Sri Lanka’s 6th Amendment to the Constitution is a violation of Freedom of Speech and Conscience: A Complaint to the UN Human Rights Committee

The Transnational Government of Tamil Eelam (TGTE) will be filing a complaint to the UN Human Rights Committee arguing that the 6th Amendment to the Sri Lankan Constitution is a violation of Freedom of Speech and Conscience guaranteed in Articles  18 and 19 of the Civil and Political Rights Covenant.

Complaint

For communications under:
Optional Protocol to the International Covenant on Civil and Political Rights

Date:   19 September 2016.

I.          Information on the complainant:

a). Name: Ramsey Clark,
  Former US Attorney General
New York, USA
b). Name: Justice K.P.Sivasubramaniam (Retd), 
  Former Judge of the High Court of Madras, India.
c). Name: Visuvanathan Rudrakumaran 
  Prime Minister, Transnational Government of Tamil Eelam (TGTE)
New York, USA

II.        State concerned/Articles violated
                                   
Name of the State against which the complaint is directed: Sri Lanka.
Articles of the Covenant or Convention alleged to have been violated: Article 1 (right to self determination) and Article 19 (freedom of expression).

III.       Exhaustion of domestic remedies/Application to other international procedures

If you have not exhausted these remedies on the basis that their application would be unduly prolonged, that they would not be effective, that they are not available to you, or for any other reason, please explain your reasons in detail:
The courts are not available to invalidate a constitutional amendment. The courts are governed by the constitution.

Have you submitted the same matter for examination under another procedure of international investigation or settlement (e.g. the Inter-American Commission on Human Rights, the European Court of Human Rights, or the African Commission on Human and Peoples’ Rights)? No.

IV. Facts of the complaint

Detail, in chronological order, the facts and circumstances of the alleged violations. Include all matters which may be relevant to the assessment and consideration of the particular case. Please explain how you consider that the facts and circumstances described violate your rights.

The sixth amendment to the Constitution of Sri Lanka, August 8, 1983, provides:

“AN ACT TO AMEND THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

WHEREAS Sri Lanka is a Free, Sovereign, Independent and Unitary State and it is the duty of the State to safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka:

AND WHEREAS the independence, sovereignty, unity and the territorial integrity of Sri Lanka has been threatened by activities of certain persons, political parties and other associations and organisations

AND WHEREAS it has become necessary to prohibit such activities and to provide punishments therefor:

Now be it therefore enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows :

1. This Act may be cited as the Sixth Amendment to the Constitution.

2. Article 101 of the Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter referred to as "the Constitution") is hereby amended in sub-paragraph (h) of paragraph (1) of that Article by the substitution for the words " by election or otherwise; and ", of the words and figures " by election or otherwise or where a recognised political party or independent group has been proscribed under Article 157A; and ".

3. The following Article is hereby inserted after Article 157, and shall have effect as Article 157A, of the Constitution :-
Prohibition against violation of territorial integrity of Sri Lanka

157A. AN ACT TO AMEND THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

(1) No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.
(2) No political party or other association or organisation shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

(3) Any person who acts in contravention of the provisions of paragraph (1) shall, on conviction by the Court of Appeal, after trial on indictment and according to such procedure as may be prescribed by law,—
(a) be subject to civic disability for such period not exceeding seven years as may be determined by such Court;

(b) forfeit his movable and immovable property other than such property as is determined try an order of such Court as being necessary for the sustenance of such person and his family ;
(c) not be entitled to civic rights for such period not exceeding seven years as may be determined by such Court, and

(d) if he is a Member of Parliament or a person in such service or holding such office as is referred to in paragraph (1) of Article 165, cease to be such Member or to be in such service or to hold such office

(4) Where any political party or other association or organisation has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Supreme Court for a declaration that such political party or other association or organisation has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The Secretary or other officer of such political party or other association or organisation shall be made a respondent to such application.

(5) Where the Supreme Court makes a declaration under paragraph (4) in relation to any political party or other association or organisation, in pursuance of an application made to it under that paragraph

(a) that political party or other association or organisation shall be deemed, for all purposes to be proscribed and any member of such political party or other association or organisation who is a Member of Parliament shall be deemed to have vacated his seat in Parliament with effect from the date of such declaration, and any nomination paper submitted by such political party or other association or organisation shall be deemed for all purposes to be invalid;

{b) any person who holds office or is a member of that political party or other association or organisation, after the date of such declaration, shall be guilty of an offence and shall, on conviction, by the Court of Appeal after trial on indictment and according to such procedure as maybe prescribed by law -

(i) be subject to civic disability for such period not exceeding seven years as may be determined by such Court;
(ii) forfeit his movable and immovable property other than such property as is determined by an order of such Court as being necessary for the sustenance of such person and his family;

(iii) not be entitled to civic rights for such period not exceeding seven years as may he determined by such Court;

(iv) if he is a Member of Parliament or a person in such service or holds such office as is referred to in paragraph (1) of Article 165, cease to be such Member or to be in such service or hold such office.

(6) The execution of any punishment imposed under paragraph (3) or sub-paragraph (b) of paragraph(5) shall not be stayed or suspended pending the determination of any appeal against such punishment or the conviction in consequence of which such punishment was imposed.

(7) Every officer or person who was or is required by, Article 32 or Article 53, Article 61 or Article 107 or Article 165 or Article 169 (12), to take and subscribe or to make and subscribe an oath or affirmation, every member of, or person in the service of , a local authority, Development Council, PradeshiyaMandalayaGramodayaMandalaya or public corporation and every attorney-at-law shall -
(a) if such officer or person is holding office on the date of coming into force of this Article, make and subscribe, or take and subscribe, an oath or affirmation in the form set out in the Seventh Schedule, before such person or body if any, as is referred to in that Article, within one month of the date on which this Article comes into force;

(b) if such person or officer is appointed to such office after the coming into force of this Article, make and subscribe or take and subscribe, an oath or affirmation, in the form set out in the Seventh Schedule, before such person or body, if any, as is referred to in that Article within one month of his appointment to such office.
The provisions of Article 165 and Article 169 (12) shall, mutatis mutandis, apply to, and in relation to, any person or officer who fails to take and subscribe, or make and subscribe, an oath or affirmation as required by this paragraph.

(8) (a) Every person who is a Member of Parliament on the coming into force of this Article shall not be entitled to sit and vote in Parliament unless he takes and subscribes or makes and subscribes an oath or affirmation in the form set out in the Seventh Schedule.

(b) Every person who is elected or nominated as a Member of Parliament on or after the coming into force of this Article shall not be entitled to sit and vote in Parliament unless he takes and subscribes or makes and subscribes an oath or affirmation in the form set out in the Seventh Schedule.

(9) No person who has taken and subscribed or made and subscribed an oath or affirmation in the form set out in the Seventh Schedule shall, notwithstanding any provision to the contrary in the Constitution be required to take and subscribe or make and subscribe any other oath or affirmation required to be taken and subscribed or made and subscribed under the Constitution.

(10) Parliament may, by resolution, determine such other categories of persons or officers to whom the provisions of paragraph (7) shall apply and thereupon, the provisions of such paragraph shall, mutatis mutandis apply to' and in relation to, officers or persons of that category.

(11) The jurisdiction of the Court of Appeal in respect of its powers under this Article shall be exercised in the manner provided in subparagraph (iv) of the proviso to paragraph (2) of Article 146.

(12) In this Article, " civic rights " means -

(a) the right to obtain a passport,

(b) the right to sit for any public examination; (c) the right to own any immovable property;

(d) the right to engage in any trade or profession which requires a licence, registration or other authorisation, by or under any written law.'

4. Article 161 of the Constitution is hereby amended in paragraph (d) of that Article as follows:-

(1) in sub-paragraph (iii) of that paragraph, by the substitution, for the words " to fill such vacancy. Upon receipt of such nomination, the Commissioner ", of the following:
" to fill such vacancy. A nomination made by the Secretary of such political party under this sub-paragraph shall be accompanied by an oath or affirmation, as the case may be, in the form set out in the Seventh Schedule, taken and subscribed or made and subscribed, as the case may be, by the person nominated to fill such vacancy. Upon the receipt of such nomination, accompanied by such oath or affirmation, the Commissioner ";

(2) in the proviso to sub-paragraph (iii) of that paragraph by the substitution -

(a) for the words ``within thirty days of his being required to do so ", of the following:-"within thirty days of his being required to do so and in the aforesaid manner",

(b) for the words "vacancy, then Commissioner of Elections", of the words and figures " vacancy, or where such political party is deemed to be proscribed under Article 157A, then the Commissioner of Elections"; and

(3) by the addition, immediately after sub-paragraph (iii) of that paragraph, of the following sub-paragraph:-

"(iv) There a Member nominated of elected to fill any such vacancy as is referred to in subparagraph (i) or sub-paragraph (ii), being a Member who has taken and subscribed or made and subscribed, an oath or affirmation in the form set out in the Seventh Schedule, directly or indirectly, in or outside Sri Lanka, supports, espouses, promotes, finances, encourages or advocates the establishment of a separate State within the territory of Sri Lanka, any person may make an application to the Court of Appeal for a declaration that such member has directly or indirectly, in or outside Sri Lanka supported, espoused, promoted, financed, encouraged or advocated the establishment of a separate State within the territory of Sri Lanka.

If the Court of Appeal makes, on such application, a declaration that such Member has directly or indirectly, in or outside Sri Lanka, supported, espoused, promoted, financed, encouraged or advocated the establishment of a separate State within the territory of Sri :Lanka, the seat of such Member shall be - deemed to be vacant with effect from the date of such declaration and such Member shall be disqualified from sitting and voting in Parliament and from being elected or nominated to Parliament for a period of seven years from the date of such declaration. The vacancy occurring in the membership of Parliament by reason of such declaration shall be filled in the manner provided in paragraph (iii).
The jurisdiction of the Court of Appeal in respect of its powers under this sub-paragraph shall be exercised in the manner provided in sub-paragraph (iv) of the proviso to paragraph (2) of Article 146."

5. The Constitution is hereby amended by the addition, at the end thereof, of the following Schedule which shall have effect as the Seventh Schedule to the Constitution:-

“SEVENTH SCHEDULE:
Article 157A and Article 161 (d) (iii)
I ..............................do solemnly declare and affirm / swear that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka."

I am the Prime Minister of the TGTE. The TGTE has as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.  I personally outside Sri Lanka, support, espouse, promote, encourage and advocate the establishment of a separate State within the territory of Sri Lanka. This constitutional amendment accordingly violates my freedom of expression and the freedom of expression of the TGTE.  It also violates the right to self determination of the Tamil people.

The European Court of Human Rights in the cases of Okçuoğlu v. Turkey, and Arslan v. Turkey held 8 July 1999 that convictions for disseminating separatist propaganda violated the guarantee of freedom of expression in the European Convention of Human Rights.

In case of Erdoğdu and Incev.Turkey also July 8, 1999, the Court held that  convictions for disseminating propaganda against the indivisibility of the state violated the guarantee of freedom of expression in the Convention.

The Court, in the case of Association Ekin v. France held on July 17, 2001 that the banning of a book advocating Basque separatism violated the guarantee of freedom of expression in the Convention.

In the case of IsakTepe v. Turkey the Court held October 21, 2008 heldthat a charge without a conviction for disseminating separatist propaganda violated the guarantee of freedom of expression in the Convention.

Author’s signature: …………

V.        Checklist of supporting documentation (copies, not originals, to be enclosed with your complaint):

Decisions of domestic courts and authorities on your claim (a copy of the relevant national legislation is also helpful):     ……..
Any documentation or other corroborating evidence you possess that substantiates your description in Part IV of the facts of your claim and/or your argument that the facts described amount to a violation of your rights: …..…
Please include, if necessary, an indication in a UN language (Arabic, Chinese, English, Spanish, French and Russian) of the contents of the accompanying documentation.
Your communication should not exceed 50 pages (excluding annexes). In case your application exceeds twenty pages, you must also file a short summary.

 


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