the possibility exists that any personcould
be extradited to a Convention State on a mere accusation. Such
accusations could originate in Sri Lanka or in a Convention State.
Either way, the Bill has no provision for any procedures that should be
followed within Sri Lanka or outside; not even a preliminary
investigation, other than what the Minister proposes. The lack of any
formalised procedures to establish the credibility of the accusation
prior to extradition presents ample opportunities for arbitrariness,
selectivity, abuse and victimization.
Notwithstanding the provision in Article 8, Article 6 of the Bill states
that the High Court of Sri Lanka "…shall have exclusive jurisdiction to
try offences relating to Enforced Disappearances". It also states that
IF an offence is committed outside Sri Lanka, the High Court "shall have
the jurisdiction to try such offences as if they were committed within
Sri Lanka"whether the person is or is not a citizen of Sri Lanka, a
habitual resident of Sri Lanka, or a national of a Convention State.
Therefore, the need for extradition if requested by a Convention State
does not arise as long as the High Court has jurisdiction to try
offences both within and without Sri Lanka. Thus, it is starkly evident
that Articles 6 and 8 in the Bill contradict each other, and
furthermore, that Article 8 is redundant.
CONCLUSION
The Bill is intended to give effect to the International Convention for
the Protection of All Persons from Enforced Disappearances. In the
absence of the context in which the Bill is expected to operate, as well
as a definition of "Enforced Disappearances", it is necessary to rely
on the wording in the International Convention upon which this Bill is
being based. According to the Convention, the context is that NO
exceptional circumstances, even emergencies, "may be invoked as a
justification for enforced disappearances". However, the Constitution of
Sri Lanka recognizes that certain circumstances,such as emergencies
exist, where the principle of derogation of certain Fundamental Rights
is acknowledged. This being the case, the Bill contradicts the
Constitution of Sri Lanka. Therefore, either the Bill has to be revised,
or the Constitution has to be amended, and since Fundamental Rights are
included as a component of the sovereignty of the People in Article 3
of the Constitution, any amendment relating toFundamental Rights would
amount to amending an entrenched Clause in the Constitution, which would
thus require a 2/3 majority of Parliament and approval by the people
ata referendum. Furthermore, since provisions in the Convention also
violate provisions in the Constitution of Sri Lanka, the Government
should be held accountable for signing and ratifying the Convention.
The Bill states that the High Court has the jurisdiction to try offences
relating to Enforced Disappearances whether committed within Sri Lanka
or outside it, if committed by any person, whether a Sri Lankancitizen
or not, by a habitual resident in Sri Lanka,or a national of a
Convention State. Since members of the security forces would be Sri
Lankan citizens, and since offences relating to Enforced Disappearances
would be tried by the High Court, there are no grounds whatsoever for
extradition. Under these circumstances, there is absolutely no
justification for the existence of Article 8 along with Article 6 in the
Bill.
It is evident from the foregoing that this Bill not only violates the
Constitution but also contains Articles that contradict each other. In
view of these multiple flaws, the Bill should be withdrawn. Furthermore,
as long as existing provisions in the Constitution remain, the
provisions in the Convention cannot be accommodated. Sri Lanka should
therefore withdraw from being a Convention State.