Features

Nihal Jayawickrama discusses Alice in Wonderland reasoning, minority rights, and universal jurisdiction with the Anglo- American Lawyer magazine

Published

3 years ago

2023/04/2

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.

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Features

Cyclones, greed and philosophy for a new world order

Published

23 hours ago

2025/12/8

Thilina Walpola

Floods caused by Cyclone Ditwah in Sri Lanka

Further to my earlier letter titled, “Psychology of Greed and Philosophy for a New World Order” (The Island 26.11.2025) it may not be far-fetched to say that the cause of the devastating cyclones that hit Sri Lanka and Indonesia last week could be traced back to human greed. Cyclones of this magnitude are said to be unusual in the equatorial region but, according to experts, the raised sea surface temperatures created the conditions for their occurrence. This is directly due to global warming which is caused by excessive emission of Greenhouse gases due to burning of fossil fuels and other activities. These activities cannot be brought under control as the rich, greedy Western powers do not want to abide by the terms and conditions agreed upon at the Paris Agreement of 2015, as was seen at the COP30 meeting in Brazil recently. Is there hope for third world countries? This is why the Global South must develop a New World Order. For this purpose, the proposed contentment/sufficiency philosophy based on morals like dhana, seela, bhavana, may provide the necessary foundation.

Further, such a philosophy need not be parochial and isolationist. It may not be necessary to adopt systems that existed in the past that suited the times but develop a system that would be practical and also pragmatic in the context of the modern world.

It must be reiterated that without controlling the force of collective greed the present destructive socioeconomic system cannot be changed. Hence the need for a philosophy that incorporates the means of controlling greed. Dhana, seela, bhavana may suit Sri Lanka and most of the East which, as mentioned in my earlier letter, share a similar philosophical heritage. The rest of the world also may have to adopt a contentment / sufficiency philosophy with strong and effective tenets that suit their culture, to bring under control the evil of greed. If not, there is no hope for the existence of the world. Global warming will destroy it with cyclones, forest fires, droughts, floods, crop failure and famine.

Leading economists had commented on the damaging effect of greed on the economy while philosophers, ancient as well as modern, had spoken about its degenerating influence on the inborn human morals. Ancient philosophers like Plato, Aristotle, and Epicurus all spoke about greed, viewing it as a destructive force that hindered a good life. They believed greed was rooted in personal immorality and prevented individuals from achieving true happiness by focusing on endless material accumulation rather than the limited wealth needed for natural needs.

Jeffry Sachs argues that greed is a destructive force that undermines social and environmental well-being, citing it as a major driver of climate change and economic inequality, referencing the ideas of Adam Smith, John Maynard Keynes, etc. Joseph Stiglitz, a Nobel Laureate economist, has criticised neoliberal ideology in similar terms.

In my earlier letter, I have discussed how contentment / sufficiency philosophy could effectively transform the socioeconomic system to one that prioritises collective well-being and sufficiency over rampant consumerism and greed, potentially leading to more sustainable economic models.

Obviously, these changes cannot be brought about without a change of attitude, morals and commitment of the rulers and the government. This cannot be achieved without a mass movement; people must realise the need for change. Such a movement would need leadership. In this regard a critical responsibility lies with the educated middle class. It is they who must give leadership to the movement that would have the goal of getting rid of the evil of excessive greed. It is they who must educate the entire nation about the need for these changes.

The middle class would be the vanguard of change. It is the middle class that has the capacity to bring about change. It is the middle class that perform as a vibrant component of the society for political stability. It is the group which supplies political philosophy, ideology, movements, guidance and leaders for the rest of the society. The poor, who are the majority, need the political wisdom and leadership of the middle class.

Further, the middle class is the font of culture, creativity, literature, art and music. Thinkers, writers, artistes, musicians are fostered by the middle class. Cultural activity of the middle class could pervade down to the poor groups and have an effect on their cultural development as well. Similarly, education of a country depends on how educated the middle class is. It is the responsibility of the middle class to provide education to the poor people.

Most importantly, the morals of a society are imbued in the middle class and it is they who foster them. As morals are crucial in the battle against greed, the middle class assume greater credentials to spearhead the movement against greed and bring in sustainable development and growth. Contentment sufficiency philosophy, based on morals, would form the strong foundation necessary for achieving the goal of a new world order. Thus, it is seen that the middle class is eminently suitable to be the vehicle that could adopt and disseminate a contentment/ sufficiency philosophy and lead the movement against the evil neo-liberal system that is destroying the world.

The Global South, which comprises the majority of the world’s poor, may have to realise, before it is too late, that it is they who are the most vulnerable to climate change though they may not be the greatest offenders who cause it. Yet, if they are to survive, they must get together and help each other to achieve self-sufficiency in the essential needs, like food, energy and medicine. Trade must not be via exploitative and weaponised currency but by means of a barter system, based on purchase power parity (PPP). The union of these countries could be an expansion of organisations,like BRICS, ASEAN, SCO, AU, etc., which already have the trade and financial arrangements though in a rudimentary state but with great potential, if only they could sort out their bilateral issues and work towards a Global South which is neither rich nor poor but sufficient, contented and safe, a lesson to the Global North. China, India and South Africa must play the lead role in this venture. They would need the support of a strong philosophy that has the capacity to fight the evil of greed, for they cannot achieve these goals if fettered by greed. The proposed contentment / sufficient philosophy would form a strong philosophical foundation for the Global South, to unite, fight greed and develop a new world order which, above all, will make it safe for life.

by Prof. N. A. de S. Amaratunga
PHD, DSc, DLITT

Features

SINHARAJA: The Living Cathedral of Sri Lanka’s Rainforest Heritage

Published

23 hours ago

2025/12/8

Thilina Walpola

Damp and thick undergrowth

When Senior biodiversity scientist Vimukthi Weeratunga speaks of Sinharaja, his voice carries the weight of four decades spent beneath its dripping emerald canopy. To him, Sri Lanka’s last great rainforest is not merely a protected area—it is “a cathedral of life,” a sanctuary where evolution whispers through every leaf, stream and shadow.

“Sinharaja is the largest and most precious tropical rainforest we have,” Weeratunga said.

“Sixty to seventy percent of the plants and animals found here exist nowhere else on Earth. This forest is the heart of endemic biodiversity in Sri Lanka.”

A Magnet for the World’s Naturalists

Sinharaja’s allure lies not in charismatic megafauna but in the world of the small and extraordinary—tiny, jewel-toned frogs; iridescent butterflies; shy serpents; and canopy birds whose songs drift like threads of silver through the mist.

“You must walk slowly in Sinharaja,” Weeratunga smiled.

“Its beauty reveals itself only to those who are patient and observant.”

For global travellers fascinated by natural history, Sinharaja remains a top draw. Nearly 90% of nature-focused visitors to Sri Lanka place Sinharaja at the top of their itinerary, generating a deep economic pulse for surrounding communities.

A Forest Etched in History

Centuries before conservationists championed its cause, Sinharaja captured the imagination of explorers and scholars. British and Dutch botanists, venturing into the island’s interior from the 17th century onward, mapped streams, documented rare orchids, and penned some of the earliest scientific records of Sri Lanka’s natural heritage.

Smallest cat

These chronicles now form the backbone of our understanding of the island’s unique ecology.

The Great Forest War: Saving Sinharaja

But Sinharaja nearly vanished.

In the 1970s, the government—guided by a timber-driven development mindset—greenlit a Canadian-assisted logging project. Forests around Sinharaja fell first; then, the chainsaws approached the ancient core.

“There was very little scientific data to counter the felling,” Weeratunga recalled.

: Poppie’s shrub frog

: Endemic Scimitar babblers

: Blue Magpie

“But people knew instinctively this was a national treasure.”

The public responded with one of the greatest environmental uprisings in Sri Lankan history. Conservation icons Thilo Hoffmann and Neluwe Gunananda Thera led a national movement. After seven tense years, the new government of 1977 halted the project.

What followed was a scientific renaissance. Leading researchers—including Prof. Savithri Gunathilake and Prof. Nimal Gunathilaka, Prof. Sarath Kottagama, and others—descended into the depths of Sinharaja, documenting every possible facet of its biodiversity.

Thilak

“Those studies paved the way for Sinharaja to become Sri Lanka’s very first natural World Heritage Site,” Weeratunga noted proudly.

: Vimukthi

: Nadika

: Janaka

A Book Woven From 30 Years of Field Wisdom

For Weeratunga, Sinharaja is more than academic terrain—it is home. Since joining the Forest Department in 1985 as a young researcher, he has trekked, photographed, documented and celebrated its secrets.

Now, decades later, he joins Dr. Thilak Jayaratne, the late Dr. Janaka Gallangoda, and Nadika Hapuarachchi in producing, what he calls, the most comprehensive book ever written on Sinharaja.

“This will be the first major publication on Sinharaja since the early 1980s,” he said.

“It covers ecology, history, flora, fauna—and includes rare photographs taken over nearly 30 years.”

Some images were captured after weeks of waiting. Others after years—like the mysterious mass-flowering episodes where clusters of forest giants bloom in synchrony, or the delicate jewels of the understory: tiny jumping spiders, elusive amphibians, and canopy dwellers glimpsed only once in a lifetime.

The book even includes underwater photography from Sinharaja’s crystal-clear streams—worlds unseen by most visitors.

A Tribute to a Departed Friend

Halfway through the project, tragedy struck: co-author Dr. Janaka Gallangoda passed away.

“We stopped the project for a while,” Weeratunga said quietly.

“But Dr. Thilak Jayaratne reminded us that Janaka lived for this forest. So we completed the book in his memory. One of our authors now watches over Sinharaja from above.”

Jumping spide

An Invitation to the Public

A special exhibition, showcasing highlights from the book, will be held on 13–14 December, 2025, in Colombo.

“We cannot show Sinharaja in one gallery,” he laughed.

“But we can show a single drop of its beauty—enough to spark curiosity.”

A Forest That Must Endure

What makes the book special, he emphasises, is its accessibility.

“We wrote it in simple, clear language—no heavy jargon—so that everyone can understand why Sinharaja is irreplaceable,” Weeratunga said.

“If people know its value, they will protect it.”

To him, Sinharaja is more than a rainforest.

It is Sri Lanka’s living heritage.

A sanctuary of evolution.

A sacred, breathing cathedral that must endure for generations to come.

By Ifham Nizam

Features

How Knuckles was sold out

Published

23 hours ago

2025/12/8

Thilina Walpola

Knuckles range

Leaked RTI Files Reveal Conflicting Approvals, Missing Assessments, and Silent Officials

“This Was Not Mismanagement — It Was a Structured Failure”— CEJ’s Dilena Pathragoda

An investigation, backed by newly released Right to Information (RTI) files, exposes a troubling sequence of events in which multiple state agencies appear to have enabled — or quietly tolerated — unauthorised road construction inside the Knuckles Conservation Forest, a UNESCO World Heritage site.

At the centre of the unfolding scandal is a trail of contradictory letters, unexplained delays, unsigned inspection reports, and sudden reversals by key government offices.

“What these documents show is not confusion or oversight. It is a structured failure,” said Dilena Pathragoda, Executive Director of the Centre for Environmental Justice (CEJ), who has been analysing the leaked records.

“Officials knew the legal requirements. They ignored them. They knew the ecological risks. They dismissed them. The evidence points to a deliberate weakening of safeguards meant to protect one of Sri Lanka’s most fragile ecosystems.”

A Paper Trail of Contradictions

RTI disclosures obtained by activists reveal:

Approvals issued before mandatory field inspections were carried out

Three departments claiming they “did not authorise” the same section of the road

A suspiciously backdated letter clearing a segment already under construction

Internal memos flagging “missing evaluation data” that were never addressed

“No-objection” notes do not hold any legal weight for work inside protected areas, experts say.

One senior officer’s signature appears on two letters with opposing conclusions, sent just three weeks apart — a discrepancy that has raised serious questions within the conservation community.

“This is the kind of documentation that usually surfaces only after damage is done,” Pathragoda said. “It shows a chain of administrative behaviour designed to delay scrutiny until the bulldozers moved in.”

The Silence of the Agencies

Perhaps, more alarming is the behaviour of the regulatory bodies.

Multiple departments — including those legally mandated to halt unauthorised work — acknowledged concerns in internal exchanges but issued no public warnings, took no enforcement action, and allowed machinery to continue operating.

“That silence is the real red flag,” Pathragoda noted.

“Silence is rarely accidental in cases like this. Silence protects someone.”

On the Ground: Damage Already Visible

Independent field teams report:

Fresh erosion scars on steep slopes

Sediment-laden water in downstream streams

Disturbed buffer zones

Workers claiming that they were instructed to “complete the section quickly”

Satellite images from the past two months show accelerated clearing around the contested route.

Environmental experts warn that once the hydrology of the Knuckles slopes is altered, the consequences could be irreversible.

CEJ: “Name Every Official Involved”

CEJ is preparing a formal complaint demanding a multi-agency investigation.

Pathragoda insists that responsibility must be traced along the entire chain — from field officers to approving authorities.

“Every signature, every omission, every backdated approval must be examined,” she said.

“If laws were violated, then prosecutions must follow. Not warnings. Not transfers. Prosecutions.”

A Scandal Still Unfolding

More RTI documents are expected to come out next week, including internal audits and communication logs that could deepen the crisis for several agencies.

As the paper trail widens, one thing is increasingly clear: what happened in Knuckles is not an isolated act — it is an institutional failure, executed quietly, and revealed only because citizens insisted on answers.

by Ifham Nizam