States of Emergency - Centre for Policy Alternatives

power to it, whether constitutionally or otherwise, and the
foundation of the Court’s argument in this respect collapses.
Finally, there remains the question as to what impact the
Singarasa judgment has on the executive with regard to the treaty
obligations. The government is bound by the Supreme Court’s
pronunciation, the unequivocal and sweeping nature of which
would require a constitutional amendment to entrenched
provisions of the Constitution. This would require a majority of
two‐thirds in Parliament and the approval of the people at a
referendum. If the government agrees with the Supreme Court, or
is for other reasons disinclined to address the legal defects of the
accession to the Protocol, then international law requires it to
withdraw from it. Article 12 of the First Optional Protocol
provides that any State Party may denounce the Protocol by
written notiLication addressed to the UN Secretary General. Since
judgment was delivered in Singarasa in September, there is no
ofLicial information in the public domain that indicates the
government’s intention either way on this matter, although there
have been press reports of negotiations between the Attorney
General’s Department and the OfLice of the High Commissioner for
Human Rights and/or the Human Rights Committee with a view to
Linding an appropriate settlement to the issue. In this situation,
the State of Sri Lanka remains in legal limbo and the ultimate
losers are the ordinary citizens of Sri Lanka.
In its concluding remarks, the Supreme Court alluded to the
response of the government of Sri Lanka to the Committee’s views
in Singarasa’s Communication to the effect that the remedy
recommended by the Committee was unavailable in Sri Lankan
law. The court was of the opinion that this did not reLlect well on
the Republic of Sri Lanka. It is extremely ironic, therefore, that it
seems not to have occurred to the Supreme Court as to how its
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