law as required by ICCPR. The Supreme Court with Sarath Silva CJ presiding questioned the ratification of
the Optional Protocol to ICCPR, and perceived the proceedings before the Committee as an interference
with the domestic courts on the basis that Sri Lanka followed a duallist approach to International law.
The decision has been criticized for misunderstanding the procedures under the Optional Protocol (See
Annex). Despite this decision communications are being filed before the Human Rights Committee under
the Optional Protocol and the Committee is expressing its views to the Government as it is fully authorized
to do, and also requesting the Government to take action to ensure that ICCPR obligations of the State are
fulfilled. [See Annex recent progress review by ICCPR 2014]. The Manohari Pelaketiyta case also reaffirms
a judicial approach in the Supreme Court that links international treaty obligations to the interpretation of
Constitutionally guaranteed Fundamental Rights.
It is important to understand that the Sri Lanka government has an obligation to implement treaty
obligations, even though they are not incorporated automatically into our legal system upon ratification
of the instrument. This obligation on application of international law has only been incorporated in a
very limited manner in our Constitution, and there has unfortunately been no clarification by the 19th
Amendment adopted by Parliament recently. The 19th Amendment repealed the earlier Article on
Presidential powers, but has incorporated the language in the repealed Article in regard to the application
of International Law. The new Article introduced by the 19th Amendment to the Constitution reiterates (as
before) that the President has the power to do all acts that he is authorized or required to do according
to international law custom or usage that is “not inconsistent with the provisions of the Constitution or
written law." (Art 33 (2)(h)). However provisions requiring Parliament to set up a new Commission on
Bribery and Corruption state that Parliament must pass a law which will also provide for “measures to
implement the United Nations Convention Against Corruption and any other international Conventions
relating to the prevention of corruption to which Sri Lanka is a party.” (Art 156 A (1)(c) introduced by the
19th Amendment). This is a new approach and incorporates for the first time a constitutionally mandated
obligation to harmonize international law and domestic law, but in the specific area of corruption.
There are some other Constitutional provisions on treaties which can be used in efforts to incorporate
international law. A Directive Principle of State Policy refers to the State being required to “promote
international peace, security and co-operation and foster respect for international law and treaty
obligations” (Art 27 (15)). We have also referred to the power of the State to enact laws fulfilling treaties
that will bind Provincial Councils. Art 13 (6) of the Constitution permits the enactment of retrospective
laws that create criminal liability if the conduct is a crime according to customary international law, a
provision interpreted in Attorney General v Sepala Ekanayake (1987) (see Annex). All these provisions
reinforce the State obligation in governance to harmonize domestic law with international law.
V. MECHANISMS FOR NATIONAL HUMAN RIGHTS PROTECTION
a) Courts of Law
The independence of the judiciary is at the heart of the impact of this agency in protecting human rights.
We have seen that provisions on appointment of judges have been strengthened by the 19th Amendment
through the Constitution Council. However as noted the limitations in Constitutional provisions on removal
of Supreme Court judges illustrated in the recent impeachment of the former Chief Justice, have not been
amended [See Annex].
COMPENDIUM ON LAW, GENDER BASED VIOLENCE AND REPRODUCTIVE RIGHTS
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