We are producing today a submission made by the Asian Human Rights Commission to the Constitutional Reforms Committee.
In our submission among other things , we have made the following argument.
That the state of the law enforcement agencies, particularly the policing service, and other branches of the administration of justice, the Attorney General’s Department, and the judiciary in Sri Lanka is in a state of serious collapse;
So long as this state of collapse remains, it would not be possible to implement any constitution within the framework of the rule of law under the principles of the Supremacy of law;
What this implies is the very status of the concept of legality is under serious threat in Sri Lanka due to constitutional experiments of 1972 and 1978, in particular;
Therefore, it is futile to create a constitution that cannot be implemented;
It is thereby imperative that those engaged in the drafting of the newly proposed constitution should address the matter of enforceability of the constitution through the law enforcement agencies and the institutions of the administration of justice as an issue of paramount importance;
This implies that:
A. The Constitution must provide conceptual and a practical programme for revitalising the law enforcement agencies, particularly the policing service and other branches of administration of justice such as the Attorney General’s Department and the judiciary.
B. That such conceptual and practical measures should address the issues of providing funding for a functional system of law enforcement and judiciary, whereby the dysfunctional state that it is in now could be brought to an end; A constitution does not provide a conceptual framework for adequately funded institutions of justice, which is a dead letter from the very start.
C. There are other measures, that should also be made to ensure the establishment of the rule of law through a functioning law enforcement and judicial institutions.
D. Among other things, this conceptual framework can be made through a clear and a strong statement of the basic structure of the state of which a functional law enforcement agencies , in particular the police and the judiciary as an integral part; this basic doctrine can be derived from the series of Indian cases known as the Judge’s cases beginning with 1) The KesavanandaBharati v State of Kerala and 2) the case of Supreme Court Advocates on record Association and another ( Petitioners) versus The Union of India, decided at the end of the year 2015.
E. The authority of the courts which has been seriously undermined should be reinstated to a position where the courts could function as a separate branch of government, functioning under the separation of powers principles and the checks and balances as developed in the constitutional theory (vide The Federalist Papers); The issue of the impeachment of the Superior Court judges should be finally dealt with in terms of the internationally accepted standards. Regarding the appointment of the Superior Court judges the phrase, ‘in consultation with the Chief Justice” should be interpreted in the same manner as it is being done in India in a series of judges cases mentioned above, to mean that primacy in selection must be in the hands of the Chief Justice and a collegium of senior Supreme Court judges.
F. At the same time, the meaning of the authority of courts, should include adequate funding for functional system of justice so that adequate number of judges, court building and all other things that go with it, and adequately funded criminal investigations branch should be included.
G. The issue of the Commission against Bribery and Corruption must also be dealt with as part of the obligation of the state to use its coercive power to ensure that all those who work as its officials abide by law – meaning that a corrupt system is a lawless system and lawlessness and constitutionality is incompatible.
H. In drafting the section on human rights, the right to life, right to a fair trial without undue delay and an effective remedy for violations of rights which go far beyond the Article 126 of the 1978 Constitution should be envisaged. Mere declarations by the Supreme Court and mere symbolic compensation has not contributed to the ending of serious human rights violations. Therefore, this constitutional remedy must be strengthened to be in keeping with Article 2 of the International Covenant on Civil and Political Rights (ICCPR).
I. Eliminating extra judicial killings should be carefully drafted to avoid the repetition of mass killings that have taken place in Sri Lanka over several decades after their arrests have been secured. In the same manner, elimination of torture and ill treatment, with an effective remedy to prevent it should become an integral part of the constitution, given the extremely bad record Sri Lanka has had regarding this matter.
J. Delays in adjudication including delays in investigations in filing of prosecutions and adjudication in the courts, should be made into a violation of a fundamental rights to justice and should justiciable both under fundamental rights and other legal remedies.
The full document can be accessed http://www.humanrights.asia/news/ahrc-news/pdf/Submission-to-the-Constitutional-Reforms.pdf/
