Untitled - International Commission of Jurists

Declaration on Upholding Human Rights and the Rule of Law in Combating
Terrorism 59 affirms that states must take measures to protect persons within their
jurisdiction while maintaining the obligation to respect and ensure the fundamental
rights and freedoms. It also affirms that there is no conflict between the duty of states
to protect human rights and their responsibility to ensure security. 60
In violation of clear international law, Sri Lanka’s byzantine emergency laws:
• are overreaching and vague;
• shield perpetrators of human rights violations from accountability;
• permit illegal and arbitrary detention (for example, by allowing up to 18
months detention or longer without review pending trial under the Prevention
of Terrorism Act);
• violate fair trial and due process rights (for example, by improperly allowing
for use of confessional evidence and establishing “duty” to answer police
questions);
• arbitrarily restrict:
o freedom of expression (allow restrictions and prosecutions for vaguely
defined threats to national security);
o freedom of movement (provide unfettered and unreviewable discretion
to restrict movement and to displace populations);
o freedom of assembly (fail to distinguish peaceful assembly from those
that incite violence); and
o violate the right to privacy (search and seizure without warrant).
Impunity has been afforded in practical terms by the lack of effective prosecutions.
Police officers found responsible by the Supreme Court for the violation of
fundamental rights were not only promoted, but their compensation and costs were
paid by successive governments. This refusal to acknowledge enforced
disappearances as a serious problem is evidenced most recently in the failure of
domestic legislation intended to give effect to the International Covenant on Civil and
Political Rights - the ICCPR Act No 56 of 2007 - to include the right to life. 61
3. The Role of the Judiciary
A historical review of the difficulties that have beset Sri Lanka’s judiciary is
important to understanding its role and limitations as a guarantor of fundamental
rights. If constitutionalism is taken to be a measure of a state’s commitment to higher-
59 The ICJ Berlin Declaration was adopted on 28.08.2004 by a gathering of 160 jurists, from all regions
of the world, convened by the ICJ at its Biennial Conference.
60 Sri Lanka: Briefing Paper: Emergency Laws And International Standards, International Commission
of Jurists, March 2009, pp 1-2.
61 Purporting to give effect to the International Covenant on Civil and Political Rights (acceded to by Sri
Lanka in 1980), this legislation only parodys the ICCPR as it merely incorporates a limited number of
rights; namely the right of every person to recognition as a person before the law, several rights of fair
trial as well as securing the rights of a child and the right of access of every citizen to take part in the
conduct of public affairs, either directly or through any representatives and to have access to benefits
provided by the State. The Act also prohibits the propagation of war, religious hatred and so on.
Jurisdiction lies in the High Court against executive or administrative action that violates these rights
and should be invoked within three months of the alleged infringement either by the person whose
rights have been or are to be infringed or by a person on his behalf.
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