Corruption is a violation of the fundamental rights of the citizen because it leads to the misallocation of public funds. It undermines the right to equality by giving access to an inexplicable accumulation of wealth among the corrupt.
by M Sornarajah
The review of a single law for Sri Lanka by a commission headed by a divisive figure was emblematic of an administration driven by ethno-nationalist animosities. Now that young people in particular have stood up against such tendencies, it is necessary to consider the one law that has guided and should guide the future of Sri Lanka.
The Supreme Court of Sri Lanka, in a long series of decisions, has ruled that customary international law, in particular human rights law, is part of Sri Lankan law. It is the customary international law thus proclaimed by the Supreme Court which truly constitutes the unique law of Sri Lanka. In this course of precedents, there are cases that have captured the imagination of the public. In one, the court ordered that a foreign investment in phosphate mining in Eppawala, which would have depleted natural resources and damaged the foundations of sacred sites in the area, be halted. In another case, the Supreme Court protected the right of a young politician, Mahinda Rajapakse, in his former guise as a human rights activist, to travel to Geneva to present the case before the Human Rights Committee rights on the rights of JVP detainees. Many of these cases were successfully argued by my eminent professor at the University of Ceylon, the late Mr. RKW Goonesekere. A long-time director of the Law College, he has taught many lawyers in Sri Lanka. He was committed to the cause of human rights in this country.
A later case, he argued, Sinnarasa v. AG in which a politically inclined Chief Justice held that customary international law on torture is not incorporated into Sri Lankan law unless it be expressed by law, is an aberration widely condemned both inside and outside Sri Lanka. It rests on the diminished authority of this particular chief justice. It does not reflect the law of any other common law jurisdiction. The judgment was condemned by scholars both in Sri Lanka and abroad. This does not affect the established rule in Sri Lankan law that customary international law is part of Sri Lankan law.
The acceptance of customary international law as the only common law in Sri Lanka, besides of course the law contained in legislation and residual Roman-Dutch law, is crucial for Sri Lanka at the current political stage. Consideration of any other “one law” would be divisive and inappropriate at a time when the country is going through great difficulties. Its pressing issues are reconciliation after the long civil war, the release of people detained for excessively long periods without trial on the grounds that they are terrorists under the draconian Prevention of Terrorism Act, the issue of missing persons and the elimination of the endemic corruption which deprives the people of their wealth. For each of these questions, the answer lies in respecting the norms prescribed by customary international law. The gradual shift away from rule of law standards embodied in customary international law is a major reason for the political and economic situation in our country. Some incidents are the lack of an independent judiciary, the lack of equal protection under the law of all citizens of the state, the principle of meritocracy in public appointments, rampant corruption and the failure of the state to protect the lives of its citizens. while being aware of the threats to their lives.
There are more pressing issues than the stoking of communal and religious passions on the basis of an inquiry to institute law for Sri Lanka chaired by a convicted Buddhist priest who has a habit of promoting racial and religious hatred. . There is already a law for Sri Lanka from which the necessary rules for our political life can be extracted. Three important areas for which international law points to solutions relate to the need for solutions to the ethnic conflict, the abolition of the law on the prevention of terrorism and the endemic corruption which has caused an economic crisis in the country.
Sri Lanka’s 74-year curse has been the ethnic problem. It is at the origin of the current calamities. Every politician in the major political parties jumped on the bandwagon of Sinhalese Buddhist extremism to gain power and then engaged in corruption, bringing no benefit to the people. While the children of these Sinhalese Buddhist chauvinists have been educated abroad or in international schools in English, the children of the poor have been schooled in Swabasha and are denied access to education in science and technology. . They are political fodder for the future. We must put an end to this pernicious cycle. International law recognizes the equality of all human beings as the organizing principle of life. International law recognizes the right to self-determination of minorities as a means of solving ethnic problems. The smallest form allows a solution within a unitary state. Internal self-determination speaks of decentralization and other forms of constitutional settlement. The Supreme Court of Sri Lanka has ruled that such a solution is constitutional. Such ideas must be explored in solving this particular problem for progress to be made. If they do not succeed, the rights of minorities to be protected by external self-determination are reborn. The state must quickly put in place a system that ensures maximum decentralization of powers and equality for all minorities to avoid such an outcome.
The law on the prevention of terrorism is the result of the ethnic problem. Its draconian provisions led to the disappearance of several people placed in police custody. Many are still languishing in prisons without trial. False convictions have occurred through coerced confessions. The situation provoked universal condemnation. Seven UN rapporteurs have, in a joint report, identified what needs to be corrected in the AWP. They identified the following five “necessary preconditions”: (i) a precise definition of terrorism in line with international standards (ii) legal certainty, in particular when the law undermines the freedoms of expression, association, opinion, religion or belief; (iii) prevention of arbitrary deprivation of liberty; (iv) prevention of torture and enforced disappearances; (v) the guarantee of due process and a fair trial.
The government has recently made cosmetic changes to the legislation which are woefully insufficient to meet these requirements. It would be better to abolish the law and draft new legislation to bring it into line with the standards of international law. Abolition would mean that those languishing in prisons will be set free. Accounts must be taken of persons who go missing after being taken into custody or handed over to government agents. It is necessary to put an end to the shameful episodes of our law through accountability and to make a fresh start. The police, the armed forces and the state care little about the value of citizens’ lives because there have been deaths at their hands that have not been investigated. No responsibility has been attributed to these deaths.
The third factor is the extent of the corruption that plagues our public life. The politicians and religious leaders who support them have earned public contempt. In this context, it is necessary to follow the prescriptions contained in the United Nations Convention against Corruption, the principles of which are widely considered to be part of customary international law. Sri Lanka has signed and ratified the Convention but, characteristically, has not incorporated it into national law. 186 countries (including Uganda) are parties to the Convention. The Convention creates a procedure for money hidden in foreign countries by corrupt politicians to be brought back to Sri Lanka. It will allow the repatriation of the proceeds of corruption by successive administrations in Sri Lanka. The money stolen from the people can repay the debts that the country has contracted by successive corrupt administrations. The proceeds of corruption, defined as acquired through the abuse of “power entrusted by the people for private ends”, must be returned to the people.
Corruption is a violation of the fundamental rights of the citizen because it leads to the misallocation of public funds. It undermines the right to equality by giving access to an inexplicable accumulation of wealth among the corrupt. Fundamental rights lawsuits must be brought against politicians demanding that they personally pay damages for violations of these rights. BASL should take the lead in this area. It is possible under the current law. Tracing corrupt funds in foreign banks will be made easier if new legislation incorporating the United Nations Convention on Corruption is incorporated into our legislation. It is true that procedures for recovering the proceeds of corruption will take time, but the sooner they are put in place and the proceeds secured for eventual recovery, the better.
Rather than continuing to incite hatred by seeking one law, the government should follow the rules of the one law that the Supreme Court has recognized as binding in Sri Lanka to find solutions to our country’s pressing problems.
Germany had Hitler, a dictator who killed over 12 million Jews and led the country into war. After the Second World War, the German people, hoping to avoid the repetition of such a calamity, promulgated a constitution which made human dignity and international law its centerpieces. Article 1 reads as follows:
Section 1[Human dignity – Human rights – Legally binding force of basic rights]
1. (1) Human dignity is inviolable. To respect and protect it is the duty of all State authorities.
2. (2) The German people therefore recognize inviolable and inalienable human rights as the foundation of all community, peace and justice in the world.
Germany’s Basic Law contains a provision, Basic Law 25, which reads:
Section 25[Primacy of international law]The general rules of international law are an integral part of federal law. They prevail over the laws and directly create rights and duties for the inhabitants of the federal territory.
It is imperative that a fresh start be made in Sri Lanka after the current chaos. At that time, human dignity, human rights and the state’s duty to protect human lives must take priority and provisions must be made in the constitution to ensure the primacy of international law.
(The writer, Emeritus Professor of Law at the National University of Singapore)