Full Text: Report Of The Committee On A New Chapter On Fundamental Rights

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By Colombo Telegraph -

On the eve of International Human Rights Day, Colombo Telegraph is pleased to publish the report of the committee appointed by Mahinda Samarasinha, then Minister of Disaster Management and Human Rights, to draft a new Chapter on Fundamental Rights in the Constitution of Sri Lanka. The committee was appointed consequent to a decision of the Inter-Ministerial Committee on Human Rights, the implementing arm of the Permanent Standing Committee on Human Rights. The report was presented to the Government in November 2009 but was not published. The publication of this report now was made possible due to the interest shown by Prof. Rajiva Wijesinha, MP and former Secretary to the Ministry of Disaster Management and Human Rights who has published it in his blog

Mahinda Samarasinghe

Mahinda Samarasinghe

The Committee consisted of Dr. Jayampathy Wickramaratne, P.C. (Chairman), Dr. Godfrey Gunatilleke, Dr. Deepika Udagama, Dr. Devanesan Nesiah, Mr. Uditha Egalahewa P.C., Mr. Suhada Gamlath P.C. (then Secretary, Ministry of Justice), Mrs. Jezima Ismail, Mrs. F.C. Thalayasingham (Deputy Legal Draftsman), Mr. V.T. Tamilmaran (Dean, Faculty of Law, University of Colombo), Mr. J. Thangavelu (Attorney-at-law and former DIG/Legal) and Mr. Javid Yusuf, Attorney-at-law.

Report of the Committee

The Committee was appointed by the Minister of Disaster Management and Human Rights, following a decision of the Inter-Ministerial Committee on Human Rights, the implementing arm of the Permanent Standing Committee on Human Rights.  The Ministry of Disaster Management and Human Rights and the Ministry of Constitutional Affairs were tasked with supporting the Committee.

Background

At the Presidential Elections held in 2005,  Mahinda Rajapaksa made a pledge in his election manifesto, the Mahinda Chinthana, as follows:

“Steps will be taken to include “The Charter of Rights” into the Constitution based on the Declaration of the United Nations and other international treaties to uphold and protect social, cultural, political, economic and civil rights of all Sri Lankans.”

It was in accordance with the above pledge that the Committee was appointed to make proposals for such a Charter of Rights.  When the Committee met the Hon. Minister of Disaster Management and Human Rights soon after its appointment, the Hon. Minister clarified that what was expected from the Committee was a draft chapter to replace the chapter on fundamental rights in the present Constitution.

Sub-Committees

The Committee divided itself to six sub-Committees and invited several specialists to serve in the sub-Committees.  The six sub-Committees were:

Socio – Economic and Environmental Rights (Chair: Dr. Deepika Udagama)

Women, Children and Marginalized Groups (Chair: Mrs. Jezima Ismail)

Criminal Justice (Chair: Mr. Uditha Egalahewa)

Groups Rights ((Chair: Dr. Devanesan Nesiah)

Civil and Political Rights (Chair: Mr. V.T. Thamilmaran)

Enforcement (Chair: Mr. Javid Yusuf)

The reports of the sub-Committees were carefully considered by the Committee.  The Committee’s burden was greatly lessened by the excellent work done by the sub-Committees.

Sri Lanka’s international obligations and contemporary developments

The Committee took note of the contents of the Universal Declaration of Human Rights and the several international human rights instruments to which Sri Lanka is a party.  Among them are -

* International Covenant on Economic, Social and Cultural Rights (ICESCR)

* International Covenant on Civil and Political Rights (ICCPR)

* International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

* Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

* Convention on the Rights of the Child (CRC)

* Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

As mandated, the Committee has endeavored to make its proposals based on Sri Lanka’s international obligations on human rights.   The Committee also took note of developments in other countries and Constitutions that have modern Bills of Rights, especially in developing countries.

The proposed chapter on fundamental rights and other relevant provisions is annexed to this report.

Civil and political rights

It has been proposed that the right to human dignity, the inherent right to life, the right to recognition as a person before the law and the security of the person be recognized as fundamental rights.  The scope of many rights declared in the present Constitution has been enlarged.

Regarding the death penalty, the Committee recommends its abolition.  The Committee took note of the fact that no person has been executed in Sri Lanka since 1975 and that in both 2007 and 2008, Sri Lanka voted at the United Nations in favour of resolutions calling for a moratorium on executions as a step towards the ultimate abolition of the death penalty. The UN resolutions emphasized that the death penalty undermines human dignity, that there is no conclusive evidence of the deterrent value of the death penalty and that any miscarriage or failure of justice in the implementation of the death penalty is irreversible and irreparable.

The Committee is not unmindful of public concerns that the crime rate in Sri Lanka is on the increase and that some persons convicted of grave crimes and sentenced to life imprisonment or long terms come out of prison quite early.  The solution to this is judicial control of parole.  The Committee recommends that in respect of those who are sentenced for long periods of imprisonment, legal provision should be made for the sentencing judge to make order that the offender’s term of imprisonment should not be reduced unless authorized by the court in the circumstances and manner and to the extent provided by law. In the famous case of Makwanyane, the South African Constitutional Court stated that the greatest deterrent to crime is not the death penalty but “the likelihood that offenders will be apprehended, convicted and punished. It is that which is lacking in our criminal justice system”.

The Committee has also recommended far-reaching provisions relating to personal liberty and rights relating to criminal procedure to bring rights recognized by the Constitution up to international minimum standards.

It has been proposed that the freedom to hold opinions and rights of access to information, the right to privacy and family life and the right to ownership of property be included.

In regard to the freedom to manifest religion, the Supreme Court has held that the right to propagate one’s religion is not included in the freedom to manifest religion as recognized in the Constitution, unlike in the Indian Constitution which expressly recognizes such right.  All religions have spread by propagation and the Committee is of the view that such a right should be expressly recognized.  However, there are concerns that the freedom to manifest religion is being misused to unethically convert persons to other religions.  The International Covenant on Civil and Political Rights takes note of unethical conversions and declares in Article 18 that no person shall be subject to coercion which would impair the freedom to have or to adopt a religion or belief of such person’s choice.  The Committee has recommended the inclusion of a similar provision to assuage concerns that the freedom to manifest religion could be misused.

Family rights, children’s rights, social and economic rights

Following modern trends, the Committee has recommended the recognition of family rights and children’s rights in the fundamental rights chapter.

Several modern Bills of Rights recognize social and economic rights.  In keeping with this trend and Sri  Lanka’s own human rights obligations, the Committee recommends that rights relating to education, freedom from exploitation, labour rights, right to health, social rights and right to an adequate environment be included.

Restrictions on rights

While some rights such as the freedom of thought, conscience, and religion, freedom of torture and the right to a fair trial are absolute, other rights such as the freedom of expression, freedom of assembly and freedom of association may have to be restricted in the interests of society.  However, permissible restrictions must not be over-broad and must be to the extent necessary in a democratic society.  The Committee has so recommended.

Enforcement of fundamental rights

Fundamental rights being one manner of the exercise of the sovereignty of the People, all actions violative of fundamental rights must be considered void.  In order that the supremacy of fundamental rights be safeguarded, the Committee has, inter alia, recommended the following:

(a)     All existing law shall be read subject to fundamental rights;

(b)   The fundamental rights jurisdiction of the Supreme Court shall extend to legislative and judicial action as well;

(c)    Post-enactment judicial review should be recognized.  However, the Supreme Court shall have the power to limit the retrospective effect of a declaration of invalidity of a legal provision;

(d)   The immunity of the President from suit shall not extend to alleged infringements of fundamental rights.  Proceedings in relation to such an alleged infringement shall be instituted against the Attorney General.

Remedies for infringement of fundamental rights must be meaningful.  The Committee recommends the following:

(a)    The time limit of one month for filing fundamental rights applications shall be done away with.  As in applications for Writs, applications made within reasonable time would be accepted;

(b)   A fundamental rights application may be instituted by a relative or friend if the person concerned raises no objection;

(c)    Public interest litigation shall be permitted.

The Committee has given serious consideration to the question whether fundamental rights applications should be heard by courts other than the Supreme Court.  The Committee is of the opinion, in principle, that complaints of violations of fundamental rights by Provincial authorities should be heard in the Provinces as well.  However, in view of the experiences in relation to public law issues, the Committee is of the view that Provincial High Courts are not the appropriate forum to exercise such jurisdiction.  Such applications should be heard by the Court of Appeal sitting in the Provinces.

Draft Bill of Rights

Contents

 

Article

10                    Freedom of thought, conscience and religion

10A                 Right to human dignity

10 B                 Inherent right to life

10 C                 Right to recognition as a person before the law.

11                    Freedom from torture

11A                 Security of the Person

12                    Right to equality and freedom from discrimination

13                    Freedom from arbitrary arrest, detention and punishment and prohibition of retroactive penal legislation, &c.

14                    Freedom to hold opinions

14A                 Freedom of speech and expression including publication and freedom of information

14B                  Right of access to information

14C                  Freedom of peaceful assembly

14D                 Freedom of association

14E                  Trade union rights

14F                  Freedom to manifest religion

14G                 Right to enjoy and promote culture and use of language

14H                 Freedom to engage in any lawful trade, occupation, profession, business or enterprise

14I                   Freedom of movement

14J                   Freedom to return to Sri Lanka

14K                 Right to privacy and family life

14L                  Right to ownership of property

14 M                Family rights

14N                 Rights of children

14O                 Right to education

14P                  Freedom from Exploitation

14Q                 Labour rights

14R                  Right to health

14S                  Social rights

14T                  Right to an adequate environment

14U                 Responsibility of the State to respect,  secure and advance fundamental rights

15                    Protection of fundamental rights in times of public emergency

16                    Existing written law and unwritten law

17                    Remedy for infringement of fundamental rights by State action

17A                 Rights of non-citizens permanently and legally resident

17B                  Interpretation of fundamental and language rights provisions

35                    Immunity of President from suit

126                  Fundamental rights and language rights jurisdiction and its exercise

 

10.     Freedom of thought, conscience and religion

(1) Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.

 

 

(2)  No restrictions shall be placed on the exercise of the fundamental right declared and recognized by this Article.

10A. Right to human dignity

(1) Every person has inherent dignity and the right to have his or her dignity respected and protected.

(2) No restrictions shall be placed on the on the right declared  and recognized by this Article.

10B.  Inherent right to life

(1)        Every person has inherent right to life and no person shall be arbitrarily deprived of life.

(2)        No person shall be punished with death.

(3)        Every person against whom a sentence of death has been pronounced before the coming into force of the Eighteenth Amendment to the Constitution, shall have such sentence commuted to one of rigorous imprisonment for life.

(4)        No restrictions shall be placed on the on the rights declared  and recognized by this Article.

10 C. Right to recognition as a person before the law.

(1) Every person shall have the right to recognition as a person before the law.

 

(2) No restrictions shall be placed on the right declared and recognized by this Article.

11.     Freedom from torture

(1) No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

(2)  No restrictions shall be placed on the exercise of the fundamental right declared and recognized by this Article.

11A.  Security of the Person

(1) Every person has right to-

(a)  bodily and psychological integrity; and

(b) not to be subjected to medical or scientific experiment without such person’s informed consent.

 

(2) No restrictions shall be placed on the on the right declared and recognized by this Article.

 

12.     Right to equality and freedom from discrimination

(1) All persons are equal before the law and are entitled to the equal protection of the law.

(2)        (a)  No person shall be arbitrarily discriminated against on any ground including on the ground of such as race, gender, sex, sexual orientation, maternity, marital status, caste, ethnic or social origin, colour, age, disability, religion, conscience or belief, political or other opinion, culture, language, place of birth, and place of residence.

(b) It shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any national language as a qualification for any employment or office in the service of the State or in the service of any public corporation, Provincial Public Service or local government service where such knowledge is reasonably necessary for the discharge of the duties of such employment or office.

(c) It shall be lawful to require a person to have sufficient knowledge of any language as a qualification for any such employment of office where no function of that employment or office can be discharged otherwise than with knowledge of that language.

(3) No person shall, on any of the grounds referred to in subparagraph (a) of paragraph (2) (a) of this Article, be arbitrarily subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of the person’s own religion.

(4) Nothing in this Article shall prevent special measures being taken by law, subordinate legislation or executive action where necessary for the sole purpose of the protection or advancement of disadvantaged or underprivileged individuals or groups including those that are disadvantaged or underprivileged because of ethnicity, gender, sex, age or mental or physical disability.

(5) No restriction shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order or the protection of public health or for the purpose of securing due recognition and respect for the rights and freedoms of others.

 

13.     Freedom from arbitrary arrest, detention and punishment and prohibition of retroactive penal legislation, &c.

(1) No person shall be arrested, imprisoned or otherwise physically restrained except in accordance with procedure prescribed by law.

(2) Every person arrested, held in custody, or otherwise deprived of his or her liberty shall be treated with respect for the inherent dignity of the human person.

(3) Save as otherwise provided by law, no person shall be arrested except under a warrant issued by a judicial officer causing such person to be apprehended and brought before a competent court in accordance with procedure prescribed by law.

(4) Every person arrested shall be informed, in a language which the person appears to understand, of the reason for the arrest and of the person’s rights under paragraphs (5) and (6) of this Article.

(5) Every person arrested shall have the right to communicate with any relative or friend of the person’s choice, and, if the person so requests, such person shall be afforded means of communicating with such relative or friend.

(6) Every person arrested shall have the right to retain and consult an attorney-at-law. The State shall afford all reasonable facilities to enable the effective representation of the arrested person.

(7) Every person arrested shall not be detained in custody or confined for a longer period than under all the circumstances of the case is reasonable, and shall, in any case, be brought before the judge of a competent court within twenty-four hours of the arrest, exclusive of the time necessary for the journey from the place of arrest to such judge, and no person shall be detained in custody beyond such period except upon, and in terms of, the order of such judge made in accordance with procedure established by law.

(8) Every person detained in custody or confined, has the right to be released on bail or upon the execution of a bond unless otherwise provided by law. The amount of bail and the amount of every such bond shall be fixed with due regard to the circumstances of the case and shall not be excessive.

(9) Every person suspected of committing an offence shall be charged or indicted or released without unreasonable delay, having regard to the facts and circumstances of the case.

(10) Every person charged with or indicted for an offence shall be entitled to be heard in person or by an attorney-at-law of the person’s own choosing and shall be so informed by the judge.

(11)      (a) Every person charged with or indicted for an offence shall be entitled to be tried –

(i) without undue delay;

(ii) by a competent court;

(iii) at a fair trial; and

(iv) subject to sub-paragraph (b) of this paragraph, at a public hearing.

(b) A judge may, at the judge’s discretion, whenever the judge considers it necessary, in proceedings relating to sexual matters or where the interests of juveniles so require or for the protection of national security or public order necessary in a democratic society or in the interests of order and security within the precincts of such court, exclude there from, persons who are not necessary for the purposes of those proceedings.

(12)      (a) Every person shall be presumed innocent until the person is proved guilty.

(b) Nothing contained in any law shall be held to be inconsistent with sub-paragraph (a) of this paragraph to the extent that such law imposes upon an accused the burden of proving particular facts.

(13) No person shall be compelled to testify against himself or herself or to confess guilt.

(14)      (a) No person shall be held guilty of, or punished for, an offence on account of any act or omission which did not, at the time of such act or omission, constitute an offence, except for any act or omission which, at the time it was committed, was criminal according to the principles of public international law.

(b) No penalty shall be imposed for an offence more severe than the penalty in force at the time when an offence was committed.

(15) Every person who has been convicted or acquitted of an offence in accordance with law by a competent court shall not be liable to be tried for the same offence save on the order of a court exercising appellate or revisionary jurisdiction.

(16)      (a) No person shall be punished with imprisonment except by order of a competent court and in accordance with procedure established by law.

(b) The arrest, holding in custody, detention or other deprivation of personal liberty of a person –

(i) pending investigation or trial shall, if not unreasonable having regard to the circumstances, not constitute punishment;

(ii) by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or other such law as may be enacted in substitution therefor, shall not be a contravention of this paragraph.

(17)      (a) No restrictions shall be placed on the rights declared and recognized by paragraph (2), paragraph (10), items (ii) and (iii) of sub-paragraph (a) of paragraph (11), paragraph (14), paragraph (15) and paragraph (16) of this Article.

(b) No restriction shall be placed on the rights declared and recognized by paragraphs (1), (3), (4), (5), (6), (7), (8), (9), items (i) and (iv) of sub-paragraph (a) of paragraph (11) and paragraphs (12) and (13) of this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order, or for the purpose of securing due recognition and respect for the rights and freedoms of others.

14.     Freedom to hold opinions

(1) Every person shall have the right to hold opinions without interference.

(2) No restriction shall be placed on the rights declared and recognized by paragraph (1) of this Article.

14A.  Freedom of speech and expression including publication and freedom of information

(1) Every person is entitled to the freedom of speech and expression including publication and this right shall include the freedom to express opinions and to seek, receive and impart information and ideas, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium.

(2) No restrictions shall be placed on the right declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order, the protection of public health or morality, racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence or for the purpose of securing due recognition and respect for the rights and freedoms of others.

14B.  Right of Access to Information

(1) Every person shall have the right of access to –

(a)        any information held by the State, including Provincial authorities; and

(b)        any information held by any other person and that is required for the exercise or protection of the person’s rights.

(2) Parliament shall by law make provision to give effect to this right.

(3)  No restrictions shall be placed on the right declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, privacy, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

14C. Freedom of peaceful assembly

(1) Every person is entitled to the freedom of peaceful assembly.

(2) No restrictions shall be placed on the exercise of the right declared and recognized by this Article other than such restrictions prescribed by any law as are necessary in a democratic society for the protection of national security, public order, racial or religious harmony, the protection of public health or for the purpose of securing the due recognition and respect for the rights and freedoms of others.

14D . Freedom of association

(1) Every person is entitled to the freedom of association.

(2) No restrictions shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order, racial or religious harmony, national economy the protection of public health or morals or for the purpose of securing due recognition and respect for the rights and freedoms of others.

14E.  Trade Union Rights

(1) Every person is entitled to the freedom to form and join a trade union of the person’s choice and for such trade union to function without undue hindrance.

(2) Every person is entitled to the right to participate in trade union action, including strike, provided that the right is exercised in conformity with law.

(3) No restrictions shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order, racial or religious harmony or for the purpose of securing due recognition and respect for the rights and freedoms of others.

14F . Freedom to manifest religion

(1) Every person is entitled to the freedom, either alone or in association with others, and either in public or in private, to manifest the person’s religion or belief in worship, observance, practice, propagation and teaching.

(2)  In the exercise of the rights declared and recognized by paragraph (1) of this Article, no person shall have the right to impair or otherwise restrict any other person’s freedom to have or to adopt a religion or belief of that other person’s choice.

(3) No restriction shall be placed on the rights declared and recognized by paragraph (1) of this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order, or for the purpose of securing due recognition

and respect for the rights and freedoms of others including the freedom  declared by paragraph (2) of this Article.

14G.  Right to enjoy and promote culture and use of language

(1) Every person is entitled alone or in association with others to enjoy and promote such person’s culture and, to use the language of such person’s choice.

(2) Persons belonging to a cultural or linguistic community shall not be denied the right, with other members of that community, to enjoy their own culture or to use their own language.

(3) No restriction shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of public order, racial or religious harmony, the protection of public health or morality, the protection of the environment or for the purpose of securing due recognition and respect for the rights and freedoms of others.

 

14H. Freedom to engage in any lawful trade, occupation, profession, business or enterprise

(1) Every person is entitled to the freedom to engage alone or in association with others in any lawful occupation, profession, trade, business or enterprise.

(2) No restrictions shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of the national economy, national security, public order, protection of public health or morality, the protection of the environment or for the purpose of securing due recognition and respect for the rights and freedoms of others or in relation to –

(a) the professional, technical, academic, financial and other qualifications necessary for practising any profession or  carrying on any occupation, trade, business or enterprise, and the licensing and disciplinary control of a person practising a profession or carrying on an occupation, trade, business or enterprise in the exercise of such fundamental right; and

(b) the carrying on by the State, a State agency, a company fully owned by the State or a public corporation of any trade, business, industry, service or enterprise, whether to the exclusion, complete or partial, of citizens or otherwise.

 

14I.   Freedom of movement

(1) Every person lawfully resident within the Republic is entitled to the freedom of movement within the Republic and of choosing such person’s residence within the Republic.

(2) Every person shall be free to leave the Republic.

(3) No restrictions shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security or public order or national economy or the protection of public health or morality or for the purpose of securing due recognition and respect for the rights and freedoms of others or for the extradition of persons from the Republic.

14J.   Freedom to return to Sri Lanka

(1) Every citizen shall be entitled to return to the Republic.

(2)  No restrictions shall be placed on the exercise of the right declared and recognized by this Article.

14K.  Right to privacy and family life

(1) Every person has the right to privacy, the right to be protected from arbitrary interference with family life, the inviolability of the home, correspondence and communications and shall not be subjected to unlawful attacks on such person’s honour and reputation.

(2) No restriction shall be placed on the exercise of the rights declared and recognized by this Article other than such restrictions prescribed by law as are necessary in a democratic society for the protection of national security, public order or national economy or the protection of public health or morality or for the purpose of securing due recognition and respect for the rights and freedoms of others or for the enforcement of a judgment or order of a competent court.

14L.  Right to ownership of property

(1) Every citizen is entitled to own property alone or in association with others subject to the preservation and protection of the environment and the rights of the community.

(2) No person shall be deprived of property except as permitted by law.

(3) No property shall be compulsorily acquired or requisitioned save for a clearly described public purpose or for reasons of public utility or public order and save by authority of law which provides for the payment of fair compensation having regard to the prevalent market value of the property at the time of such acquisition.

14 M.          Family rights

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) Every man or woman of marriageable age shall be entitled to marry and to found a family and the rights of men and women within the family shall be equal.

(3) No marriage shall be entered into without the free and full consent of the intending spouses.

(4) The State shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution, in which instance provision shall be made for the necessary protection of any children.

 

14N.  Rights of the Child

(1) Every child shall have the right -

(a) to have his or her birth registered and to have a name from his or her date of birth;

(b) to acquire nationality;

(c) to be protected from maltreatment, neglect, abuse or degradation;

(d) to family care or parental care or to appropriate alternative care when removed from the family environment;

(e) to basic nutrition, shelter, basic health care services and social services;

(f) to have legal assistance provided by the State at State’s expense in criminal proceedings affecting the child, if substantial injustice would otherwise result;

(g) not to be detained except as a measure of last resort, in which instance, the child may be detained only for the shortest appropriate period of time, and has the right to be –

(i) kept separately from detained persons over the age of 18 years; and

(ii) treated in a manner, and kept in conditions, that take account of the child’s age;

(h) Not to be used directly in armed conflict and to be protected in times of armed conflict.

(2)  No child shall be  discriminated against  on the ground of the child’s or his or her parent’s or legal guardian’s race, colour, sex, sexual orientation, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status including the marital status of parents.

(3) Every child shall have the right to grow up in an environment protected from the negative consequences of the consumption of addictive substances harmful to the health of the child and, to the extent possible, from the promotion of such substances.

(4) Every child shall have the right to free education provided by the State.

(5) A child shall not be employed in any hazardous activity, shall be protected from exploitative labour practices and shall not be required or permitted to perform work or provide services that-

(a) are inappropriate for a person of that child’s age;

(b) places at risk, the child’s wellbeing, education, physical or mental health or spiritual, moral or social development..

(6) The rights recognized by this Article shall be in addition to and not in derogation of any other right to which a child is entitled as a citizen or person under this Chapter.

(7) For the purposes of this Article “child” means a person under the age of eighteen years.

 

(8) In all matters concerning children, whether undertaken by institutions of state or public or private social welfare institutions, the best interest of the child shall be of paramount importance.

 

14O. Right to education

(1) Every person has the right to education which shall be directed to full development of the human personality and the sense of its dignity, and to the strengthening of respect for human rights and fundamental freedoms.

(2) Primary education shall be compulsory and available to all.

(3) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, including by free education provided by the State.

(4) Higher education shall be made available to all on the basis of capacity and equitable opportunity, by every appropriate means, including by free education provided by the State b.

(5) Basic education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education.

(6) Nothing in this Article shall exclude the right of a lawful guardian of a child, acting on that child’s behalf, or of any adult to select an education provided by a private institution of education whether denominational or otherwise.

 

14P. Freedom from Exploitation

(1) No person shall be subjected to trafficking, slavery or forced labour.

(2) “Forced labour” as used in paragraph (1) of this Article shall not include performance of labour pursuant to a sentence of a court of competent jurisdiction or any work or service which forms a part of normal civic obligations.

 

14Q. Labour rights

Every citizen has the right to the enjoyment of just and favorable conditions of work which ensures, in particular:

(a) remuneration which provides fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(b) safe and healthy working conditions;

(c) equal opportunity for everyone to be promoted in employment to an appropriate higher level, subject to no considerations other than those of competence and appropriate qualifications including seniority and experience where relevant; and

(d) rest, leisure and reasonable limitation of working hours and periodic holidays with pay.

14R. Right to health

(1) Every citizen has the right to enjoy the highest attainable standard of physical and mental health and to have access to preventive and curative health-care services including through free health services provided by the State to all who require such services.

 

(2) No person may be denied emergency medical treatment.

 

14S. Social rights

(1) Every citizen has the right to have access to –

(a) sufficient food and water;

(b) adequate housing; and

(c) appropriate social assistance including social security when unable to support the citizen and the citizen’s dependents.

(2) No person shall be evicted from the person’s home or have the home demolished, except as permitted by law.

 

14T. Right to an adequate environment

All persons have the right to an environment that is –

(a) not harmful to their health or well being; and

(b) protected for the benefit of present and future generations.

14U.  Responsibility of the State to respect, secure and advance Fundamental Rights

In giving effect to Article 4(d) of this Constitution, all organs of State shall take all necessary measures including the enactment and implementation of necessary legislation and the adoption and implementation of appropriate policies and programmes for the full realization of the rights declared and recognized by this Chapter.

15.     Protection of fundamental rights in times of public emergency

(1) Where a Proclamation has been duly made pursuant to the provisions of Chapter XVIII, and subject to paragraphs (2) and (3) of this Article, measures may be prescribed by law derogating from the exercise and operation of the fundamental rights declared and recognized in this Chapter to the extent strictly required by the exigencies of the situation and necessary in a democratic society, provided that such measures do not involve discrimination on grounds recognized under paragraph (2) of Article 12 and for the purpose of this Article “law” includes regulations made under the law for the time being in force relating to public security.

(2) In prescribing measures under paragraph (1) of this Article, there shall be no derogation -

(a) from any of the rights declared and recognized by Articles 10, 10A, 10B, 10C, 11, 11A, 14, ,14M, 14N (except 14N(1) (e)), and 14P;

(b) from the right declared and recognized by Article 13(7) unless at the same time legal provision is made requiring –

(i) the Magistrate of the area in which such arrest was made to be notified of the arrest; and

(ii) the person arrested to be produced before any Magistrate, within such time as is reasonable in all the circumstances of the case.

(3) In prescribing measures under paragraph (1) of this Article, the State shall have a minimum core obligation to ensure the satisfaction of minimum essential levels of the rights recognized by Articles 14N (1) (e), 14O, 14Q, 14R 14S and 14T and in discharging such obligation the State shall not discriminate solely on any of the grounds set out in Article 12 (2).

16 .    Existing written law and unwritten law

All written and unwritten laws in force at the time of coming into force of the Eighteenth Amendment to the Constitution shall be read subject to the provisions of Chapter III and IV and in the event of a court declaring that any such law is inconsistent with any such provision, such law shall be deemed to be void to the extent of such inconsistency.

17.     Remedy for infringement of fundamental rights by State action

(1) Subject to following paragraphs  of this Article, every person shall be entitled to apply to the Supreme Court as provided by Article 126 in respect of the infringement or imminent infringement by  State action of  a fundamental right  to which such person is entitled under the provisions of this Chapter;

(2) Where the person aggrieved is unable to make an application under Article 126 owing to reasonable cause, an application may be made on behalf of such a person, by any relative or friend of such person, if the person aggrieved raises no objection to such application.

(3) An application may also be made in respect of any group or class of persons affected, in the public interest, by any person or by any incorporated or unincorporated body of persons, acting bona fide.

(4) Notwithstanding anything to the contrary in the Constitution, every person shall be entitled to apply to the Supreme Court as provided by Article 126 for a declaration that any law, statute of a Provincial Council or a provision thereof is inconsistent with a fundamental right under the provisions of this Chapter.

(5) For the purposes of this Article and Article 126, “State action” includes legislative action, executive or administrative action and judicial action.

17A.  Rights of non-citizens permanently and legally resident

A person who, not being a citizen of any country, has been permanently and legally resident in the Republic  on the date on which the Eighteenth Amendment to the Constitution comes into force and continues to be so resident, shall be entitled to all the rights declared and recognized by this Chapter, to which a citizen of Sri Lanka is entitled.

17B.  Interpretation of fundamental and language rights provisions

(1) In interpreting the rights declared and recognized by Chapter III and Chapter IV, a court, tribunal or other body -

(a) shall  promote the values that underlie an open and democratic society based on human  dignity, equality and freedom;

(b)  shall have regard to  the international legal obligations of the Republic and other sources of international law; and

(c) may have regard to  foreign law.

(2) When interpreting any written or customary law, every court, tribunal or other body shall promote the spirit, aims and objects of this Chapter and Chapter IV.

(3)  The rights declared and recognized in this Chapter and in Chapter IV do not derogate from any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with Chapter III and Chapter IV .

35.       Immunity of President from suit

(1) While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.

(2) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period of time during which such person holds the office of President shall not be taken into account in calculating any period of time prescribed by that law.

(3) The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in the Supreme Court under Article 126 or to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130 (a) relating to the election the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament:

Provided that any such proceedings under Article 126 and proceedings in relation to the exercise of any power pertaining to any such subject or function shall be instituted against the Attorney-General.

126.   Fundamental rights and language rights jurisdiction and its exercise

(1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by State action or any question relating to the inconsistency of any law, any statute made by a Provincial Council or provision thereof with any fundamental right or language right declared and recognised by Chapter III or Chapter IV.

(2) The jurisdiction of the Supreme Court under this Article may be invoked by any person or body of persons referred to in Article 17 in accordance with such rules of Court as may be in force. Any such person or body of persons may apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement or imminent infringement or for a declaration that any law, statute of a Provincial Council or any provision thereof is inconsistent with any fundamental right or language right declared and recognised by Chapter III or Chapter IV. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused as the case may be by not less than two Judges of such Court.

(3) Where in the course of hearing in any Court, of an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the any fundamental right or language right declared and recognized by Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.

(4) Where in the course of hearing in any court a question of the inconsistency of any law, any statute made by a Provincial Council or provision thereof with a fundamental right or language right declared and recognized by Chapter III or Chapter IV is raised by a party, such court shall forthwith refer such matter for determination by the Supreme Court. Such matter may be proceeded with only if the Supreme Court grants  leave to proceed with the matter and such leave may be granted or refused as the case may be by not less than two Judges of such Court.

(5) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstances in respect of any petition or reference referred to in this Article or refer the matter back to the Court making the reference if, in its opinion, there is no infringement of a fundamental right or language right or there is no inconsistency of a law or statute with any fundamental or language right declared and recognized by Chapter III or Chapter IV.

Provided that in the case of an infringement or imminent infringement of a fundamental right or language right by judicial action, no order for compensation or costs shall be made against a judicial officer who had acted bona fide and the Supreme Court may, in lieu thereof, order the State to pay any compensation or costs.

(6) Notwithstanding anything to the contrary in the Constitution, the Supreme Court shall have power to make-

(a) a declaration that any law, any statute made by a Provincial Council or provision thereof that is inconsistent with any fundamental or language right declared and recognized by Chapter III or Chapter IV is invalid to the extent of the inconsistency; and

(b) any order that is just and equitable, including –
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for such period and subject to such conditions as   would enable Parliament or a Provincial Council to take steps to make the impugned law or statute cease to be inconsistent with the provisions of this Chapter.

(7) Where at the hearing of a petition or reference referred to in this Article there are any disputed questions of fact, the Supreme Court may refer such questions to the Human Rights Commission of Sri Lanka, the Official Languages Commission or other appropriate body or person for inquiry and report.

(8) The Supreme Court shall hear and finally dispose of any petition or reference under this Article as expeditiously as possible and in any event, not later than three months of the filing of the petition or the making of the reference, as the case may be. In computing the period of three months, any period taken for inquiry and report by the Human Rights Commission of Sri Lanka, the Official Languages Commission or any other body or person referred to in paragraph (7) shall be excluded.

(9) Where the State action complained of is that of a Judge or Judges of the Supreme Court, leave to proceed shall be granted or refused and the matter shall be heard, if leave to proceed is granted, by a Bench comprising all the Judges of the Supreme Court save those whose action is complained of and any Judge who does not wish to participate.

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15 Responses to Full Text: Report Of The Committee On A New Chapter On Fundamental Rights

  1. 0
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    The $64,000 question is why are a bunch of “Friday democrats” and their friends giving legitimacy to an exercise in obfuscation? These people who are only too ready to publicize themselves are only performing one service – sucking up to a corrupt government without an atom of respect for human dignity or human rights. What on earth is wrong with these people. Haven’t they ever heard about what happens to those who sleep with dogs?

    Anti-Boru
    December 9, 2012 at 11:47 am
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      Hear Hear, tell it like it should be told. Sri Lanka is drowning in reports after reports followed by recommendations. They all say the same thing. We have done a piss poor job of governing. No one cares to implement a damned sentence in any of these reports.

      Bedrock Barney
      December 11, 2012 at 1:10 am
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    The report was presented to the Government in November 2009 but was not published. Amazing that this document has been kept secret under wraps for the last three years. It no doubt compromises the activities of our vigilantes in parliment who stoop to any level to any level to carry out the orders of the executive. No wonder the Ministry in charge is Disaster Management and Human Rights. Non implementation of this and scores of other commissions and reports is a disaster of the first order. No wonder the CJ of the Supreme Court is being denied her leagl rights.

    Safa
    December 9, 2012 at 12:06 pm
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    Looks good in paper.It is the King’s interpretation that matters

    Gamini Jayapirakash
    December 9, 2012 at 12:34 pm
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    We have to thank Prof. Rajiva Wijesinghe for bringing this report to light. The charter or covenant on fundamental rights proposed by this committee is meaningful, necessary and comprehensive. It will address many of the problems faced by the minorities and disadvantaged sections of society. It will also bring this country into the 21st century in terms of governance, if adopted and implemented properly. Unfortunately, the powers that be are apparently not comfortable with what was proposed . The same fate befell the Tissa Vitharane APRC report. Is it fair that we citizens do not have right to know the contents of such reports? Further, it was interesting to note that the proposed amendment was called the 18th. However, the real 18th amendment was an highly self centred exercise to strengthen and remove term limits on the executive presidency. It stifled democracy as against what the proposed 18th amendment on fundamental rights intended to achieve. It is tragic that every attempt to thwart democracy asserting itself in this country is being presented to flag waving crowds as conspiracies to block the development program of the government. If the constitution is a constraint, the government should declare itself a dictatorship and give up all pretence to the contrary. Every government in Sri Lanka has considered constitutions an obstacle and this government is unfortunately no exception. However, the progression of this phenomenon should be called to a halt now. How ? Can a supine society respond in the way it should? Incidentally, Prof Rajiva Wijesinghe will probably pay a price for bringing this report to public notice. Dr.Rajasingham Narendran

    Dr.Rajasingham Narendran
    December 9, 2012 at 3:44 pm
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      Narendran, this is the duplicity of these characters whom you try to extol. Why thank this bugger Rajiva now, when he himself is guilty for seppressing the Report for all this time. Was he using it to barter with MR? His current action is akin to, ‘Yana Yaka yanakota, Korahath bindagena yanawa’.

      gamini
      December 9, 2012 at 7:47 pm
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      A correction:i It is tragic that every attempt to resuscitate democracy in this country is being presented to flag waving crowds as conspiracies to block the development program of the government Dr.R.N

      Dr.Rajasingham Narendran
      December 10, 2012 at 2:58 am
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    The Report is welcome but why was it hidden – or shall we say still hidden by the Govt for so long? Most features in the report are already part of the Constitution. The problem is they are hardly given expression. For example – in the matter of Arrest, we already have laid down one arrested must be produced before a Magistrate/Judicial Officer within 24 hours. This, I understand, is now extended to 48 hours. There was much mischief by the Police on the 24 hour requirement. Now it is far worse. The arresting authority (Police earlier and also the Army after the PTA) were expected to provide a document/receipt to the family of those arrested holding the State responsible for the person and whereabouts of the arrested. Why were hundreds of thousands of innocent civilians arrested and held since 5/09 – with many still held, a large number missing and so on – with the State in many cases declaring they have no idea at all on the fate of those missing. While the law was violated in respect of most Tamils in the hundreds of thousands, some Sinhalese like Pragee Ekniligoda are still missing. Where is the State admitting responsibility here? Why is Mrs Ekiniligoda and relatives of others in tears and in the streets with the State remaining insensitively silent? This is nothing but law of the jungle. Anyway, going bythe spirit of something is better than nothing civil society will welcome the last minute move of Prof Rajiva Wijesinghe. Minister Samarasinghe must be taken to task in Geneva for the mala fide action of the State in hiding this useful report. Senguttuvan

    Senguttuvan
    December 9, 2012 at 4:14 pm
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    what a load of rubbish. none of these proposals will ever be put into practice. [Edited out] chingala modays samarasinghe , you are a liar. you have been lying to unhcr by saying reconciliation is taking place at a tremendous pace. can i ask between who and where. why are sinhala people are all liars and con artists.

    Rama
    December 9, 2012 at 4:20 pm
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    Rajiva Wijesinha should explain why this report was suppressed for three years. Even the members of the committee who drafted it appear not to have had the courage to request its publication!

    justice
    December 9, 2012 at 10:46 pm
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    Committees and reports are so ritualistic and meant to appease or buy times or hoodwink the international community. While this report being reluctantly published the students who commemorated the death of their loved ones are beaten and arrested. Don’t they have right to mourn the death? How many suspects are still locked up and tortured? Are there enough officers employed in public services including police and army to enable non-Sinhalese speaking members of public to communicate in their languages? Has the Chief Justice right for a fair hearing? There is a wide gulf between what Hon. Mangala Samarasinghe says and what is done in reality. He may be getting ready to address the next session of UN HRC in March 2013 by publishing this report. What happened to the Action Plan? What is important to our MPs is the ministerial portfolios and the perks that go with them. They cannot go on fooling all the people all the time.

    Saro
    December 9, 2012 at 11:57 pm
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    Rights of Children. Right to basic nutrition.shelter,health care and social services comes under Section 14A sub section (e).ie the 4th priority. To feed the kiddies at least 2 meals a day without borrowing or begging is the most fundamental of all rights, The great majority of our inhabitant population are poor rural people. The learned luminaries who sit on these committees surly have no idea how these poor cousins live.

    K.A Sumanasekera
    December 10, 2012 at 5:20 am
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      Shut down Mihin Air and you can feed all these kiddies for several years.

      Safa
      December 10, 2012 at 1:57 pm
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    Since this has been prepared some time ago, can an independent body go through each item and evaluate how its relevant to the existing condition on the ground. If what is stated has not been practiced then the Minister has to be impeached!

    park
    December 10, 2012 at 9:40 pm
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  11. 0
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    HUMAN RIGHTS IN SRI LANKA. GO TELL TO THE MARINES. THE DOGS HAVE MORE RIGHT IN THIS COUNTRY. THEY ROAM ABOUT FREELY AND GO AND SHIT ON THE OTHER MANS DOOR STEP AND GET AWAY, THANKS TO THOSE LIKE SAGARICA WHO FIGHT FOR DOGS RIGHTS!!!!

    AYMAN
    December 20, 2012 at 6:18 pm
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