Proposals for Constitutional Reforms:

SLIP SHOWS: No Bill of Rights in UNP ‘Constitution’

Lakshman I.Keerthisinghe LLB, LLM.MPhil, Attorney-at-Law

It becomes not a law-maker to become a law-breaker. Bias 6c BC – one of the Seven Sages of Greece

In recent times the United National Party (UNP) led by Ranil Wickremesinghe and the National Movement for Social Justice (NMSL) led by Ven.Maduluwave Sobhitha Thera have put forward proposals for the reformation of the content of protection of fundamental rights in Sri Lanka in addition to other reforms in drafting a new constitution for Sri Lanka. In the meantime the Office of the Special Envoy on Human Rights Minister Mahinda Samarasinghe has put forward the National Action Plan for the Protection and Promotion of Human Rights 2011-2016 the full text of which is available at http.wwwhractionplan.gov.lk .

Dr. Jayampathy Wicktemaratne PC Expert in Constitutional Law has given his views about the UNP Proposals on Constitutional Reform in an article published in a web publication.

This piece attempts to summarize the different views expressed on this matter in order to obtain a better understanding of the proposals put forward and the remedial action proposed by the Government of Sri Lanka in this regard.

Dr. Wickremaratne speaking of the UNP Proposals questions as to the reason for the UNP to concentrate only on three rights which are (a) universal access to education,(b) the right of persons belonging to a religious or ethnic community to enjoy the culture, practice and their religions and use their language, (c)Right to Good Administration. Has the UNP forgotten the Right to Life questions Dr.Wickremaratne.

Civil and political rights

While the global trend is to widen the scope of civil and political rights and to recognize social, economic and cultural rights as well as women and children’s rights the only new right mentioned in the UNP Proposal is the right to information.

The UNP Proposal has included; facilities for good health, opportunities for employment, access to education, protection of family rights, children and women rights, rights of senior citizens and disabled persons to be declared under Directive Principles of State Policy which remain unenforceable.

The Proposals by NMSL led by Ven.Maduluwave Sobhitha Thera speaks of a new fundamental rights chapter stating that the Bill of Rights mentioned in the National Human Rights Action Plan is a good basis for a new fundamental rights chapter. The right to information should be introduced states the NMSL.

Turning to the Bill of Rights mentioned in the National Human Rights Action Plan put forward by the Government of Sri Lanka it is apparent that a large number of comprehensive remedial measures have been recommended to be implemented according to the said Plan, which are far superior to the marginal reforms suggested by the UNP.

Human rights violations

The Plan focuses on 18 areas and mentions eight priority areas. The focus is on measures to give effect to international human rights obligations, Constitutional rights, accountability in providing remedies for human rights violations, effective judicial, administrative or legislative authorities ensuring the right to remedy HR violations, emergency regulations, derogation protocols, right to life, arrest and detention, conditions of detention, right to privacy, freedom of religion, language rights, right to information, freedom of expression, right to vote and take part in public affairs, discrimination in general, discrimination of persons with disabilities and access to justice.

The prioritized areas under the Plan are Civil and political rights, economic, social and cultural rights, prevention of torture, rights of women, labour rights, migrant workers, childrens’ rights and internally displace persons. The action plan is in eight parts representing the eight thematic prioritized areas and is each in the form of a matrix consisting of focus area, goal, issues, activities, key performance indicators, time frame and key responsible agencies designated to effect the remedial measures.

For instance the Ministry of Justice has been tasked with the adoption of legislation to ensure right to information and the freedom of expression. Ministry of National Languages and Social Integration would ensure the effective implementation of language rights protection.

Access to justice

The Ministry of Justice would take action to submit a Bill to the Cabinet to implement the right to privacy. Freedom of religion would be ensured by administrative action assigned to the Ministry of Education.

Access to justice has been allocated to the Ministry of Prison Reforms and Rehabilitation. On arrest and detention the Ministry of Justice will take action to amend the existing rules to enhance administrative procedure to empower magistrates and other law enforcement agencies to visit places of detention and also amend Section 28(1) of the Human Rights Commission Act to include all arrests and also require the reporting of arrests to State Counsel in the area. The action plan consists of 24 pages and only a few salient areas have been referred to in this piece for want of space.

International law

The Chapter on Fundamental Rights in the present 1978 Constitution enshrined the rights guaranteed under international law and the enactment of the International Convention on Civil and Political Rights Act No.56 of 2007 gave statutory recognition to the international obligation under that Convention.

In 2008 the Government of Sri Lanka appointed a Committee to give effect to the proposals contained in the Mahinda Chinthana for a comprehensive Bill of Rights to be introduced to the Constitution. A draft bill has been formulated which is presently being deliberated by stakeholders.

It is disheartening to note that the UNP with several legal luminaries in its ranks has been unable to draft a suitable comprehensive chapter on fundamental rights in their new constitutional reform proposal.

A very prominent member of Parliament who was a vociferous supporter of free and fair elections recently chaired an election held to appoint office-bearers in a prominent Association in Sri Lanka where exactly the opposite to such a noble concept was permitted to take place under his very scrutiny.

The quotation at the outset of this piece becomes relevant in such situations.

A comprehensive Bill of Rights is a dire necessity in our Constitution particularly at a time frivolous allegations of gross human rights violations are been leveled at Sri Lanka by interested parties of the diaspora led by the TGTE hell bent to establish a separate state in the North and East of Sri Lanka and using all possible means to whip up support for their cause of dividing our motherland into two different states.

All patriotic and right thinking Sri Lankans should oppose such an endeavour as even our brethren in the North and East do not contribute to such a separatist agenda.