Arrests at protest against army-built Vihara

Saturday, 06 June 2015

Paper delivered by Sri Lankan lawyer, columnist and author Kishali
Pinto-Jayawardena at the plenary sessions Does Laws Global Pretensions Offer Hope to the
World? of the American Law and Society Association (LSA), 2015 held at Seattle, 28-30th
May. The sessions were presided over by Prof. Malcolm Feely, Claire Sanders Clements Dean's
Professor of Law and a senior faculty member in the Jurisprudence and Social Policy Program,
University of California, Berkeley.
The two other speakers were Sally Merry, Professor of Anthropology, former director of the
Law and Society Program, and an affiliated faculty member of the NYU School of Law and
David Scheffer U.N Secretary-Generals Special Expert on United Nations Assistance to the
Khmer Rouge Trials, The Mayer Brown/Robert A. Helman Professor of Law and Director for
the Center on International Human Rights at Northwestern University School of Law, the
United States.
1.Introduction
On the 9th of January 2015, the people of Sri Lanka astounded themselves and many others in
the world. An authoritarian ruling family cabal which had ruthlessly stripped the countrys
democratic institutions and systems of their basic integrity and legitimacy, subordinated the
highest Court in the land and unforgivably repressed and alienated Sri Lankas minorities, lost
political power. Former president Mahinda Rajapaksa and the members of his family were
forced to hurriedly pack up their belongings and leave the seat of governmental power.

To appreciate the enormity of what happened, the extent to which the legal, political and
economic environment had degenerated by that time must be understood. This was no ordinary
transfer of political power. By the time that the January Presidential elections came around, the
former President and his brothers controlled substantial portions of the countrys budget, one
was the Secretary of Defence and the other a powerful Minister; yet another Presidential sibling
was the Speaker of the Parliament. The countrys judiciary, Office of the Attorney General,
Department of Police and pivotal state institutions were literally at the beck and call of the
former President and his family members.
Never quite free from corrupt manipulation at any point after the first few decades following
independence, the state machinery descended into unbelievably corrupt chaos during the
second decade of Rajapaksa rule (2005-2015). Prior to the January elections in 2015, vast
amounts of state money were used for the Rajapaksa election campaign and the state media,
which had been co-opted into the propaganda machine of the government in power for decades,
went completely beyond the pale in supporting his candidature. The private media, civil
society, trade unionists and academics opposing the former government had been under heavy
attack for many years, some losing their lives in the process and others having to flee the
country.
In the former war-theatre of the North and East, the Tamil minority remained a subordinate
people, their lands being seized from them after the defeat of the Liberation Tigers of Tamil
Eelam (LTTE) by government forces in 2009 and their survival ensured only if they acceded to
each and every demand put forward by the military administration which effectively ran civil
administration in those areas. The other minority, Sri Lankas Muslim community had also
been increasingly terrorized in recent years with their mosques and business places being burnt
and hate speech frequently being practiced against them by militant Buddhist monks who
operated with state patronage.
So, in the midst of great oppression and overwhelming propaganda aimed at convincing Sri
Lankas majority Sinhala Buddhist people that the former President was the savior of the
nation, what occasioned this change? My view is that the defeat of the Rajapaksas was brought
about by the forceful rejection by the majority, of mindless communalism, profound injustice
and outright terror. For this defeat was occasioned by an unprecedented drop in the Sinhala
majority votes for the former President, which, along with the predictable antagonistic minority
vote, brought about a victory at the Presidential elections for the Rajapaksa challenger, a
hitherto little known senior politician, current President Maithripala Sirisena emerging from the
ranks of the former Presidents party itself, who defected late last year to challenge his
erstwhile leader.
A Long and Hard Struggle
The one major criticism that I have had to encounter has been the question why are you talking
of Sri Lankas failures abroad? Talk of the failures within the country but dont do this outside
as you are letting down the side. This criticism, I think, stems from a fundamental
misconception as to the rights and obligations of citizens in the modern world. Constructively
criticizing ones own country, either domestically or in fora outside the country is part of a
modern citizens duty. It is aimed at redressing these failures not at exposing the country to
outside criticism as is commonly termed.

And while the role of international human rights law in Sri Lanka has had its positives as I will
refer to in this essay, my point is that it is must be left to the people of the country to work out
their destiny. International pressure and interventions, even in the form of war tribunals
conceived and pushed through by Western countries who are themselves accused of as great or
greater atrocities elsewhere in the world, cannot be thought of a end solution. On occasion
indeed, I have been fierce in my rebuttal of a view sometimes expressed that top-down
solutions imposed by outside can redress a countrys internal wrestling with the Rule of Law.
International support must be in tandem with local democracy movements.
That said, it must be clearly understood that Sri Lankas problems with the Rule of Law does
not originate nor end with the Rajapaksa Presidency. Our democratic dilemmas are systemic.
For years, debates on the Rule of Law in Sri Lanka had been plagued by an extraordinary
dilemma what do rights advocates do when the Constitution itself is a manifest instrument of
injustice and inequality? There is, of course, a particular background to this discussion which I
will summarise
At independence in 1948, Sri Lanka had an enviable international reputation as a country with
strong democratic traditions, a high level of literacy and its own welfare state, providing free
education and food security for all its citizens. But just two decades into the post-independence
period, all this changed. In 1972, the first Constitution of the Republic removed the notion of
an independent civil service and paved the way for the politicization of the bureaucracy. The
independence of the judiciary was weakened by several provisions that tilted the balance of
power firmly towards the legislature. Safeguards for the minorities provided under Sri Lankas
Independence Constitution were abolished under the 1972 Constitution. In a book titled Sri
Lankas Judicial Mind and the Protection of Minorities that I co-wrote in 2014, the role and
responsibility of the judiciary in declining to protect minority rights since the enactment of this
Constitution was thoroughly examined, indicating the extent to which Sri Lankas judicial elite
played a part in this problematic process. The 1978 Constitution continued this degenerative
process as I will illustrate later.
Strengthening of anti-democratic forces
The mid 1980s to early 1990s was undeniably a difficult period for Sri Lanka. Counter-state
repression was enormous both in the south, against the Janatha Vimukthi Peramuna (Peoples
Liberation Front, the JVP), and in the North and East against the LTTE, as exemplified by the
use of extraordinary laws such as the Public Security Ordinance and the Prevention of
Terrorism Act. While the 1983 killings of Tamils marked one of the most horrendous incidents
in post independence history, the upsurge in violence against both Sinhalese and Tamils by
government forces by the late 1980s resulted in staggering numbers of deaths and
disappearances. At that time, Sri Lanka registered the second-highest number of cases of
involuntary disappearances in the world, next only to Iraq.
In the mid-1980s, I had just entered Colombos Faculty of Law, and was juggling legal tomes
with a somewhat bewitched involvement in political and legal journalism. Both offered a
unique vantage point from which to observe, as well as to be intensely involved in the spirited
defences being mounted against state repression by the media, civil society, professional
workers and universities. Those were dangerous but heady times one felt supremely justified
in struggling for a better order and a democratic way of life.

Collective activism in 1994, by activists, the media, academics and professionals swept away a
distrusted administration of the United National Party (UNP). On an overwhelming mandate
for peace, it instead installed a fresh-faced Chandrika Kumaranatunge, who led Sri Lankas
other main political party, the Sri Lanka Freedom Party (SLFP). But far from those idealised
hopes, the political story thereafter reflected a common or garden-variety leadership, autocratic
and unenlightened. 11 years later, when she reluctantly gave way to a presidential successor
from her own party, the democratic fruits of her period in power were consummately bitter.
The first years of Kumaranatunges tenure were politically easy, basking as she did in the
unprecedented peoples vote that put her in power. Yet as the war with the LTTE resumed after
a brief cessation of hostilities, and the media once her unequivocal supporter became
increasingly critical of her handling of state affairs, Kumaranatunges incipient defensiveness
came to the forefront. Particularly disappointing was her use of presidential commissions, then
investigating the large-scale disappearances of the previous decade as well as other political
assassinations, to discredit her political opposition rather than to afford closure and healing for
the thousands affected. The country thereby lost a singular chance to emulate the South African
post-apartheid experience, leading to a new and genuinely inclusive constitutional contract.
Later, as the LTTE increased the ferocity of its attacks, Kumaranatunges defensiveness
translated into a stubborn inability to brook opposition from any quarter. This was indeed the
point from which she launched her attack on one of Sri Lankas most cherished democratic
institutions the judiciary with devastating consequences for the protection of the rule of law.
Meanwhile, the impetus for peace gradually dwindled to a perilous ceasefire agreement,
brokered not by her administration but rather by the opposition UNP during the short period
when they co-existed in government. The agreement was underpinned by Norwegian
facilitators, who, by 2005, continued in their role more as a result of international pressure
than through a solid bulwark of public support. The ceasefire agreement itself prevented the
breakout of active hostilities. But a shadow war continued with inevitable casualties on both
sides while the protection of human rights of ordinary Tamils and Muslims, terrorised by LTTE
totalitarianism, was relegated to the sidelines. The crushing of the great expectations on which
Kumaranatunge came into office was comprehensive, catapulting the Sri Lankan people into a
new and dangerously fragmented political reality.
To be fair, Sri Lankas opposition parties particularly the UNP, in its fundamental inability to
provide an honest counterpoint to its traditional political rival, the SLFP certainly played a
major role in the defeating of these hopes. Wiser leadership by the Kumaranatunge presidency,
however, might have prevented the continuing deterioration of the countries democratic
processes. Unfortunately, this was not to be.
The Role of Civil Society and the Independence of the Judiciary
This period was particularly problematic in regard to the deterioration and devaluing of the
countrys judiciary. From the late 1970s to the early 1990s, strong interventions had been
evidenced by Sri Lankas civil society in particular against executive or legislative attempts to
undermine the judiciary. There was, of course, a particular historical context to such attempts.
Sri Lankas Independence Constitution in 1947 embodied a strict separation of the judicature
from the executive and the legislature. The Chief Justice and the Judges of the Supreme Court
were appointed by the Governor General, held office during good behavior and could not be
removed from office except by the Governor General upon an address of the Senate and the

House of Representatives.
A Judicial Service Commission (JSC) consisting of the Chief Justice, a judge of the Supreme
Court and any other person who shall be or shall have been a Judge of the Supreme Court was
also established. The JSC was vested with the authority of appointing, transferring, dismissing
and exercising disciplinary control of all judicial officers, except a judge of the Supreme Court
and a Commissioner of Assize. In this particular legal order, the independence of the judiciary
was safeguarded to some extent: the appointment of judges of the apex court was entrusted to
the Governor General, who was a representative of the Queen and not a political creature, and
the JSC was a body independent of either the legislature or the executive.
However, ten years later, this separation of powers came under direct threat by legislation that
attempted to give the Minister of Justice authority in the appointment of judicial officers. The
Supreme Court responded by declaring the legislation invalid. Executive and legislative efforts
to venture beyond its legitimate authority were not to stop at that. In quick succession, the
Supreme Court struck down further legislation perceived as affecting its independence.
Not unnaturally, these demonstrations of judicial strength were little to the liking of the holders
of political power at that time. Acting in a spirit of what they saw as righteous anger (the tragic
consequences of which were acknowledged only years later), the framers of the new
Constitution deliberately set out to marginalise the role of the judiciary.
The first Republican Constitution categorically declared in Article 3 that the judicial power of
the people through courts and other institutions created by law may be exercised directly by the
National State Assembly. The right of appeal to the Privy Council was abolished and the
judiciary was deliberately and systematically stripped of its power to the extent that the judges
of that time were even deprived of their traditional trappings of office such as their robes and
wigs. Replacing the Governor General who was under the Independence Constitution required
to exercise his powers, authority and functions as far as possible in accordance with the
constitutional conventions in the United Kingdom, the first Republican Constitution validated
political interference in the judiciary by handing the power of appointment of judges of the
higher courts to a non elective President acting on the advice of the Prime Minister.
In place of the earlier Judicial Service Commission, a twin Judicial Services Advisory Board
(JSAB) and Judicial Services Disciplinary Board (JSDB) was established. The JSAB had no
right to appoint judges of the minor courts but only to recommend their appointment to the
Cabinet of Ministers, while the JSDB had the power to exercise disciplinary control and
dismissal of judges of the minor courts and state officers exercising judicial power. Here too,
political control over the JSAB was ensured by requiring that two of the five member
commission of the JSAB be officers other than judicial officers; the actual appointees turned
out to be, in fact, the Secretary to the Ministry of Justice and the Attorney General. Similarly,
while the composition of the JSDB was not to be faulted, their decisions could be set aside by
an appeal to the Cabinet, thus rendering their powers largely nugatory.
The supreme law of the land made legal a number of other undemocratic features including the
passing of emergency without a debate, abolishing judicial review and establishing a
Constitutional Court which had the limited power to scrutinize bills, and this, too, in 24 hours
when the bill was certified as being urgent in the national interest. Fundamental Rights were

included in the Constitution but made impotent by open ended restrictions and no specific
enforcement procedure.
Interpreting the democratically subversive theory of the Constitution into practice, it was not
long before open conflict became apparent. Parliament and the newly set up Constitutional
Court clashed head on at the first sitting of the Court over the Press Council Bill when the
legislature decreed that the court had no discretion to give a liberal interpretation to a specified
time limit within which to determine the constitutionality of the Bill. The entire court resigned
and the Government was compelled to appoint a fresh court. From this point onwards, relations
between the courts and the then Justice Minister plummeted downhill. It was, in truth, the
lamentable start of the settling in of the Sri Lankan judiciary into what could, with just reason,
be referred to as a state of seige.
The second 1978 Republican Constitution of 1978 (the prevalent law) promised an (illusionary)
respite for a beleagured Sri Lankan judiciary. This constitutional document did indeed contain
many features that were a definite improvement on what had prevailed. The role of the
Supreme Court as the highest and final superior court was constitutionally protected and the
Court was given special jurisdiction in respect of election petitions, appeals, constitutional
matters, fundamental rights (now made justiciable) and breach of the privileges of Parliament.
The appointment of judges of the superior courts was by an elected President by warrant under
his hand.
As in the two previous Constitutions, the security and tenure of the judges were guaranteed and
judges of the superior courts held office during good behaviour and could be removed only
after address of Parliament. Additionally, it was specified that the address for removal should
be on grounds of proved misbehaviour or incapacity and that the full particulars of such
allegations should be set out. The JSAB and the JSDB, which had proved to be notoriously
incapable of preventing political interference in the minor judiciary, were replaced by a Judicial
Service Commission (JSC) vested with the same powers. The JSC was to consist of the Chief
Justice and two other judges of the Supreme Court, named by the President, who could be
removed only for cause assigned.
Old habits, however, died hard. A misleadingly innocuous clause in the Constitution that
specified that all judges of the appellate courts shall, on the commencement of the new
Constitution, cease to hold office, was used by the executive to radically reconstitute the
higher courts. Seven out of the nineteen judges holding office were not re-appointed, thus
reducing their guaranteed tenure. Before long, it became evident that political usurpation of the
authority of the judiciary could not be contained by the new constitutional order. Rather, it
increased in ferocity until it became a moot point as to which was worse: a constitution which
legitimised an inferior judiciary or a constitution which was institutionally better, but under
which judges were threatened by the most appalling executive and legislative excesses.
Barely three months after promulgation of the new Constitution, the authority of the Court of
Appeal was nullified by a legislative response that amended the new Constitution in a manner
which denied the Court of Appeal jurisdiction in certain specified cases. The Court had held
with the former Prime Minister that a Special Presidential Commission of Inquiry appointed to
look into her actions during the preceding years could not be vested with retrospective powers.
Subsequent events were even more devastating. Police officers found responsible for the

violation of fundamental rights were not only promoted, but their damages and costs were paid
by the Government. Procedural difficulties in judicial officers taking the oath of allegiance
under the Sixth Amendment resulted in the police locking and barring the Supreme Court and
the Court of Appeal and refusing entry to judges who reported for work. Following unpopular
decisions, judges houses were stoned and vulgar abuse was shouted at them by thugs. Other
examples of executive coercion were many; notably the impeachment of then Chief Justice
Neville Samarakoon when he engaged in criticism of the government.
The Role of the Court
Despite this pattern of executive coercion, Sri Lankas Supreme Court strove to establish itself
as the rights arbiter for thousands of people from the mid-1980s onwards in particular. It was
during this period that the court, in its boldest efforts ever, asserted the right to speedy trial of
individuals detained under draconian national security and anti-terrorism legislation. This was
during the height of the states counter-terrorist measures, in both the northeast and the south.
Spurred on by civil-society monitors, vigilant in the protection of fundamental liberties, the
halls of justice became, indeed, the final recourse for many. These judicial interventions were
all the more creditable given that the Sri Lankan Constitution lacked the full-bodied provisions
of the Indian Constitution, such as the explicit enshrining of the right to life and the granting of
a broad basis on which public interest groups not only those personally aggrieved could
come to court.
But ironically, as it were, it was during the Kumaratunga Presidency that the Sri Lankan
judicial institution received a crippling blow. By all rights, the increasing boldness of the Court
by the latter part of the 1990s should have led to a flowering of rights-motivated jurisprudence
and a democratic system of checks and balances as regards actions if the government and its
officials. However, what transpired instead was a severe backlash by the government against
what it saw as an unwarranted judicial interference in government affairs.
This reached its height in 1999 when the most qualified senior judge on the Supreme Court
who should have been appointed Chief Justice was passed over due to Presidential ire at
frequent judicial reprimands delivered against her administration. Instead, the Attorney General
was appointed as the head of the judiciary notwithstanding the fact that two inquiries were
being heard against that individual before the Supreme Court itself on allegations of
professional misconduct. The decade that followed thereafter marked an unprecedented stream
of allegations of political partisanship against the sitting Chief Justice which surpassed
anything that Sri Lanka had seen pre- or post-Independence.
The speedy decline in the independence of the judicial institution was put best by the
International Bar Association in one of its fact finding missions to Sri Lanka in 2001 when it
declared that the judiciary was as much in danger due to the political ambitions of the Chief
Justice as due to government coercion. The IBA concluded that the perception of a lack of
independence of the judiciary was in danger of becoming widespread with extremely harmful
effects on the rule of law in the country.
Unfortunately however, civil society interventions in were markedly less evident. By the late
1990s, many of Sri Lankas primary civil rights voices had been co-opted to advisory roles
within government bodies. Such advisory functions may not have been problematic if this had
not been accompanied by a withdrawing from their previously strong interventionist roles. In

personal discussions, I remember (then) UN Special Rapporteur Dato Param Coomaraswamy

expressing his extreme perturbation at the absence of protest. This apathy on the part of civil
society was so predominant that, when some members of the higher judiciary began to use
contempt of court actions to guard itself against public criticism, few murmurs were heard in
the plush conference rooms of Colombos five star hotels which regularly hosted discussions
ranging from the independence of the judiciary to poverty alleviation.
Where the Bar was concerned, this silence was due to the politicization of the legal community
as a whole. Underlying factors hinging on personality likes and dislikes and, (as I learnt in
amazed if not rather nave retrospect), even religious factors concerning the process of
appointment to the office of the Chief Justice also played a major part.
Given the dismal state that Sri Lankas legal profession had collectively deteriorated to by the
late 1990s, this withdrawal was not surprising. However, it was inaction on the most part, of
the academia, activists and the media that set the final seal on the degeneration of the countrys
judiciary. In another era, activism on their part would have been an ideal launching pad from
which an apolitical campaign might have been mounted against government interference with
the judiciary. But this was not to be.
So the stage was set for the Rajapaksa Presidency to wreak its havoc on the democratic process,
further destroying whatever remaining institutional strength. Vibrant voices in civil society had
submitted themselves to dreary resignation which traced itself to decades of conflict and the
abandonment of hope that the system would correct itself to an appreciable, democratic
functionality. In one last democratic gasp in 2001, the 17th Amendment to Sri Lankas
Constitution prescribed independent supervision over important appointments in public service,
as well as creating key independent commissions on the police, public service, judiciary and
elections process. It was first made ineffective and then dispensed with altogether under the
iron hand of former President Rajapaksa. In 2013, a sitting Chief Justice was arbitrarily thrown
out under this Presidency when slight resistance was shown to executive power. At that time,
the lawyers came onto the streets indicating that, at least at that stage, the very real threat to the
very survival of the legal profession and the law had been recognised. In 2015, at least some of
these injustices were rectified after a new government came into power.
Global International Norms as Contributory to Change in Sri Lanka
It is important to emphasize the value of law in allowing citizens, however marginalized they
may be, to claim rights. The fundamental power implicit in this claim should not be
underestimated. Sri Lanka illustrates this point very clearly. My work as an advocate and as a
columnist has always been firmly anchored to the law. Even in the most difficult of times, this
has been the guiding principle. And I have been fortunate in having practiced, (prior to the
great decline of the Sri Lankan judiciary), before some of our greatest judges in the mid-1990s
who looked at international standards as a way of enhancing domestic rights of Sri Lankans,
not as something to be scorned and pushed aside.
These were judges who posited themselves with cool certainty within Sri Lankas illiberal
constitutional and legal parameters (as indeed they were compelled to do by virtue of their
judicial function) but pushed those boundaries to the optimum possible, angering Presidents
and governments in the process. This was not judicial adventurism that we saw increasingly
after the year 2000 when Chief Justices acted on political motives either in going against the

executive or in bending tamely to its will. Instead, the jurisprudence upholding rights that the
country witnessed during the period, (1996-1999) occupied itself with the legal protection of
rights, skillfully using precedent and the law in a reasoned and well sustained manner.
So in what way has global human rights norms helped us domestically? Our basic concept
behind the theory of change has been formulated within the framework of Article 2 of the
International Covenant on Civil and Political Rights (ICCPR). Article 2 obligates the state
parties to ensure an effective remedy for violations of human rights. For this purpose, it
obligates the governments to take legislative, judicial and administrative measures to ensure an
effective remedy. Most commentators on Article 2 concentrate on legislative changes, such as,
for example, the criminalization of acts which amount to improper use of force and violence the criminalization of torture, forced disappearances, sexual abuse, and the like.
However, what is often ignored is the obligation of the state to take judicial and administrative
measures to ensure an effective remedy. A holistic view of change from the law and order
approach to the rule of law approach for the elimination of improper use of force and violence
requires legislative, judicial and administrative measures. In short, the legislation must be in
terms of the normative framework of the rule of law. The judicial framework should also be
within such a normative framework, and the government should also ensure that administrative
measures, such as budgetary provisions that enable the proper functioning of the judicial
process through ensuring the necessary resources, both by way of personnel and other technical
resources, are also within such a framework. Issues such as the training of the security officers
and their internal discipline could be satisfactorily addressed only within a legal system which
is constructed on the basis of such a normative framework.
Sri Lanka acceded to the ICCPR First Optional Protocol (hereafter the Protocol) on 3 October
1997. From the year 2000s, the invocation of the right to lodge individual communications to
the UN Human Rights Committee became frequent. This was primarily due to the political
subversion of Sri Lankas Supreme Court from 1999 onwards and the general conviction that
justice was not being rendered by the domestic courts. Many persons therefore appealed to the
Committee. The fact that all the Covenant rights had not been guaranteed in Sri Lankas
Constitution as referred to earlier, made resort to the individual communications remedy
particularly interesting.
By late 2008, the UN Human Rights Committee had declared violations of ICCPR rights in
eleven Communications of considerable importance. In some cases, the rights recognised as
violated were also rights incorporated in Sri Lankas Constitution, such as ICCPR, Article 19
the (right to freedom of expression and ICCPR Article 7, the right to freedom from torture. In
other instances, the Committee affirmed a number of rights that were not explicitly secured in
the domestic constitutional structure. These included an expanded right to liberty and security,
the right to be tried without undue delay and the principle that no one shall be compelled to
testify against himself or confess guilt. The Government of Sri Lanka, before and after the one
decade of Rajapaksa rule, declined to give effect to these recommendations.
But there was substantial pressure and public notice of these Communications built up through
strategic resort to Sri Lankas Supreme Court itself which had often used principles of
comparative international human rights jurisprudence in expanding domestic constitutional
rights. The Sri Lankan legal system is traditionally a dualist legal system. Consequently, an Act

of Parliament is required to domestically implement international instruments which the State

ratifies/accedes to. Prior to 2006, though certain statutes such as CAT had been enacted to give
specific effect to international treaties to which the State commits itself, there had been no
dispute regarding the States obligation to follow these international standards. Indeed, Article
27(15) of Sri Lankas Constitution specifically requires the State to "endeavour to foster respect
for international law and treaty obligations in dealings among nations."
Sri Lankas Supreme Court had earlier engaged in the extensive citation of international
standards of rights protection thus enhancing existing constitutional rights and resulting in a
complex body of jurisprudence. Such was the positive nature of this importation of global
human rights standards into domestic law that, when the Sri Lankan Supreme Court became
politically driven from the early part of 2000, one of its first actions was to declare not only that
rights contained in the ICCPR were not part of Sri Lankan law but also that the very act by the
President of accession to the First Optional Protocol to the ICCPR was unconstitutional in the
2006 Divisional Bench of the Supreme Court in the Singarasa case.
Consequent to the Sinharasa decision and in response to pressure by the international
community to ensure that ICCPR rights are respected and adhered to in Sri Lanka, the
Government passed what is popularly referred to as the ICCPR law in Parliament in 2007 but
which did not conform to protecting the range of ICCPR rights in any manner whatsoever.
Nonetheless, the powerful impact of this decade long strategic intervention using ICCPR rights
to enhance domestic rights protections is without a doubt.
Conclusion
The magnitude of the problem that now confronts us even with the change in political
leadership in 2015 cannot be ignored. For decades, Sinhalese, Tamils, Muslims have faced
huge injustice. The emergent post-war security state in Sri Lanka has become most dangerous
by reason of the very arbitrariness of the action that can be taken against citizens not
necessarily by the higher levels of the government but perhaps by a soldier stationed in that
area or by former militants who are now part of the government structure.
For decades, the judiciary had lost its authority and the office of the Executive President had
overridden every other institution. We are moreover in a situation where ordinary law and order
has deteriorated. So the challenges ahead should not be underestimated.
Still, January 2015 has shown Sri Lanka and the world that we can, at least, hope.