‘GSP PLUS’ PRIVILEGES:

THE NEED FOR CONSTITUTIONAL AMENDMENT

ROHAN EDRISINHA & ASANGA WELIKALA

There has recently been speculation and media reports about the European Union’s
system of tariff preferences known as the ‘GSP Plus’ programme, of which Sri Lanka
is presently a beneficiary country. The tariff preferences create massive advantages in
particular to our apparel industry, and have implications for the wellbeing and
employment for thousands in that important sector of our economy. It is vital,
therefore, that Sri Lanka retains this privilege.

The controversy relates to the fact that Sri Lanka’s continued beneficiary status comes
up for renewal later in 2008, and whether Sri Lanka continues to qualify for the GSP
Plus benefits in terms of the requirements that are set out for this by the European
Union. One of the important requirements to qualify is that the beneficiary country is
placed under a general obligation to ‘ratify and fully implement’ a set of twenty-
seven international conventions. One of the key international human rights
conventions listed under the relevant EU law is the International Covenant on Civil
and Political Rights (ICCPR).

Sri Lanka acceded to the ICCPR in 1980, and to its First Optional Protocol (which
allows individuals to address complaints against violations of rights recognised by the
ICCPR directly to the Human Rights Committee in Geneva) in 1997. The latter
accession was largely the initiative of former Minister of Foreign Affairs, the late
Hon. Lakshman Kadirgamar, PC, MP.

However, the Supreme Court decided in the case of Singarasa v. Attorney General
(2006), that while the accession of Sri Lanka to the ICCPR was legal, valid and bound
the State at international law, it created no additional rights (as recognised in the
ICCPR) for Sri Lankan citizens in the absence of domestic legislation. That is,
without our Parliament having enacted the provisions of the ICCPR into Sri Lankan
law. The Court presumed that the Sri Lankan Parliament had not so enacted the
ICCPR, because those civil and political rights already found expression in the
chapter on fundamental rights of the Sri Lankan Constitution (1978).

The Supreme Court also went on to hold that the accession to the First Optional
Protocol was invalid and unconstitutional, because in the view of the Court (wrongly,
in our view), recognising the jurisdiction of the Human Rights Committee was an
unconstitutional alienation of the sovereign judicial power of the people of Sri Lanka.

Given that the requirement under the GSP Plus scheme is ratification and full
implementation of the ICCPR, and not the First Optional Protocol, we will only focus
on the ICCPR here, although we believe the Supreme Court’s decision has deprived
Sri Lankans of an important avenue of human rights protection. We would moreover
add that in a recent Supreme Court order (in the case of The Joint Apparel Association
Forum and Others v. Sri Lanka Ports Authority and Others (2008)), the Court refused
to grant costs to the respondent trade unions on the ground that the unions had made
applications to the Freedom of Association Committee of the ILO whilst the
fundamental rights action was pending. In the view of the Court, the unions were not
entitled to seek redress from an external body while their matter was pending before
the Court, even though within Sri Lanka’s obligations under the ILO conventions, the
right of access to the treaty-body is recognised.

Whether or not the government agrees with the reasoning of the Supreme Court, it
remains bound by the Court’s decision; in which case the question arises as to what
steps the government intends to take to comply with the requirement of the GSP Plus
scheme that Sri Lanka should not only ‘ratify’ but also ‘fully implement’ the ICCPR
(among other international treaties such as the ILO conventions).

Late in 2007, the government passed the International Covenant on Civil and Political
Rights Act, No. 56 of 2007 (the ICCPR Act). The title is a complete misnomer that
misleadingly gives the impression that its purpose is to enact the ICCPR into domestic
law. The ICCPR Act contains only four main substantive rights-conferring provisions
in sections 2, 4, 5 and 6: viz., the right to be recognised as a person before the law;
entitlements of alleged offenders to legal assistance, interpreter and safeguard against
self-incrimination; certain rights of the child; and right of access to State benefits,
respectively. Furthermore, these provisions are formulated in terms substantially and
significantly different from the corresponding provisions of the ICCPR.

If the argument is that the rights recognised by the chapter on fundamental rights of
the Constitution substantially give effect to other rights in the ICCPR, we would also
strongly reject that view. We do so for the following reasons.

Firstly, there are a number of ICCPR rights which are not recognised by the Sri
Lankan Constitution or law. These include the right to life; freedom from negative
discrimination on the basis of national or social origin; freedom from forced or
compulsory labour; the security and liberty of persons deprived of liberty; the right to
compensation for unlawful arrest or detention; right to require free consent to medical
or scientific experimentation; right to leave the country; rights of minorities, including
in respect of religion, language and culture; and the right to privacy.

Secondly, the issue of the scope of rights in the manner in which they are drafted in
the ICCPR as compared to the Sri Lankan Constitution and law. For example, Article
14 (1) (a) of our Constitution guarantees the right to free speech in the following
terms: “Every citizen is entitled to – the freedom of speech and expression including
publication.” In the corresponding provision, Article 19 of the ICCPR, this right is
framed in much wider and elaborate terms to include the right of persons to hold
opinions without interference, to receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of a person’s choice.

Thirdly, the framework for restrictions of fundamental rights. In this regard there are
two basic criticisms that can be made with respect to the Sri Lankan Constitution’s
provision for permissible restrictions on fundamental rights in Article 15. The first is
that the permissibility of restrictions are framed in subjective terms, and do not
require a threshold of substantive justification prior to imposition of restrictions by
recourse to standards such as ‘necessity in a democratic society’, ‘reasonableness’ and
/ or ‘proportionality’ that are required by the ICCPR, and indeed many modern
constitutions. While it is true that in some instances, our Supreme Court has read
requirements similar to these in its fundamental rights case law, we would nonetheless
argue that this is not the same thing as having these requirements enshrined in the text
of the Constitution itself. The second criticism is that Article 15 of our Constitution
speaks merely of ‘restrictions’ and do not make the distinction between classes of
restrictions such as ‘derogation’, ‘restriction’ and ‘limitation’ in the way the ICCPR
and modern constitutions do. Thus it is not explicit in the text as to what rights may
be completely suspended (i.e., derogated from), what rights are absolutely non-
derogable under any circumstances, what rights may only be restricted to some extent
but not wholly suspended and so on.

More generally, there are several features of our Constitution that fall short of the
human rights standards established by the ICCPR. Prominent among these is Article
16 of the Constitution, which validates all written or unwritten laws existing prior to
1978 (i.e., the year in which the present Constitution was enacted) notwithstanding
inconsistency with fundamental rights and the Constitution. This illogical provision
goes against all norms of modern constitutionalism, which holds that the Constitution
is supreme and all other laws inconsistent with the Constitution must be invalid. In
this context, it is difficult to claim that the fundamental rights chapter in effect
provides the standard of human rights protection required by the ICCPR.

Even with regard to those laws that are enacted after 1978, Article 80 (3) prohibits
the judicial review of legislation for constitutionality, bar the very limited provision
for pre-enactment review, which is in practice almost entirely ineffectual.

We are mindful that Article 16 has been defended in some quarters as being essential
for protecting the integrity of our customary and personal laws (i.e., Kandyan law,
Thesawalamai and Muslim law). But we would point out that if this was the need,
then Article 16 could easily be drafted more narrowly to capture only these laws
within its scope rather than ALL existing law, even if inconsistent with the
Constitution.

A further general point to note in respect of the ‘full implementation’ of the ICCPR is
that Article 126 of the Constitution vests the sole and exclusive jurisdiction in respect
of fundamental rights with the Supreme Court. While at first glance this might seem
to be an indication of the seriousness accorded by our Constitution to fundamental
rights, international best practice, and indeed our own experience suggests that, there
should be provision for at least one appeal from a decision of any court. This will also
free the Supreme Court from the burden of trying facts, only take up cases of
constitutional significance on appeal, and thereby be able to articulate a more
coherent fundamental rights jurisprudence.

We final general point we would make is with regard to the appalling feature of Sri
Lankan governance in which laws and even significant parts of the Constitution
remain unimplemented. For example, in the case of the Seventeenth Amendment, its
non-implementation can only be described as resulting from an intentional violation
of the Constitution. In these circumstances, it is difficult to accept the argument that
the Sri Lankan Constitution and the law affords citizens a standard of human rights
protection even remotely comparable to that envisaged by the ICCPR. Ratification
and full and effective implementation are essential.
For all these reasons, we are convinced that effective implementation of the ICCPR
requires constitutional amendment, which in the case of the ICCPR would require a
two-thirds majority in Parliament, but not a referendum. Given that ‘full
implementation’ of the ICCPR is a pivotal requirement of the GSP Plus scheme, upon
Sri Lanka’s continuing qualification for which, to a not inconsiderable extent,
depends the health of our apparel industry and the livelihoods and jobs of thousands
of garment sector employees and their dependents, the primary responsibility for
initiating constitutional change lies with the government. It is also incumbent on other
parties represented in Parliament, particularly the United National Party, to support
the government in such a measure and ensure the required two-thirds majority is
obtained.