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By Neville Ladduwahetty

The focus of the absolute nation is currently on built-in reforms. In the bosom of it, this government has ratified an all-embracing assemblage by acceptable a attestant to the “The All-embracing Assemblage for the Aegis of All Bodies from Activated Disappearances”, on December 10, 2015. The Assemblage that was ratified by the government on May 3, 2016 came into force in account of Sri Lanka on June 24, 2016. The attack herein is to abode whether the government has the ascendancy to accredit an all-embracing assemblage that violates accoutrement in Sri Lanka’s Constitution.



The accouterment in Article 1 area 2 of the Assemblage apprehend with Article 2 violates accoutrement in Sri Lanka’s Constitution.

For instance, Article 1 area 2 states:



“No aberrant affairs whatsoever, whether a accompaniment of war or a blackmail of war, centralized political alternation or any accessible emergency, may be invoked as a absolution for activated disappearances”.

And, Article 2 states:

“For the purposes of this Convention, “enforced disappearances” is advised to be the arrest, detention, abduction or any added anatomy of denial of alternative by agents of the Accompaniment or by bodies or groups of bodies acting with the authorization, abutment or acceptance of the State, followed by abnegation to accept the denial of alternative or by beard of the fate or abode of the abolished person, which abode such a actuality alfresco the aegis of the law”.

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WHY the CONVENTION VIOLATES the SRI LANKA CONSTITUTION

According to the Convention, the key accoutrement of Article 1 area 2 and Article 2 cited aloft are that “No aberrant affairs whatsoever …may be invoked as absolution for activated disappearances” and activated disappearances agency any anatomy of denial of liberty, its acceptance and agreement such bodies alfresco the law.. These accoutrement of the Assemblage breach Article 15 of Sri Lanka’s Constitution for the affidavit cited below.

The sub-title of Article 15 of the Constitution is “Restrictions on axiological rights”. While Article 15 recognizes the assumption that assertive rights charge to be belted during aberrant affairs in the absorption of “national security”, the Assemblage does not accommodate for any exceptions whatsoever. For instance, during the armed battle in Sri Lanka, austere restrictions on rights were accurately imposed in the name of civic security. However, such restrictions are not acceptable beneath accoutrement in the Convention. It is this that makes the Assemblage to be in abuse of the Constitution. Furthermore, back the Assemblage banned activated disappearances to “agents of the Accompaniment or by bodies acting with the authorization, abutment or acceptance of the State”, Article 15 (8) becomes relevant.

Article 15 (8) states:

The exercise and operation of the axiological rights declared and accustomed in Articles 12 (1), 13 and 14 shall, in their appliance to the associates of the Armed Forces, Police Force and added Forces answerable with the aliment of accessible order, be accountable to such restrictions as may be assigned by law in the absorption of the able acquittal of their duties and the aliment of conduct amid them”.

Since the absoluteness of Articles 13 and 14 are accountable to restrictions as assigned by laws, such as for instance the Prevention of Terrorism Act, the Assemblage that makes no exceptions whatsoever the affairs is in abuse of the Constitution of Sri Lanka. Beneath the circumstances, the catechism that arises is whether the President has had the ascendancy to assurance and accredit the Assemblage on Activated Disappearances in appearance of accoutrement in Article 33 that call the “Powers and functions of the President”.

POWERS and FUNCTIONS of the PRESIDENT

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Article 33 of the Constitution lists the “Powers and functions of the President”. The affair is whether the President has the ascendancy beneath Article 33 to assurance and accredit the Assemblage on Activated Disappearances. The acknowledgment to the catechism could be begin in the Acumen by Chief Justice Sarath N. Silva apropos to the Supreme Court Case on Nallaratnam Singharasa.

Section 3 blue-blooded “Dualism in Sri Lanka” of the acumen states:

“It is apparent from these Articles [4 (a) to (c) of the Constitution] basic its able framework that our Constitution is casting in a archetypal Republican mould area ascendancy includes legislative, controlling and administrative powers, acclimatized by the corresponding organs of government for and in assurance for the People…The organs of government do not accept absolute ability that transcends the Constitution and the exercise of ability is belted by the Constitution and the accounting law that acquire its ascendancy there from…There could be no absolute controlling ability that affect to the Crown as in the UK and the controlling ability of the President is acquired from the People as laid bottomward in Article 4 (b)”.

“This limitation on the ability of the controlling to bind the Republic qua accompaniment is independent in Article 33 which lays bottomward the ability and functions of the President”.

“The accordant accouterment actuality Article 33 (f), reads as follows:

“to do all such acts and things, not actuality inconsistent with the accoutrement of the Constitution or accounting law as by all-embracing law, community or acceptance he is appropriate or accustomed to do”.

“Thus the President as Head of Accompaniment is empowered to represent Sri Lanka and beneath accepted all-embracing law access into a accord or accept to a Covenant, the capacity of which is (sic) not inconsistent with the Constitution or accounting law. The limitation imposes the assumption of amends actuality the primary acceptation of the Rule of Law, “that aggregate charge be done according to law” (Administrative Law by Wade and Forsyth – 9th Controlling Director, (Page 20)”.

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Continuing beneath Area 5 blue-blooded “Presidential Ability to Access into a Treaty” the acumen states:

“….where the President enters into a accord or accedes to a Covenant the agreeable of which is “inconsistent with the accoutrement of the Constitution or accounting law” it would be a breach of the limitation in Article 33 (f) cited aloft and ultra vires”.

“Such act of the President would not bind the republic qua state”.

“This cessation is fatigued not alone in advertence to the dualist approach referred to aloft but in advertence to the exercise of authoritative ability and the mutations thereto in the ambience of Ascendancy as laid bottomward in Article 3, 4 and 33 (f) of the Constitution”.

CONCLUSION

The All-embracing Assemblage for the Aegis of All Bodies from Activated Disappearances is in abuse of Sri Lanka’s Constitution because the Assemblage does not admit any “…exceptional affairs whatsoever, whether a accompaniment of war or a blackmail of war, centralized political alternation or any added accessible emergency, may be invoked as a absolution for activated disappearance”, admitting Article 15 of the Constitution on the added duke recognizes the charge for restrictions as may be assigned by laws such as the Prevention of Terrorism Act, in the absorption of civic security.

Consequently, the President abandoned Article 33 (f) back he authorised the signing and acceptance of the All-embracing Assemblage on Activated Disappearances. This is accepted by the Supreme Court acumen in the Case on Nallaratnam Singharasa cited above. Therefore, clearly, Sri Lanka should abjure from actuality a assemblage accompaniment in this and any added assemblage that violates the Constitution.

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