Features
Nihal Jayawickrama discusses Alice in Wonderland reasoning, minority rights, and universal jurisdiction with the Anglo- American Lawyer magazine
The Editor-in-Chief of The Anglo-American Lawyer Magazine, Srinath Fernando continues his interview with Dr Nihal Jayawickrama, former Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan, Canada, and Professor of Law at the University of Hong Kong. A leading authority on Constitutional Law of Sri Lanka, he is the author of The Judicial Application of Human Rights Law published by the Cambridge University Press.
The AAL Magazine: Dr. Jayawickrama, the Singarasa v Attorney General of Sri Lanka is a classic case which had been referred to by experts and academics all over the world on the human rights discourse. Why do you think the Supreme Court of Sri Lanka failed to respect the decision of the Human Rights Committee and refusal by the Supreme Court of Sri Lanka to review the findings of the HRC in Geneva where there had been a patent injustice to the victim?
Dr. Jayawickrama: Singarasa was convicted by the High Court for terrorism-related offences and sentenced to a term of 50 years rigorous imprisonment. The only evidence against him was his own confession made to a police officer while he was under detention under the Prevention of Terrorism Act (PTA). On appeal, the Supreme Court affirmed the conviction, but reduced the term of imprisonment to 35 years. It took the view that Singarasa had failed to prove that the confession had been made involuntarily, that being the requirement under the PTA. (Under normal law, the burden is on the prosecution to prove that a confession was made voluntarily).
Singarasa thereafter availed himself of the right to communicate with the Human Rights Committee (the Government having ratified the Optional Protocol to the ICCPR in 1998 recognizing the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be a victim of a violation by the State of any of the rights set forth in the ICCPR). The Committee found several violations of the right to a fair trial (Article 14) and of the right to freedom from torture, cruel, inhuman or degrading treatment or punishment (Article 7). Accordingly, it advised release or retrial and compensation.
The Committee’s Views are communicated to the State party and to the petitioner. The State party is required to give the Views serious consideration in good faith. Accordingly, the Government should have either exercised the presidential power of pardon/remission of sentence, or requested the Attorney-General to consider whether a retrial was a viable option, and compensated the petitioner financially. Instead, the Government appears to have ill-advisedly informed the Human Rights Committee that it did not have the legal authority to execute the decision of the Committee to release the convict or grant retrial.
Singarasa’s legal advisers, in my view also ill-advisedly, applied to the Supreme Court to exercise its revisionary powers to give effect to the Views of the Human Rights Committee. That gave the opportunity for the Attorney-General to argue that the expression of Views by the Human Rights Committee amounted to “an interference with the judiciary” and “a violation of the sovereignty of the people”. Sir Nigel Rodley, the distinguished international jurist, described this submission as “Alice in Wonderland (or Alice Through the Looking Glass) reasoning”. In a critical study of this case published in a law journal, he added that “It took the powerful intellect of the Chief Justice of Sri Lanka to come to the unlitigated conclusion that Sri Lanka’s very ratification of the Protocol was ultra vires and invalid”. Sir Nigel Rodley described that decision as “an example of judicial waywardness”.
Subsequent events demonstrate that neither the Sri Lankan Government, nor the Human Rights Committee, have taken seriously the outcome of that revision application to the Supreme Court. I filed a communication at or about that time on behalf of S.B. Dissanayake MP who was sentenced to serve a period of two years rigorous imprisonment for contempt of court imposed by the same Chief Justice, and neither the Attorney-General nor the Government raised any issue of jurisdiction. Nor did the Government argue powerlessness when it received the Views of the Human Rights Committee.
The AAL Magazine: Do you find similar scenarios where conflict of dualism and monism had clashed if you may quote an instance in other countries.
Dr. Jayawickrama: Let me give just one example. India is also described as a “dualist” state. However, there are several instances when the Indian Supreme Court has given effect to provisions in international human rights multilateral treaties which the government of India had ratified but had not taken steps to incorporate in domestic law. Indian judges have taken the view that any international convention that is not inconsistent with the fundamental rights provisions in the Constitution must be read into those provisions to enlarge their meaning and content. Justice Michael Kirby also attempted to do so in the High Court of Australia, but I believe he did not receive much support from his brother judges.
The AAL Magazine: In the Constitution of Sri Lanka social and economic rights have not been expressly defined. Though there is a chapter on Directive Principles of State Policy, its observance is complimentary to fundamental rights but there is also an ouster clause in the Constitution of Sri Lanka Article 29 which says ‘’the provisions of this Chapter do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court of tribunal.’’ How would you comment on this exclusion of what is given by one hand and taken away by the other hand. Would you find this a grotesque way of drafting constitutions?
Dr. Jayawickrama: Sri Lanka has been singularly unfortunate in this regard. Sir Ivor Jennings refused to include a Bill of Rights in the Minister’s Draft Constitution which Mr. D.S. Senanayake submitted to the Soulbury Commission, arguing that the United Kingdom has no Bill of Rights “and we think that we do the job better than those countries which do have one”. Mr. S.W.R.D. Bandaranaike proposed to the Select Committee on the Revision of the Constitution which he initiated in 1958 that it recommends the inclusion of a Bill of Rights, and in fact had a draft prepared by Mr. J.A.L. Cooray and Justice T.S. Fernando, but his assassination brought that effort to an abrupt end.
In 1970. Dr. Colvin R. De Silva was very reluctant to include an enforceable chapter on fundamental rights in the Republican Constitution, arguing that that would result in placing the Supreme Court above the National State Assembly, which was to be the “supreme instrument of state power”. When such a chapter was eventually included, it was to have no application to “existing law”; nor was any special mechanism established to enforce its provisions in respect of governmental action. The judicial review of laws was also not permitted. A chapter on “Directive Principles of State Policy” containing reference to certain social and economic rights, was not enforceable in any court.
The 1978 Constitution presented by Mr. J.R. Jayewardene selectively designated a few civil and political rights as fundamental rights and subjected even these to numerous restrictions. For example, the right to life is omitted. Others omitted include family rights, the right to privacy (a significant omission in the context of telephone tapping), the right to property, the freedom to leave the country, the right to seek, receive and impart information and ideas, the right to a fair hearing in respect of civil rights and obligations, and the rights of accused persons. “Birth or other status” is not a prohibited ground of discrimination, thereby enabling the perpetuation of the concept of illegitimate children. And, of course, none of the economic, social, or cultural rights are recognized. Finally, all existing law was declared to be valid and operative notwithstanding any inconsistency with the chapter on fundamental rights. That means that the entire body of law enacted over a period of 176 years, a veritable armoury of archaic powers and more recent intrusions into human dignity, remained in force notwithstanding any conflict with fundamental rights.
When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. The constitution should provide, as it does in many other countries, that an international treaty, when ratified, will have the force of law, superseding any inconsistent existing law. If the government is unwilling to do so, why ratify a treaty at all? Alternatively, it is imperative that, in a country in which, in recent decades, the human body has been brutalized and the human spirit degraded, at least the provisions of the two international human rights covenants should be incorporated in the constitution. The constitutional recognition of the universally accepted rights and freedoms of the individual is not only a matter of sound commonsense and prudent governance; it is also a solemn treaty obligation.
A minority is a group of individual human beings who share ethnic, linguistic, religious, or cultural bonds and possess a collective desire to live together. The tragedy of Sri Lanka is that many of our politicians still refuse to recognize the fact – the unalterable, immutable and enduring fact – that we are a multicultural country. In the contemporary multicultural state, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect the distinctive character and identity of minority communities, which is what constitutes the cultural mosaic of the State, they even enjoy additional rights. For example, contemporary international law protects the physical existence of minority groups by criminalizing genocide, by recognizing the right to seek asylum, and by prohibiting discrimination.
International human rights law now provides guidance on the minimum acceptable standards for peaceful co-existence in a multicultural society. They include the right of minorities to use their own language, to profess and practice their own religion and the right to enjoy their own culture. International law also recognizes the right of a minority to determine its political status, and the right to participate effectively in decision-making, both at regional and national levels. The Supreme Court of Canada has held that if a minority is denied meaningful access to government, it has the right to decide to secede. The application of these principles is non-negotiable and cannot be made subject to the will of the electorate. They should form an integral part of a national constitution. We have so far failed to do so, and the consequent events, both tragic and destructive, are now a matter of history.
The AAL Magazine: Despite ouster clauses, can the Supreme Court of Sri Lanka still uphold the rights of people as fundamental rights trumps any other consideration.Dr. Jayawickrama: The Supreme Court of Ceylon of the 1960s, in the absence of any reference to fundamental rights in the Constitution, and indeed before the two international covenants came into force, asserted the Right to a Fair Trial, the Right to Liberty, and the Right to Freedom of Movement. That spirit of judicial activism has not been apparent thereafter.
The AAL Magazine: Dr. Jayawickrama, lastly what’s your view on the application of universal jurisdiction. Do you think not enough focus has been given to this area of prosecution? Do you know any known case where such prosecutions had been done successfully? Do you think prosecution under ‘universal jurisdiction’ is purely a political motivated exercise when it comes to international relations and diplomacy?
Dr. Jayawickrama: As early as 1980, the United States Federal Court of Appeals upheld the conviction for torture committed by a national of a Central American State in his own country, but who happened to be visiting the United States. That court held that “official torture is now prohibited by the law of nations”. More recently, there were two instances of the exercise of universal jurisdiction in, I believe, Germany and France, when a person of Syrian nationality and another of Iranian nationality were tried and sentenced. International human rights organizations, such as Human Rights Watch and Amnesty International, do, I believe, possess relevant evidence that could be placed before any judicial tribunal in any part of the world. In Geneva, the UN Human Rights Council has now been authorized to collect and process credible evidence of “crimes against humanity” allegedly committed by Sri Lankan military personnel, for the purpose of providing such evidence to States willing to exercise universal jurisdiction.
In the contemporary world, with several multilateral treaties that are designed to protect human beings, whether they be children, women, or men, it is, in my view, quite legitimate that territorial boundaries do not stand in the way of ensuring that protection. If a person has committed an act that is recognized as a crime under international law, it ought to be possible to bring such person to trial in whichever country he may be, especially if his own country has failed, or is unable, to do so. However, there are several countries that are competent to exercise universal jurisdiction by reason of their accession to relevant international treaties, but which may choose not to undertake that responsibility for political and other reasons. Such countries may avoid that responsibility by ensuring that the alleged criminals do not enter their territories by refusing them visas to do so.
Features
‘Lord Edgware Dies’
It has been some time since I read an Agatha Christie, the plot of which I cannot remember. So, I was delighted to find on the shelves of a friend Lord Edgware Dies, which I had a vague memory of, but no certainty about who had done it.
When I read it, I found that my memory of who was probably the killer was correct, but I could not be certain and the red herrings Christie threw in were so diverting that until almost the very end I wondered if I had been wrong.
The plot is very simple. Jane Wilkinson, who is married to Lord Edgware, tells him that she is desperate for a divorce since she is in love with a very proper Anglo-Catholic peer, Lord Melton, but Edgware refuses to divorce her. She asks Poirot to talk to him, which he does, and is surprised to find that Edgware has told Jane he is prepared to give her a divorce. This was, after he had categorically refused, through a letter, which Jane said she had not received.
That night Edgware is murdered, after Jane had been to see him, or so the butler said, and also Edgware’s secretary. But Jane had been that evening at a grand dinner many miles away, where a dozen fellow guests could swear to her presence.
There was a solution however to the mystery of two Jane Wilkinsons, namely a skilful impersonator called Carlotta Adams who, in the opening chapter had impersonated Jane Wilkinson, who had also been at the performance. But when Poirot goes to see her, he finds that she had been found dead on the morning after Edgware had been killed, of an overdose. And in her bag was a gold case, with a strange inscription, that contained the drug, along with a pair of pince-nez.
Her maid said she had written a letter to her sister in America and posted it the previous night. Poirot asks Inspector Japp to get the letter, and a transcript is received from America, and in it the name of Edgware’s nephew Ronald Marsh is mentioned; he had taken Carlotta to dinner after her performance, with which the book opens, and had then set her a challenge. Japp arrests Marsh, but Poirot is not happy and asks for the original of the letter, which the sister sends him. That shows that a page is missing, and the tear is obvious, though that raises the question as to why it had not simply been cut.
Matters are further complicated by the fact that Marsh had gone in a taxi to the Edgware house, along with Edgware’s daughter Geraldine, in the interval of an opera which had previously seemed to provide them with cast iron alibis. Geraldine had gone in to fetch her pearls so that Marsh could raise money he needed, and thus had an opportunity to kill Edgware, as did Marsh, for the driver said he had got out of the taxi while waiting and gone into the house.
Marsh explained why he had gone to the house on the night of the murder as having followed Bryan Martin, an American actor, who had been in love with Jane, whom he saw go into the house with a key. But there was no one visible when he entered, and Geraldine almost immediately came down and they left together. And Martin too has become an object of suspicion to Poirot, for he had been to see him before the murders were discovered with a story of being followed by a man with a gold tooth – a story Poirot immediately realized was false when he was asked how old the man was, and was told he was young, for young people did not have gold teeth.
A heap of French money Edgware had got for a trip to Paris was missing, but since Marsh had no need for it after his cousin’s offer of help, Poirot deduces that it must have been taken by the butler, who has disappeared. Christie has stressed that he is astonishingly handsome, unusual in a butler, and Poirot notes a resemblance to Martin, so he thinks the mysterious man going into the house must have been him.
Incidentally, later Poirot assumes that Edgware’s change of mind was because he was involved in some scandal, and I believe Christie intends us to see the cause of this in his handsome butler, though this is not specified.
Meanwhile, Poirot has asked Japp to find out the provenance of the case found in Carlotta’s handbag, and it turns out to have been made in Paris, specially commissioned, and collected by a woman with pince-nez.
But then another murder occurs—that of another guest at the grand dinner, which provided Jane with her alibi. The victim is an actor who had been bemused when Jane, at a lunch, thought the Judgment of Paris referred to the city. He told Hastings he wanted to see Poirot, but was killed before he could get to the appointment. Poirot had rushed there when told about his request, but it was too late.
Meanwhile, Poirot has tried out the pince-nez on Edgware’s secretary, but she could not see through these. It was only a chance remark heard outside the theatre that led him to try them out on Wilkinson’s maid Ellis, a spare pair that had been appropriated for the night of the murders.
Poirot then lays things out, having summoned Martin and told him that he probably suppressed Edgware’s letter, as he had been dropped by then and he did not want Jane to marry another. But after teasing Martin, Poirot says that Jane was in fact the murderer, and she got Carlotta to impersonate her at the dinner while she went to the house and killed her husband. After meeting Carlotta later and checking with her through a call that she had
not been rumbled, Jane had gone ahead with the murder – she put veronal into her drink and the case with veronal into the handbag. She forgot to take out the pince-nez she had used earlier to imitate an American. Carlotta had registered as the American in a hotel and Jane had gone to see her, and there they exchanged identities. After seen the letter, she made use of it by tearing off the page that referred to her, and the S of She, so that the person who had challenged Carlotta to impersonate her seemed to be a man.
There is a coda in which Jane, condemned to death, writes to Hastings, still full of pride at her ingenuity hoping she will be remembered.
Features
Desilt reservoirs, learn from our ancient irrigation systems
by Prof. O. A. Ileperuma
Silting of reservoirs is a major problem today affecting our hydropower production and irrigation systems. The main Mahaweli reservoirs are silted to a considerable extent reducing the water holding capacity of them. Due to poor soil management practices, floodwaters deposit large amounts of silt in these reservoirs. When the Polgolla reservoir was fully drained about two years back, one could see mountains of silt in the lower reaches of the reservoir. A rough estimate is that 50% of the total capacity of these reservoirs has been lost to siltation. This is a serious issue which affects not only power and agriculture but also flood control.
Our ancient irrigation systems ensured that desilting of reservoirs took place under royal decree where all users of the reservoirs were ordered to carry out desilting of reservoirs during the dry season. The clay thus collected was used in making bricks for the construction of great stupas which dot the landscape of our ancient kingdoms. This ensured that the reservoirs had their full capacity filled with water for the next cultivating season. Our ancient kings were clever enough not to construct reservoirs by blocking main rivers such as the Mahaweli. A classic example is the Minipe left canal where they tapped only the surface water of Mahaweli. Even the bigger tanks such as Nuwara Wewa and Parakrama Samudraya were fed with minor rivulets. There were also other ingenious features in the cascade irrigation systems built by the ancient kings, such as mud sluice canals and forest reservations between the reservoirs in the cascade system. These reservations helped trap silt and remove excess nutrients, which could otherwise contribute to increasing salinity as water flowed from one reservoir to another.
- Parakrama Samudraya
- Kalawewa
- Kotmale
A classic engineering marvel is the former Yoda Ela, which carries water from Kalawewa to Nuwara Wewa and Tissa Wewa. It is 87 km long although the straight distance between these points is only about 40 km. The gradient of this canal is about 10 cm per km or 6 inches per mile. Yodha Ela functions as a moving reservoir and feeds about 4,600 hectares of paddy lands. It is a winding canal with about 120 smaller reservoirs on its way. It was constructed during the reign of King Dhatusena around 459 AD and later expanded by King Parakramabahu by connecting more reservoirs to the network. Unfortunately, during the Mahaweli project our modern-day engineers constructed a concrete canal replacing the winding path of this Yoda Ela also called Jaya Ganga. This effectively removed the ability of the old Yoda Ela to remove silt and nutrients. The bank of this Ela has wet zone trees such as jak and areca nut growing well. They take up the nutrients from the flowing stream making the water suitable for irrigation later.
Ancient Mesopotamian civilisations depended on dams constructed along the two main rivers, Euphrates and Tigris. After continuous irrigation of their fields over several thousand years, salinity of the irrigated lands increased making them unsuitable for agriculture. People died due to famine and this clearly illustrates the danger of blocking main rivers for agriculture. There is scientific evidence that the salinity of paddy soils in the Mahaweli C area is increasing.
We saw the devastation caused by Cyclone Ditwah. The sluice gates of the Kotmale Reservoir were opened, and Kandy and Peradeniya were flooded. If the reservoir had had greater storage capacity, couldn’t the opening of the gates have been delayed? This may not be an argument that modern-day engineers would readily accept, and I am not an irrigation expert. These ideas may well be naïve. But most of us tend to think of reservoirs mainly in terms of hydropower generation and irrigation, while their role in flood control receives much less attention. The question therefore deserves serious consideration. Could restoring lost reservoir capacity through desilting help improve our ability to manage extreme rainfall and reduce flood risks?
Desilting our reservoirs should be considered a national priority.
Features
Losing out to Ethiopia
Export diversification – Missing the wood for the trees – Part III
by Gomi Senadhira
In Sri Lanka, the word “Ethiopia” is often used as disparaging slang to describe individuals or areas experiencing extreme poverty, starvation, or severe economic hardship. This linguistic habit originated in the 1980s with the Western media coverage of the devastating Ethiopian famine of 1983-85. That media coverage shocked the world but also left an outdated and offensive global stereotype that the country is permanently starving. Much has changed since then. By now, with an annual growth rate of around 9%, it is the fastest-growing economy in sub-Saharan Africa. Ethiopia has also emerged as a highly competitive exporter and is challenging not only its competitors in the region but also countries like Sri Lanka. This article is on how Sri Lanka has lost ground to Ethiopia (and a few other countries) in the GCC markets for agricultural and floricultural products.
Sri Lanka – A Pioneer in the Agriculture and Floricultural Market in the GCC
As discussed in Part II of this article, by the mid-1980s Sri Lanka had established a strong foothold in the GCC’s fruit, vegetable, and floricultural market. Geographical proximity and well-established shipping and air links gave Sri Lanka a strong comparative advantage over Southeast Asian and African nations. Thailand, Vietnam, and Kenya were not even in the market. At that time, Ethiopia was experiencing (as BBC news reports described) “a biblical famine”.
The market was not very large, but it was lucrative and growing. Trade Minister Lalith Athulathmudali as well as the Chairman of the Export Development Board, Victor Santiapillai, who visited Kuwait (and the GCC countries), recognised the market potential for these products and encouraged us to continue with our work. The minister was particularly keen to further develop links between the market for these products, exporters, and his Export Production Villages (EPVs). So, it was becoming a successful case not only for export diversification but also for transferring gains from exports directly to rural households.
From Trailblazer to Tailender
As a result, even by the beginning of this century Sri Lanka had a larger market share than most of its competitors from Asia or Africa. But since then, our competitiveness has weakened significantly. The tables below provide a comparative snapshot of Sri Lanka’s performance vis-à-vis Thailand, Vietnam, Kenya and Ethiopia in the GCC market for vegetables, fruits and floricultural products. As illustrated therein, in 2001 Sri Lanka was ahead of Thailand, Kenya and Ethiopia in this small but rapidly growing market. Since then, we have fallen behind Thailand, Kenya and many other countries in that lucrative market. If this trend continues, Sri Lanka will fall behind Ethiopia within the next few years. (See Table 1)
In the GCC market for vegetables (covered in HS chapter 07), Sri Lanka was ahead of most other competitors in 2001. As illustrated in Table 1 , Sri Lanka had failed to develop this market, while Thailand, Kenya, and even Ethiopia had very efficiently increased their market shares. The GCC is a market to which Sri Lanka can supply some vegetables, like cabbages, by sea. It appears Sri Lanka had also failed to exploit this mode of supply.
We can see a similar trend in the market for fruits. Vietnam, Kenya, and Thailand have emerged as major players, while exports from Sri Lanka have staggered on slowly. In this segment, Vietnam has emerged as a leading player during the last twenty years and the GCC imports from Viet Nam have shot up from US$44 thousand in 2001 to US$346 million by 2024. In part one of these articles, I discussed the remarkable increase of jackfruit exports from Vietnam “…just $3 million in 2015 to an impressive $236.8 million in 2023” while most of our jackfruit production rots under the trees. This explains how countries develop their markets, geographically and product-wise. (See Table 2)
Sri Lanka’s performance has been weakest in the market for floricultural products (HS Chapter 06), which groups live trees, cut flowers, and ornamental foliage. When we first entered the market in the 1980s, the market was dominated by the Netherlands, and Kenya and Ethiopia were not even in the market. At that time, we identified the Gulf states as a market where Sri Lanka could have a dominant presence due to geographical proximity. Even in 2001, Sri Lanka was ahead of Kenya, Ethiopia, and Thailand. But by now, Kenya has emerged as the dominant supplier. Ethiopia is also expanding its market share and is the third-largest exporter. (See Table 3)
Missing the Wood for the Trees
In the mid-1980s, Sri Lanka first established its foothold in the GCC market. Since then, Thailand, Vietnam, Kenya, and even Ethiopia have moved well ahead of us and have become leading players. Why did we lag behind in our export diversification efforts in general and, more particularly, in the GCC market?
The reasons are very clear. After the initial attempts in the 1980s and early 1990s, Sri Lanka has not been proactively involved in identifying, developing, and promoting new products and markets, or protecting and further developing new markets already established. The focus has simply been on traditional exports: tea, coconut, cinnamon, and garments, while other products were almost ignored. In essence, we have been and continue to focus intensely on a narrow group of products and markets, and we have lost sight of the bigger picture.
(The writer can be reached at senadhiragomi@gmail.com)
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