Corruption is a violation of fundamental rights of the citizen as it leads to misallocation of public funds. It offends the right to equality by giving access to unexplainable wealth accumulation in the corrupt.
by M Sornarajah
The consideration of a one law for Sri Lanka by a commission headed by a divisive figure was emblematic of an administration driven by ethno-nationalist animosities. Now that the young in particular have arisen against such tendencies, it is necessary to consider the one law that has guided and should guide the future of Sri Lanka.
The Supreme Court of Sri Lanka, in a long course of decisions, has held that customary international law, particularly the law on human rights, forms part of the law of Sri Lanka. It is the customary international law so declared by the Supreme Court that truly constitutes the one law of Sri Lanka. In that course of precedents are cases that captured the public imagination. In one, the court ordered that a foreign investment for the mining of phosphate in Eppawala, which would have caused the depletion of natural resources and harmed the foundations of the sacred sites in the area, should be discontinued. In another case, the Supreme Court protected the right of a young politician, Mahinda Rajapakse, in his earlier avatar as a human rights activist, to travel to Geneva to present the case before the Human Rights Committee on the rights of JVP detainees. Many of these cases were argued successfully by my distinguished teacher at the University of Ceylon, the late Mr RKW Goonesekere. A long-time Principal of the Law College, he was a teacher to many lawyers of Sri Lanka. He was committed to the cause of human rights in this country.
A later case, he argued, Sinnarasa v AG in which a politically inclined chief justice held that customary international law on torture is not incorporated in Sri Lankan law, unless expressed through statute, is an aberration widely condemned both in and outside Sri Lanka. It rests on the diminished authority of that particular chief justice. It does not reflect the law in any other common law jurisdiction. The judgment has been condemned by academics both in Sri Lanka and abroad. It, in no way, affects the established rule in Sri Lankan law that customary international law forms a part of the law of Sri Lanka.
The acceptance of customary international law as the only law that is common to Sri Lanka, besides of course, the law contained in legislation and the residual Roman Dutch law, is crucial to Sri Lanka at the current political stage. The consideration of any other “one law” would be divisive and inopportune at a time when the country is going through much hardship. Its pressing problems are reconciliation after the protracted civil war, the release of people kept in custody for inordinately long periods without trial on the allegation that they are terrorists under the draconian Prevention of Terrorism Act, the problem of missing persons and the elimination of rampant corruption that denudes the people of their wealth. For each of these issues, the answer lies in the adherence to the standards mandated by customary international law. The gradual moving away from the standards of the rule of law incorporated in customary international law is a prime reason for the political and economic conditions in our country. Some incidents of this are the lack of an independent judiciary, the absence of equal protection under the law of all citizens of the state, the principle of meritrocracy in public appointments, rampant corruption and the failure of the state to protect the lives of its citizens while having knowledge of threats to their lives.
There are more pressing issues than the stoking of communal and religious passions on the basis of an inquiry to institute one law for Sri Lanka presided over by a convicted Buddhist priest who has a history for promoting racial and religious hatred. There is already one law for Sri Lanka from which rules necessary for our political life can be quarried. Three important areas for which international law points to solutions relate to the need to bring about solutions to the ethnic dispute, the abolition of the Prevention of Terrorism Act and the rampant corruption that has induced an economic crisis in the country.
The 74-year curse of Sri Lanka has been the ethnic problem. It lies at the root of the present calamities. Every politician of the major political parties has jumped on the bandwagon of Sinhala Buddhist extremism to achieve power and then, engaged in corruption, without bringing any benefit to the people. While the children of these Sinhala Buddhist chauvinists were educated overseas or in international schools in English, the children of the poor have been taught in swabasha and are denied access to education in the sciences and technology. They are the political fodder for the future. It is necessary to put an end to this pernicious cycle. International law recognizes the equality of all human beings, as the organizing principle of life. International law recognizes the right to self-determination of the minorities as a means to a solution of ethnic problems. The lesser form of it permits solution within a unitary state. Internal self-determination speaks of devolution and other forms of constitutional settlement. The Supreme Court of Sri Lanka has held that such a solution is in keeping with the Constitution. Such ideas must be explored in putting this particular problem to rest for progress to be achieved. If they do not succeed, the rights of the minorities to be protected by external self-determination revive. The state must rapidly put in place a system that ensures maximum devolution of powers and equality to all minorities to avoid such a result.
The Prevention of Terrorism Act is an outcome of the ethnic problem. Its draconian provisions have resulted in several persons taken into custody going missing. Several still languish in jails without trial. Spurious convictions have occurred through forced confessions. The situation has provoked universal condemnation. Seven United Nations Rapporteurs have, in a joint report, identified what needs to be corrected in the PTA. They identified the following five “necessary prerequisites”: (i) a precise definition of terrorism in line with international norms (ii) legal certainty, especially where the Act impacts on freedoms relating to expression, association, opinion, religion or belief; (iii) prevention of arbitrary deprivation of liberty; (iv) prevention of torture and enforced disappearance; (v) provision of due process and fair trial guarantees.
The government has recently made cosmetic changes to the legislation that are woefully inadequate to meet these requirements. It would be best to abolish the Act and draft new legislation afresh making it measure up to international law standards. The abolition would mean that those who languish in the jails will be released. It is necessary to account for those gone missing after they had been taken into custody or had surrendered to the agents of the government. It is necessary to end the shameful episodes in our law through accountability and make a fresh beginning. The police, the armed forces and the state show scant regard to the value of the lives of citizens as there have been deaths at their hands which have not been inquired into. There has been no attributability of responsibility for these deaths.
The third factor is the extent of corruption that attends our public life. The politicians and the religious leaders who support them have earned public contempt. In that context, it is necessary to follow the prescriptions contained in the United Nations Convention on Corruption, the principles of which are widely considered customary international law. Sri Lanka has signed and ratified the Convention but has, characteristically, not made it part of domestic law. 186 countries (including Uganda) are parties to the Convention. The Convention creates procedure for money stashed away in foreign countries by corrupt politicians to be brought back to Sri Lanka. It will enable the repatriation of proceeds of corruption by successive administrations in Sri Lanka. Money stolen from the people can defray the debts that the country has incurred by successive corrupt administrations. The proceeds of corruption, defined as gained through abuse of “the power entrusted by the people for private gain” must be returned to the people.
Corruption is a violation of fundamental rights of the citizen as it leads to misallocation of public funds. It offends the right to equality by giving access to unexplainable wealth accumulation in the corrupt. There must be fundamental rights cases brought against the politicians requiring that they pay damages personally for the violations of these rights. BASL should take a lead in this. That is possible under existing law. Tracing the corrupt funds in foreign banks will be facilitated if new legislation incorporating the UN Convention on Corruption is made part of our law. True it is that the procedures for the recovery of the proceeds of corruption will take time but sooner they are instituted and the proceeds secured for eventual recovery the better.
Rather than pursue hate-mongering through the search for one law, the Government should pursue the rules of the one law that the Supreme Court has recognized as binding in Sri Lanka in finding solutions to the pressing problems of our country.
Germany had Hitler, a dictator who killed over 12 million Jewish people and took the country to war. After the Second World War, the German People, in the hope of avoiding repetition of such a calamity, enacted a constitution which makes human dignity and international law its centre-pieces. Article 1 reads :
Article 1[Human dignity – Human rights – Legally binding force of basic rights]
1. (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
2. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
The Basic Law of Germany has a provision, Basic Law 25 which reads:
Article 25[Primacy of international law]The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the in-habitants of the federal territory.
It is imperative that a new beginning is made in Sri Lanka after the present chaos. When it comes about, human dignity, human rights and the duty of the state to protect human lives must be prioritized and provision must be made in the constitution to secure the primacy of international law.
( The writer, Emeritus Professor of Law at National University of Singapore )
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