SL has implemented provisions vis a vis ICCPR - ASG

Sarath Malalasekara and Wasantha Ramanayake

The country had fully implemented the legislative provisions as required by International Covenant on Civil and Political Rights (ICCPR), Additional Solicitor General (ASG) P.A. Rathnayake PC submitted before a full Bench of Supreme Court, yesterday.

The Special Bench comprised Chief Justice Sarath N. Silva PC, Justices Nimal Gamini Amaratunga, Saleem Marsoof PC, Andrew Somawansa and Jagath Balapatabendi.

The Additional Solicitor General submitted that these provisions are incorporated into the legal system either in the Constitution, Common Law and could be even found in the Supreme Court judgements.

“Whatever residual rights which have been left un-implemented are enacted in 2007 by the Enactment 56 of 2007,” the Additional Solicitor General submitted.

He submitted that the Article I of the ICCPR the “self Determination,” referring to the de-colonisation which had been fully implemented although the country is not obliged to fulfil it. The Right to Life had been recognised by “the necessary implication” by the Supreme Court judgement although the Constitution specifically would not provide for.

The counsel submitted that they were cases pending before the court with regard to the noise, air and water pollution that determines the rights to quality of life.

Making his submissions President’s Counsel Jayampathi Wickremaratne for intervenient petitioner, Attorney-at-Law Lal Wijenayake submitted that the Section 16 (1) of the Constitution was not consistent with provisions of the ICCPR.

The Chief Justice noted that Article 16(1) of the Constitution was there to ensure the continuity of the law.

The Counsel submitted that people could be deprived of their rights because of the Article 16(1). He submitted the immunity of the acts of President was also violative of the rights of persons.

The counsel argued that there must be “post enactment review” of the Bills passed by the parliament with limitations as in the South Africa. He submitted that once the Bills passed by the parliament only the people would feel that they were affected. There was no effective remedy and therefore, this was not consistent with the ICCPR.

The Counsel submitted that the judicial review by the parliament was another area where the independence of the judiciary was affected.

M.A. Sumanthiran made submissions on behalf of the intervenient-petitioner Centre For Policy Alternatives.

President Mahinda Rajapaksa made the reference seeking the opinion of the Supreme Court whether available provisions in the legal provisions could successfully implement obligation under the ICCPR. The President made the reference in terms of the Article 129 of the Constitution.

The opinion of the court will be communicated to the President.

ASG P.A. Rathnayake PC with Deputy Solicitor General Bimba Thilakarathne Jayasinghe, Senior State Counsel Nerin Pulle and State Counsel Rajeeva Gunathilake appeared for the Attorney General.