The Bill states that it seeks “to give effect to the International Convention for the Protection of All Persons from Enforced Disappearances.” The Convention that was ratified by Sri Lanka on May 3, 2016 came into force on June 24, 2016. The Bill neither specifies the context in which it is intended to operate nor defines “Enforced Disappearances”. Under these circumstances both context and definition have to follow what is stated in the International Convention.
THE CONTEXT: As stated in Article 1 Clause 2 of the Convention:
“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearances”.
THE DEFINITION: As stated in Article 2 of the Convention:
“For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”.
It follows, therefore, that under no circumstances, not even during an emergency which threatens the life of the nation such as happened during the Armed Conflict in Sri Lanka, could Enforced Disappearances as defined be justified. According to the definition, “enforced disappearance” means “depriving a person’s liberty” and refusing to disclose his/her whereabouts etc. etc”…with the authorization, support or acquiescence of the State”. Thisprovision violates the Constitution of Sri Lanka relating to “personal liberty” statedin Articles 13(1) and 13(2) during an emergency.
It should be noted that Article 15 (7)subtitled “Restrictions on Fundamental Rights”,states that Articles 13(1), 13(2) “shall be subject to such RESTRICTIONS (emphasis added) as may be prescribed by law in the interests of national security, public order and the protection of public health or morality…”. Therefore, the provision in Article 13(2) that a “…person held in custody, detained or otherwise deprived of personal liberty…”could be subjected to restriction during an emergency that threatens the life of a nation is recognized in the Constitution of Sri Lanka. The Bill on the other hand does NOT recognize any restrictions during an emergency. Thus the provisions in the Bill violate the Constitution.
Notwithstanding such contradictions Article 13(6) states:
“No person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed”.
“Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”. Thus, a provision in the Constitution could become subordinate to a provision accepted by the “community of nations”.
The Convention was adopted by the UN on December 20, 2006 and was opened for signature on February 6, 2007. As of July 23, 2017, ONLY 57 nations have signed and ratified the Convention. While several countries have only signed, but NOT ratified the Convention, others such as the U.S.; U.K.; Australia; Canada; China; Russia and Pakistan and other countries have not signed. Therefore, since it is reasonable to conclude that the Convention is NOT recognized as law by the “community of nations”, its provisions should not be retroactive. Thus, Article 13 (2) does not apply to offences prior to 2007 and Article 13(6) is not applicable to provisions in the Bill,because the Bill is subordinate to the Constitution.
A fact that is clearly evident is that while underemergency situations that”threaten the life of a nation”, as happened during and after the Armed Conflict in Sri Lanka,the Constitution recognizes the principle that certain Fundamental Rights could be derogated for the survival of the nation, the Bill does not. Thus, the Bill is in violation of the Constitution.
Consequently, the options are that either the Bill is revised to accommodate existing provisions in the Constitution or for the Constitution to be amended to accommodate provisions in the Bill. If it is to be the latter route since some of the amendments relate to fundamental rights included as part of the sovereignty of the People per Article 3, any amendments to provisions in the Constitution relating to Fundamental Rights will need a two-thirds majority in Parliament and approval by people at a referendum.
THE ISSUE of EXTRADITION
Article 8 of the Bill states:
“Where a request is made to the Government of Sri Lanka, by or on behalf of the Government of a Convention State for the extradition of any person accused or convicted of an offence under sections 3 or 4, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the government of the requesting State of the measures which the government of Sri Lanka has taken, for the prosecution or the extradition of that person for that offence”.
According to this provision, the possibility exists that any personcould be extradited to a Convention State on a mere accusation. Such accusations could originate in Sri Lanka or in a Convention State. Either way, the Bill has no provision for any procedures that should be followed within Sri Lanka or outside; not even a preliminary investigation, other than what the Minister proposes. The lack of any formalised procedures to establish the credibility of the accusation prior to extradition presents ample opportunities for arbitrariness, selectivity, abuse and victimization.
Notwithstanding the provision in Article 8, Article 6 of the Bill states that the High Court of Sri Lanka “…shall have exclusive jurisdiction to try offences relating to Enforced Disappearances”. It also states that IF an offence is committed outside Sri Lanka, the High Court “shall have the jurisdiction to try such offences as if they were committed within Sri Lanka”whether the person is or is not a citizen of Sri Lanka, a habitual resident of Sri Lanka, or a national of a Convention State. Therefore, the need for extradition if requested by a Convention State does not arise as long as the High Court has jurisdiction to try offences both within and without Sri Lanka. Thus, it is starkly evident that Articles 6 and 8 in the Bill contradict each other, and furthermore, that Article 8 is redundant.
The Bill is intended to give effect to the International Convention for the Protection of All Persons from Enforced Disappearances. In the absence of the context in which the Bill is expected to operate, as well as a definition of “Enforced Disappearances”, it is necessary to rely on the wording in the International Convention upon which this Bill is being based. According to the Convention, the context is that NO exceptional circumstances, even emergencies, “may be invoked as a justification for enforced disappearances”. However, the Constitution of Sri Lanka recognizes that certain circumstances,such as emergencies exist, where the principle of derogation of certain Fundamental Rights is acknowledged. This being the case, the Bill contradicts the Constitution of Sri Lanka. Therefore, either the Bill has to be revised, or the Constitution has to be amended, and since Fundamental Rights are included as a component of the sovereignty of the People in Article 3 of the Constitution, any amendment relating toFundamental Rights would amount to amending an entrenched Clause in the Constitution, which would thus require a 2/3 majority of Parliament and approval by the people ata referendum. Furthermore, since provisions in the Convention also violate provisions in the Constitution of Sri Lanka, the Government should be held accountable for signing and ratifying the Convention.
The Bill states that the High Court has the jurisdiction to try offences relating to Enforced Disappearances whether committed within Sri Lanka or outside it, if committed by any person, whether a Sri Lankancitizen or not, by a habitual resident in Sri Lanka,or a national of a Convention State. Since members of the security forces would be Sri Lankan citizens, and since offences relating to Enforced Disappearances would be tried by the High Court, there are no grounds whatsoever for extradition. Under these circumstances, there is absolutely no justification for the existence of Article 8 along with Article 6 in the Bill.
It is evident from the foregoing that this Bill not only violates the Constitution but also contains Articles that contradict each other. In view of these multiple flaws, the Bill should be withdrawn. Furthermore, as long as existing provisions in the Constitution remain, the provisions in the Convention cannot be accommodated. Sri Lanka should therefore withdraw from being a Convention State.