CA makes obeservation on ICCPR adoption
The Court of Appeal while dismissing a petition for compensation regarding a missing person observed that the incorporation of the International Covenant Act in 2007 does not envisage or provide for the adoption of the entirety of the International Covenant on Civil and Political Rights (ICCPR) .
Justice Deepali Wijesundera in her judgment held the parents of the deceased youth could not claim any legitimate expectation stemming from the said Act and dismissed the claim for compensation as agreed by the State.
Jegatheeswara Sarma and his wife Jessi Ammah of Selvanayagapuram, Trincomalee filed a Writ application seeking the Court to direct the Treasury Secretary to pay them Rs 3,888,000 as compensation determined by Human Rights Commission of Sri Lanka for her son who was abducted by the army and later disappeared. They cited the Treasury Secretary, Secretary to the External Affairs Ministry and the Attorney General as Respondents. A.R. Surendran PC with N. Kandeepan, M.Jude Dinesh, A. Shelrin and P. Mythree instructed by Home for Human Rights appeared for the Petitioners. Additional Solicitor General Shavindra Fernando with State Counsel Nayomi Kahawita appeared for the Respondents.
Deceased Thevarajah Sarma, the son of the Petitioners, was abducted by army personnel in June 1990 during military operations in Trincomalee. The Petitioners complained to the State Authorities but did not get any redress. They complained to the United Nations Human Rights Committee (UNHRC) alleging the abduction and disappearance of their son, the Sri Lanka State had violated his son’s rights under ICCPR and the Petitioners are victims for violation by State party under the said covenant.
UNHRC after considering the communication of the Petitioners and the response by the State came to the conclusion that the State is responsible for the disappearance of the petitioners’ son and requested the State to provide an effective and enforceable remedy.
The Secretary to the Foreign Affairs Ministry referred the matter to the Human Rights Commission of Sri Lanka (HRCSL) to recommend the computation of the quantum and payment of compensation. HRCSL in the presence of the petitioners and the officers of the AG Department representing the State recommended Rs 3,888,000 to be paid as compensation to the Petitioners.
The petitioners lamented though they made several requests to pay them the compensation, the State failed to comply with the said request and they filed the Writ application in the Court of Appeal to compel the Treasury Secretary to pay the said compensation. They claimed the UNHRC had the legal competence to receive and inquire into their complaint. They contended all the ICCPR had been incorporated into our law and as such, the right to compensation for victims guaranteed by the ICCPR became part of Sri Lankan Law, hence the respondents can not deny their right to compensation.
They underlined the State under Article 27(115) of our Constitution, is duty bound to honor International Conventions to which it is a party. The Respondents countered the Petitioners did not take any steps to vindicate their fundamental rights and the jurisdiction of the Supreme Court was not invoked.
They stated after the expression of views by the UNHRC, the State took possible measures in good faith to comply with the said views and referred the matte to the HRCSL for computing of compensation to be paid.
They maintained the decision of the SC in Nallaratnam Singarasa changed all these and no steps were taken by the State under the optional protocol of the ICCPR.
They stated the State refrained from taking further steps to give effect to the views of the UNHRC in compliance with the decision of the SC and that the said decision precludes the Appeal Court from giving effect to a decision of the United Nations Human Rights Committee.
They contended no rights or expectations can flow from an unconstitutional Act which is the Act of accession of the said optional protocol. They argued the ICCPR only envisaged that the States would take steps in accordance with their Constitutional processes to domestically recognized rights. The Court of Appeal in its judgment ruled there was no issue regarding the awarding of compensation and the person who abducted the petitioners’ son had been convicted by Sri Lankan High Court.
UNHRC after considering the communication of the Petitioners and the response by the State came to the conclusion that the State is responsible for the disappearance of the petitioners’ son and requested the State to provide an effective and enforceable remedy They stated after the expression of views by the UNHRC, the State took possible measures in good faith to comply with the said views and referred the matte to the HRCSL for computing of compensation to be paid