States of Emergency - Centre for Policy Alternatives

The court’s reasoning with regard to the constitutionality of, and
rights available under the ICCPR and the First Optional Protocol
rest on two principal arguments, which are both founded on the
court’s interpretation of sovereignty and the separation of powers
as laid down in Articles 3 and 4 of the constitution. These require
separate analysis.
First, with regard to the ICCPR itself, the Court found that the
executive power of the people as exercised by the President under
Article 33 (f) read with Articles 3 and 4 (b) of the Constitution
empowered the President to represent Sri Lanka abroad and
under customary international law to enter into treaties, the
contents of which must be consistent with the Constitution and
the laws of Sri Lanka. The court found that the accession to the
ICCPR was a valid exercise of executive power and found its
contents consistent with the Constitution of Sri Lanka. Citing the
dualist tradition of Sri Lanka with regard to international law,
however, the court took the position that no enforceable rights as
a matter of domestic law could automatically Llow from the
accession in the absence of enabling legislation enacted by
Parliament to give effect to the ICCPR. The court deemed it
presumable that speciLic legislation to give effect to the ICCPR in
domestic law was not enacted because the government considered
the fundamental rights declared and recognised in the
Constitution as adequate fulLilment of Sri Lanka’s treaty
obligations.
Secondly, with regard to the declaration made by the President in
1997 acceding to the First Optional Protocol, the court found that
this was unconstitutional for two reasons. Firstly, the declaration
amounted to the conferment of public law rights on individuals
because it recognised that rights under the Covenant were directly
available to persons within the jurisdiction of Sri Lanka, and
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