By Jayampathy Wickramaratne –

15^th Deshamanya Professor Nandadasa Kodagoda Memorial Oration 02 August 2012

I consider it an honour to be invited to deliver the 15^th Deshamanya Professor Nandadasa Kodagoda Memorial Oration. I thank Madam Ratna Kodagoda, the Chairperson of the Nandadasa Kodagoda Memorial Trust, the other members of the Trust including my friend Mr. Yasantha Kodagoda, the Chairman of the Board of Management, Prof. Colvin Goonaratne and its other members for giving me this opportunity.

Prof. Nandadasa Kodagoda was indeed a proud son of Sri Lanka. He had his early education at Ahangama Vidyalaya in his native village and later at Nalanda Vidyalaya and Mahinda Vidyalaya. He graduated in medicine from the University of Ceylon. After a few years as a medical practitioner, he joined the University of Colombo as an assistant lecturer in forensic medicine and rose to become the Professor of Forensic Medicine. He also served as Dean of the Faculty and crowned his academic career by becoming the Vice Chancellor of the University of Colombo.

Prof. Kodagoda was not only a man of the sciences but of the arts as well. For his contribution to the arts, he was conferred with the title “Kala Keerthi.” He was also conferred with the title “Deshamanya” one of Sri Lanka’s highest civilian awards.

Human rights – the historical evolution

Throughout the history of mankind, all major movements for social and political reform have been concerned with human rights.  The concept of human rights has been a “part of the religious and cultural heritage of man”[1] as evidenced by Buddhist, Hindu and Islamic scriptures, Hindu shastras and Hebrew and Christian Bibles.

“[The] immortal epics Ramayana and Mahabharata record and reflect the spirit and ethics of Hindu thought and life… [and] … portray the moral supremacy and victory of good over evil, of justice over injustice and of dharma over adharma….”[2]

During the period of deviation from Vedic philosophy, the Buddha declared the Eight-fold path of morality as an essential basis for a good life and a just society. It was King Asoka who gave this message practical shape and promulgated morality in the administration of justice. In his directives to his Governors, Asoka called for equal and impartial justice for all[3] and himself practised equality amongst all classes, men or women. In contrast to the old Brahminical faith, Buddhism rejects discrimination on grounds of caste, sex or profession and espouses the doctrine of equality.

Judaism, Christianity and Islam all “recognised the unique dignity and value of the human person. It has been said, God in creating human nature, didst most wonderfully dignify it, and has still more wonderfully renewed it.”[4]

This is not to say that what is recognized today as human rights were respected by all societies throughout history.

Today, we abhor torture.  But torture has been an instrument of the judicial process from ancient times. In fact, it was seen as the natural means of obtaining evidence. Aristotle regarded it as the surest means. By his writings Beccaria, the great eighteenth century Italian lawyer, contributed immensely towards the abolition of torture as a part of the judicial process in Europe where it was widely practiced.

For his assumption that the Earth has to be spherical, Galileo got him into trouble with the Roman Catholic Church and was sentenced to house arrest for life. Copernicus was on his death bed when his book was published, so nothing was done or could be done to him. Giordano Bruno was burned at the stake in 1590 for affirming the Earth’s motion and for claiming a multiplicity of worlds around other stars.

To be hanged, drawn and quartered was from 1351 a penalty in England for men convicted of high treason, although the ritual was first recorded during the reigns of King Henry III (1216–1272) and his successor, Edward I (1272–1307). Convicts were fastened to a hurdle, or wooden panel, and drawn by horse to the place of execution, where they were hanged (almost to the point of death), emasculated, disembowelled, beheaded and quartered (chopped into four pieces). Their remains were often displayed in prominent places across the country, such as London Bridge. For reasons of public decency, women convicted of high treason were instead burnt at the stake! Our own country had inhuman methods of punishment such as ‘ula thibeema’ and ‘wadaka bereya.’

Under slavery, slave owners who could do anything they pleased with slaves whom they owned.  Slaves thus had no rights – they could be sold to others or even killed.  I wish to illustrate this with an appalling story I heard a few years back on a visit to the district of Toraja in South Sulawesi, Indonesia.  Funerals in Toraja are huge affairs. Dead bodies are preserved using local preservatives, sometimes for about three years.  I visited a funeral that took place about two years after the old lady had died.  Pigs and buffaloes are sacrificed as part of funeral rites. My guide told me that his grandfather had been a slave owner.  He had heard from his parents that when his grandfather died in the late 1940s, three of his slaves were sacrificed. To this day, the guide told me, villagers recall this incident whenever he visits his ancestral village and curse his family.

Feudalism freed the slaves, but the tillers were bonded to the lands that they tilled.  There was no equality.  There was no freedom either; no freedom was possible with the large majority bonded to land. Some societies were organized in such a manner that each specialized job was performed by a specific group or caste.

The bourgeois revolution brought not only capitalism but also liberty.  “The liberty that was protected was that of the middle classes to run their business as they willed, that of the peasants to till their land free of the burdensome exactions of privilege.”[5]  I argue thatin a capitalist society, in practice, rights have to be “purchased” in a market economy and that we have to move to a higher plane if rights are to be meaningful to the people. Perhaps, we can discuss that on another occasion.

In England, the first ever document recognizing rights was the Magna Carta of 1215. It contains concessions wrung from King John as guarantees against oppression and usurpations of his prerogative. In the Magna Carta can be seen the origins of the Anglo-Saxon notion of due process of law. It, inter alia, prohibits arbitrary arrest, detention and exile. Four centuries passed before the Habeas Corpus Acts of 1640 and 1679. The Bill of Rights that came in 1689 secured equality before the law, trial by jury and freedom from inhuman treatment. The prohibition of cruel and unusual punishment by the Bill of Rights in 1689 was a reaction to the brutal methods of punishment under early English law. The Bill of Rights was not an isolated happening; it occurred alongside the bourgeois revolution that destroyed feudalism and replaced it with a society with capitalist means of production.

The notion of human rights was at the heart of the English, French and American revolutions. The slogan of the French revolution, “liberty, equality, fraternity” exemplifies the issues that were involved. It was France that first gave constitutional recognition to rights by including the Declaration of the Rights of Man in the preamble to its 1789 Constitution. The American Bill of Rights followed in 1791.

The modern concept of human rights had its origins in the West because the bourgeois revolution came about earlier in the West. We, the developing countries, did not go through a complete bourgeois revolution. Also, the developing countries did not pass through movements similar to the Reformation and Renaissance that changed Europe. As a result, one finds that in our countries authority remains unquestioned, social groupings are intact and hierarchical orderings of society have not been disturbed much. It is therefore not surprising that the modern concept of human rights is not well understood in our societies and seen as “theirs” and not “ours.”

The first examples of international recognition of human rights are seen in a number of treaties[6] concluded after World War I. These guaranteed life, liberty and free exercise of religion to all inhabitants of the territories concerned, equality before the law and equal civil and political rights to all nationals. Security in law and in fact to all linguistic, religious and ethnic minorities, the right of such minorities to establish schools and religious institutions and the right to use their own language for publications, at public meetings and in courts were also guaranteed.

The extermination of over six million Jews, gypsies, homosexuals and disabled persons by the Nazis during World War II horrified the world and the idea of human rights emerged stronger. After World War II, in 1948 the Congress of Europe recognized the need to have a European Charter of Human Rights and a Court with adequate sanction for its implementation. The Council of Europe formed in 1949 adopted the European Convention of Human Rights in November 1950. A Commission and a Court of Human Rights were set up to investigate into and decide upon allegations of violations of the Convention, made against member States.

The Charter of the United Nations, 1945, and the Universal Declaration of Human Rights, 1948, marked the sanctioning by the international community of the vital importance of human rights. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR) were opened for signature in 1966 and came into force in 1976.

What are human rights?

There is no universally accepted definition of human rights.  Human rights have been described as “the basic rights and freedoms to which all humans are entitled.”  Another definition is that they are the “inalienable rights and privileges of every human being.”   I however prefer describing human rights as “those rights without which there can be no human dignity.”

Broadly speaking, universal human rights are those rights that have been recognized by the international community, which of course includes Sri Lanka, something we tend to forget.  Apart from treaties, they are also found in the principles of customary international law.  The Universal Declaration of Human Rights (UDHR) is not a treaty but a resolution passed by the United Nations as far back as in 1948 mainly in response to what happened during World War II. It is accepted today as customary international law.

It will be useful, at this stage, to understand the distinction between human rights and fundamental rights.  Rights become “fundamental” when they are enshrined in a Constitution. When incorporated into a Constitution, they can be altered only in the special manner applicable to constitutional amendments. The incorporation of a charter of rights is a characteristic feature of modern constitutions. In the older constitutions such as the unwritten Constitution of England, no specific guarantees are recognized. The rationale for this was that when rights are specified, they are limited or entrenched with reservations. The essence of the Constitution is law, respected and enforced. A subject may say or do what he pleases, provided he does not offend the law. Thus, it is not the rights that are stated but only the limitations. Public authorities may do only what is authorized by common law or statute. Parliament is omnipotent but is expected not to interfere with the liberties of the people except in an emergency.

The conservatism or traditional restraint present in ancient polities evidenced in the unwritten Constitution of Great Britain is absent in latter day systems and therefore, constitutional guarantees are necessary to prevent arbitrary action and tyranny of the majority. The elevation of rights to constitutional status gives them sanctity that the State may not violate.[7]

Distinction must also be made between fundamental rights and ordinary legal rights.  The latter are found in ordinary law and can be taken away by amending the law concerned.

Universality of human rights

Human rights are universal in the sense that they are intended to ensure the dignity of all humans.   This is however not accepted by some who argue that human rights are relative and should vary according to the applicable culture.  However, the universal application of human rights does not attempt to impose one cultural standard for all cultures but a single legal standard of minimum protection necessary for human dignity which all cultures should strive to achieve.

Let us consider some cultural practices. No one in his right mind would condone forced marriages, yet they are so common in some cultures. Domestic violence, with women almost always at the receiving end, is also acceptable in some cultures. Female genital mutilation is practised to this day in some African societies.  In parts of India the widow was forced to jump into the funeral pier of the husband, a practice known as ‘sati pooja.’  This practice has now been criminalized but there have been occasional reports of its continuance in some remote areas of India.  Stoning to death of alleged adulterous women happens even now in some Middle-Eastern societies. Honour killings are common in Pakistan.  A woman who is alleged to have committed adultery is killed by the husband and/or close relatives to safeguard the “honour” of the family. Sometimes women subjected to rape are killed by their own families, again to safeguard “honour.” Women belonging to families of criminals are killed as “punishment.” Can one condone these practices under the so-called cultural relativism theory?

Those who advance the theory of cultural relativism seek to adopt a static definition of culture. But cultures are not static. They change and outgrow practices. Culture is constantly evolving in any living society, responding to both internal and external stimuli.  Every culture rejects certain practices over time.  Cultures do and must be able to adapt themselves to emerging legal standards.

Across the globe, we also find that cultural relativism is claimed by authoritarian regimes whose practices have nothing to do with local or indigenous cultures but more with their own self-preservation.

Universality does not presuppose uniformity. Human rights reflect our common universal humanity, from which no human being must be excluded. They derive from the mere fact of being human. The challenge is to work towards the indigenization of human rights and their assertion within each country’s traditions and history. A common legal standard that defines human rights does not impinge on cultural diversity in a multicultural world.

Universality is not cultural imperialism.  Human rights represent the hard-won consensus of the international community.  It must be remembered that developing countries such as India, China, Chile, Cuba, Lebanon and Panama played an active and highly influential part in the drafting the Universal Declaration of Human Rights.  Similarly, Ghana and Nigeria made significant contributions to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR).

Recently, I heard Sashi Tharoor, an international civil servant-turned politician, speak on a similar topic in New Delhi. He explained that objections to the applicability of international human rights standards have all too frequently been voiced by authoritarian rulers and power elites to rationalize their violations of human rights – violations that have served primarily if not solely to sustain them in power. Just as the devil can famously quote scripture for his purpose, third world communitarianism can be the slogan of the tyrant. The authentic voices of the developing world know how to cry out in pain. It is time to heed them.

In my view, what is important is not whether modern human rights had their origins in the West but whether human rights are necessary.

Social, economic and cultural rights

Another reason for the misconception in developing countries about human rights is that little is known about universally accepted social, economic and cultural rights, the West’s emphasis being on civil and political rights. The UDHR recognizes both sets of rights. On 16 December 1966, the General Assembly of the United Nations adopted both the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the International Covenant on Civil and Political Rights (ICCPR).

Among social, economic and cultural rights recognized are the right to work, favourable conditions of work, trade union rights, social security, protection for mothers, children and young persons, an adequate standard of living, right to education and the right to take part in cultural life.

At the World Conference on Human Rights held in Vienna in 1993, it was agreed that all human rights are universal, indivisible and interdependent and interrelated. The principle of indivisibility and interdependence means that civil and political, economic, social and cultural rights are interrelated and are co-equal in importance. They form an indivisible whole and it is only if all these rights are guaranteed that an individual can live in dignity. The Conference also reaffirmed the right to development as a universal and inalienable right and an integral part of fundamental human rights.

It must be noted that many of the civil and political rights protect not only individuals but groups as well. Similarly, many social and economic rights also protect the individuals.  The two sets of rights are like Siamese twins, inseparable and inter-dependent, sustaining and nourishing each other.  Civil and political rights are not the luxury of the rich, but belong also to the poor. The notion that development rights have priority over civil and political rights assumes that the poor have to choose between poverty and oppression.  That “we need a bit of authoritarianism for development’ is a slogan of the autocrat and not of the democrat. If civil and political rights are unprotected the opportunities for the poor to get out of poverty become less.  Similarly, if people have no opportunity to exercise social and economic rights, their right to political participation and freedom will be undermined.

The West’s concern in the developing countries is about civil and political rights. Equal emphasis on about social, economic and cultural rights would have cleared the misconception about human rights to some extent.

South Africa took the lead by including social, economic and cultural rights in the Constitution. They are not merely declaratory but enforceable. Among the rights recognized are the right to have access to adequate housing, health care services, sufficient food and water and social security, right to education, children’s rights and rights of cultural, religious and linguistic communities. One of the world’s new nations, East Timor boldly included similar rights in its Constitution.

We need to focus on social, economic and cultural rights as well. In fact, the Constitution Bill of 2000 included many such rights in the fundamental rights chapter. That the Bill did not become law is another story.

I chaired a committee appointed by the Inter-Ministerial Committee on Human Rights to draft a new fundamental rights chapter that accords with Sri Lanka’s international human rights obligations. The committee comprised lawyers, academics and social scientists well versed in the subject. In November 2009, we presented our report, along with a draft chapter that includes not only civil and political rights but also social, economic and cultural rights as well as children’s rights and women’s rights and provisions for better enforcement. It is mentioned in the National Human Rights Action Plan but unfortunately is yet to be made public.

Limitations on rights

A fallacy about human rights that has added to the confusion is that they are guaranteed to individuals without any regard to the interests of the larger society. Many but not all universally accepted rights can be restricted.  While the rights and freedoms represent the claims of the individuals, permissible restrictions represent the claims of the society.  While one has the freedom of speech, that does not include the freedom to defame others. The freedom of assembly does not include the freedom to hold a meeting in the middle of a street. Some rights are absolute in that they cannot be restricted at all.  Freedom from torture is one such right.

The Universal Declaration of Human Rights recognises the need to impose limitations on fundamental rights for appropriate purpose. Article 29(2) declares:

“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

The International Covenant on Civil and Political Rights provides in Article 4 as follows:

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures of derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin.”

No derogation from Article 6 (right to life), 7 (freedom from torture), 8 (freedom from slavery and servitude), 11 (freedom from imprisonment on the ground of inability to fulfill a contractual obligation), 15 (freedom from retroactive penal legislation), 16 (right to recognition as a person before law) and 18 (freedom of thought, conscience and religion) is however permitted in any circumstances whatsoever.

Although some rights can be restricted, courts all over the world have recognized the principle that any restriction must be reasonable and not disproportionate in the circumstances. In the landmark case of Joseph Perera v Attorney-General,[8] a five-member Bench of the Supreme Court unanimously held that our Constitution permitted only such restrictions as have an intimate, real and rational connection with the object of the restriction. The case concerned the restriction of the freedom of speech by an Emergency Regulation.

Restrictions placed on rights can become quite controversial.  Take the case of web sites.  Most web sites give us information that the press and the electronic media would not publish but which information is in the public interest.  It is also true that some websites publish defamatory material.  Some of these websites operate from abroad and as such, there are difficulties in suing them.  Governments block websites claiming ostensibly to prevent defamatory material reaching citizens.  But blocking also results in the public not receiving legitimate information. An issue of interest is that unlike in the case of a newspaper which is closed down, a website operated from abroad can be accessed through proxy servers.  The more the websites are blocked, the more are proxy servers!  How could objectionable material be legitimately blocked while allowing legitimate information? These are questions for which there are no easy answers.

State authorities sometimes use the judicial process to place limitations on rights.  In Sri Lanka there have been instances of trade union action being stifled by obtaining restraining orders ex-parte.  After the recent killing of two civilians at Katuwana, the Police sought and obtained a judicial order prohibiting even the distribution of leaflets at the funeral.  I would respectfully submit that such an order of prior restraint is overbroad.  This was clearly a political killing allegedly committed by persons who had political connections.  Surely, the public has a right to protest such killings and demand justice.  If a leaflet distributed at the funeral contravenes the law, appropriate action could be taken.  Any form of ‘prior restraint’ is regarded on the face of it as an abridgement of the freedom of expression. As Justice Sharvananda emphasized in Joseph Perera’s case, the State carries a heavy burden of showing justification for the enforcement of such prior restraint.[9]

International Human Rights Law: Are There Limits to Sovereignty?

Up to about the end of World War II, human rights were considered as part of the “reserved domain” of States, not, in principle, regulated by international law. But as far back as in 1923, the Permanent Court of International Justice had stated that “the jurisdiction of a State is exclusive within the limits fixed by international law.”[10]

Although the Charter of the United Nations states that United Nations may not intervene in matters which are essentially within the domestic jurisdiction of any state, Chapter VII authorizes the imposing of sanctions and the use of armed force in the event of threats to the peace, breaches of the peace and acts of aggression.

In practice, there are many restrictions on the scope of State action. International and regional treaties and customary rules of international law impose such restrictions. Then there is the concept of jus cogens – certain peremptory or unchallengeable norms are recognized. These include the prohibition of genocide, piracy, slavery, torture and wars of aggression. What must be remembered is that treaties are entered into in the exercise of the very sovereignty that a State possesses.

Twenty five “core treaties” have been identified by the Secretary-General as being reflective of the key policy goals of the UN and the spirit of the UN Charter. Of these, thirteen are on human rights. Sri Lanka’s record in becoming a party to these is impressive, and let me again emphasize that Sri Lanka did so not under duress but in the exercise of our sovereignty.

 

Treaty	Sri Lanka’s participation
Genocide	√
CERD-racial discrimination	√
ICESCR-economic, social and cultural rights	√
ICCPR- civil/political rights	√
ICCPR- 1st optional protocol on individual complaints	√
ICCPR- 2nd optional protocol on death penalty	X
CEDAW- discrimination against women	√
CEDAW- optional protocol	√
CAT- torture	√
CRC- children	√
CRC- optional protocol on children in armed conflict	X
CRC- optional protocol on sale of children, child prostitution, pornography	√
Protection of migrant workers and families	√

Upon becoming a party to a treaty, a State undertakes binding obligations in international law. A State has to submit initial and periodic reports to the relevant treaty body on measures adopted. The country thus becomes open to international scrutiny. Sri Lanka is a dualist country and treaties do not automatically become the law of land unlike in monist countries such as the Netherlands, Russia and East Timor. Domestic legislation needs to be enacted. But even a dualist country is answerable for its actions and inaction in the international plane, although non-compliance with a treaty may not be raised in a domestic court. But even in dualist countries, the present trend is for judges to utilize human rights treaties despite the absence of implementing legislation and to entrench international treaty obligations into domestic law. In Sri Lanka, the Supreme Court invoked the UDHR’s Article 17(2) which guarantees that “no one shall be arbitrarily deprived of his property” to hold that the owner of a vehicle used for an offence under the Forest Ordinance must be given a hearing on whether he was aware of the offence, before confiscating the vehicle.[11] Melissa Waters calls this trend “creeping monism.”[12] The Sri Lankan Supreme Court has gone even further. In the Eppawala Phosphate Case,[13] a case involving the exploitation of natural resources, Justice Amerasinghe relied on the U.N.’s Stockholm Declaration and Rio De Janeiro Declaration which are not even treaties.

Under the Universal Periodic Review (UPR), a mechanism of UN Human Rights Council, established by the UN General Assembly and in operation since 2008, the human rights record of all States is reviewed every four years. It assesses to what extent the State respects human rights obligations in the UN Charter, UDHR, human rights treaties to which the State is party, voluntary pledges and commitments and applicable international humanitarian law. The final report contains a summary of the interactive dialogue, responses by the State, recommendations by other States and voluntary commitments by the State.

Double standards of powerful nations

There are several factors that have clouded the issue of international human rights. Double standards and inconsistent behavior of powerful States are prominent amongst them. The West has a long history of being human rights violators themselves, not only as colonial masters but also in the post-colonial world. Western countries have been propping up dictators all over the world. While calling for regime change in Libya, the United States defended the repressive regime in Bahrain which would not have survived without US support. Earlier this year, the United States was the only country that voted with Israel on the Palestinian issue at the Human Rights Council. The West is not alone. The Assad regime in Syria is kept in power by Russia and China. The military dictatorship in Myanmar would have collapsed if not for support from China. Political and economic considerations are paramount when countries take positions. Then there are “deals” between States. Double standards by powerful States are used by repressive regimes to cover up their own misdeeds.

The composition of the UN Security Council is heavily weighted in favour of the powerful States with permanent members having a veto power. There is today an urgent need to “democratize” the UN. Deals are worked out there as well. Delayed action by the UN in Rwanda contributed to genocide in no small way. President Clinton later confessed that the failure to try to stop Rwanda’s tragedies was one of the greatest regrets of his presidency.

Strengthening domestic mechanisms will obviate international scrutiny

The faults of the powerful States and the UN system apart, sovereignty is not a defence for breaches of gross violations of fundamental human rights. Rather than pitting sovereignty against human rights, States must exercise their sovereignty to foster human rights. Credible domestic mechanisms would obviate the need for international scrutiny. Regional human rights mechanisms would also be of immense value. South Asia is one of the few regions that does not have such a regional mechanism. Even in South-East Asia, there is movement, albeit slow, towards such a mechanism.

While on the subject of domestic human rights mechanisms, it is necessary that we make a reappraisal of our own mechanisms. Our Constitution does not provide for post-enactment judicial review of legislation, an essential tool to prevent infringement of constitutional provisions by legislative action.  The effect of most legislative provisions are felt only when they are being enforced.  There have been many instances of obviously unconstitutional provisions going unchallenged.  Provisions relating to urgent Bills have been abused by successive administrations.  An urgent Bill is referred directly to the Supreme Court by the President even without publishing it in the Gazette.   Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.

An amendment proposed at the committee stage in Parliament does not come under judicial scrutiny at all. Such amendments only require the certificate of the Attorney General, in practice by an officer of the Attorney-General’s Department present in Parliament.

An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of “prospective over-ruling”, limiting the retrospective effect of a declaration of invalidity in appropriate cases.[14] Section 172 of the South African Constitution expressly permits such limitation.

Another serious problem is that the President has total immunity. Heads of States of most countries do enjoy immunity from criminal or civil proceedings.  But in a country where the President is the Head of State and the Head of Executive and of the Government, there is no reason why executive acts of the President should be so immune.  It may be noted that even in the United States of America the President enjoys no immunity from suit. I am strongly of the view that the immunity of the President from suit should not apply to executive acts. All executive acts of the President should be reviewable by courts. I am of course of the view that the executive presidency should be abolished.

Issues facing developing countries

Developing countries like Sri Lanka have a number of features such as a weak democracy, centralized State power, a weak judiciary sometimes coming under executive pressure as well, near-absence of pressure groups, infringements of constitutional guarantees and, very importantly, the absence of a “rights-consciousness”, all of which constrain the operation of fundamental rights. In some countries, there is authoritarian rule behind a façade of democracy. Rights would be sustained only if rooted in an enabling political culture.

The mere declaration of fundamental rights in a Constitution and becoming a party to treaties does not ensure their enforcement and guarantee respect to them. The external environment should be conducive to the protection and advancement of rights. A democratic tradition and a dynamic political environment are essential.

This exactly is the problem of developing countries. We do not have a healthy democratic tradition. There is a marked trend towards authoritarianism. This is seen by the number of virtual one-party states, dictatorships and authoritarian regimes. This is a fundamental problem in developing countries.

These problems are compounded by factors such as ethnic and religious violence, terrorism and political assassinations. The State’s response has been the use of emergency powers and in some cases, State terrorism. Long periods of a state of emergency are seen. This gives rise to a situation where restriction of rights by the State is the rule and enforcement of rights against the State becomes the exception. The result of all this is a near absence of a “rights consciousness” in developing countries. It is essential that such a rights consciousness be a part of the value system.

Concluding remarks

While the concept of human rights has indeed an ancient history, modern human rights originated in the West and are therefore seen by some as ‘theirs” and not “ours.” But human rights are those rights without there can be no human dignity and as such belong to the entirety of humanity.

Double standards of powerful nations, both Western and otherwise, are but the unfortunate reality of international politics. While exposing and denouncing such hypocrisy, we in the developing world need to protect and foster human rights in our own interest.

Many conveniently forget that our Constitution, in its Preamble, assures “to all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of the succeeding generations of the People of Sri Lanka and of all the People of the World.” Article 3, recognizes fundamental rights as one manner of the exercise of the sovereignty of the People. Article 3 is an entrenched provision and cannot be amended unless approved by the People at a referendum.

[1] JAL Cooray Constitutional and Administrative Law of Sri Lanka (Hansa Colombo 1973) 502.