AHRC-OL-012-2006
May 3, 2006
Open letter to the Minister of Constitutional Affairs and the Chairperson of the Law Reform Commission
Dear Sir & Madam,
Re: Proposed bill of rights
The Asian Human Rights Commission (AHRC) has learned from newspapers that the Ministry of Constitutional Affairs is to organise workshops, one of which will be held on the subject of a new bill of rights, on May 6, 2006.
The Asian Human Rights Commission hastens to join this discussion for fear that–given the recent history of constitutional affairs in the country–this effort may lead towards even more restrictions on rights and make the whole discussion on constitutional affairs meaningless to ordinary Sri Lankans and anyone who is watching the matter from the outside.
At a time when the 17th Amendment to the Constitution has been completely flouted despite local and international outrage, whether the government can conduct a credible dialogue on constitutional amendments is doubtful. Even the Human Rights Commission of Sri Lanka is without Commissioners at present, while the president of Sri Lanka has usurped the powers of selection of members to the 17th Amendment based commissions, thus abandoning the concept of checks and balances in the constitution. However, the AHRC and its affiliated organisations wish to participate in this debate vigorously to bring to light the areas that must necessarily be addressed if a meaningful bill of rights is to be enshrined in Sri Lanka.
The preliminary observations of some issues given below are some of the AHRC’s initial reactions and this will be followed with further submissions in the future.
The bill of rights must be set in opposition to the concept of absolute power contained in the idea of the executive presidency central to the 1978 Constitution. A Bill of Rights and the concept of absolute power of the executive president enshrined in the 1978 Constitution are incompatible. The very purpose of a Bill of Rights is to prevent the use of absolute power and to enable the functioning of democratic institutions. As long as the executive president is not answerable to the parliament and judiciary, the fundamental framework for the protection of rights will remain nullified. Just having a bill of rights by name while having an authoritarian governance structure in place, is only a propaganda ploy and does not in any way help the people of a country to have their rights protected from repressive forms of governance. Rather, the government structure must first be held accountable to the parliament and judiciary. The absolute impunity presently available to the executive president must also be abolished. The president must be held accountable for criminal, civil and other forms of legal liability, including fundamental rights violations. The principles enshrined in many other democratic countries would be useful regarding this matter.
Subordination of the judiciary to the executive president and the ruling regime as expected under the 1978 Constitution should be abolished. Though the 1978 Constitution mentions the independence of the judiciary, such a concept is incompatible with the concept of absolute power as contained in the same Constitution. The experience since 1978 has also shown how the executive president and his regime can bring the judiciary to its knees. This structural problem has given rise to the problems of the judiciary that are currently bemoaned. Without addressing this structural issue and enabling the actual independence of the judiciary, it is not possible to overcome the present problems. Without a truly independent judiciary, a Bill of Rights has very little meaning.
Effective remedies for violations of rights need to be ensured. The notion of rights without redress is meaningless, even hypocritical. Sri Lanka’s most pressing problem today is that no redress is available for the violations of any rights. Even in the case of murder–a violation of the right to life–there is often no effective remedy, since investigations into crimes are ineffective, the prosecution system under the Attorney General’s Department is beset with confusion and inefficiency, and the judiciary is beset with enormous delays. The net result is a four per cent convictions rate, while many complainants give up their pursuit of justice due to various obstacles. The citizens of Sri Lanka are largely living in fear, aware that the state is unable to protect them. The failure to protect people and the lack of effective remedies for human rights violations are two sides of the same coin.
The right to have a speedy trial must be raised to the status of a fundamental right. Although the right for a speedy trial is enshrined in the ICCPR, which Sri Lanka has ratified, it is not recognised as a fundamental right under the 1978 Constitution. Sri Lanka suffers from extraordinary delays in all forms of adjudication. In fact, the speeding up of court processes would be the primary measure to deal with the state of insecurity prevalent in the country at present. Judicial reluctance to bring this issue to the forefront may be due to notions of ‘culture’. However, unless this ‘culture’ is addressed, nothing will change for the better in the country. If the issue of delays in adjudication cannot be addressed effectively, there is no point in discussing a new bill of rights.
The scope of fundamental rights must be enlarged to include violations of rights through judicial actions, not only executive or administrative actions. The international obligations of Sri Lanka under the ICCPR also make the judiciary subject to respecting rights under the ICCPR. Therefore there is no basis to exclude violations of rights by judicial officers from the jurisdiction of courts in determining questions relating to the infringement or imminent infringement of rights.
A Bill of Rights needs to lay down a procedure for the enforcement of judgments (views) of the Human Rights Committee in cases the Committee determines that any state agency has violated the rights of a citizen. In two cases taken up by the Committee (Singarase and Tony Fernando) the government of Sri Lanka has taken the position that it cannot implement the Committee’s decisions as these are against the orders given by Sri Lankan courts. According to the government’s position, decisions made by Sri Lankan courts are excluded from the obligations of the state to implement the ICCPR. This view has been rejected by international jurists as incompatible with the protection and promotion of human rights. In other cases, (including those of Victor Ivan and Lalith Rajapakse) the state has also not taken action to implement the Committee’s views. Citizens are unable to get these orders implemented as the law has not laid down a procedure for doing so. Other countries include such procedures in their Constitutions and Bills of Rights. Until this is done, Sri Lanka being a signatory to the optional protocol of the ICCPR has little meaning.
The implications of court decisions in fundamental rights cases on the state officers involved must be clearly laid down in the Bill of Rights implementation section. At present the decisions of the Supreme Court are treated trivially by state departments such as the police. Some Supreme Court judgments themselves make light of the finding that a state officer has violated fundamental rights. A clear provision of the significance of a fundamental rights decision needs to be reflected in the Bill of Rights.
The issue of quantum in human rights awards should be treated as a substantive matter. Many of the Supreme Court judgments in recent times have awarded low amounts of compensation for serious human rights abuses, such as acts of torture and illegal arrest and detention. There is also no set criterion in awarding such damages. In particular, it is the poor who become victims of torture and similar violations and have the greatest difficulty in pursuing cases in courts, who get the lowest awards. In fact, at one session of the Committee against Torture, one senior international expert observed that such low awards are an insult to the victims. The international norms and standards on effective awards have now been well developed. These must be brought in to the bill of rights so that violations of rights will not end up being treated in a trivial manner. Low awards in these cases serve to lower the standards of justice and contribute to a state of demoralisation in society. This encourages violence and anarchy.
The recommendations regarding the period for filing fundamental rights cases as well as other recommendations made by the Human Rights Committee, CAT Committee and other UN bodies should be incorporated into the Bill of Rights. There has been a long protest against the 30-days time limit imposed on the filing of fundamental rights cases. The Human Rights Committee recommendations regarding this, which the Sri Lankan government has agreed to be bound by, have not been respected. Furthermore, the recent Supreme Court practice of postponing the hearings of fundamental rights cases until the end of related criminal cases needs to be discontinued.
These are but a few aspects the Asian Human Rights Commission is submitting for discussion at this initial stage. We shall pursue these suggestions and make others during the course of the discussion. We hope that a genuine debate on a bill of rights may be able to alter the impression that is now prevalent in the country; that all talk of human rights is nothing but a farce.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission
