Daily Mirror (Sri Lanka)

CA makes obeservati­on on ICCPR adoption

- BY S.S.SELVANAYAG­AM

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

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