In Pursuit of a Futuristic FR Chapter

Dr. Prathiba Mahanamahewa-2017-08-14

ne of the key proposals in the current

Constitution Reform process is to strengthen the Fundamental Rights (FR) chapter
in the Constitution. Fundamental rights are judicially enforceable. However
activists point out that the Chapter is too restrictive, and that it does not serve
the purpose intended of a fundamental rights chapter. Only a limited number of
rights are guaranteed. The restrictions posed in the exercise of these rights are
too broad, that it has prevented people from receiving redress. Former Human
Rights Commissioner Dr.Prathiba Mahanamahewa spoke about the lacunas in the
current Fundamental Rights (FR) chapter, issues in the implementation
mechanism and practical application.
According to him democratic countries follow the social contract theory
expounded by John Locke, Thomas Hobbes and Rousseau. They mainly discussed
the rights and liabilities of the ruler and the citizens. We developed that contract
to a Constitution. It has gone forward to constitutionalism, he said.
He added that traditional constitutions revolved around the powers and liabilities
of the executive, legislature and judiciary.
Before the Second World War, we did not have a fundamental rights chapter in
our constitutions. Fundamental Rights were looked at by the judiciary. In the
Soulbury Constitution of 1947 there was a significant provision namely Article 29
which guaranteed minority rights and religions.
He further remarked that since the introduction of the Universal Declaration of
Human Rights (UDHR) there was a dire need to have a written constitution as
rulers could not be trusted. We cant trust state institutions, he said.
Recommendations to strengthen the FR chapter
The 1972 Constitution respects the 30 rights found in the UDHR. But the only
weakness was the implementation mechanism. But under the 1978 constitution
the mechanism is included but many rights have been taken off. This has been
done purposely, pointed out Dr. Mahanamahewa. He further noted that if the
rights subsequently removed by the current constitution had been included
deaths during the 1988/89 and the wartime could have been prevented.
He stressed that both right to life and right to food should have been included in
the current Constitution. Right to life was included in the 1972 Constitution but
was removed by the subsequent Constitution.
He further narrated the story of how at the time of former deceased President
Ranasinghe Premadasa food supply to Jaffna was halted because terrorists
inhabited the Jaffna Peninsula. Rajiv Gandhi sent helicopters which dropped dry
food parcels to that area. No one objected. The UNHRC said nothing. Even the Sri
Lanka air force was completely silent. This was a violation of International Space
Law, he said.
"Before the Second World War, we did not have a fundamental rights chapter in
our constitutions. Fundamental Rights were looked at by the judiciary. In the
Soulbury Constitution of 1947 there was a significant provision namely Article 29
which guaranteed minority rights and religions"
Asked if judicial decisions have widened the scope of the FRs guaranteed by the
constitution he replied positively pointing out several cases. In Wimal Fernando v
SLBC court held that Freedom of speech and expression also meant access to
information, gaining information etc, he said.
In the Gerard Mervin Perera judgement the court said that receiving medical
treatment whether from a state or private hospital is immaterial. In another case I
was involved in with the Environment Foundation, we found that there was no
water in the wells and houses were damaged, just like in what has happened by
the Uma Oya project. The Environment Foundation had no access because they
were not victims but an NGO. But Supreme Court said that they could proceed to
a certain extent, he added.
After the case of Sriyani Silva v Iddamalgoda, Payagala OIC if a person is
arbitrarily arrested, tortured without any charge in the police station, the
Supreme Court has stated that he has a right to life in such instances. But this
right is available only when a violation occurs under police custody, Dr.

Mahanamahewa pointed out.

The Supreme Court has tried to expand this provision. When 500 young people
were detained at the Boosa camp without any charge for months and years on
end, they wrote petitions to the Chief Justice. At that time I was a human rights
lawyer and we visited that place and filed many cases. The Supreme Court Judge
accepted a post card as an FR petition. Today you cant do that. It has to follow
procedure, he said.
He further noted that rights which are important for the 21st and 22nd centuries
are not included in the Constitution. Therefore amendments made to the chapter
should be done with a futuristic vision. Right to privacy or right to be let alone is
not included. Many violations occur through social and electronic media because
right to privacy is not guaranteed. This is a fundamental human right in other
countries. We neither have a backing up data protection law in Sri Lanka.
Consumers are exploited today. The only place they could go to is the Consumer
Affairs Council. There are a lot of issues here as well. There are chemicals in the
food we consume. Then there are oily stuff and concern about MSG, the expiry
date, quality of the food. If you try to file a case it will take years and years, he
said.
Though the State provides free education right to education has not been
included. The right to vote and the right to clean water are absent. We need a
special clause for environment rights, he said.
"Rajiv Gandhi sent helicopters which dropped dry food parcels to that area. No
one objected. The UNHRC said nothing. Even the Sri Lanka air force was
completely silent. This was a violation of International Space Law"
The current constitution does not include judicially enforceable economic, social
and cultural rights. However courts have decided on matters regarding these
rights by interpreting the equality clause.
Dr. Mahanamahewa further said that labour rights, womens rights, childrens
rights, rights addressing climate change should be included.
Implementation
It is insufficient to merely incorporate these rights into a Constitution. There
should be effective implementation so that the benefits of the FR chapter are
reaped in full.
Article 126 (2) states that only the Attorney at law on behalf of the victim or the
victim can go to the Supreme Court for an FR violation. This clause must be
removed. If anyone is interested in anothers rights he must have access to
justice, to the Supreme Court. In India, Justice Bhagawati and others came up
with the idea that anyone who saw anothers rights violated should be given the
access to go to court, said Dr. Mahanamahewa.
The same Clause in the Constitution states that the petition should be sent to the
Supreme Court within one month of the alleged violation. The one month bar
has to be extended to 6 months. You cant do anything within one month, he
noted.
When rights are violated victims go to the HRC. People use it as a ladder so then
they can file the case in the Supreme Court at any time, he added.
"But the only weakness was the implementation mechanism. But under the
1978 constitution the mechanism is included but many rights have been taken
off. This has been done purposely"

He suggested that there should be a separate Supreme Court division to hear FR

cases. There should be at least 2 or three Supreme Court judges handling FR
cases.
The Supreme Court is located in Colombo. If the rights of a person from Jaffna
are violated he has to come all the way to Colombo to submit the case, hear it
and listen to it. Two days will be spent on travelling, and then the person has to
bear the cost of lodging and accommodation in Colombo as well. Lawyers also
charge a fee, he pointed out.
The Constitution must be amended to give Provincial High Courts Appellate
Division the power to hear FR cases, he suggested.
He said that providing free legal aid should be an FR. When Navaneethan Pillai
visited Sri Lanka she said that our people are still not aware of FR human rights,
that they dont have access to courts sometimes, and that we must provide free
legal aid.
The FR found in the current Constitution are applicable only when they are
violated by executive or administrative action. You must expand this to the
private sector. In Canada if the private sector violated an FR, victims can go to the
Canadian HRC.
Restrictions
Article 15 of the current Constitution has posed restrictions on fundamental rights
on grounds of national security, national economy, etc. You must limit
restrictions. There is no war in the country now. Any govt that comes into power
has a shield to hide behind called national security. This is why Karl Marx said that
law is a weapon used by the ruler to control the mass. This is true under the
Prevention of Terrorism Act. Until you go for a lawless society you need a law to
implement, said Dr. Mahanamahewa.
Golden opportunity
If we have an excellent an FR chapter we can draft the best Constitution in the
world. This is a golden opportunity, he said. When Sri Lanka signed the
International Commercial Arbitration Convention, the first country to introduce
an Arbitration Act was Sri Lanka in 1995.
Sri Lanka was also the first country to introduce the Human Rights Commission
Act of 1996. The other countries followed suit, he said pointing out that Sri
Lankas new Bill of rights could be a model for other countries.
Referendum
Amending certain clauses in the FR chapter requires a referendum. You should
go for a referendum. People are ready for this. We dont need a new Constitution
per se. We need reforms to the electoral system, how Supreme Court Judges are
removed and the FR chapter. The political decisions regarding the removal of the
executive must be taken. You must expand devolution, he said on a final note.
Posted by Thavam