By Sachin Parathalingam –

Sachin Parathalingam -

In 2009 , the then Ministry of Disaster Management and Human Rights  (hence disbanded) ‘sought to remedy’ the many deficiencies that exist  in the current fundamental rights chapter of the 1978 constitution. The Ministry appointed a committee chaired by Presidents Counsel Dr. Jayampathy Wickramaratne, tasked with the preparation of a fresh Bill of Rights to replace the present chapter on fundamental rights .The proposed draft, which mooted a significant expansion in the current fundamental rights chapter which is sans basic rights, for instance the “Inherent right to life”  , was presented to then Minister of Human Rights Mahinda Samarsinghe in November 2009. Nothing has been heard of it since then.

The committee was established on the instructions of the inter-ministerial committee on human rights in line with President Mahinda Rajapaksa’s 2005 “Mahinda Chintana” election manifesto. While Sri Lanka’s current fundamental rights chapter is far behind its international obligations especially in light of our homage to the “International Covenant of Civil and Political Rights”(ICCPR), “Convention on the Rights of The Child”(CRC) and other international instruments, the “Mahinda Chintana” pledged to reverse this. The manifesto reads “ Steps will be taken to include a charter of rights into the Constitution based on the declaration of the UN and other international treaties to uphold and protect the social, cultural, political and civil rights of all Sri Lankan’s”. The committee itself sought to render Sri Lanka’s fundamental rights chapter compatible with its international obligations via the preparation and subsequent enactment of this draft .Consequently the draft  was expected to be fused into the Constitution via the so called  18^th Amendment, which was  ironically hijacked for  a diametrically opposite agenda to that of expanding  our fundamental rights chapter.

The present status of the draft Bill of Rights prepared in 2009 is perhaps analogous to the now ‘infamous’ Lessons Learn and Reconciliation Committee (LLRC ) report , the recommendations of which have sneaked their way into media reports, political debates and  even  the Geneva resolutions.  Like The LLRC report ,  the 2009 draft Bill of Rights has been acclaimed as both illustrious and insightful. Contrastingly though , while the LLRC gains its ‘notoriety’ from the non-implementation of its recommendations and not the recommendations itself, the 2009 draft is unlikely to ever gain such ‘infamy’ simply because its contents , let alone its existence is absolutely and fundamentally forgotten – by the media, politicians and the public.

Salient recommendations

The draft recommendations enlarge the scope of many pre-existing civil and political rights and recommends the right to life and right to recognition as a person before the law be recognized as enforceable fundamental rights. Moreover several socio-economic rights including the right to education, health and freedom from exploitation have been granted due prominence in the draft , in keeping with modern trends.

The draft also recommends the complete abolishment of the death penalty. Given the fact that executions have not occurred in Sri Lanka since 1975 and that Sri Lanka voted in favor of a UN resolution in 2007 and 08 calling for a moratorium on executions, the committee in its report opined the view that there is no conclusive evidence of the deterrence value of the death penalty where crime is concerned. The committee also appeared to be  favorably disposed to several UN resolutions which note that the exercise of capital punishment by sovereign states “undermines human dignity and that any miscarriage or failure in justice  in the implementation of the death penalty is irreversible and  irreparable .”

Simultaneously the committee seemed receptive to public concern regarding the escalating crime rate in Sri Lanka post-war, and the increasing tendency to prematurely  release criminals sentenced to life imprisonment or facing similarly long sentences in excess of 15 years on early parole. The report of the committee maintained,  “The solution to this problem is the judicial control of patrol.” “In respect of those sentenced to long periods of imprisonment legal provision must be made for the sentencing judge to make order that the offenders term of imprisonment should not be reduced unless authorized by Court in the manner and to the extent provided by law”, the report notes.

Unlike in the Constitution of India the right to propagate one’s own religion is not expressly recognized in the Sri Lankan Constitution, The committee recommended that such a right be expressly recognized with the section in the draft dealing with freedom to manifest religion reading” Every person is entitled to the freedom either in public or in private to manifest the persons religion or belief in worship, observance, practice and teaching”. Nonetheless the committee also cautioned in its report that  “ there are concerns that the freedom to manifest one’s religion is being misused to unethically convert persons to other religions. “ The ICCPR takes notes of unethical conversions and declares in Article 18 that no person shall be subject to coercion, which would impair freedom to have or to adopt a religion or belief of such person choice. “The committee has recommended the inclusion of a similar provision to assuage concerns that the freedom to manifest religion could be misused” its report stated.

Perhaps the most striking recommendation of all is the the need for the right to information(RTI) and the right to hold ones opinions to be inserted as fundamental rights. According to the draft prepared  “ Every person shall have the right to access information held by the state including provincial authorities and any information held by any other person and that is required for the exercise of that person’s right”. The draft further notes “ No restrictions shall be placed on the right to information other than restrictions prescribed by law are essential in a democratic society in the interests of national security and public safety”

The independent media of Sri Lanka has over several years vehemently campaigned for the enactment of RTI laws, sadly been  to the deaf years of successive regimes. The Rajapaksa government too, appears to have displayed its fear for transparency and accountability by its consistent ‘shyness’ to champion the enactment of RTI. It is important to note that the Supreme Court of Sri Lanka held in 2004 ,that if freedom of expression as entailed in article 14(a) of the constitution is to be meaningful, it should carry within its scope an implicit right of a person to secure information from any public authority. The Court also noted that a bare denial of access to official information amounts to an infringement of the rights enshrined in article 14(a). Furthermore ,it is perhaps even more alarming that with Sri Lanka having ratified the ICCPR more than three decades ago,  we are yet to truly internalize its provisions , in this context Article 19 of the ICCPR which grants the right “ to seek and receive information”. Thus while the recommendations of the committee in relation to RTI are creditable, it is both shocking and disheartening that the government appears uninterested in  removing its ‘ear plugs’ anytime soon , at least where RTI is concerned.

Enforcement and restrictions on fundamental rights

The draft recognizes  that fundamental rights are in one manner an exercise of the sovereignty of the people and so all actions violative of fundamental rights must be considered void. It was recommended that all existing laws should be read subject to fundamental rights and that the fundamental rights jurisdiction of the Supreme Court be extended to legislative and judicial action as well.

The committee also recommended the dilution of the provisions regarding presidential immunity currently enshrined in the Constitution. “ The immunity of the President from suit shall not extend to alleged infringement of fundamental rights. Proceedings in relation to such an alleged infringement shall be instituted against the Attorney General” according to the report.

The Committee conceded that the jurisdiction to hear fundamental rights application must not be exclusively confined to the Supreme Court. The text of the report notes “The committee is of the opinion , in principle that complaints of violations of fundamental rights by provincial authorities should be heard in provinces as well”. Yet in view of experiences in relation to public law issues , the committee felt that Provincial High Courts are not an appropriate forum to exercise this jurisdiction and recommended such applications should be heard by the Court of Appeal sitting in the provinces.

Moreover in order for the remedies available for the infringement of fundamental rights to be meaningful the committee held that the one-month time limit for filing fundamental rights applications should be scrapped. “ As in applications for writs fundamental rights applications must be done within a reasonable period of time. A fundamental rights application may be instituted by a relative or friend if the person raises no objection” according to the report.

Nevertheless the draft report does acknowledge that whilst the freedom of thought, conscience and religion may be considered absolute there may arise a need to restrict the freedom of expression, assembly and association in “the interests of society”.  The draft thus recognizes such rights in to be exercisable in relative terms, at the same time noting “ permissible restrictions must not be over-broad and must be to the extent necessary in a democratic society”

Why the lag in implementation?

Even four years after its preparation the government it is yet to place in the public domain, a Bill of Rights whose creation was initiated by the government itself. Such is the irony, if not the tragedy. I am not for a moment denying that the introduction of a fresh Bill of Rights is a laborious and complicated process which requires extensive cross-party and public consultation. But if such a draft is yet to see the light of day after four long years , I think it is fair to surmise that the political will to implement its provisions is a big fat ZERO.I find it difficult to understand what is with the government and its consistent disinclination to pursue its own reports and recommendations?  Or are we simply to accept that all these promises and proposals are nothing more than a masquerade, a smokescreen , time-buying measures designed to stopper short-term political pressure and “international concerns” .It is almost as though we ,the public are being teased into a game of ‘hide and seek’ where this draft Bill of Rights is concerned ,with decision makers quite content with the public  to simply stumble upon it by accident, as I did. The governments position in relation to this draft was succinctly put by Professor Rajiva Wijesinha , former Secretary to the Human Rights Ministry who recently opined” While the President is basically in favour of broadening the Bill of Rights , it is not high on his list of priorities and no one with Executive influence is pushing it” . “There appears to be no backing to implement it at all and even Minister Samarasinghe is reluctant to push for it” he noted. The question is why this reluctance and how can granting people their fundamental rights not be a top priority for any administration? Is the government afraid that  affording citizens their basic rights is a threat to its long-term stability? Or is it just that the administration has more pressing matters to deal with, Commonwealth Summits and airport constructions for instance. Regardless of the motives, this draft Bill of Rights sits in silence, forgotten by its creators. But even from the shadows of obscurity the existence of this draft sends the public a cogent message- that the broadening of Sri Lanka’s fundamental rights chapter will perhaps always be nothing more than a farce.

*The writer is a Sri Lankan Journalist and an undergraduate at Cambridge University. Can be reached at sachin807@hotmail.com