States of Emergency - Centre for Policy Alternatives

embrace judicial activism, in not only the enforcement and
protection, but also the active promotion of international human
rights norms capable of bringing the Constitution into modernity
through adjudication and interpretation is unfortunate. This puts
the Supreme Court of Sri Lanka at variance with the progressive
traditions of judicial behaviour that increasingly characterise
superior courts elsewhere in the world, including in Asia and
Africa. More to the point, the Singarasa judgment is directly at
odds with the Human Rights Committee’s views as the
authoritative interpreter of the meaning of the ICCPR.
It is beyond the scope of this discussion to critically analyse the
reasoning of the Supreme Court in detail, apart from making the
following observations that show the incongruence of the
judgment with international developments.
The authoritative interpretation of Article 2 of the ICCPR and the
nature of the general legal obligations imposed by States Parties to
the Covenant is to be found in Human Rights Committee’s General
Comment 31. Paragraph 4 states:
“The
obligations
of
the
Covenant
in
general
and
Article
2
in
particular
are
binding
on
 every
State
Party
as
a
 whole.
All
branches
 of
 government
 (executive,
 legislative
 and
judicial),
and
other
public
 or
 governmental
authorities,
 at
whatever
 level
 –
 national,
 regional
 or
 local
 –
 are
 in
 a
position
to
engage
the
responsibility
of
the
State
Party. The
executive branch that usually represents the State Party
internationally, including before the Committee, may not
point to the fact that an action incompatible with the
provisions of the Covenant was carried out by another
branch of government as a means of seeking to relieve the
State Party from responsibility for the action and
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