18 August, 2022

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NMSJ Proposals On The Judiciary & Fundamental Rights

By Jayampathy Wickramaratne –

Dr. Jayampathy Wickramaratne PC

The National Movement for Social Justice (NMSJ) has unveiled its proposals for constitutional reform. In earlier articles, its proposals on constitutional principles, the nature of the state, the legislature, the executive and evolution were summarized. This article deals with the proposals of the NMSJ on the judiciary, fundamental rights and language.

Judiciary

Highlights of the proposals made by the NMSJ on the judiciary are the establishment of a Constitutional Court, a consultative process in appointing judges to the higher judiciary, inquiries into allegations against judges of the higher judiciary to be taken out of Parliament and the Court of Appeal to sit in the provinces as well and also exercise an original fundamental rights jurisdiction.

The Supreme Court of Sri Lanka pic by Madhawa Tennakoon

All appointments to the Supreme Court and Court of Appeal shall be subject to approval by the Constitutional Council as under the Nineteenth Amendment. In recommending persons for appointment as Judges of the Supreme Court and the Court of Appeal, the President shall take into consideration the views of the Chief Justice, Minister of Justice, Attorney-General and a panel of three senior President’s Counsel nominated by the Chief Justice after ascertaining the views of the Bar Association of Sri Lanka.

The NMSJ has proposed a Constitutional Court consisting of seven Judges who shall be appointed by the President on the recommendation of the Constitutional Council. The Judges shall be chosen from among persons who have distinguished themselves in the judiciary, the legal profession or legal education with specialised knowledge of constitutional law. They shall be appointed for a term of five years and shall not be eligible for reappointment. All seven Judges shall sit as the Court. Where any matter which falls within the jurisdiction of the Constitutional Court arises in any case before any court, such matter shall be referred to the Constitutional Court.

The proposed jurisdiction of the Constitutional Court is as follows: interpretation of the Constitution, judicial review of acts and provincial statutes, disputes between the Centre and Provincial Councils and between Provincial Councils, breaches of privileges of Parliament and review of its judgments.

The Court of Appeal shall conduct its sittings in each Province. It shall have an original fundamental and language rights jurisdiction. An appeal shall lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court.

Allegations of misbehaviour or incapacity contained in a resolution in Parliament for the presentation of an address for the removal of a Judge of the Constitutional Court, Supreme Court or Court of Appeal shall be inquired into by a panel consisting of three retired Judges of such courts appointed by the President on the recommendation of the Constitutional Council. Parliament shall by law provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by a representative.

Office of Attorney-General and Office of Public Prosecutor

The role of the Attorney-General has been the subject of much discussion in recent times. The NMSJ proposes that the Office of Attorney-General shall be an independent entity. It has also proposed that an independent Office of Public Prosecutor be set up by law. The Attorney-General and the Chief Public Prosecutor shall be appointed subject to the approval of the Constitutional Council.

Fundamental Rights

The NMSJ has proposed that the chapter on fundamental rights be improved to include rights that are universally recognised.

The right to life, which was included in the 1972 Constitution but excluded from the 1978 Constitution, shall be recognised. While the scope of civil and political rights should be broadened, social and economic rights, cultural rights, rights of women, children, the aged and the disabled, as well as environmental rights shall be recognised as judicially enforceable rights. The draft proposed by the sub-committee on fundamental rights of the Constitutional Assembly chaired by MP Mahinda Samarasinghe in 2016 could be the basis for the new chapter on fundamental rights.

The NMSJ’s proposals for a broader fundamental rights chapter accord with modern constitution-making. Approximately 70% of the constitutions in the world contain at least one explicitly justiciable economic and social right, and about 25% have ten or more such rights. Clearly, the modern trend is not to limit fundamental rights to civil and political rights but to include more economic and social rights. South Africa gave the lead in recognising social, economic, cultural rights as well as children’s and women’s rights and environmental rights in its Constitution. This was followed by progressive and innovative Bills of Rights in many countries, including countries that have liberated themselves from authoritarian rule or internal conflict. These include Kenya and least developed countries such as East Timor and Nepal. Modern Latin American constitutions have included more justiciable economic and social rights than in any other region of the world.

The NMSJ has proposed that public interest litigation be expressly recognised. There shall be no time limit for filing applications so that applications filed within a reasonable time could be entertained.

All existing law shall be read subject to the Constitution, including the chapter on fundamental rights. Post-enactment judicial review of laws and statutes would be permitted. Accordingly, the Constitutional Court shall have sole and exclusive jurisdiction and power to declare that a law or provincial statute or any provision thereof that is inconsistent with any provision of the Constitution is invalid to the extent of the inconsistency. Where it considers just and equitable to do so, the Court may limit the retrospective effect of a declaration of invalidity or suspend a declaration of invalidity for Parliament or a Provincial Council to make the law or statute cease to be inconsistent with the Constitution within a stipulated period.

Language

The NMSJ’s proposal on language is to declare Sinhala and Tamil as official languages and to recognise English as the link language.

Related posts:

Part I – NMSJ Proposals On Constitutional Principles, Nature Of The State & The Legislature

Part II – NMSJ On The Executive & Devolution

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Latest comments

  • 9
    0

    Why not declare sinhala, Tamil and English as Official Languages

    • 5
      0

      My gut reaction, srikrish, is: Why not?

      • 2
        0

        Manel Fonseka,
        Where has the Languages policy taken us?
        .
        We are paying the price for our shortsighted policy. We have grown to be frogs in the well.
        .
        It is that shortsightedness that has led to our political quagmire and our economic woes.

      • 1
        0

        People who are going abroad, to “Western Countries” includes Australia are asked for proof of aural oral skills as well. There are three or four exams certifying this, the best known being IELTS. A valid passport is required to register for it.
        .
        English grammar isn’t specifically tested, but both grammar and vocabulary get tested when the two active skills of speaking and writing are assessed. The most difficult component for Lankans is writing.
        .
        The commonest mistake is to allow a teacher to teach “grammar”. It’ll never end, so “tuition masters” try to get their victims hooked on it.
        .
        Even our delightful commenter, “Nathan”, worries about it!

    • 4
      1

      Dear srikrish,
      .
      What you say is seen as desirable by all, but I’d say (perhaps because I’ve been a teacher) the problem lies mainly with teaching them, the nomenclature, and even as you dig a little deeper, into the content.
      .
      I’m still operating with a mobile phone in Maharagama.
      .
      I’m writing purely as a not highly regarded teacher of English who was born in Bandarawela, and has lived well nigh all my life there.
      .
      There’s a difference between literacy (ability to write your name, filling in a form, being able to communicate orally and aurally in English, on the one hand, and using language with a degree of sophistication. Have I already begun to confuse you?
      .
      Help me if you can, with this, please. Can you come up with an estimate of what percentage of students s.tudy in schools run by the State, or (this will be minute in comparison) supervised by the Education Ministry of the State..
      .
      tbc

    • 0
      1

      I’ve met with an accident of sorts.
      .
      I use this mobile phone clumsily. Not with the sure alacrity that Manel Fonseka does. But then she’s more unfortunate than me in other respects! (Nathan: you’re not to start that “I/me” controversy with me!! If you do, “Native English speaker Manel had better take over).
      .
      Anyway, the accident! I had written out the whole of the second part of my response, when I lost it all.
      .
      So let me stop here for today. Because having lost it, I found something in my comments box. I triumphantly submitted it, and found it was the first part again.
      .
      Submitting at 1.23 am.

    • 1
      0

      srikrish,
      .
      To continue, many hours later with facts. The English test that most Lankans face is at O. Levels. It is a second language test that doesn’t certify that a guy getting even a Distinction can use English at all. However, at no stage should anybody be mocked for speaking in the Swabasha, and offering (with both hands) that certificate for perusal.
      .
      The A. Level General English paper is only slightly better.
      .
      As a solution, some students offer O. Level English Literature. They usually cram some notes, but then have to write an answer that suits the question. Such students will be able to use some English but will have little interest in Literature, or even in reading.

    • 0
      0

      srikrish,
      .
      I begged you not to mock the guy who presents those certificates. What choice do the vast majority have but to present those. This country seems to understand only certificates, not skill in doing anything. Great effort has gone into getting the certificate; if you don’t respect that you breed complexes.
      .
      About a dozen languages are available at A. Levels. The requirements are very basic, except for three.
      .
      Sinhala, Tamil and English. First Language level, but there is one paper specifically devoted to Literature; even the other emphasises the good old literary skills. However, if somebody tells you that they have passed “English Literature” at A. Levels, ask to see the certificate, and point out that the subject is “English” – nothing more, nothing less.

    • 1
      0

      People who are going abroad, to “Western Countries” includes Australia are asked for proof of aural oral skills as well. There are three or four exams certifying this, the best known being IELTS. A valid passport is required to register for it.
      .
      English grammar isn’t specifically tested, but both grammar and vocabulary get tested when the two active skills of speaking and writing are assessed. The most difficult component for Lankans is writing.
      .
      The commonest mistake is to allow a teacher to teach “grammar”. It’ll never end, so “tuition masters” try to get their victims hooked on it.
      .
      Even our delightful commenter, “Nathan”, worries about it!

    • 0
      0

      Dr. Jayampathy Wickramaratne’s article was meant to focus on the constitution, it got diverted (not by me!) to a discussion of the languages that we use, and specifically the place of English.
      .
      Now that is something on which I know more than most; that is to say the various uses and the various levels. However, I was handicapped, during the past week, without the use of a computer; I was losing half the stuff that I was writing on the phone. Now I’ve got a computer working.
      .
      Meanwhile, Manel Fonseka, a quite remarkable, committed and honest person has written this article:
      .
      https://www.colombotelegraph.com/index.php/sinhala-only-tamil-also-and-also-english/
      .
      [edietd out]
      .
      Panini Edirisinhe
      .
      tbc

      • 0
        0

        Continuing
        .
        I know that my comments on this article, and on that by Manel Fonseka, are crazily placed, but more will appear in a more disciplined way, somewhere below Manel’s article, perhaps at the bottom.
        .
        What I have already stated has focussed on the current situation, which nobody is happy with. I don’t have a miracle solution, but at least I will reveal some of the reasons for the mess. Please ask me the seemingly most awkward questions, and I will reveal what I know, because we must face facts.
        .
        There have been efforts to improve matters, but all seems mired right now. When the facts are known by the many persons visiting this site, who almost universally are worried, there will be some hope for improvement.
        .
        Panini Edirisinhe
        (NIC 48 3111 444V) Retired teacher of English at various levels

    • 0
      0

      Please make a point of looking at this article:
      .
      https://www.colombotelegraph.com/index.php/sinhala-only-tamil-also-and-also-english/
      .
      The comment that I submitted a minute ago, has got so placed that it may be missed, and comments here will cease any time now.

  • 4
    0

    and Mandarin.

    • 1
      1

      Dear, dear Svenson.
      .
      This is no joke for me now at 1.26 am.
      .
      I met my two granddaughters, aged 8 & 6, a few hours ago, for the first time in three years.
      .
      They are citizens of Lanka, an know a few words of Sinhalese, no Tamil at all, like me.
      .
      We talked in English, but they do know Mandarin and Malay.
      .
      They’re doing all right, but from the point of view of cohesion within the country, it’s good that there are few like that.
      .
      Good night!
      .
      Panini Edirisinhe, usually of Bandarawela

    • 2
      0

      Sorry, I was typing tongue in cheek (which is how Mandarin is pronounced).

      • 0
        0

        Dear, ever kind, Sveson,
        .
        I’m sure that we will never make a serious effort to prononouce Mandarin, or learn its GRAMMAR.
        .
        We will be talking mainly about using English as a supplementary language to our Swabashas. In such contexts “mistakes” don’t matter; ideas get communicated, irrespective of “mistakes” in grammar. Take my comment to which you responded.
        .
        I find that even those writing in CT, don’t appear to know that “few” and “a few” have quite different meanings. This can cause serious misunderstanding.
        .
        So, I wasn’t saying that it’s good for the country to have citizens knowing English, Chinese, and Malay. However, it may help them prosper, personally.
        .
        However, if they knew Sinhalese, Tamil, and Chinese, that would be really good for the country.
        .
        English? Theoretical or strongly ideological guys may want to reduce English to being just another foreign language, but, in practice, isn’t it significant that Malay is written using the English alphabet, and the Chinese use it as their “Trade Language”?
        .
        One wishes that English were less idiosyncratic.

  • 1
    1

    Dear srikrish,
    .
    What you say is seen as desirable by all, but I’d say (perhaps because I’ve been a teacher) the problem lies mainly with teaching them, the nomenclature, and even as you dig a little deeper, into the content.
    .
    I’m still operating with a mobile phone in Maharagama.
    .
    I’m writing purely as a not highly regarded teacher of English who was born in Bandarawela, and has lived well nigh all my life there.
    .
    There’s a difference between literacy (ability to write your name, filling in a form, being able to communicate orally and aurally in English, on the one hand, and using language with a degree of sophistication. Have I already begun to confuse you?
    .
    Help me if you can, with this, please. Can you come up with an estimate of what percentage of students s.tudy in schools run by the State, or (this will be minute in comparison) supervised by the Education Ministry of the State..
    .
    tbc

  • 2
    1

    Jayampathy! Do you expect me to forget that you were the Minister in charge of Constitutional Affairs in the “Yahapalana” Government? Why this fuss when you could have introduced all this then? Every Government seem have a set of lawyers acting as the biblical “wise men” to draft constitutions. Does your draft prevent political parties from giving dud manifestos and forgetting them after being swept into power? What are the safeguards that are provided for errant ministers to commit Sri Lanka Internationally when such commitments are against the law of the country? What is the ability of the electors to recall an errant member of Parliament? If the answer is none then all what you say now is a damp squib. I still remember that you were the centre point of a controversy surrounding Ministers wanting plush vehicles during “Yahapalana times”. Most independent media reported this at that time. I respect your freedom of speech but haven’t you yourself by your actions as a Minister now morally circumscribe your ability to express opinion in the name of the NMSJ? History may prove that even you too are to blame very much for the loss of confidence of Democracy

  • 2
    0

    The best way of dealing with Fundamental Rights is to require that all the UN Conventions on Human Rights be made part of the law of Sri Lanka. This was so until a political poofter, Sarath Silva CJ, decided the Singarasa Case. By having a residual clause on UN Human Rights Convention, the Conventions on racial discrimination and on discrimination against women could be made part of the law of Sri Lanka. In India, in the Visakha Case, the Indian Supreme Court read the whole Convention on the Elimination of Discrimination against Women into law by embodying it in a judgment. Also, there is no provision on torture. The Convention on Torture could deal with this lapse and ensure that legislation like the Prevention of Terrorism Act conform to international standards.

  • 3
    0

    What is the composition of the “Constitutional Council” and who is the “Appointing Authority”? We know what happened to such a body under the “19A” during the “Yahapalanaya Joke”.

    The Attorney General must be renamed as “State Attorney General” and his functions must include “State Prosecutions” among other “State Judicial” matters. No need to have an extra “Public Prosecutor” position. The entire Governing Body of the “State Attorney General” must be declared an “Independent” administrative authority solely “Responsible” to the Legislature – the Parliament.

  • 1
    0

    National Movement For Justice. There is no way for me to comprehend what kind of justice he really means. I brought to his attention a case of decapitation of the Judiciary of Srilanka.

  • 1
    0

    Among the NMSJ proposals, the language policy is the most disagreeable and nationalistic. It says “The NMSJ’s proposal on language is to declare Sinhala and Tamil as official languages and to recognise English as the link language.”

    On fundamental rights, democracy, state institutions or separation of powers (legislature, executive and judiciary), and on devolution, if we can absorb international notions and trends, why cannot we do so on the language policy?

    The following link gives a list of countries (54) where English an official language and the language of higher education: English as Official Language (ncsu.edu) US is not there because English is not the official language officially!

    Just ‘recognition of English as the link language’ does not make any difference and sense. However, recognition it as an official language would be simple and effective. Making it the language of higher education and teaching English as a language in schools in addition to Sinhala and/or Tamil can revolutionize the country both in terms of education, development, and reconciliation.

    • 1
      0

      Making English the main Official Language will outweigh all the negatives that come with it.

    • 0
      0

      Laksiri,
      .
      It would be good to see that list of 54 languages; you’ve forgotten to give us the link.
      .
      The “de facto” Link Language for non- elite Tami speakers is Sinhalese. If idiot “Sinhalayo” hadn’t tried to force it on all, almost every Lankan, except those who are sedentary, would have a smattering of spoken Sinhalese by now.
      .
      A few Sinhalese people who get about (mostly men) know some Tamil, but the most, with typical majorutarian arrogance, don’t learn Tamil. I don’t either, but I say it shamefacedly. The fact is it will be of little practical value for me.

      • 0
        0

        I gave the link. Here it is again. Check whether you can access: https://projects.ncsu.edu/grad/handbook/docs/official_language_english.htm

        • 1
          0

          Thank you, Laksiri
          .
          Yes it opened, and it will be useful when having to further this discussion.
          .
          I’ve been unable today to discuss the “English Medium” is State Sector schools. Shall try tomorrow.
          .
          Panini Edirisinhe

  • 1
    0

    “Making it the language of higher education and teaching English as a language in schools in addition to Sinhala and/or Tamil can revolutionize the country both in terms of education, development, and reconciliation.”
    It would be much better if:
    Making it the language of higher education and teaching English as a language in schools in addition to Sinhala and Tamil can revolutionize the country both in terms of education, development, and reconciliation.

  • 2
    0

    Yes! Laksiri Fernando,
    I endorse every word of what you say
    English is the language of higher education, English is the language of science, English is the language of commerce, English is the language of information Technology, English is the language of International communication and therefore Why not accept English as an official language of Sri Lanka. It is acceptance of reality

    • 1
      0

      Thanks Srikrish. I think we have a common view on the subject. English should be an official language and the language of higher education and science. Of course without neglecting Sinhala or Tamil.

  • 3
    0

    A few more inclusions are needed: 1. All Judges must declare their assets annually. 2. No Judge could become a politician for 3 years after giving up the post. 3. All court judgments should be subjected to an independent peer-review after the judgment. 4. No politician can practice law. 5. All AG’s decisions should be subjected to an independent commission consisting of retired judges. 6. No AG can be appointed to a higher court.

    • 0
      0

      When will NMSJ replace one family one country one law ??? Any idea

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