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

Illegal solar push ravages Hambantota elephant habitat: Environmentalist warns of deepening crisis

Published

13 hours ago

2026/03/19

Sahan Weerasooriya

Land earmarked for the project

A large-scale move to establish solar power plants in Hambantota has triggered a major environmental and social crisis, with more than 1,000 acres of forest—identified as critical elephant habitat—cleared in violation of the law, environmental activist Sajeewa Chamikara said.

Chamikara, speaking on behalf of the Movement for Land and Agricultural Reform, said that 17 companies have already begun clearing forest land along the boundaries of the Hambantota Elephant Management Reserve. The affected areas include Sanakku Gala, Orukemgala and Kapapu Wewa, which are known to be key elephant habitats and long-used movement corridors.

He said that what is taking place cannot be described as development, but rather as a large-scale destruction of natural ecosystems carried out under the cover of renewable energy expansion.

According to Chamikara, the clearing of forests has been carried out using heavy machinery, while large sections have also been deliberately set on fire to prepare the land for solar installations. He said that electric fences have been erected across wide stretches of land, effectively blocking elephant movement and fragmenting their natural habitat.

“These forests are not empty lands. They are part of a living system that supports wildlife and nearby communities. Once destroyed, they cannot be easily restored,” he said.

The projects in question include a 50 megawatt solar development undertaken by five companies and a larger 150 megawatt project implemented by 12 companies. The larger project is reported to be valued at around 150 million US dollars.

Chamikara stressed that these projects are being carried out in a coordinated manner and involve extensive land clearing on a scale that raises serious environmental concerns.

He further alleged that certain companies had paid about Rs. 14 million to secure support and move ahead with the projects. He said this points to a troubling failure of oversight by state institutions that are expected to protect forests and wildlife habitats.

“This is not only an environmental issue. It is also a serious governance issue. The institutions responsible for protecting these lands have failed in their duty,” he said.

Chamikara pointed out that under the National Environmental Act, any project of this scale must receive prior approval through a proper Environmental Impact Assessment process.

He said that clearing forest land before obtaining such approval is a direct violation of the law.

He added that legal requirements relating to archaeological assessments had also been ignored. Under existing regulations, large-scale land clearing requires prior evaluation to ensure that sites of historical or cultural value are not damaged.

“The law is very clear. You cannot go ahead with projects of this nature without proper approval. What we are seeing is a complete disregard for legal procedure,” Chamikara said.

The environmental impact of these activities is already becoming visible. With their natural habitats destroyed, elephants are increasingly moving into nearby villages in search of food and shelter. This has led to a sharp rise in human-elephant conflict in several areas.

Areas such as Mayurapura, Gonnooruwa, Meegahajandura and Thanamalvila have reported increasing encounters between humans and elephants. According to Chamikara, more than 5,000 farming families in these areas are now facing growing threats to their safety and livelihoods.

He warned that farmers are being forced to abandon their lands due to repeated elephant intrusions, while incidents involving damage to crops and property are rising. There have also been increasing reports of injuries and deaths among both humans and elephants.

“This is turning into a serious social and economic problem. When farmers cannot cultivate their lands, it affects food production, income and rural stability,” he said.

Chamikara also raised concerns about the broader environmental consequences of clearing forests for solar power projects. While renewable energy is promoted as a solution to reduce carbon emissions, he said that destroying forests undermines that goal.

“Forests play a key role in absorbing carbon dioxide. When you clear and burn them, you are increasing emissions, not reducing them. That defeats the purpose of promoting solar energy,” he explained.

He added that large-scale deforestation in dry zone areas such as Hambantota could also affect local weather patterns and reduce rainfall, which would have further negative impacts on agriculture and water resources.

Chamikara called for a shift in policy, urging authorities to focus on more sustainable approaches to solar power development. He said that rooftop solar systems on homes, public buildings and commercial establishments should be given priority, as they do not require clearing large areas of land.

He also recommended that solar projects be located on degraded or abandoned lands, such as areas affected by past mining or other low-value lands, rather than forests or productive agricultural areas.

“Renewable energy development must be done in a way that does not destroy the environment. There are better options available if there is proper planning,” he said.

Chamikara urged the Central Environmental Authority and the Department of Wildlife Conservation to take immediate action to stop ongoing land clearing and investigate the projects. He stressed that all activities carried out without proper approval should be halted until legal requirements are met.

He warned that failure to act now would lead to long-term environmental damage that could not be reversed.

“If this continues, we will lose not only forests and wildlife, but also the balance between people and nature that supports rural life. The consequences will be felt for generations,” he said.

The situation in Hambantota is fast emerging as a critical test of whether development goals can be balanced with environmental protection. As pressure grows, the response of authorities in the coming weeks is likely to determine whether the damage can still be contained or whether it will continue to spread unchecked.

By Ifham Nizam

Features

Why Mahatma Gandhi’s teachings need to be at the heart of conflict resolution

Published

13 hours ago

2026/03/19

Sahan Weerasooriya

Mahatma Gandhi

All credit to the Tamil Nadu government for taking concrete measures to perpetuate the memory of the renowned Mahatma Gandhi of India, who on account of his moral teachings stands on par with the likes of Socrates, Plato, Aristotle, Confucius and Jalaluddin Rumi, to name a few such all-time greats. The time is indeed ripe to draw the world’s attention to the Mahatma’s humanistic legacy which has resonated in the hearts of peace-oriented sections the world over down the decades.

Under its mega developmental blueprint titled ‘ Tamil Nadu 2030’, the Tamil Nadu government, among other things, intends transforming villages into centres of economic growth in conformity with the Mahatma’s vision of making the village the fundamental unit of material and spiritual advancement. Thus will come into being the ‘Uttamar Gandhi Model Villages Project’, which will be initially covering 10 village Panchayats. (Please see page 3 of The Island of March 11, 2026).

The timeliness of remembering and appreciating anew the teachings of Mahatma Gandhi resides in the utter lawlessness that has been allowed to overtake the world over the last few decades by none other than those global powers which took it upon themselves to usher in a world political and economic order based on the UN Charter and the Universal Declaration of Human Rights. Mainly in ‘the dock’ in this regard are the permanent members of the UN Security Council.

As is plain to see, the international law and order situation has veered out of control. Principal priorities for the international community or what’s left of it is to prevent the current mainly regional war in the Middle East from degenerating dangerously into another world war, coupled with the task of eliminating the possibility of another nuclear holocaust.

The most scorching of ironies is that the world’s ‘number one power’, the US, has virtually lost its way in the ‘Global Disorder’ it has been party to letting lose. For instance, instead of making good its boast of militarily neutralizing Iran and paving the way for the constant flow of fuel and gas from the Strait of Hormus by itself and Israel, it is now appealing to the rest of the West to come to its assistance. Not surprisingly, US allies are indicating their unwillingness to help pull the US’ ‘chestnuts out of the fire’.

Oil and gas are the veritable life blood of countries and going ahead it should not come as a surprise if impatience gets the better of the major powers and the nuclear option is resorted to by some of them under the dangerous illusion that it would be a quick-fix to their growing economic ills and frustrations.

All the above and more are within the realms of the possible and the need is pressing for humanistic voices to take centre stage in the present runaway crisis. As pointed out in this column last week, Realpolitik has overtaken the world and unless the latter is convinced of the self-destructive nature of the major powers’ policy of ‘meeting fire with fire’ to resolve their disputes, annihilation could be the lot of a good part of the world.

For far too long the voice of humanity has been muted and silenced in the affairs of the world by the incendiary threats and counter-threats of the big powers and their allies. No quarter has been bold enough in these blood pressure-hiking slanging matches to speak of the need for brotherly love and compassion among nations and countries. But it’s the language of love and understanding that is the most pressing need currently and the Mahatma in his time did just that against mighty odds.

At present the US and Iran are trading threats and accusations over military-related developments in the Gulf and it’s anybody’s guess as to what turn these events will take. However, calming voices of humanity and moderation would help in deescalating tensions and such voices need to go to the assistance of the UN chief and his team.

The Mahatma used the technique of ‘Satyagraha’ or the policy of non-violent resistance to oppose and dis-empower to a degree the British empire in his time and the current major powers would do well to take a leaf from Gandhi. The latter also integrated into the strategy of non-violent resistance the policy of ‘Ahimsa’ or love and understanding which helped greatly in uniting rather than alienating adversaries. The language of love, it has been proved, speaks to the hearts and minds of people and has a profoundly healing impact.

Mahatma Gandhi defined the ideal of ‘Ahimsa’ thus: ‘In its positive form, “Ahimsa” means the largest love, the greatest charity. If I am a follower of “Ahimsa”, I must love my enemy or a stranger to me as I would my wrong-doing father or son. This active “Ahimsa” necessarily includes truth and fearlessness.’ (See; ‘Modern Indian Political Thought; Text and Context’ by Bidyut Chakrabarty and Rajendra Kumar Pandey, Sage Publications India, Pvt. Ltd., www.sagepub.in).

In the latter publication, the authors also defined the essence of ‘satyagraha’ as ‘protest without rancour’ and this is seen as ‘holding the key to his entire campaign’ of non-violent resistance. From these perspectives, the teaching, ‘hatred begets hatred’ acquires more salience and meaning.

Accordingly, the voice of reason and love needs to come centre stage and take charge of current international political discourse. The UN and allied organizations which advocate conflict resolution by peaceful means need to get together and ensure that their voices are clearly heard and understood. The global South could help in this process by seeing to the vibrant rejuvenation of organizations such as the Non-aligned Movement.

An immediate task for the peace-oriented and well meaning is to make the above projects happen fast. In the process they should underscore afresh the profound importance of the teachings of Mahatma Gandhi, who is acclaimed the world over as a uniting and healing political personality and prophet of peace.

If the Mahatma is universally acclaimed, the reason is plain to see. Put simply, he spoke to the hearts and minds of people everywhere, regardless of man-made barriers. The language of peace and brotherhood, that is, is understood by everyone. The world needs more prophets of peace and reconciliation of the likes of the Mahatma to drown out the voices of discord and war-mongering and ensure that the language of humanity prevails.

Features

Exciting scene awaits them …

Published

13 hours ago

2026/03/19

Sahan Weerasooriya

The Future Model Hunt extravaganza, organised by Rukmal Senanayake, and advocacy trainer Tharaka Gurukanda, held in late January 2026, has brought into the limelight four outstanding contestants who will participate, at the international level, this year – Sandeepa Sewmini, Demitha Jayawardhana, Diwyanjana Senevirathna, and Nimesha Premachandra.

Nimesha took the honours as Mrs. Tourism Sri Lanka 2026 and was featured in The Island of 05th March,

Sandeepa Sewmini was crowned Miss Supranational 2026 and will represent Sri Lanka at the big event to be held in Poland later in the year.

A Business Management and Human Resources student, she will be competing under the guidance of Rukmal Senanayake from the Model With Ruki – Model Academy & Agency.

The Mister Supranational Sri Lanka crown went to Demitha Jayawardhana, a 20-year-old professional model and motocross rider.

Apart from modelling he is engaged in his family business.

Demitha Jayawardhana: Mister Supranational Sri Lanka 2026

Demitha is also a badminton player with a strong passion for sports, fitness and personal growth.

In fact, he is recognised for his strength, discipline, and passion for fitness.

A past student of Wycherley International School and St Peter’s College, Colombo, Demitha is currently in his second year of Economics Management at the Royal Institute of Colombo.

He will represent Sri Lanka at the 10th edition of the Mister Supranational pageant, in Poland, in August, 2026.

Mister and Miss Supranational are annual international beauty pageants, held in Poland, and are designed to discover new talent for the modelling and television industries and produce instant celebrities.

The competition focuses on elegance, intelligence, and social advocacy, with contestants, representing their countries.

The newly appointed Miss Teen International Sri Lanka 2026 is Diwyanjana Senevirathna.

She was crowned at the Future Model Hunt and will represent Sri Lanka at the Miss Teen International 2026 pageant in India.

Diwyanjana is noted for her grace and dedication to representing the country at this prestigious event that aims to celebrate talent, intelligence, charm, and individuality, and provide a platform for young girls to showcase their skills.