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5th September, 2004  Volume 11, Issue 8

First with the news and free with its views                                     First with the news and free with its views                             First with the news and free with its views                                    

Focus

CCPR rules state guilty of violating editor's rights

Victor Ivan

By Frederica Jansz 

The International Covenant on Civil and Political Rights (CCPR) on August 26, determined that the Sri Lankan statewas in violation of the protocol under the international covenant on civil and political rights in the case involving Editor-in-Chief, Ravaya newspaper, Victor Ivan.

The CCPR has called upon the Sri Lankan government to compensate Ivan, publish this judgement in full and provide a response within 90 days.

The judgement was delivered at its 81st session held between July 5 to the 30, 2004when it took up for final consideration the submissions initially made by Attorney Suranjith Hewamanne on behalf of Ivan to the human rights committee on December 17,1999.

The Human Rights Committee is established under Article 28 of the International Covenant on Civil and Political Rights.

Violation

Having concluded its consideration of communication No. 909/2000, submitted to the Human Rights Committee by Victor Ivan Majuwana Kankanamge, under the Optional Protocol to the International Covenant on Civil and Political Rights and having taken into account all written information made available to it by the author of the communication, and the state party, the committee held the victim's freedom of expression and fundamental rights as a citizen of Sri Lanka have been violated under Article 5, paragraph 4, of the optional protocol.

In his submission to the committee in December 1999 Ivan claimed to be a victim of a violation by Sri Lanka of Articles 2 (3), 3, 19 and 26 of the Covenant. The communication also appears to raise issues under article 14(3)(c). Ivan was represented bycounsel Suranjith Hewamanne.

The Covenant and the Optional Protocol to the Covenant entered into force for Sri Lanka on June 11, 1980 and January 3, 1998 respectively. Sri Lanka also made a declaration according to which "(t)he Government of the Democratic Socialist Republic of Sri Lanka pursuant to article (1) of the Optional Protocol recognises the competence of the Human Rights Committee to receive and consider communications from individuals subject to the jurisdiction of the Democratic Socialist Republic of Sri Lanka, who claim to be victims of a violation of any of the rights set forth in the Covenant which results either from acts, omissions, developments or events occurring after the date on which the protocol entered into force for the Democratic Socialist Republic of Sri Lanka, or from a decision relating to acts, omissions, developments or events after that date. The Democratic Socialist Republic of Sri Lanka also proceeds on the understanding that the committee shall not consider any communication from individuals unless it has ascertained that the same matter is not being examined or has not been examined under another procedure of international investigation or settlement."

On April 17, 2000, the committee, acting through its special rapporteur for new communications, decided to separate the examination of the admissibility from the merits of the case.

Indicted

In Sri Lanka, Ivanis a reknownedjournalist and editor of the newspaper Ravaya. Since 1993, he has been indicted several times for allegedly having defamed ministers and high level officials of the police and other departments, in articles and reports published in his newspaper. He claims that these indictments were indiscriminately and arbitrarily transmitted by then Attorney General Sarath Silva to Sri Lanka's High Court, without proper assessment of the facts as required under Sri Lankan legislation, and that they were designed to harass him. As a result of these prosecutions, Ivan claimedhe has been intimidated, his freedom of expression restricted and the publication of his newspaper obstructed.

At the time he made his submission to theCCPR, three indictments had been delivered against him, dated June 26, 1996 (Case Nr. 7962/96), March 31, 1997 (Case Nr. 8650/07), and September 30, 1997 (Case Nr. 9128/97). All, were pending before the High Court.

On February 16, 1998, Ivan applied to the Supreme Court for an order invalidating these indictments, on the ground that they breached articles 12(1) and 14(1)(a) of the Sri Lankan Constitution, guaranteeing equality before the law and equal protection of the law, and the right to freedom of expression. In the same application, hesought an interim order from the Supreme Court to suspend the indictments, pending the final determination of his application. On April 3, 1998, the Supreme Court decided Victor Ivan had not presented a prima facie case that the indictments were discriminatory, arbitrary or unreasonable, and refused him leave to proceed with the application.

Ivan subsequently complained to the Human Rights Committee in Genevathat by transmitting to the High Court indictments charging him with defamation, Attorney General Sarath Silva failed to properly exercise his discretion under statutory guidelines (which require a proper assessment of the facts as required in law for criminal defamation prosecution), and therefore exercised his power arbitrarily.

String of violations

The judgementnow delivered by the CCPR states that by doing so, then Attorney General Sarath Silva violated the author's freedom of expression under Article 19 of the Covenant, as well as his right to equality and equal protection of the law guaranteed by Article 26.

Ivan also claims that his rights under Article 2, paragraph 3, of the Covenant were violated because the Supreme Court refused to grant him leave to proceed with the application to suspend the indictments and thereby deprived him of an effective remedy.

On March 17, 2000, the state party provided observations only on the admissibility of the communication, as authorised by the committee's special rapporteur on communications pursuant to rule 91 (3) of the committee's rules of procedure.

Not established

The state argued the communication by Ivan to beinadmissible because it relates to facts that occurred before the optional protocol entered into force for Sri Lanka, that is January 3, 1998. Moreover, upon ratification of the protocol, Sri Lanka entered a reservation by which the state party recognised the competence of the committee to consider communications from authors who claim to be victims of a violation of the Covenant only as a consequence of acts, omissions, developments or events that occurred after January 3, 1998. The state party submitted that, since the alleged violations of the Covenant were related to indictments that were issued by the Attorney General prior to that date, the claims are covered by the reservation and therefore inadmissible.

The state party maintained that Article 19(3) of the Covenant does not support Ivan's claim of a violation, because under that provision the exercise of the rights protected carries with it special duties and responsibilities and may be subject to restrictions provided by law which are necessary for the respect of the rights or reputations of others.

The state party further argued that the author has not exhausted all available domestic remedies, which would have included representations to the Attorney General regarding the indictments, or complaining to the Parliamentary Commissioner for Administration (the Ombudsman) or the National Human Rights Commission.

Finally, the state party asserted that Ivan cannot invoke the jurisdiction of the committee under Article 2 (3) of the Covenant, because he has not established a violation of any of the rights under the Covenant for which remedies are not available under the Sri Lankan Constitution.

Ivan responded on June 16, 2000, to the state party's observations. On the competence of the committee ratione temporis, and the state party's reservation on the entry into force of the Optional Protocol, he recalled the Human Rights Committee's General Comment No. 24, according to which "the committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date." He affirms that the violations he has alleged are continuing violations, so that the committee has competence ratione temporis.

By reference to paragraph 13 of General Comment No. 24, Ivan argued that even acts or events that occurred prior to the entry into force of the Optional Protocol for the state party should be admitted as long as they occurred after the entry into force of the Covenant for the state party.

On the state party's argument that the complaint should be rejected as inadmissible because the restrictions under Article 19(3) of the Covenant are attracted, Ivan pointed out that this is not an objection to admissibility but addresses the merits of the communication.

Satisfied requirements

And on the issue of exhaustion of domestic remedies, he affirmed that the Supreme Court is the only authority with jurisdiction to hear and make a finding on infringements of fundamental rights by executive or administrative action. As to representations to the Attorney General, Ivan noted that there is no legal provision for making such representation once indictments have been filed, and in any case such representations would not have been effective since the Attorney General was himself behind the prosecutions.

As regards a complaint to the Ombudsman or the National Human Rights Commission, hestressed that these bodies are appointed by the president of Sri Lanka, and that they are vested only with powers of mediation, conciliation and recommendations, but have no powers to enforce their recommendations. Only the Supreme Court is vested with the power to act on his complaint and to grant effective redress.

In relation to the state party's argument on Article 2, paragraph 3, of the Covenant, Ivanargued that a state party cannot invoke its internal laws as a reason for non-compliance with obligations under the Covenant.

At its 72nd session, the committee considered the admissibility of the communication. Having ascertained that the same matter was not being examined and had not been examined under another procedure of international investigation or settlement, the committee examined the facts that were submitted to it.

Continuing violations

The committee noted that the state party contested the committee's competence ratione temporis because, upon acceding to the Optional Protocol, Sri Lanka had entered a declaration restricting the committee's competence to events following the entry into force of the Optional Protocol. In this respect, the committee considered that the alleged violations had continued. The alleged violations had occurred not only at the time when the indictments were issued, but were continuing violations as long as there had not been a decision by a court acting on the indictments. The consequences of the indictments for Ivan continued, and indeed constituted new alleged violations so long as the indictments remained in effect.

With regard to the state party's claim that the communication was inadmissible because the author had failed to exhaust domestic remedies, the committee recalled that the Supreme Court is the highest court of the land and that an application before it constituted the final domestic judicial remedy. The state party had not demonstrated that, in the light of a contrary ruling by the Supreme Court, making representations to the Attorney General or complaining to the Ombudsman or to the National Human Rights Commission would constitute an effective remedy. The committee therefore found that the author had satisfied the requirement of Article 5, paragraph 2 (b) of the Optional Protocol and declared the communication admissible on July 6, 2001.

Impartial

On July 6, 2001, the committee declared the communication admissible. Whilst it specifically determined that Ivan's claims under Articles 2(3) and 19 should be considered on the merits, it left open the possibility of considering the author's other claims under Articles 3, 14(3)(c) and 26.

The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in Article 5, paragraph 1 of the Optional Protocol.

On the merits, the committee first notes that, according to the material submitted by the parties, three indictments were served on Ivan on June 26, 1996, March 31, 1997, and September 30, 1997 respectively. At the time of the final submissions made by the parties, none of these indictments had been finally adjudicated by the High Court. The indictments were thus pending for a period of several years from the entry into force of the Optional Protocol. In the absence of any explanation by the state party that would justify the procedural delays and although the author has not raised such a claim in his initial communication, the committee, consistent with its previous jurisprudence, is of the opinion that the proceedings have been unreasonably prolonged, and are therefore in violation of Article 14, paragraph 3 (c), of the Covenant.

9.3 Regarding Ivan's claim that the indictments pending against him in the High Court constitute a violation of Article 19 of the Covenant, the committee has noted the state party's arguments that, when issuing these indictments, the Attorney General exercised his power under Section 393 (7) of the Code of Criminal Procedure "without any fear or favour," impartially and in the best interest of justice.

State under obligation

So far as a violation of Article 19 is concerned, the committee considers that the indictments against Ivan all related to articles in which he allegedly defamed high state party officials and are directly attributable to the exercise of his profession of journalist and, therefore, to the exercise of his right to freedom of expression. Having regard to the nature of the author's profession and in the circumstances of the present case, including the fact that previous indictments against the author were either withdrawn or discontinued, the committee considers that to keep pending, in violation of Article 14, paragraph 3(c), the indictments for the criminal offence of defamation for a period of several years after the entry into force of the Optional Protocol for the state party left the author in a situation of uncertainty and intimidation, despite the author's efforts to have them terminated, and thus had a chilling effect which unduly restricted the author's exercise of his right to freedom of expression. The committee concludes that the facts before it reveal a violation of Article 19 of the Covenant, read together with Article 2(3).

Compensation

In accordance with Article 2, paragraph 3 (a), of the Covenant, the state party is under an obligation to provide the author with an effective remedy including appropriate compensation. The state party is also under an obligation to prevent similar violations in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the state party has recognised the competence of the committee to determine whether there has been a violation of the Covenant or not and that, pursuant to Article 2 of the Covenant, the state party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the committee wishes to receive from the state party, within 90 days, information about the measures taken to give effect to the committee's views. The state party is also requested to publish the committee's views.

Nisuke Ando, Christine Chanet, Franco Depasquale, Maurice Gll Ahanhanzo, Walter Klin, Ahmed Tawfik Khalil, Rafael Rivas Posada, Sir Nigel Rodley, Martin Scheinin, Ivan Shearer, Hiplito Solari Yrigoyen and Ruth Wedgwood were themembers of the committee who participated in the examination of this communication.


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